Commission staff working document - Situation in the different sectors - Accompanying document to the Report from the Commission - 26th Annual Report on monitoring the application of community law (2008) {COM(2009) 675 final}
Date: 2009-12-15
Institutions: European Commission
Subjects: EU control, activity report, application of EU law, national implementing measure

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EUROPEAN COMMISSION 

Brussels, 15.12.2009 
SEC(2009) 1684 

COMMISSION STAFF WORKING DOCUMENT 

SITUATION IN THE DIFFERENT SECTORS 

Accompanying document to the 

REPORT FROM THE COMMISSION 

26th ANNUAL REPORT ON MONITORING THE APPLICATION OF 
COMMUNITY LAW (2008) 

{COM(2009) 675 final} 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

ECONOMIC AND FINANCIAL AFFAIRS ......................................................... 17 

ENTERPRISE AND INDUSTRY........................................................................... 17 

General introduction................................................................................................ 17 

Automotive Industry................................................................................................ 20 

Chemicals .................................................................................................................. 23 

Pharmaceuticals ....................................................................................................... 27 

2.5.  Medical devices......................................................................................................... 29 

2.6. 

Cosmetics .................................................................................................................. 30 

2.7.  Mechanical, electrical and telecommunications equipment................................. 31 

2.8. 

Gas appliances, pressure equipment and legal metrology ................................... 33 

2.8.1.  Gas appliances ........................................................................................................... 33 

2.8.2.  Pressure equipment.................................................................................................... 33 

2.8.3.  Legal metrology ......................................................................................................... 34 

2.9. 

Construction products ............................................................................................. 36 

2.10.  Textiles/clothing, footwear and wood..................................................................... 37 

2.11.  Toys............................................................................................................................ 39 

2.12.  Cultural goods .......................................................................................................... 39 

2.13.  Late payment ............................................................................................................ 39 

2.14.  Weapons .................................................................................................................... 40 

2.15. 

Product liability........................................................................................................ 40 

2.16.  Defence goods ........................................................................................................... 41 

2.17.  Non-harmonised area............................................................................................... 41 

2.18. 

Preventive rules of Directive 98/34/EC .................................................................. 44 

3. 

COMPETITION ...................................................................................................... 45 

3.1. 

Current position ....................................................................................................... 45 

3.1.1.  General Introduction.................................................................................................. 45 

3.1.2.  Work done in 2008 ..................................................................................................... 46 

3.2. 

3.3. 

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Evaluation based on the current situation ............................................................. 49 

Priorities and planned action .................................................................................. 50 

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4. 

EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES ....... 51 

4.1. 

Free movement of workers and coordination of social security schemes ........... 51 

4.1.1.  Current Position......................................................................................................... 51 

4.1.2.  Evaluation of the current situation ............................................................................ 56 

4.1.3.  Evaluation results - priorities for 2009/2010............................................................. 57 

4.1.4. 

Summary..................................................................................................................... 60 

4.2. 

Labour Law .............................................................................................................. 60 

4.2.1.  Current position ......................................................................................................... 60 

4.2.2.  Evaluation based on the current situation ................................................................. 64 

4.2.3.  Translation of the evaluation into priorities and actions in 2009 ............................. 65 

4.2.4. 

Summary..................................................................................................................... 66 

4.3. 

Health and safety at work........................................................................................ 66 

4.3.1.  Current Position......................................................................................................... 66 

4.3.2.  Evaluation of the current situation ............................................................................ 69 

4.3.3.  Evaluation results (priorities and planned actions for 2009).................................... 70 

4.3.4. 

Summary..................................................................................................................... 71 

4.4. 

Antidiscrimination and gender equality ................................................................ 71 

4.4.1.  Current position ......................................................................................................... 71 

4.4.2.  Evaluation of the current situation ............................................................................ 74 

4.4.3.  Evaluation results (priorities and planned actions for 2009).................................... 74 

4.4.4. 

Summary..................................................................................................................... 75 

5. 

AGRICULTURE AND RURAL DEVELOPMENT............................................. 76 

5.1. 

Current position ....................................................................................................... 76 

5.1.1.  General introduction.................................................................................................. 76 

5.1.2.  Report of work done in 2008...................................................................................... 77 

5.2. 

Evaluation ................................................................................................................. 88 

5.2.1.  General evaluation..................................................................................................... 88 

5.2.2. 

Sector based remarks ................................................................................................. 88 

5.3. 

Evaluation results..................................................................................................... 91 

5.3.1.  Priorities and action planed 2009.............................................................................. 91 

6. 

ENERGY AND TRANSPORT ............................................................................... 94 

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6.1. 

ENERGY - Internal electricity and gas market .................................................... 94 

6.1.1.  Current position ......................................................................................................... 94 

6.1.2.  Evaluation of the current position.............................................................................. 95 

6.1.3.  Evaluation results....................................................................................................... 95 

6.1.4. 

Sector summary.......................................................................................................... 96 

6.2. 

ENERGY - Coal and Oil.......................................................................................... 96 

6.2.1.  Current position ......................................................................................................... 96 

6.2.2.  Evaluation of the current position.............................................................................. 97 

6.2.3.  Evaluation results....................................................................................................... 98 

6.2.4. 

Sector summary.......................................................................................................... 98 

6.3. 

ENERGY - Renewable energy sources .................................................................. 98 

6.3.1.  Current position ......................................................................................................... 98 

6.3.2.  Evaluation of the current position.............................................................................. 99 

6.3.3.  Evaluation results....................................................................................................... 99 

6.3.4. 

Sector summary.......................................................................................................... 99 

6.4. 

ENERGY - Energy Efficiency of Products .......................................................... 100 

6.4.1.  Current position ....................................................................................................... 100 

6.4.2.  Evaluation of the current position............................................................................ 101 

6.4.3.  Evaluation results..................................................................................................... 101 

6.4.4. 

Sector summary........................................................................................................ 101 

6.5. 

ENERGY - Energy performance of buildings..................................................... 101 

6.5.1.  Current position ....................................................................................................... 101 

6.5.2.  Evaluation of the current position............................................................................ 102 

6.5.3.  Evaluation results..................................................................................................... 102 

6.5.4. 

Sector summary........................................................................................................ 103 

6.6. 

ENERGY - Energy end-use efficiency and energy services ............................... 103 

6.6.1.  Current position ....................................................................................................... 103 

6.6.2.  Evaluation of the current position............................................................................ 104 

6.6.3.  Evaluation results..................................................................................................... 104 

6.6.4. 

Sector summary........................................................................................................ 104 

6.7. 

ENERGY - Combined heat and power generation (cogeneration, CHP)......... 104 

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6.7.1.  Current position ....................................................................................................... 104 

6.7.2.  Evaluation of the current position............................................................................ 105 

6.7.3.  Evaluation results..................................................................................................... 105 

6.7.4. 

Sector summary........................................................................................................ 105 

6.8. 

ENERGY - Nuclear Energy .................................................................................. 106 

6.8.1.  Current position ....................................................................................................... 106 

6.8.2.  Evaluation of the current position............................................................................ 108 

6.8.3.  Evaluation results..................................................................................................... 109 

6.8.4. 

Sector summary........................................................................................................ 109 

6.9. 

TRANSPORT - Passengers' rights ....................................................................... 110 

6.9.1.  Current position ....................................................................................................... 110 

6.9.2.  Evaluation of the current position............................................................................ 111 

6.9.3.  Evaluation results..................................................................................................... 111 

6.9.4. 

Sector summary........................................................................................................ 111 

6.10.  TRANSPORT - Inland Waterway Transport ..................................................... 112 

6.10.1.  Current position ....................................................................................................... 112 

6.10.2.  Evaluation of the current position............................................................................ 113 

6.10.3.  Evaluation results..................................................................................................... 113 

6.10.4.  Sector summary........................................................................................................ 114 

6.11.  TRANSPORT - Logistics and co-modality .......................................................... 114 

6.11.1.  Current situation ...................................................................................................... 114 

6.11.2.  Evaluation of the current position............................................................................ 114 

6.11.3.  Evaluation results..................................................................................................... 114 

6.11.4.  Sector summary........................................................................................................ 114 

6.12.  TRANSPORT - Inland Transport........................................................................ 115 

6.12.1.  Current position ....................................................................................................... 115 

6.12.2.  Evaluation ................................................................................................................ 116 

6.12.3.  Evaluation results..................................................................................................... 117 

6.12.4.  Summary by sector ................................................................................................... 118 

6.13.  TRANSPORT - Air Transport ............................................................................. 118 

6.13.1.  Current position ....................................................................................................... 118 

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6.13.2.  Evaluation of the current position............................................................................ 125 

6.13.3.  Evaluation results..................................................................................................... 127 

6.13.4.  Summary by sector ................................................................................................... 130 

6.14.  TRANSPORT - Maritime Safety.......................................................................... 132 

6.14.1.  Current position ....................................................................................................... 132 

6.14.2.  Evaluation of the current position............................................................................ 134 

6.14.3.  Evaluation results..................................................................................................... 134 

6.14.4.  Sector summary........................................................................................................ 135 

6.15.  TRANSPORT - Maritime Security ...................................................................... 135 

6.15.1.  Current position ....................................................................................................... 135 

6.15.2.  Evaluation of the current position............................................................................ 137 

6.15.3.  Evaluation results..................................................................................................... 137 

6.15.4.  Sector summary........................................................................................................ 137 

7. 

ENVIRONMENT................................................................................................... 138 

7.1. 

Nature Conservation.............................................................................................. 138 

7.1.1.  Current position ....................................................................................................... 138 

7.1.2.  Evaluation based on the current situation ............................................................... 141 

7.1.3.  Evaluation results..................................................................................................... 142 

7.1.4. 

Summary by sector ................................................................................................... 143 

7.2.  Waste Management................................................................................................ 144 

7.2.1.  Current position ....................................................................................................... 144 

7.2.2.  Evaluation based on the current situation ............................................................... 149 

7.2.3.  Evaluation results..................................................................................................... 149 

7.2.4. 

Sector summary........................................................................................................ 151 

7.3. 

Environmental Impact Assessment and Strategic Environmental Assessment151 

7.3.1.  Current position ....................................................................................................... 151 

7.3.2.  Evaluation based on the current situation ............................................................... 154 

7.3.3.  Evaluation results..................................................................................................... 154 

7.3.4. 

Sector summary........................................................................................................ 155 

7.4. 

Protecting Water Resources.................................................................................. 156 

7.4.1.  Current position ....................................................................................................... 156 

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7.4.2.  Evaluation based on the current situation ............................................................... 160 

7.4.3.  Evaluation results..................................................................................................... 161 

7.4.4. 

Sector summary........................................................................................................ 163 

7.5. 

Air quality ............................................................................................................... 164 

7.5.1.  Current position ....................................................................................................... 164 

7.5.2.  Evaluation based on the current situation ............................................................... 166 

7.5.3.  Evaluation results..................................................................................................... 167 

7.5.4. 

Sector summary........................................................................................................ 168 

7.6. 

Climate change ....................................................................................................... 168 

7.6.1.  Current position ....................................................................................................... 168 

7.6.2.  Evaluation based on the current situation ............................................................... 173 

7.6.3.  Evaluation results..................................................................................................... 175 

7.6.4. 

Sector summary........................................................................................................ 178 

7.7. 

Industrial installations ........................................................................................... 179 

7.7.1.  Current position ....................................................................................................... 179 

7.7.2.  Evaluation based on the current situation ............................................................... 182 

7.7.3.  Evaluation results..................................................................................................... 184 

7.7.4. 

Sector summary........................................................................................................ 186 

7.8. 

Chemicals, Pesticides, Biocides and Biotechnology ............................................ 186 

7.8.1.  Current position ....................................................................................................... 186 

7.8.2.  Evaluation based on the current situation ............................................................... 191 

7.8.3.  Evaluation results..................................................................................................... 192 

7.8.4. 

Sector summary........................................................................................................ 194 

7.9. 

Governance and Environmental Liability ........................................................... 195 

7.9.1.  Current position ....................................................................................................... 195 

7.9.2.  Evaluation based on the current situation ............................................................... 196 

7.9.3.  Evaluation results..................................................................................................... 197 

7.9.4. 

Sector summary........................................................................................................ 198 

8. 

8.1. 

8.2. 

INFORMATION SOCIETY AND MEDIA......................................................... 198 

General Overview................................................................................................... 198 

Electronic communications ................................................................................... 199 

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8.2.1.  Current position ....................................................................................................... 199 

8.2.2.  Changes underway ................................................................................................... 204 

8.2.3.  Evaluation based on the current situation ............................................................... 205 

8.2.4.  Evaluation: priorities and planned action (2009 and beyond)................................ 205 

8.3. 

The Audiovisual and Media .................................................................................. 205 

8.3.1.  Current position ....................................................................................................... 205 

8.3.2.  Changes Underway .................................................................................................. 207 

8.3.3.  Evaluation based on the current situation ............................................................... 207 

8.3.4.  Evaluation results: priorities and planned action (2009 and beyond) .................... 207 

8.4. 

Public Sector Information ..................................................................................... 208 

8.4.1.  Current Position....................................................................................................... 208 

8.4.2.  Evaluation based on the current situation ............................................................... 209 

8.4.3.  Evaluation results..................................................................................................... 209 

8.4.4. 

Sector summary........................................................................................................ 210 

8.4.5.  Measures in force..................................................................................................... 210 

8.5. 

Electronic Signatures ............................................................................................. 210 

8.5.1.  Current Position....................................................................................................... 210 

8.5.2.  Evaluation ................................................................................................................ 211 

9. 

MARITIME AFFAIRS AND FISHERIES.......................................................... 211 

9.1. 

Current situation.................................................................................................... 211 

9.1.1.  General introduction................................................................................................ 211 

9.1.2.  Work done in 2008 ................................................................................................... 212 

9.2. 

9.3. 

Evaluation ............................................................................................................... 214 

Evaluation results................................................................................................... 215 

9.3.1.  Priorities .................................................................................................................. 215 

9.3.2.  Planned action (for 2009 and beyond)..................................................................... 215 

9.4.  Measures in force ................................................................................................... 216 

10. 

INTERNAL MARKET AND SERVICES ........................................................... 216 

10.1.  General overview.................................................................................................... 216 

10.1.1.  Efficient and effective enforcement of Community law – achievements in 2008 ..... 216 

10.1.2.  Key challenges for 2009-2010 ................................................................................. 219 

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10.2.  Analysis by sector................................................................................................... 223 

10.2.1.  Freedom to provide services and freedom of establishment (other than Financial 

Services) ................................................................................................................... 223 

10.2.2.  Financial Services.................................................................................................... 232 

10.2.3.  Free movement of capital (Articles 56 et seq. EC) .................................................. 243 

10.2.4.  Public procurement.................................................................................................. 245 

10.2.5.  Regulated professions (qualifications)..................................................................... 249 

10.2.6.  The business environment ........................................................................................ 255 

10.2.7.  Protection of rights .................................................................................................. 261 

11. 

REGIONAL POLICY ........................................................................................... 264 

11.1.  Current situation.................................................................................................... 264 

11.1.1.  General introduction................................................................................................ 264 

11.1.2.  Report of work done in 2008.................................................................................... 265 

11.2.  Evaluation based on the current situation ........................................................... 267 

11.2.1.  Satisfactory or problematic nature of the current situation..................................... 267 

11.2.2.  Importance of the impact of the identified problems on the objectives of the acquis

.................................................................................................................................. 268 

11.2.3.  Responsibility for the problems and their correction .............................................. 268 

11.2.4.  Nature, urgency and scale of the corrective action required................................... 268 

11.3.  Evaluation results................................................................................................... 269 

11.3.1.  Priorities .................................................................................................................. 269 

11.3.2.  Planned action (2009 and beyond) .......................................................................... 269 

12. 

TAXATION AND CUSTOMS SERVICES......................................................... 271 

12.1. 

Situation in the sector of CUSTOMS ................................................................... 271 

12.1.1.  Current position ....................................................................................................... 271 

12.1.2.  Evaluation based on the current situation ............................................................... 272 

12.1.3.  Evaluation results..................................................................................................... 273 

12.2. 

Situation in the sector of INDIRECT TAXATION ............................................ 274 

12.2.1.  Current position ....................................................................................................... 274 

12.2.2.  Evaluation based on the current situation ............................................................... 278 

12.2.3.  Evaluation results..................................................................................................... 279 

12.3. 

Situation in the sector of DIRECT TAXATION................................................. 280 

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12.3.1.  Current position ....................................................................................................... 280 

12.3.2.  Evaluation based on current situation ..................................................................... 282 

12.3.3.  Evaluation results..................................................................................................... 283 

13. 

EDUCATION AND CULTURE ........................................................................... 283 

13.1.  Current position ..................................................................................................... 283 

13.1.1.  General introduction................................................................................................ 283 

13.2.  Report of work done in 2008 ................................................................................. 285 

13.3.  Evaluation results................................................................................................... 286 

13.3.1.  Priorities .................................................................................................................. 286 

13.3.2.  Planned action ......................................................................................................... 287 

14. 

HEALTH AND CONSUMERS ............................................................................ 287 

14.1. 

Introduction ............................................................................................................ 287 

14.1.1.  Prevention ................................................................................................................ 288 

14.1.2.  Audits and Inspections ............................................................................................. 290 

14.1.3.  Prioritisation of Infringements................................................................................. 290 

14.1.4.  Future Challenges.................................................................................................... 291 

14.2. 

Public Health .......................................................................................................... 291 

14.2.1.  General Introduction................................................................................................ 291 

14.2.2.  Report of Work Done in 2008 .................................................................................. 292 

14.2.3.  Evaluation, Priorities & Perspectives...................................................................... 293 

14.2.4.  Summary of Sector ................................................................................................... 294 

14.3.  Consumer Affairs ................................................................................................... 294 

14.3.1.  General Introduction................................................................................................ 294 

14.3.2.  Report of Work Done in 2008 .................................................................................. 294 

14.3.3.  Evaluation, Priorities & Perspectives...................................................................... 302 

14.3.4.  Summary of Sector ................................................................................................... 302 

14.4. 

Food Safety ............................................................................................................. 302 

14.4.1.  General Introduction................................................................................................ 302 

14.4.2.  Work done in 2008 ................................................................................................... 303 

14.4.3.  Food Hygiene ........................................................................................................... 305 

14.4.4.  Food Labelling ......................................................................................................... 307 

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14.4.5.  Nutrition labelling.................................................................................................... 308 

14.4.6.  Nutrition and Health Claims.................................................................................... 309 

14.4.7.  Dietetic foodstuffs..................................................................................................... 310 

14.4.8.  Food Supplements .................................................................................................... 311 

14.4.9.  Voluntary addition of vitamins and minerals and of certain other substances to 

foodstuffs .................................................................................................................. 312 

14.4.10. GMO Food and Feed ............................................................................................... 312 

14.4.11. Novel Foods ............................................................................................................. 313 

14.4.12. Food additives.......................................................................................................... 315 

14.4.13. Food enzymes ........................................................................................................... 315 

14.4.14. Food Flavourings..................................................................................................... 316 

14.4.15. Food Contact Materials ........................................................................................... 317 

14.4.16. Plant Protection Products– Pesticide Residues....................................................... 318 

14.4.17. Contaminants in food ............................................................................................... 320 

14.4.18. Animal Health - Zoonoses........................................................................................ 323 

14.4.19. Transmissible Spongiform Encephalopathies .......................................................... 324 

14.4.20. Animal Health – Non Zoonotic Diseases ................................................................. 325 

14.4.21. Veterinary Import Controls – Live animals and their products............................... 328 

14.4.22. Animal feed and animal by-products ....................................................................... 329 

14.4.23. Plant Health ............................................................................................................. 338 

14.4.24. Seeds and Plant Propagating Material.................................................................... 339 

14.4.25. Plant Variety Rights ................................................................................................. 341 

15. 

JUSTICE, FREEDOM AND SECURITY ........................................................... 341 

15.1. 

Immigration and integration................................................................................. 341 

15.1.1.  Current position: general introduction.................................................................... 341 

15.1.2.  Current position: Report on work done in 2008 ...................................................... 342 

15.1.3.  Evaluation of work done in 2008 ............................................................................. 343 

15.1.4.  Evaluation results: priorities ................................................................................... 344 

15.1.5.  Evaluation results: planned action (2009 and beyond) ........................................... 344 

15.1.6.  Summary................................................................................................................... 345 

15.2.  Asylum..................................................................................................................... 345 

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15.2.1.  Current position – report on work done in 2008 ..................................................... 345 

15.2.2.  Legislative changes underway (2009-2010) ............................................................ 346 

15.2.3.  Evaluation based on the current situation ............................................................... 347 

15.2.4.  Evaluation results: priorities and planned action ................................................... 347 

15.2.5.  Summary................................................................................................................... 348 

15.3.  European visa policy .............................................................................................. 348 

15.3.1.  Current position: general introduction.................................................................... 348 

15.3.2.  Report on work done in 2008 ................................................................................... 348 

15.3.3.  Evaluation based on the current situation ............................................................... 349 

15.3.4.  Evaluation results: priorities and planned action (2009 and beyond) .................... 349 

15.4.  Document Security - European passport and residence permits....................... 349 

15.4.1.  Current position – report on work done in 2008 ..................................................... 349 

15.4.2.  Evaluation based on the current situation ............................................................... 349 

15.4.3.  Evaluation results: priorities and planned action (2009 and beyond) .................... 350 

15.5.  Border management and return policy................................................................ 350 

15.5.1.  Current position: general introduction.................................................................... 350 

15.5.2.  Current position: report on work done in 2008 ....................................................... 350 

15.5.3.  Evaluation based on the current situation ............................................................... 351 

15.5.4.  Evaluation results: priorities ................................................................................... 351 

15.5.5.  Evaluation results: planned action (2009 and beyond) ........................................... 352 

15.6. 

Free movement of persons..................................................................................... 352 

15.6.1.  Current position: general introduction.................................................................... 352 

15.6.2.  Current position – report on work done in 2008 ..................................................... 353 

15.6.3.  Evaluation based on the current situation ............................................................... 354 

15.6.4.  Evaluation results: priorities ................................................................................... 355 

15.6.5.  Evaluation results: planned action (2009 and beyond) ........................................... 355 

15.6.6.  Summary................................................................................................................... 355 

15.7.  Citizenship .............................................................................................................. 356 

15.7.1.  Current position: general introduction.................................................................... 356 

15.7.2.  Current position – report on work done in 2008 ..................................................... 356 

15.7.3.  Evaluation based on the current situation ............................................................... 357 

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15.7.4.  Evaluation results: priorities ................................................................................... 357 

15.7.5.  Evaluation results: planned action (2009 and beyond) ........................................... 358 

15.7.6.  Summary................................................................................................................... 358 

15.8. 

Fundamental rights................................................................................................ 358 

15.8.1.  Current position: general introduction.................................................................... 358 

15.8.2.  Current position – report on work done in 2008 ..................................................... 359 

15.9. 

Protection of personal data ................................................................................... 359 

15.9.1.  Current position – report on work done in 2008 ..................................................... 359 

15.9.2.  Evaluation based on the current situation ............................................................... 359 

15.9.3.  Evaluation results: priorities and planned action (2009 and beyond) .................... 360 

15.10.  Judicial cooperation in civil matters .................................................................... 360 

15.10.1. Current position – report on work done in 2008 ..................................................... 360 

15.10.2. Evaluation based on the current situation ............................................................... 361 

15.10.3. Evaluation results: priorities ................................................................................... 362 

15.10.4. Evaluation results: planned action (2009 and beyond) ........................................... 363 

15.10.5. Summary................................................................................................................... 364 

15.11.  Security.................................................................................................................... 365 

15.12.  List of legal measures in force............................................................................... 365 

16. 

17. 

TRADE.................................................................................................................... 366 

ENLARGEMENT .................................................................................................. 366 

17.1.  Current position – Relevant legal instruments and related work and reporting 

on 2008..................................................................................................................... 366 

17.1.1.  General introduction................................................................................................ 366 

17.1.2.  Report of work done in 2008.................................................................................... 367 

17.2.  Evaluation ............................................................................................................... 367 

17.3.  Evaluation results................................................................................................... 368 

17.4. 

Summary................................................................................................................. 368 

17.5.  Legal measures in force ......................................................................................... 368 

18. 

EUROSTAT............................................................................................................ 368 

18.1.  Current position- Report on 2008......................................................................... 368 

18.2.  Legislative changes underway (2008-2012).......................................................... 368 

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18.3.  Evaluation ............................................................................................................... 369 

18.4. 

Priorities.................................................................................................................. 369 

18.5. 

Planned action ........................................................................................................ 369 

19. 

PERSONNEL AND ADMINISTRATION .......................................................... 370 

19.1.  Current position – Most important legal instruments and related work and 

reporting on 2008 ................................................................................................... 370 

19.1.1.  Existing measures in force ....................................................................................... 370 

19.1.2.  Report of work done in 2008.................................................................................... 370 

19.2.  Evaluation based on the current situation ........................................................... 371 

20. 

BUDGET................................................................................................................. 371 

20.1.  Current position – relevant legal instruments and related work and reporting 

on 2008..................................................................................................................... 371 

20.1.1.  Existing measures in force ....................................................................................... 371 

20.1.2.  Report of work done in 2008.................................................................................... 371 

20.1.3.  Volume of infringements work and petitions............................................................ 372 

20.2.  Evaluation ............................................................................................................... 373 

Annex I - List of measures in force and other relevant instruments referred to in the text 
of the document ...................................................................................................... 374 

I. 

I.1. 

II. 

ENTERPRISE AND INDUSTRY......................................................................... 374 

Pharmaceuticals ..................................................................................................... 374 

EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES ..... 374 

II.1. 

Free movement of workers and coordination of social security schemes ......... 374 

II.1.1.  Free movement of workers ....................................................................................... 374 

II.1.2 

Social security .......................................................................................................... 375 

II.2. 

Labour Law ............................................................................................................ 375 

II.2.1.  Working conditions .................................................................................................. 375 

II.2.2. 

Information and consultation of workers................................................................. 376 

II.2.3.  Protection of workers............................................................................................... 377 

II.2.4. 

Implementation and application reports.................................................................. 378 

II.3.  Health and safety at work...................................................................................... 378 

II.4.  Gender equality and anti-discrimination............................................................. 382 

II.4.1.  Gender equality........................................................................................................ 382 

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II.4.2.  Anti-discrimination .................................................................................................. 383 

III. 

ENERGY AND TRANSPORT ............................................................................. 383 

III.1.  ENERGY................................................................................................................. 383 

III.2.  TRANSPORT ......................................................................................................... 384 

IV. 

INTERNAL MARKET AND SERVICES ........................................................... 388 

IV.1.  Existing and in force acquis .................................................................................. 388 

IV.2.  Recently adopted measures ................................................................................... 388 

IV.3.  New measures already proposed and due to be adopted.................................... 388 

V. 

TAXATION AND CUSTOMS UNION ............................................................... 390 

V.1. 

CUSTOMS .............................................................................................................. 390 

V.2. 

INDIRECT TAXATION ....................................................................................... 391 

V.3. 

DIRECT TAXATION............................................................................................ 392 

VI. 

HEALTH AND CONSUMERS ............................................................................ 393 

VI.1.  Public Health .......................................................................................................... 393 

VI.2.  Consumers .............................................................................................................. 394 

VI.3.  Food Safety ............................................................................................................. 396 

VI.3.1.  General..................................................................................................................... 396 

VI.3.2.  Veterinary................................................................................................................. 396 

VI.3.3.  Food Safety Rules..................................................................................................... 401 

VI.3.4.  Feed.......................................................................................................................... 404 

VI.3.5.  Phytosanitary ........................................................................................................... 404 

VII. 

JUSTICE, FREEDOM AND SECURITY ........................................................... 410 

VII.1.  Treaty provisions.................................................................................................... 410 

VII.1.1.  Fundamental rights .................................................................................................. 410 

VII.1.2.  Citizenship................................................................................................................ 410 

VII.1.3.  Protection of personal data...................................................................................... 410 

VII.1.4.  Judicial cooperation in civil matters........................................................................ 410 

VII.2.  Regulations.............................................................................................................. 410 

VII.2.1.  Asylum ...................................................................................................................... 410 

VII.2.2.  Visas ......................................................................................................................... 411 

VII.2.3.  Border management and return policy .................................................................... 412 

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VII.2.4.  Protection of personal data...................................................................................... 413 

VII.2.5.  Judicial cooperation in civil matters........................................................................ 413 

VII.3.  Directives................................................................................................................. 415 

VII.3.1.  Immigration and integration .................................................................................... 415 

VII.3.2.  Asylum ...................................................................................................................... 415 

VII.3.3.  Border management and return policy .................................................................... 416 

VII.3.4.  Free movement of persons ....................................................................................... 416 

VII.3.5.  Citizenship................................................................................................................ 416 

VII.3.6.  Protection of personal data...................................................................................... 417 

VII.3.7.  Judicial cooperation in civil matters........................................................................ 417 

VII.3.8.  Security..................................................................................................................... 417 

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SITUATION IN THE DIFFERENT SECTORS 

1.  ECONOMIC AND FINANCIAL AFFAIRS 

In 2008, there has not been any formal infringement procedure initiated by the Commission in 
the field of Economic and Financial Affairs  

However, the Commission services received two formal complaints from staff representatives 
of the Bank of Greece on the occasion of the inclusion of the Central Bank's pension fund in a 
new  State-run  pension  fund.  This  measure  has  been  foreseen  by  the  provisions  of  Law 
3655/2008  on  'Administrative  and  organisational  reform  of  the  social  security  system  and 
other security provisions'.  

The plaintiffs claimed, inter alia, that the respective provision would constitute a violation to 
the prohibition on monetary financing and the Central Bank's independence as laid down in 
Articles 101 and 108 of the EC Treaty.  

In order to prepare a sound assessment of the compliance of the law with the Treaty, it was 
deemed necessary to receive information on the financial situation of the Greek Pension Fund, 
including a validation by an independent auditor.  

The  Commission  services  officially  asked  therefore  the  Greek  authorities  to  provide  the 
information  needed  for  the  assessment.  After  examination  of  the  requested  information,  the 
Commission  sent  out  a  letter  in  2009  confirming  the  Commission's  decision  of  closing  the 
case  since  no  new  elements  on  the  subject  of  the  non  observance  of  Community  Law  were 
provided  to  the  Commission.  In  particular,  after  an  in-depth  analysis  of  the  information 
received, the Commission reached the conclusion that the respective law did not violate the 
Treaty rules on Central Bank independence and the prohibition on monetary financing. 

2.  ENTERPRISE AND INDUSTRY 

2.1. 

General introduction 

Responsibility for ensuring the free movement of goods within the Single Market is entrusted 
to  the  Commission  services  in  charge  of  "Enterprise  and  Industry"  sector.  These  services 
manage a large part of the Community acquis consisting of Articles 28 to 30 EC in the non-
harmonised  area  and  a  large  quantity  of  subordinate  Community  legislation  (regulations, 
directives  and  decisions)  in  the  harmonised  area.  The  acquis  of  the  European  Union  in  the 
"Enterprise and Industry" sector can be found on the web at the following address:  

http://europa_eu.staging.entr.cec.eu.int/enterprise/newapproach/pdf/pink_book_2007.pdf  

As ‘harmonising’ rules are adopted in more and more sectors of the Single Market, the non-
harmonised  area  is  gradually  shrinking.  But  some  25%  of  the  market  is  still  not  subject  to 
harmonised  rules  and,  here,  Articles  28-30  EC  ensure  the  easy  cross-border  exchange  of 
goods. 

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Generally  speaking,  the  Community  acquis  governing the free movement  of  goods is stable 
and effective, although the highly technical nature of much of the legislation means that there 
is always considerable activity adapting it to technological progress. 

Significant  changes  are  being  made  to  the  acquis  managed  by  the  Commission  in  the 
"Enterprise and Industry" sector; for example in  

o 

o 

the  automotive  sector  (with  the  forthcoming  recasting  of  the  framework  legislation  for 
type-approvals  and  a  shift  to  regulations  rather  than  directives  in  EC  implementing 
legislation),  
the  chemicals  sector  (with  the  application  from  1  June  2008  of  most  of  the  REACH 
Regulation  and  the  adoption  at  the  end  of  2008  of  a  new  Regulation  on  classification, 
labelling and packaging of substances and mixtures ),  

o  pharmaceuticals  (with  the  adoption  by  the  Commission  on  10  December  2008  of  a 
package  consisting  of  a  Communication  on  the  future  single  market  in  pharmaceuticals, 
and  3  legislative  proposals  on  information  to  patients,  counterfeit  medicines  and 
pharmacovigilance). 

The  Commission's  legislative  activity  in  the  "Enterprise  and  Industry"  sector  is  fully  in 
accordance  with  the  “Better  Regulation”  plan.  In  this  sense,  the  Commission  considers  the 
simplification  and  codification  of  existing  legislation  as  important  tools  in  achieving  better 
implementation of EU law. Six proposals, on toy safety, on pharmaceuticals(2), vehicle safety 
features,  construction  products  and  measuring  instruments,  were  delivered  in  the  2008 
simplification  programme  and  the  Commission  is  presenting  a  further  four  proposals  for 
adoption  in  2009  (on  agricultural  and  forestry  tractors,  fertilizers,  textiles  and  wheels  for 
motor  vehicles).  The  proposal  to  recast  the  late  payment  directive  was  adopted  on  8  April 
2009 and is part of the Small Business Act adopted in June 2008 which for the first time puts 
into place a comprehensive SME policy framework for the EU and its Member States. 

In  a  move  to  strengthen  the  Single  Market,  in  2008  the  Community  legislator  adopted  a 
“goods  package”  of  measures,  including  a  Regulation  on  procedural  aspects  of  the  mutual 
recognition  principle  (laying  down  procedures  relating  to  the  application  of  certain  national 
technical rules to products lawfully marketed in another Member State). This new instrument 
addresses  some  of  the  issues  surrounding  mutual  recognition  of  products  and  thereby 
improves the smooth functioning of the internal market for goods.  

The goods package also contains instruments designed to boost production and trade in goods 
in the harmonised area by providing a clear and consistent horizontal framework to simplify 
the  application  of  EU  harmonising  legislation.  At  the  same  time,  it  strengthens  rules  on 
market  surveillance  to  protect  consumers  from  unsafe  products  and  shelter  business  from 
unfair  competition  by  operators  not  complying  with  the  law.  The  implementation  of  this 
package will make it easier for companies, particularly SMEs, to sell their products in the EU 
whilst increasing consumer protection. The package will also reduce the risk for enterprises 
that  their  products  do  not  gain  access  to  the  market  of  the  Member  State  of  destination. 
Special efforts are being made to guarantee their timely and correct application. 

The  Commission  also  prepared  an  internal  market  directive  to  simplify  the  terms  and 
conditions governing the intra-Community transfer of defence-related products. This directive 
extends the coverage of the current acquis to facilitate the circulation of defence goods within 
the  EU.  During  2008,  the  Council  and  the  Parliament  paved  the  way  for  first  reading 

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agreement  which  came  on  16  December.  The  Directive,  which  has  been  published  in  June 
20091, has a two-year transposition period. 

The  Commission  also  provides  guidance  and  other  assistance  to  help  Member  States  to 
transpose  and  implement  new  directives  on  time.  Assistance  is  given  using  a  variety  of 
different tools (e.g. interpretative documents, bilateral meetings and Committee meetings). 

A  very  valuable  tool  for  dealing  in  advance  with  possible  technical  barriers  to  the  free 
movement of goods in the non-harmonised area is Directive 98/34/EC, which requires the 27 
Member  States,  the  EFTA  countries  and  Turkey  to  notify  all  national  technical  regulations 
concerning  products  and  Information  Society  Services  at  the  draft  stage.  The  steady  high 
number  of  notifications  (634  in  2008)  and  reactions  from  the  Commission  (199)  and  the 
Member  States  (184)  underlines  the  importance  of  Directive  98/34/EC  as  a  tool  for  the 
prevention  of  barriers  to  intra-Community  trade  -  and  indeed  for  better  regulation  since  it 
provides a forum for making suggestions to improve the quality of national legislation. Its ex 
ante  operation  means  that  time-consuming  and  sometimes  controversial  infringement 
procedures can be avoided. 

In  addition,  the  Commission  monitors  the  correct  application  of  these  rules  and  opens 
infringement  procedures  against  Member  States  if  necessary.  In  2008,  the  Commission 
registered 55 complaints and 3 own-initiative cases in this sector.  

But since the Commission services attach great importance to resolving problems coming to 
its  attention  as  quickly  as  possible,  they  also  support  the  use  of  methods  other  than 
infringement  proceedings,  like  the  EU  Pilot  project  designed  to  clarify  and  solve  problems 
with  the  application  of  EU  law  in  cooperation  with  the  Member  States  involved.  The 
Commission  services  also  organise  “package  meetings”  and  bilateral  meetings  with  the 
Member States to provide advice to national authorities to help ensure the correct application 
of the EU law.  

In the framework of infringement proceedings, non-communication cases and article 228 EC 
cases  are  dealt  with  as  quickly  as  possible,  given  their  automatic  priority  status  under  the 
September  Communication2.  In  accordance  with  the  other  criteria  set  out  in  the  September 
Communication,  since  2008  priority  status  in  this  sector  has  been  given  to  the  following 
cases.  

Non-harmonised area 

•  The  failure  by  a  MS  to  notify  national  technical  rules  in  draft  under  Directive  98/34/EC. 
Such failure renders the rules liable to be declared null and void. 

•  Breaches  of  Articles  28-30  EC  raising  horizontal  questions  about  the  functioning  of  the 
market. 

Harmonised area 

1 

2 

Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products 
within the Community (OJ L 146 of 10 June 2009) 
A Europe of Results – Applying Community Law (COM(2007) 502 of 5.9.2007 

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Breaches of key provisions or strategic objectives of directives, in particular new legislation 
which  nowadays  is  adopted  solely  in  response  to  a  demonstrable  need  to  correct/enhance 
market performance by regulatory action - its enforcement should be commensurate with the 
risk of failing to achieve the desired effect. 

The  considerable  share  of  the  Community  acquis  dealt  with  by  the  Commission  services 
responsible for the "Enterprise and Industry" sector covers a wide variety of product domains, 
in  relation  to  each  of  which  are  set  out  below  a  description  of  the  current  state  of  the 
legislation  in  force,  details  of  any  significant  changes  underway  or  planned  and  a  general 
evaluation of the effectiveness of regulatory framework in the domain concerned. Information 
is also provided about infringement proceedings pursued in each product domain.  

2.2. 

Automotive Industry 

Current position 

The  harmonized  legislation  in  the  automotive  sector  covers  three  categories  of  vehicles:  (i) 
motor vehicles and their trailers; (ii) two and three-wheel motor vehicles; and (iii) agricultural 
or  forestry  tractors.  The  legislation,  which  lays  down  common  requirements  designed  to 
protect  environmental  and  safety  objectives,  is  based  on  a  system  of  whole-vehicle  type 
approval which allows manufacturers to have a vehicle "type" approved in one Member State 
and then to market the vehicle in all other Member States without further tests. It deals with a 
multitude  of  detailed  technical  specifications  for  different  vehicle  systems  and  components 
which  are  frequently  modified  to  adapt  them  to  technical  progress  while  reducing  the 
regulatory burden on industry.  

In relation to type-approval of new vehicles, there are three main framework Directives: 

•  Directive  2007/46/EC  establishing  a  framework  for  the  approval  of  motor  vehicles  and 
their  trailers,  and  systems,  components  and  separate  technical  units  intended  for  such 
vehicles; 

•  Directive 2002/24/EC relating to the type-approval of two-or three-wheel motor vehicles; 

and  

•  Directive 2003/37/EC relating to the type-approval of agricultural or forestry tractors, their 
trailers and interchangeable towed machinery, together with their systems, components and 
separate technical units.  

In  addition  to  the  framework  Directives,  separate  regulatory  acts  lay  down  harmonized 
technical  requirements  for  the  type-approval  of  individual  parts  and  characteristics  of  a 
vehicle.  Hitherto,  these  acts  have  generally  been  adopted  as  Directives.  More  recently, 
however,  a  change  in  the  regulatory  approach  has  been  introduced  which  results  in  the 
adoption,  through  the  co-decision  process,  of  a  main  act  in  the  form  of  a  Regulation  laying 
down fundamental provisions while the technical specifications and administrative provisions 
for  type-approval  are  contained  in  implementing  measures  adopted  in  accordance  with 
comitology procedures (the "split-level" approach). Due to the global nature of the automotive 
industry,  many  of  these  technical  requirements  are  also  harmonized  at  international  level 
through UNECE Regulations.3 

3 

UNECE  Regulations  are  harmonized  technical  regulations  regarding  new  motor  vehicles  and  motor 
vehicle equipment that are adopted pursuant to the 1958 Agreement under the auspices of the United 

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Twenty-nine  infringement  cases  were  opened  during  2008  in  relation  to  Community 
legislation  in  this  sector.  The  vast  majority  of  these  cases  (25)  were  due  to  delays  in  the 
communication  of  national  measures  transposing  EC  Directives  (which  generally  contained 
technical updates of the acquis). The Member States most concerned by these cases were the 
Czech  Republic  (5  proceedings)  and  Portugal  (4).  Twenty-four  of  these  infringement  cases 
were  closed  after  national  implementation  measures  were  communicated  by  the  Member 
States concerned. In most cases, the communication of the national measures occurred before 
the Commission issued a Reasoned Opinion.  

During  2008  the  Commission  continued  to  deal  with  a  steady  number  of  questions, 
complaints  and  queries  in  relation  to  legislation  in  the  automotive  sector.  Complaints  or 
requests for information were also periodically sent via the petition procedure. Most inquiries 
were submitted by individuals or SMEs. The areas dealt with included matters such as vehicle 
exhaust  pollutant  emissions  and  noise  levels,  accessibility  requirements  applicable  to  bus 
interior  arrangement  and  administrative  formalities  on  imports  of  vehicles  from  third 
countries.  In  many  cases,  the  issues  raised  could  be  dealt  with  by  giving  guidance  on  the 
Commission's interpretation of the relevant EC legislation. Where the complaint turned out to 
be unsubstantiated, the matter was closed and the reasons for doing so explained.  

Only  four  complaints  were  registered  in  2008. One  was  closed  as  no  breach  of  Community 
law could be identified. A second case was closed after a change in the national legislation at 
issue.  The  remaining  two  complaints,  which  arise  out  of  the  same  facts  on  a  question  of 
proper application by the authorities of EC legislation, are still under examination. 

During  2008  the  Commission  also  replied  to  the  European  Ombudsman  in  relation  to  a 
request  for  an  opinion  on  the  interpretation  of  Directive  2001/85/EC  (type-approval  of 
buses/coaches) insofar as it affected the rights of access by passengers.  

Changes underway 

Although  a  well  recognized  legal  framework  exists,  the  Community  acquis  relating  to  the 
automotive sector is in constant evolution. In this regard, the direction of policy-making in the 
sector has been discussed by a High Level Group that brought together the main stakeholders 
(Member  States,  industry,  NGOs  and  MEPs)  and  the  recommendations  were  set  out  in  the 
CARS 21 Communication published in February 2007.4 Through the CARS 21 process, the 
Commission  has  developed  a  medium  to  long-term,  coordinated  and  predictable  policy 
framework for the automotive industry based on continuous dialogue and consultation with all 
main  stakeholders.  In  2008,  the  Commission  launched  a  mid-term  review  of  CARS  21, 
seeking views from stakeholders on the automotive regulatory framework. In October 2008, a 
CARS  21  follow-up  Conference  was  held  and  the  conclusions  have  been  outlined  in  the 
CARS 21 mid-term review report.5  

Nations  Economic  Commission  for  Europe  (www.unece.org).  As  a  contracting  party  to  the  1958 
UNECE Agreement, the European Community can decide to apply a Regulation.  
Communication from the Commission to the European Parliament and to the Council, "A Competitive 
Automotive Regulatory Framework for the 21st Century", COM (2007) final, 7 February 2007. 
http://ec.europa.eu/enterprise/automotive/pagesbackground/competitiveness/cars21_mtr_report.pdf 

4 

5 

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In  May  2008,  and  as  part  of  the  efforts  to  simplify  legislation  on  safety,  the  Commission 
adopted  the  draft  Regulation  on  type  approval  requirements  for  the  general  safety  of  motor 
vehicles.6  

Significant  progress  also  occurred  in  relation  to  updating  and  completing  legislation  on 
vehicle  emissions.  In  July  2008,  the  Commission  adopted  the  implementing  Regulation  on 
emissions  from  light  passenger  and  commercial  vehicles  (Euro  5  and  6)  and  on  access  to 
vehicle repair and maintenance information. A political agreement was reached in 2008 with 
the Council and the European Parliament on a draft Regulation on emissions from heavy-duty 
vehicles (Euro VI). 

Various steps to implement, simplify and update the technical legislation in the sector were 
taken during 2008. This culminated in the adoption in early 2009 of Regulations on the type-
approval  of  motor  vehicles  with  regard  to  pedestrian  protection7  and  on  type-approval  of 
hydrogen-powered vehicles8. 

the 

legislative  framework  (and 

A significant proportion of the work in the automotive sector in 2009 and beyond will focus 
on  recasting 
the 
implementation of new technical legislation. In particular, the regulatory framework for type-
approval legislation in relation to two and three-wheeled vehicles and tractors is expected to 
be revised. In both cases, input from interested parties was sought  via a public  consultation 
launched  in  2008.  The  Commission  is  also  working  on  various  proposals,  in  close  co-
ordination  with  Member  States,  to  complete  the  framework  Directive  2007/46/EC  for  the 
type-approval of motor vehicles and trailers.  

its  subsequent  completion)  and 

Evaluation 

The situation regarding the application of the Community acquis in the automotive sector is 
acceptable.  Nevertheless,  the  constant  evolution  of  the  technical  legislation  means  that  it  is 
important  to  maintain  close  attention  to  timely  transposition  and  effective  enforcement  to 
ensure that the objectives remain satisfied.  

The  frequent  adaptation  of  technical  legislation  in  this  sector  also  means  that  the  use  of 
correlation  tables  is  particularly  helpful.  It  should  be  emphasized  that  the  close  cooperation 
between the Commission and Member States in the preparation of legislative measures means 
that  significant  problems  regarding  conformity  or  incorrect  application  are  a  relatively  rare 
occurrence.  Indeed,  in  many  cases,  due  to  the  technical  nature  of  the  legislation,  Member 
States  frequently  transpose  technical  amendments  by  reference  to  the  relevant  Community 
acts. This was a factor when deciding to prepare new legislation in the form of Regulations 
instead of Directives. 

Other than vehicle re-registration (which falls within the scope of Article 28-30 EC), there are 
relatively  few  complaints  in  this  sector.  In  many  instances,  it  proves  unnecessary  to  open 
formal proceedings as the facts do not demonstrate non-conformity or incorrect application by 
the Member States of the harmonized legislation. Instead, infringement proceedings are much 

6 
7 

8 

{SEC (2008) 1908} {SEC (2008) 1909} /* COM (2008) 316 final – COD 2008/0100*/ 23.5.2008. 
Regulation (EC) No.78/2009 of the European Parliament and of the Council of 14 January 2009 on the 
type-approval of motor vehicles with regard to the protection of pedestrians and other vulnerable road 
users (OJ L 35, 4.2.2009, p.1). 
Regulation  (EC)  No.79/2009  of  the  European  Parliament  and  of  the  Council  of  14  January  2009  on 
type-approval of hydrogen-powered vehicles (OJ L 35, 4.2.2009, p.32).  

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more  likely  to  occur  as  a  result  of  the  absence  of  notification  of  complete  transposition  of 
obligations contained in the Directive.  

The absence of full transposition of Directives is likely to become less important in the future 
when  preference  is  be  given  to  Regulations  over  Directives.  This  strategy  should  increase 
overall efficiency in this area by lowering the overall number of infringement cases based on 
non-  or  late  communication  by  Member  States  of  transposition  measures.  Nevertheless,  the 
complexity of the legislation in this sector and the constant development of new technologies 
(and the corresponding adaptation of legislation) means that problems of interpretation are an 
ever-present risk. In addition, Member States might take measures which risk compromising 
the harmonized approach in Community acts. Consequently, the Commission maintains close 
cooperation with the national authorities responsible for type-approval, meeting regularly (in 
general  twice  a  year)  to  discuss  questions  regarding  the  understanding  and  interpretation  of 
directives in the automotive sector as well as the equivalent UN/ECE Regulations to ensure 
their  common  and  harmonised  application.  These  meetings  are  known  by  the  acronym 
"TAAM" (type approval authorities meeting).  

The  main  priority  in  the  automotive  sector  continues  to  be  the  proper  implementation, 
management and enforcement of legislative proposals. In particular, there has to be long-term 
regulatory clarity as well as an accurate quantification of the costs and benefits of legislative 
activity. Given the impact of the current economic crisis, the Commission will weigh up the 
costs  and  benefits  of  any  new  legislative  initiative  and  seek,  as  far  as  possible,  to  avoid 
creating new economic burdens. 

The  Commission  is  taking  steps  to  assist  Member  States  in  the  proper  interpretation  of  EC 
legislation.  A  draft  guidance  document  on  the  concept  of  individual  approval  of  vehicles 
(which before framework Directive  2007/46/EC was primarily governed  by national law) is 
being  discussed  with  Member  States.  In  addition,  in  view  of  the  fact  that  several  Member 
States have announced their intention to provide financial incentives for motor vehicles based 
on environmental performance, the Commission is currently preparing guidelines with a view 
to providing practical indications for Member States where these incentives are based on the 
harmonized pollutant emission limit values.  

2.3. 

Chemicals 

2.3.1  REACH 

Current position 

In 2008, there were significant developments in the chemicals sector. Many of the substantive 
provisions  of  the  REACH  Regulation  (1907/2006)  –  the  cornerstone  of  the  EU’s  new 
chemicals legislation – applied from 1 June 2008. In addition, a new Regulation (1272/2008) 
on classification, labelling and packaging of substances and mixtures (“the CLP Regulation”) 
was adopted at the very end of 2008, designed to ensure that substances and mixtures deemed 
‘hazardous’  are  properly  identified  and  clearly  indicated  before  products  are  placed  on  the 
market. 

REACH  deals  with  the  registration,  evaluation,  authorisation  and  restriction  of  chemical 
substances.  Registration  of  chemicals  with  the  European  Chemicals  Agency  (“ECHA”)  is 
designed to obtain information on manufactured and imported substances to establish whether 
industry  is  taking  adequate  measures  to  ensure  their  safe  use.  Subsequent  evaluation  by 
ECHA  may  include  a  quality  check  on  registration  files  and  the  examination  of  testing 

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proposals. Certain substances may undergo ‘substance evaluation’, where national authorities 
consider  all  available  information  on  a  given  substance.  Substances  giving  rise  to  high 
concern  may  be  required  to  obtain  Commission  authorisation  for  use  under  stipulated 
conditions.  Finally,  the  manufacture,  import  and  use  of  substances  that  pose  unacceptable 
risks to human health or the environment may be partly or totally restricted. 

The  basic  implementation  package  for  REACH  had  to  be  in  place  by  mid  2008  and  the 
Commission  adopted  the  required  implementation  measures  via  the  comitology  procedure 
(measures  listed  below).  The  Commission  also  reviewed  Annexes  I,  IV,  V,  XI  and  XIII  of 
REACH which led to amendment of Annexes IV, V and XI (again listed below).  

It needs to be stressed that the implementation phase of REACH is only the beginning. The 
first phase – pre-registration with ECHA - started on 1 June 2008 and ended on 1 December 
2008.  Any  contentious  issues  arising  out  of  REACH  implementation  were  dealt  with,  in 
particular,  at  regular  quarterly  meetings  within  the  Commission  expert  group  “REACH 
Competent  Authorities”  and  its  subgroups,  in  particular  the  Subgroups  on  the  review  of 
Annexes and on nanomaterials.  

So  far,  the  Commission  has  dealt  with  a  rather  limited  number  of  enquiries  and  complaints 
regarding pre-registration. These problems were resolved in collaboration with ECHA which 
has  developed  various  tools  to  help  operators  to  fulfil  their  REACH  obligations  (guidance 
package,  Navigator  tool,  helpdesk,  FAQs  etc.).  National  REACH  helpdesks  are  also 
functioning well.  

REACH is directly applicable legislation whose enforcement should be primarily ensured by 
the Member States through a system of official controls and other appropriate activities. The 
core parts of REACH began to apply in the second half of 2008 and national provisions on 
penalties  had  to  be  notified  by  1  December  2008. Not  all Member States have fulfilled  this 
obligation  on  time  and,  having  addressed  this  issue  several  times  in  its  contacts  with  the 
competent authorities, the Commission is now initiating infringement proceedings. The CLP 
Regulation, which entered into force in January 2009, will also start to apply on a staggered 
timeline, alongside pre-existing legislation which will be progressively repealed. 

The  REACH  system  is  supplemented  by  a  comprehensive  package  of  technical  guidance 
documents  to  ensure  its  uniform  and  consistent  interpretation.  Throughout  2008,  the 
Commission was involved in developing new guidance and updating existing guidance, which 
will be adopted and published by ECHA.  

The  Commission  also  actively  participated  in  the  first  meetings  of  ECHA’s  Forum  for  the 
Exchange  of  Information  on  Enforcement  which is  comprised  of  representatives  of  national 
enforcement authorities. 

Changes underway 

The  Commission  is  closely  monitoring  how  Member  States  enforce  REACH  in  order  to 
ensure transparency, impartiality and consistency in enforcement throughout the EU. A study 
has been commissioned with a view to obtaining detailed comparisons of the types and levels 
of penalties provided for in different Member States.  

The Commission will, in particular, work closely with the ECHA’s Forum for the Exchange 
of  Information  on  Enforcement  which  coordinates  a  network  of  national  authorities 

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responsible  for  enforcement.  The  Commission  will  also  continue  to  work  to  enhance  good 
cooperation, coordination and exchange of information with national authorities and ECHA.  

The  Commission  will  also  review  the  Annexes  to  REACH  with  a  view,  in  particular,  to 
aligning them with the new CLP Regulation.  

The  Commission  has  already  begun  to  prepare  for  one  of  its  main  roles  under  REACH  - 
granting authorisations for the placing on the market and the use of substances giving rise to 
high concern. This will be a top priority of the Commission in the future. 

Evaluation 

The correct implementation of the new REACH and CLP Regulations will be critical for the 
chemical  industry  sector  in  the  coming  years.  REACH  has  the  long-term  objectives  of 
providing a high level of protection of human health and the environment while ensuring the 
free  circulation  of  substances  on  the  internal  market  and  enhancing  competitiveness  and 
innovation.  These  objectives  should  be  progressively  attained  over  the  next  decade  and 
beyond. However, we are at the very beginning of its implementation and clearly it will only 
be  possible  to  evaluate  to  what  extent  these  objectives  are  being  fulfilled  over  the  coming 
years, whereupon corrective action will be taken if necessary.  

As  REACH  legislation  is  based  on  a  completely  new  regulatory  approach  and  has  shifted 
much  of  the  burden  for  ensuring  the  safe  use  of  chemicals  onto  industry,  the  Commission 
needs to monitor closely whether its implementation is effective and consistent throughout the 
EU. There is scarcely any information from Member States for the time being. In 2009 much 
activity  will  focus  on  pre-registration  and  registration  obligations  and  the  provision  of 
necessary information in the supply chain under REACH.  

The necessary legal framework for regulating chemicals is now in place, as are most guidance 
documents.  Around  2.75  million  pre-registrations  were  made  by  65,000  companies  for 
150,000 different substances. The phased deadlines for registration (based on the quantities of 
substances to be produced or imported) are 2010, 2013 and 2018.  

2009  will  be  the  first  year  of  data  sharing  and  preparation  for  the  submission  of  joint 
registrations within “substance information exchange forums” (SIEFs) organised by industry. 
Neither  the  Commission  nor  ECHA  can  be  directly  involved  in  this  process,  but  meetings 
with  industry  stakeholders  and  various  workshops  are  being  organised  to  ensure  the  correct 
implementation of REACH. 

The  Member  States  should  provide  their  first  reports  on  the  operation  of  REACH  by  June 
2010 and ECHA will report by June 2011. On the basis of these reports, the Commission will 
prepare  the  first  general  report  on  the  operation  of  REACH  and  will  review  the  scope  of 
REACH by June 2012.  

2.3.2.  Other chemicals legislation 

Current position 

Monitoring of the implementation by the Member States of Regulation (EC) No 273/2004 on 
drug precursors, which came into force in 2005, continued. 8 infringement cases were opened 
and 4 are still ongoing. 

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Concerning  the  implementation  of  Directives  2004/9  and  2004/10  on  good  laboratory 
practice,  in  infringement  proceedings  before  the  European  Court  against  Luxembourg  on  4 
November 2008 the Court held that "by not putting in place the authorities able to verify the 
implementation  of  the  principles  of  good  laboratory  practice,  the  Grand  Duchy  of 
Luxembourg  has  failed  to  fulfil  its  obligations  under  Article  3  of  Directive  2004/9/Ec”  (C-
95/08). 

The  Commission  launched  proceedings  against  Luxembourg  for  the  non-implementation  of 
Regulation EC No 648/2004 on detergents 648/2004. In its judgment of 24 March 2009 (C-
184/08)  the  European  Court  of  Justice  held  that  Luxembourg  had  failed  to  its  obligations 
pursuant to Regulation EC No 648/2004 by not adopting the relevant penalties. 

Changes underway 

Provisions  of  the  REACH  Regulation  will  replace  Directive  76/769/EEC  on  1  June  2009. 
Until then, new amendments to Directive 76/769/EEC are being enacted as decisions instead 
of  directives  which  do  not  require  transposition.  The  volume  of  enquiries  relating  to  this 
Directive has always been high, mostly linked to its amendments. This is expected to remain 
the same when Directive 76/769/EEC is replaced by REACH as new restrictions will continue 
to be adopted. 

In  2008,  the  Commission  continued  to  use  preventive  techniques  to  ensure  the  correct 
application  and  coherent  implementation  of  Directive  2007/23/EC  on  Pyrotechnic  Articles. 
Commission services and Member States are discussing questions related to the transposition 
of the directive in the working group set up by the directive. Transposition is due in 2010 and, 
since it represents an important departure from existing national measures for Member Stares 
the transition is being prepared for in advance. 

In the explosives sector, Member States must transpose Commission Directive 2008/43/EC on 
the identification and traceability of explosives. 

The  number  of  enquiries  received  concerning  Directive  1999/45/EC  on  dangerous 
preparations, Directive 93/15/EEC on explosives and Regulation 2003/2003 on Fertilisers is 
high.  For  most  of  these  texts  a  list  of  frequently  asked  questions  has  been  published  on  the 
internet which allows operators access to questions put, and replies provided, in the past. 

However, the number of actual complaints received remains low. One petition was received 
concerning ceramic fibres used in car catalysts (ref 2006/90).  

Evaluation  

The number of infringements decreased in 2008 largely because the replacement of Directive 
76/769/EEC by the REACH Regulation meant that fewer directives needed to be transposed. 
This trend is naturally expected to continue. 

Over the past 3 years the correct implementation of enforcement rules for several regulations 
(including  the  adoption  of  penalties  at  national  level  for  their  infringement)  has  been  a 
priority.  The  Court  of  Justice  has  supported  the  Commission  by  requiring  that  penalties  for 
infringements to EC regulations be put in place (see C-184/08). This activity should decline as 
a result. 

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2.4. 

Pharmaceuticals 

Current position 

For  the  main  measures  monitored  by  the  Commission  in  the  pharmaceutical  sector,  please 
refer to Annex I point I.1 

With regard to Directive 2001/83/EC of the European Parliament and of the Council on the 
Community  code  relating  to  medicinal  products  for  human  use  and  Regulation  (EC)  No 
726/2004,  laying  down  Community  procedures  for  the  authorisation  and  supervision  of 
medicinal  products  for  human  and  veterinary  use  and  establishing  a  European  Medicines 
Agency  ,  the  Commission  brought  actions  before  the  Court  of  Justice  against  Lithuania  for 
retaining  in  force  after  accession  a  national  marketing  authorisation  which  did  not  comply 
with the requirements of the Directive and Regulation. (Case C-350/08). 

With  regard  to  Directive  2001/83/EC  and  Regulation  (EC)  No  726/2004  of  the  European 
Parliament and of the Council, laying down Community procedures for the authorisation and 
supervision of medicinal products for human and veterinary use and establishing a European 
Medicines  Agency  (EMEA),  the  Commission  brought  actions  before  the  Court  of  Justice 
against  Poland  for  putting  on  the  market  and  maintaining  on  the  market  after  accession  the 
national market to medicinal products for which marketing authorisations were not granted in 
accordance with the above mentioned Directive and Regulation (case C-385/08).  

In  relation  to  cases  earlier  brought  before  the  Court  of  Justice  for  non-communication  of 
national  measures  transposing  Directive  2004/27/EC,  Directive  2004/28/EC  and  Directive 
2005/28/EC, in which the Court of Justice ruled that the Member States had failed to fulfil its 
obligations  under  these  directives,  in  2008  the  Commission  closed  most  of  these  cases 
following Member States’ communication of national transposition measures. 

In  2008,  the  Commission  continued  to  use  preventive  techniques  to  ensure  the  correct 
application and coherent implementation of the pharmaceutical acquis. 

The  following  working  parties  deal  with 
interpretation  of  European 
pharmaceutical  legislation,  in  preparation  for  its  transposition  and  implementation  by  the 
Member States: 

the  general 

– 

– 

the Pharmaceutical Committee which met in May 2008, 

the  “Notice  to  applicants”  group  which  met  in  October  2008  and  examined 
different  chapters  of  the  guidelines  interpreting  requirements  for  applications 
for marketing authorisation.  

Furthermore,  the  Commission  continued  to  work  intensively  with  Member  States  in  the 
course  of  2008  to  ensure  coherent  implementation  of  EC  rules  on  clinical  trials  set  out  in 
Directive  2001/20/EC  of  the  European  Parliament  and  of  the  Council  on  clinical  trials, 
complemented  by  Commission  Directives  2003/94/EC  and 2005/28/EC.  Co-operation  was 
mainly channelled into the ‘Ad hoc group for the development of implementing guidelines for 
Directive  2001/20/EC  relating  to  good  clinical  practice  in  the  conduct  of  clinical  trials  on 
medicinal products for human use.’ 

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The Commission also took part in various forums, such as those organised by the European 
Medicines  Agency  and  the  Member  States,  to  present  guidelines  for  the  transposition  and 
implementation of legislation. Notably, the Commission participated in the regular meetings 
of the heads of the national medicines agencies. 

In the area of pharmaceutical legislation, the Commission dealt with three petitions. 

Changes underway 

The so-called “pharmaceutical package” was adopted on 10 December 2008 and transmitted 
to the European Parliament ant the Council for adoption through co-decision, containing:  

• 

• 

• 

two legislative proposals on pharmacovigilance, involving amendments to Regulation 
(EC) No 726/2004 and Directive 2001/83/EC;  
two  legislative  proposals  on  information  to  patients  involving  amendments  of 
Directive 2001/83/EC and Regulation (EC) No 726/2004;  
a  legislative  proposal  on  counterfeit  medicines  involving  amendments  of  Directive 
2001/83/EC.  

The  package  also  includes  a  Communication  from  the  Commission  to  the  European 
Parliament, the Council, the European Economic and Social Committee and the Committee of 
the  Regions  on  "Safe,  Innovative  and  Accessible  Medicines:  a  Renewed  Vision  for  the 
Pharmaceutical Sector" (COM/2008/0666 final), setting out the Commission's strategy for the 
pharmaceutical sector in the coming years. 

During  2008,  the  Commission  prepared  measures  to  implement  Regulation  (EC)  No 
1394/2007, for adoption in 2009. 

In addition, the Commission has adopted Commission Regulation (EC) No 1234/2008 of 24 
November  2008  concerning  the  examination  of  variations  to  the  terms  of  marketing 
authorisations  for  medicinal  products  for  human  use  and  veterinary  medicinal  products, 
modernizing the system on variations and repealing Regulations (EC) No 1084/2003 and (EC) 
No 1085/2003. 

Evaluation 

The  pharmaceutical  sector  is  highly  dynamic  and  subject  to  frequent  change.  A  major 
legislative package was transmitted to the European Parliament and the Council at the end of 
2008,  which  will  continue  to  require  close  collaboration  with  Member  States  to  ensure  the 
correct application of Community law. The working groups, expert meetings and committees 
described above will continue to provide a useful tool to ensure coherent implementation of 
the Community rules. 

The Transparency Directive 

Pricing and reimbursement policies fall within the competence of Member States. However, 
Directive  89/105/EEC  (commonly  referred  to  as  the  "Transparency  Directive")  defines  a 
series  of  procedural  requirements  to  ensure  the  transparency  of  national  pricing  and 

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28 

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reimbursement  measures.  Its  provisions  do  not  affect  the  capacity  of  Member  States  to 
determine  the  organisation  and  financing  of  their  healthcare  systems.  In  particular,  Member 
States  are  free  to  set  the  prices  of  medicines  and  to  determine  their  reimbursement  status 
under  national  or  regional  health  insurance  schemes.  Directive  89/105/EEC  is  a  peculiar 
instrument under Community law because it lies at the interface between EU responsibilities 
(internal  market)  and  national  competences  in  the  public  health  area  (freedom  of  Member 
States to organise their social security systems).  
After  enlargement  in  2004,  national  systems  in  many  of  the  new  Member  States  were  still 
insufficiently aligned with the obligations of the Transparency Directive. It was also reported 
that some of the older Member States did not always respect the principles of the Directive. 
The Commission has therefore significantly stepped-up its efforts to ensure the enforcement 
of the Directive in the last five years. 
In  2008,  further  substantial  progress  was  made  in  strengthening  the  implementation  of  the 
Directive  in  the  Member  States.  Problems  identified  on  the  basis  of  complaints  were 
systematically addressed through bilateral discussions and in cooperation with the competent 
national  authorities.  This  approach  allowed  the transposition  of  the  procedural  requirements 
of the directive in several Member States to be improved, thus bringing greater transparency 
to national pricing and reimbursement systems. One case ruled on by the European Court of 
Justice, found that Austrian legislation had failed to comply with the time-limits for pricing 
and reimbursement decisions laid down in Directive 89/105/EEC (footnote: Judgment of 17 
July 2008, Case C-311/07, Commission v. Austria). Discussions with Member States on the 
application  and  interpretation  of  the  directive  were  also  pursued  in  the  framework  of  the 
Transparency Committee convened in November 2008. 
Given  the  complexity  and  constant  evolution  of  national  health  insurance  systems,  it  is 
expected that further monitoring will be necessary in the coming years. The Commission will 
give  priority  to  infringement  proceedings  in  cases  where  the  Directive  has  not  been 
adequately  transposed  and  where  this  could  entail  significant  barriers  to  trade  in  medicinal 
products.  

2.5.  Medical devices 

Current position 

The  medical  devices  sector  is  regulated  by  three  main  directives:  Directive  90/385/EEC 
relating  to  active  implantable  medical  devices,  Directive  93/42/EEC  concerning  medical 
devices,  and  Directive  98/79/EC  on  in  vitro  diagnostic  medical  devices.  The  first  two 
directives  have  been  modified  several  times,  most  recently  by  Directive  2007/47/EC  which 
was  due  to  be  transposed  by  the  Member  States  by  21  December  2008.  However,  the 
transposition  rate  of  this  directive  was  low  and,  at  the  beginning  of  2009,  the  Commission 
initiated 18 infringement proceedings for non-communication of transposition measures.  

Except  for  one  case,  all  the  infringement  cases  opened  in  2007  for  non-communication  of 
national  measures  transposing  Commission  Directive  2005/50/EC,  on  the  reclassification  of 
hip, knee and shoulder joint replacements in the framework of Council Directive 93/42/EEC, 
were closed in 2008. The remaining open case is due to be closed in  2009. Eight infringement 
proceedings  against  Bulgaria  were  also  closed  after  communication  of  the  transposition 
measures for the whole acquis on medical devices.  

Six infringement cases for non-conformity with, or incorrect application of, medical devices 
directives  were  still  open  at  the  end  of  2008  although  one  will  probably  be  closed  in  2009. 
Two  new  complaints  were  received  in  2008  and  are  being  analysed;  five  other  complaints 

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received  in  2008  concerned  an  issue  (i.e.  registration  requirements  for  medical  devices  in 
Italy)  in  relation  to  which  the  Commission  had  already  started  proceedings  based  on  three 
complaints received in 2007. 

Changes underway 

In  2009,  communication  and  conformity  of  national  measures  transposing  Directive 
2007/47/EC will be checked. Correlation tables are extremely helpful in the performance of 
this  task,  in  particular  if  the  relevant  provisions  of  the  Directive(s)  are  transposed  by 
amending several different legal acts of the Member States.  

Looking to the future, the Commission launched a public consultation in 2008 concerning the 
recast  of  the  medical  devices  directives;  200  responses  were  received  and  analysed.  The 
Commission  intends  to  make  the  regulatory  environment  simpler  and  more  easily-
understandable  (e.g.  by  merging  Directives  90/385/EEC  and  93/42/EEC,  together  with  their 
amending directives). This will better ensure the efficient functioning of the internal market 
whilst guaranteeing a high level of safety for patients and users. A more transparent system 
regarding  the  control  and  placing  on  the  market  of  medical  devices  would  enable European 
citizens  to  be  confident  of  the  safety  of  these  products.  In  addition,  Directive  98/79/EC 
concerning  in  vitro  diagnostic  medical  devices,  which  has  not  been  amended  since  its 
adoption, might be revised. In the context of the revision of these three directives, necessary 
alignments  with  the  New  Legislative  Framework  for  the  Marketing  of  Products  will  be 
considered. 

Evaluation 

The  present  regime  in  the  medical  devices  sector  is  continually  being  adapted  for  a  broad 
range of products and issues in order to ensure a high level of safety for patients, users and 
third  parties.  The  initiative  to  modernize  the  acquis  derives  from  a  desire  to  simplify  it  in 
accordance  with  better  regulation  principles  and  to  further  improve  safety  standards  and 
market surveillance, in the light of technical and scientific progress. 

2.6. 

Cosmetics 

Current position 

The cosmetics “acquis” consists of Council Directive 76/768/EEC, which has been amended 
seven times and modified for the purpose of adapting to technical progress 50 times9. It will 
be replaced by a Regulation to be adopted in 2009. 

In  2008,  there  were  three  meetings  of  the  Standing  Committee  on  Cosmetics  Products  (a 
regulatory comitology committee), and three meetings of the Working Group on Cosmetics, 
which includes Member States, representatives of industry and consumers. The agenda of the 
Standing Committee always includes a point on the transposition of directives. 

9 

The  consolidated  text  of  Council  Directive  76/768/EC  and  the  adaptations  to  technical  progress  are 
available on: http://ec.europa.eu/enterprise/cosmetics/html/consolidated_dir.htm. 

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30 

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National transposition measures are systematically checked to ensure that the text submitted 
relates to cosmetic  products,  that  the reference of the directive transposed  is  mentioned and 
that all of the substances concerned by the adaptation are mentioned. 

The  Commission  launched  27  infringement  proceedings  for  non  communication  of  national 
transposition  measures  relating  to  Commission  Directives  2007/22,  2007/53,  2007/54, 
2007/67,  2008/14  and  2008/42  on  the  adaptation  to  technical  progress  of  Council  Directive 
76/768/CEE on cosmetic products, whose transposition deadlines were all in 2008. 15 of these 
proceedings were closed within the same year. 

One  complaint  was  received  for  alleged  non-conformity  to  Directive  76/768/EEC,  which  is 
currently being investigated. 

Changes underway 

In 2008, four directives adapting the Cosmetics Directive to technical progress were adopted 
by the Commission, two with transposition deadlines in 2008 and two with deadlines in 2009. 
After  the  adoption  of  each  directive,  the  Commission  sent  a  letter  to  the  Member  States  to 
remind  them  of  the  deadlines  and  offer  support  with  transposition.  It  was  not  necessary  to 
include an obligation to provide correlation tables for the above-mentioned directives because 
the content is very technical and Member States use the original text of the directive in their 
transposition measures. 

A  proposal  for  a  (recasting)  regulation  of  the  European  Parliament  and  the  Council  on 
cosmetic  products  was  adopted  by  the  Commission  on  5  February  2008.  This  aims  to 
guarantee  the  safety  of  cosmetic  products,  in  the  light  of  innovation,  and  to  simplify  the 
legislative  environment.  Negotiations  with  Council  and  European  Parliament  carried  on 
during 2008 and early 2009, and will lead to the adoption of the Regulation in First Reading 
in the course of 2009.  

Evaluation 

By  its  very  nature,  the  cosmetics  sector  is  subject  to  continuous  innovation  and  technical 
progress,  and  so  legislation  must  continue  to  be  dynamic.  In  this  context,  the  Commission 
acknowledges the very fruitful cooperation enjoyed not only with the Member States but also 
with all stakeholders. 

The recast of the principal legislation in the form of a regulation will improve the efficiency 
of  the  internal  market  for  cosmetics.  The  Regulation  will  enter  into  force  in  the  course  of 
2013, and, as a result, all future technical adaptations will also be adopted by regulation. This 
change  will  create  a  single  legislative  framework  as  the  sole  reference  for  operators  in  the 
internal market. In addition, it will save resources by removing the need for Member States to 
adopt  (and  for  the  Commission  to  monitor)  transposition  measures.  During  the  transition 
period  between  the  adoption  of  the  Regulation  and  its  application,  the  Commission  will 
continue to adopt technical adaptation directives. 

2.7.  Mechanical, electrical and telecommunications equipment 

Current position 

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With  respect  to  Directive  2004/108/EC  on  the  approximation  of  the  laws  of  the  Member 
States  relating  to  electromagnetic  compatibility  and  repealing  Directive  89/336/EC,  5  non-
communication cases were still open at the beginning of 2008. During the year, 4 cases were 
closed,  following  communication  of  national  transposition  measures.  One  case  against 
Luxembourg  was  referred  to  the  ECJ,  since  the  national  transposition  measures  were  not 
communicated. 

Directive 2006/42/EC on machinery, amending Directive 95/16/EC (recast), came into force 
on  29/6/2008.  12  non-communication  cases  were  opened.  By  the  end  of  2008,  3  Member 
States (Greece, Italy and Luxembourg) had still not notified their transposition measures. 

One  case  against  Poland  under  Directive  94/25/EC  on  the  approximation  of  the  laws, 
regulations and administrative provisions of the Member States relating to recreational craft, 
was  closed  following  modification  of  the  legislation  concerning  the  registration  of 
recreational craft. 

Changes underway 

Following the adoption of Decision 768/2008/EC on a common framework for the marketing 
of  products,  and  repealing  Council  Decision  93/465/EEC,  some  directives  will  have  to  be 
revised. A proposal to amend the Machinery Directive (Directive 2006/42/EC) is expected to 
be adopted in the 2nd quarter of 2009 with the aim of introducing environmental protection 
requirements for new machinery for pesticide application placed on the market in the EU. 

An  amendment  for  the  purposes  of  adaptation  to  technical  progress  is  expected  in  the  3rd 
quarter  of  2009  in  relation  to  Directive  97/68/EC  on  the  approximation  of  the  laws  of  the 
Member States relating to measures against the emission of gaseous and particulate pollutants 
from internal combustion engines to be installed in non-road mobile machinery. 

Like  in  2007,  priorities  are  the  non-communication  cases.  In  2007,  the  non-communication 
cases concerned Directive 2004/26/EC and Directive 2002/88/EC on the approximation of the 
laws  of  the  Member  States  relating  to  measures  against  the  emission  of  gaseous  and 
particulate  pollutants  from  internal  combustion  engines  to  be  installed  in  non-road  mobile 
machinery.  

In  2008,  the  above  mentioned  directives  are  no  longer  of  concern  (since  following 
communication  of  the  national  transposing  measures,  the  Commission  withdrew  its 
proceedings against several Member States). The priority non-communication cases in 2008 
concern  Directive  2004/108/EC  on  the  approximation  of  the  laws  of  the  Member  States 
relating to electromagnetic compatibility and Directive 2006/42/EC on machinery. 

Evaluation 

The mechanical, electrical and telecommunications equipment sectors function smoothly. The 
existing  acquis  is  relatively  long-standing  and  well  established.  It  has  not  required  much 
development  in  the  past,  nor  is  much  expected  to  be  needed  in  the  foreseeable  future.  The 
volume  of  problems  arising  is  reasonably  limited  and  stable.  The  overall  situation  is  stable, 
manageable and acceptable. 

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32 

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2.8. 

Gas appliances, pressure equipment and legal metrology 

2.8.1.  Gas appliances 

Current position 

The  gas  appliances  sector  is  covered  by  Directive  90/396/EEC  on  appliances  burning 
gaseous fuels, one of the early New Approach Directives. It has the dual purpose of ensuring 
the free movement of gas appliances through technical harmonisation with regard to hazards 
due to gas, and of guaranteeing a high level of protection of public interest objectives referred 
to  in  Article  95(3)  of  the  EC  Treaty.  It  includes  the  definition  of  mandatory  essential 
requirements and the setting up of mandatory conformity assessment procedures. 

Work  on  safeguard  clause  notifications  has  continued,  with  particular  emphasis  on  issues 
relating  to  the  safety  of  patio  heaters.  A  letter  of  formal  notice  was  sent  to  Germany,  for 
incorrect implementation of Directive 90/396/EEC on gas appliances. 

Changes underway 

The  Directive  has  been  operational  and  has  functioned  satisfactorily  for  more  than  fifteen 
years  but  technical  progress  and  innovation,  together  with  experience  of  its  implementation 
has led to an examination of the need for revision by the Working Group on Gas Appliances. 
Within  this  Working  Group  a  subgroup  has  been  created  charged  with  presenting  specific 
proposals for amendment. The Directive will also be aligned with Decision 768/2008/EC on a 
common framework for the marketing of products.  

In addition, a study on “Competitiveness in the EU gas appliances sector” has been underway 
since August 2008 and the final report is expected in the second half of 2009. This study is 
intended to provide information to the Commission, the Member States and stakeholders on 
the  current  situation  in  the  gas  appliances  sector  and  to  highlight  future  prospects  for 
development  in  the  sector.  This  analysis  will  also  feed  into  the  overall  assessment  of  the 
sector in the context of the possible revision of the Directive. 

In 2009, along with work to identify where the Directive might be modified, the emphasis in 
managing  the  Directive  will  be  on  infringement  procedures,  safeguard  clauses  and  better 
implementation of the Directive generally. 

Evaluation 

The  regulatory  framework  has  served  well  for  15  years  but  the  time  has  come  for  a  re-
assessment  to  ensure  that  it  continues  to  fulfil  its  objectives  by  the  most  effective  means 
possible.  

2.8.2.  Pressure equipment 

Current position 

Managing the pressure sector means protecting health and safety in relation to pressure risks, 
and involves products ranging from simple pressure cookers to large chemical installations. 

EC  law  in  this  area  mainly  comprises  the  harmonisation  Directives  87/404/EEC  on  simple 
pressure vessels and 97/23/EC on pressure equipment, covering the design, manufacture and 
conformity assessment of such equipment.  

EN 

33 

   EN 

In  addition,  Directive  75/324/EEC  on  aerosol  dispensers  specifies  the  safety  and  labelling 
requirements that aerosol dispensers must satisfy in order to be placed on the market.  

Two  cases  against  Italy  were  closed,  as  no  incorrect  implementation  of  Directive  97/23/EC 
was  demonstrated.  Also  in  connection  with  Directive  97/23,  a  reasoned  opinion  alleging 
incorrect implementation in relation to solar panels was sent to Spain. 

Changes underway 

Directives  87/404/EEC  and  97/23/EC  are  scheduled  to  be  aligned  with  the  new  legal 
framework  for  the  marketing  of  products  and  in  particular  Decision  768/2008/EC  of  the 
European  Parliament  and  of  the  Council  of  9  July  2008  on  a  common  framework  for  the 
marketing of products and repealing Council Decision 93/465/EEC.  

Directive  2008/47/EC  of  8  April  200810,  modified  Directive  75/324/EEC,  adapting  it  to 
technical progress. Member States must transpose this Directive by 29 October 2009 and the 
new  regime  it  introduces  will  apply  from  29  April  2010.  Timely  transposition  will  be  a 
priority in 2009. 

The  four  old  Directives  on  pressure  vessels  (framework  directive  76/767/EEC  and  three 
specific  ones  on  gas  cylinders,  namely  Directives  84/525/EEC,  84/526/EEC  and 
84/527/EEC), originally scheduled to be repealed in 2008, will be repealed by a forthcoming 
Directive of the Council and the European Parliament on transportable pressure equipment. A 
proposal  for  this  Directive  is  currently  under  preparation  (by  another  Commission  service), 
and is expected to be adopted by the end of 2009. 

Evaluation 

The sector functions smoothly and there are no major problems. Nevertheless, infringement 
procedures and issues relating to the correct implementation of all directives in the pressure 
sector will be actively pursued by the Commission services in 2009.  

2.8.3.  Legal metrology 

Current position 

The  acquis  in  this  area  has  a  wide  scope  covering  units  of  measurement  and  metrological 
requirements  for  the  placing  on  the  market  and  putting  into  service  of  pre-packed  products 
and measuring instruments. 

The  main  Directives  dealing  with  the  design  and  manufacture  of  measuring  instruments  are 
Directives 71/316/EEC on common provisions for both measuring instruments and methods 
of metrological control, 90/384/EEC on non-automatic weighing instruments and 2004/22/EC 
on measuring instruments. 

10 

Directive  2008/47/EC  amending,  for  the  purposes  of  adapting  to  technical  progress,  Directive 
75/324/EEC on the approximation of the laws of the Member States relating to aerosol dispensers (OJ L 
96, 9.4.2008, p.15).  

EN 

34 

   EN 

                                                 
Commission  Directive  2007/13/EC  of  7  March  200711  modified  Annex  II  of  Directive 
71/316/EEC to include images of distinguishing letters used by some Member States for the 
EC initial verification mark affixed on a measuring instrument to indicate conformity with EC 
requirements.  Member  States  had  to  comply  with  this  Directive  by  10  March  2008.  The 
Commission began infringement procedures against 6 Member States for non communication 
of transposition measures but has since closed two cases following communication.  

With regard to pre-packed products, the main pieces of Community legislation are Directives 
75/106/EEC  on  pre-packaged  liquids,  75/107/EEC  on  bottles  used  as  measuring  containers, 
76/211/EEC  relating  to  the  making-up  by  weight  or  by  volume  of  certain  pre-packaged 
products and 80/232/EEC on ranges of nominal quantities and nominal capacities for certain 
pre-packaged  products.  (From  11  April  2009,  requirements  for  pre-packaged  liquids  will 
appear  in  Directive  76/211/EEC  as  Directive  75/106/EEC  will  be  repealed  by  Directive 
2007/45/EC). 

Directive  2007/45/EC  of  the  Council  and  the  European  Parliament  of  5  September  2007, 
laying  down  rules  on  nominal  quantities  for  pre-packed  products,  repealing  Council 
Directives 75/106/EEC and 80/232/EEC and amending Council Directive 76/211/EEC12, aims 
to  liberalise  nominal  quantities  of  pre-packaged  products  within  the  EU  in  line  with  ECJ 
jurisprudence,  with  the  exception  of  wine  and  spirits  for  which  nominal  quantities  will 
continue to be defined at Community level. The substance of the Directive became applicable 
on  11  April  2009  but  Member  States  should  have  transposed  it  by  11  October  2008.  The 
Commission  began 
for  non 
communication of national transposition measures. 

infringement  procedures  against  10  Member  States 

Units of measurement are harmonised at Community level by Directive 80/181/EEC13 which 
creates  a  harmonized  regulatory  framework  throughout  the  EU  to  eliminate  trade  barriers 
between Member States.  

On 10 September 2007, the Commission presented a proposal for a Directive of the European 
Parliament  and  the  Council  to  amend  Directive  80/181/EEC  so  as  to  allow  the  use  on  a 
permanent basis of certain indications supplementary to the legal units of measurement and to 
adapt  the  Directive  to  technical  progress.  In  accordance  with  the  subsidiarity  principle,  the 
amendment  also  expressly  permits  the  United  Kingdom  and  Ireland  to  continue  to  use  the 
‘mile’  for road signs/speed  indications, the ‘pint’ for milk in returnable bottles  and for beer 
and  cider  on  draught  and  the  ‘troy  ounce’  for  transactions  in  precious  metals.  The 
maintenance of these terms in limited, local circumstances will not lead to barriers to the free 
movement  of  products.  A  common  position  (28/2008)14  was  adopted  by  the  Council  on  18 
November  2008  and  the  Parliament  approved  the  text  without  amendment  on  its  second 
reading on 16 December 2008. 

Changes underway 

11 

12 
13 

14 

Commission  Directive  2007/13/EC  amending  Annex  II  to  Council  Directive  71/316/EEC  on  the 
approximation  of  the  laws  of  the  Member  States  relating  to  common  provisions  for  both  measuring 
instruments and methods of metrological control (OJ L 73, 13.3.07, p.10). 
OJ L 247, 21.9.2007, p.17. 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Council  Directive 
80/181/EEC on the approximation of the laws of the Member States relating to units of measurement 
(COM (2007)510 final.  
OJ C 330 E, 30.12.2008, p.1. 

EN 

35 

   EN 

                                                 
Directive 2004/22/EC was adapted by Regulation (EC) No 1137/200815 to the new regulatory 
procedure  with  scrutiny  established  by  Council  Decision  1999/468/EC  laying  down 
procedures  for  the  exercise  of  implementing  powers  conferred  on  the  Commission,  as 
amended by Decision 2006/512/EC. 

On  24  November  2008  the  Measuring  Instruments  Committee  established  under  Directive 
2004/22/EC met and delivered a favourable opinion in relation to three texts submitted by the 
Commission  on  the  publication  of  references  of  normative  documents  drawn  up  by  OIML 
(advisory  procedure).  Applying  the  new  regulatory  procedure  with  scrutiny,  the  Committee 
also gave the green light to a draft Commission Directive amending Directive 2004/22/EC (on 
the exploitation of maximum permissible errors) as regards instrument-specific annexes MI-
001 to MI-005. On the expiry of the three month period permitting scrutiny by the European 
Parliament  and  the  Council,  and  in  the  absence  of  opposition,  the  draft  Directive  should  be 
adopted in the first half of 2009. 

On 3 December 2008 the Commission presented a legislative proposal for a Directive of the 
European  Parliament  and  the  Council,  repealing  8  old  metrology  Directives  (COM 
(2008)801)16.  These Directives  were adopted  under framework Directive 71/316/EEC. They 
co-existed with national provisions. However, in practice adaptation to technical progress and 
innovation  in  relation  to  products  covered  by  these  Directives  was  effected  either  by  the 
voluntary  application  of  new  international  and  European  standards  or  through  national 
provisions  implementing  these  standards.  It  was  also  felt  that  the  free  movement  of  these 
products  could  be  adequately  ensured  by  Articles  28  to  30  EC  and  the  mutual  recognition 
principle.  

A  standardisation  mandate  for  smart  metering  was  issued  in  March  2009  with  a  view  to 
ensuring  the  free  movement  of  meters  with  additional  functions  concerning  energy  end-use 
efficiency.  

Evaluation 

The  measuring  instruments  sector  functions  smoothly  and  no  major  problems  have  been 
encountered. In 2009 attention priority will primarily be given to infringement procedures and 
the correct implementation of directives in the sector. 

2.9. 

Construction products 

Current position 

Directive  89/106/EC  on  construction  products  (“the  CPD”)  has  not  been  amended  recently, 
which  has  allowed  for  steady  development  of  its  implementation  within  national  systems. 
Harmonisation  through  European  standards,  published  in  the  OJEU,  has  continued  and 
conditions  for  enterprises  operating  in  this  sector,  either  as  manufacturers  or  users  of 
construction  products,  have  thus  made  solid  progress  during  2008.  However,  certain 

15 

16 

Regulation  (EC)  No  1137/2008  of  the  European  Parliament  and  of  the  Council  of  22  October  2008 
adapting  a  number  of  instruments  subject  to  the  procedure  laid  down  in  Article  251  of  the  Treaty  to 
Council  Decision  1999/468/EC,  with  regard  to  the  regulatory  procedure  with  scrutiny  (OJ  L  311, 
31.11.2008, p.1). 
The Directives that are proposed to be repealed are Directives 71/317/EEC, 71/347/EEC, 71/349/EEC, 
74/148/EEC, 75/33/EEC, 76/765/EEC, 76/766/EEC and 86/217/EEC.  

EN 

36 

   EN 

                                                 
fundamental  problems  with  the  implementation  of  the  CPD  remain  unsolved,  resulting  in 
different transposition by the Member States and consequent inefficiencies in the market. 

During  2008,  a  joint  reasoned  opinion  was  issued  in  relation  to  two  cases  against  Germany 
(2004/5116  and  2005/4743).  In  addition,  four  infringement  cases  were  closed  and  several 
others  are  approaching  closure.  The  two  German  cases  mentioned  above  and  a  case  against 
the UK (2005/4074) are considered as priority cases due to their great importance to the sector 
as a whole. 

Changes underway 

The  revision  of  the  CPD  proceeded  during  2008  with  the  adoption  on  23  May  of  a 
Commission proposal for a Regulation (“the CPR”). Originally it was thought that adoption 
by the legislature would be possible in 2009, in which case the new CPR replacing the CPD 
would have come into force  in mid-2011.  However, recent developments in the co-decision 
procedure have made it likely that this timing will be substantially delayed. 

Even  if  the  CPR  is  unlikely  to  come  into  force  in  the  next  two  years,  the  initiation  of  new 
infringement proceedings (and the conduct of ongoing proceedings) is still influenced by the 
legislative process leading to the adoption of the CPR. One of the main reasons for revision of 
the CPD is confusion over its provisions resulting in different national implementation in the 
Member States, in particular as regards the use of CE marking. Forthcoming clarification of 
some aspects of the CPD in the CPR inevitable has a bearing on the conduct of present and 
future  infringement  proceedings  and,  conversely,  judgments  in  ongoing  infringement  cases 
could help in finalising the CPR. 

In dealing with complaints generally, the aim is to reach a conclusion as swiftly as possible. 
Some may be dealt with using the new procedure arising out of the partnership approach to 
enforcement (where the Member State concerned is participating in the ongoing pilot project). 
Contacts  with  all  Member  States  are  in  any  event  being  intensified  in  the  context  of  the 
continuing  legislative  process  and  this  would  seem  to  allow  for  more  informal  attempts  to 
convince Member Stets of the need to adjust some of their current practices. 

In  choosing  and  designating  priority  infringement  cases  in  the  future,  links  with  the 
continuing legislative process on the CPR will be an important factor. 

Evaluation 

The acquis in this sector is in a state of transition. Since the new CPR will not be in place for 
at  least  another  two  years,  we  expect  to  continue  to  be  confronted  with  legal  uncertainties 
emanating from unclear provisions of the CPD and the consequent divergent interpretation by 
the Member States. However, efforts will continue to be made to deal with new cases more 
swiftly than before. Closer contacts with MS will undoubtedly prove to be of assistance for 
reaching these objectives. 

2.10.  Textiles/clothing, footwear and wood 

Current position 

Textiles and clothing are regulated by Directive 96/74/EC on textile labelling which has been 
adapted  to  technical  progress  four  times  by  Commission  Directives  97/37/EC,  2004/34/EC, 
2006/3/EC and 2007/3/EC. The recast of Directive 96/74/EC was adopted on 14 January 2009 

EN 

37 

   EN 

in  the  form  of  Directive  2008/121/EC  of  the  European  Parliament and of  the  Council  of 14 
January 2009 on textile names [Official Journal L 19 of 23.1.2009 p.39.] Directives 96/73/EC 
(adapted to technical progress by two Commission Directives 2006/2/EC and 2007/4/EC) and 
73/44/EEC  specify  testing  methods  for  sampling  and  analysis  of  fibre  mixtures  in  order  to 
determine  the  conformity  of  the  information  supplied  on  a  label  according  to  Directive 
96/74/EC. Due to the technical nature of this legislation, the Committee and Working Group 
for  Directives  relating  to  textile  names  and  labelling,  composed  of  experts  from  Member 
States  and  other  interested  parties,  assist  the  Commission  in  the  adaptation  of  the  textiles 
Directives to technical progress. 

The  acquis  in  textiles/clothing  sector  is  not  considered  problematic,  although  occasionally 
national mandatory labelling requirements going beyond the scope of the labelling Directive 
(on  size,  care  instructions  etc.)  create  trade  barriers  prohibited  under  Article  28  EC  and 
necessitate infringement proceedings. Nor does the transposition of technical amendments of 
Directives  96/74  and  96/73/EC  pose  any  major  problems.  In  some  minor  instances  of 
incomplete compliance, Member States were contacted informally to bring about realignment 
of national implementing rules. The informal cooperation with the Member States has proved 
effective in the resolution of most problems. In 2008 one complaint was lodged in relation to 
the  legislation  governing  the  placing  of  textiles/clothing  and  footwear  on  the  European 
market. It concerned textile labelling requirements in Slovakia. After amendments requested 
by the Commission were effected by the Slovak authorities, the procedure was closed.  

In  relation  to  amendments  of  Directives 2007/3/EC  and  2007/4/EC,  for  which  the 
transposition  deadline  was  2  February  2008,  6  infringement  proceedings  for  non-
communication  were  launched  in  March  2008.  Following  notification  of  transposition 
measures by the relevant national authorities, all the cases were closed by the end of the year. 
Letters of formal notice were also sent to Cyprus and Poland in March 2008, requesting the 
complete notification of national implementing measures for Directive 96/74/EC. Following 
the positive reactions of these Member States, the procedures were closed.  

In  the  footwear  sector,  Directive  94/11/EC  on  the  labelling  of  materials  used  in  consumer 
footwear  generally  does  not  give  rise  to  significant  implementation  problems.  Infringement 
proceedings  launched  against  Cyprus  in  March  2008  for  non-communication  of  national 
transposition  measures  were  closed  in  November  on  compliance  by  the  Cypriot  authorities. 
Omissions  and  discrepancies  found  in  Slovak  and  Hungarian  transposition  measures  were 
resolved by informal communication with the relevant authorities.  

Changes underway 

During  2008,  intensive  consultation  with  Member  States  and  other  stakeholders  in  the 
framework of the Working Group on Textile Names and Labelling led to the adoption by the 
Commission in January 2009 of a proposal for a Regulation of the European Parliament and 
of the  Council on Textile  Names and  Related Labelling of Textile Products. The legislative 
procedure  leading  to  adoption  by  the  legislature  will  continue  during  2009.  This  new 
Regulation  will  replace  all  current  directives  in  the  field  of  textile  names  and  labelling, 
namely Directives 2008/121/EC, 96/73/EC, 73/44/EEC and their amending directives. 

Evaluation 

Regulation in the textiles, clothing and footwear sectors is considered effective. Assessment 
of  national  transposition  measures  will  continue.  In  relation  to  the  few  remaining 

EN 

38 

   EN 

discrepancies on textile names and labelling, direct informal communication with the Member 
States is being used and if this proves unsuccessful formal infringement proceedings will be 
launched.  

The  adoption  of  the  new  Regulation,  scheduled  for  the  first  quarter  of  2010,  and  its 
subsequent  implementation  are  expected  to  facilitate  the  work  of  national  administrations, 
particularly as transposition will not be necessary.  

2.11.  Toys 

The European Commission has tabled a new Directive to improve toy safety in Europe. The 
proposal aims to enhance the safety of toys replacing and modernizing the 20 year old Toys 
Directive, 88/378/EEC of 3rd May 1988. The revision has three objectives: first and foremost 
to  introduce  new  and  higher  safety  requirements  to  cope  with  recently  identified  hazards, 
secondly to strengthen manufacturers’ and importers' responsibility for the marketing of toys 
and finally to enhance the market surveillance obligations of Member States 

2.12.  Cultural goods 

In 2008, the acquis in this area remained stable. The codification process was followed by the 
European Parliament and the Council but no act was adopted in this year. 

Under Article 16 of the Directive 93/7/EEC, every three years the Commission shall send the 
European Parliament, the Council and the European Economic and Social Committee a report 
reviewing  the  application  of  the  Directive  by  the  Member  States.  In  2008,  the  Commission 
began  preparing  the  third  such  report,  covering  the  period  2004-2007.  To  that  end,  the 
Commission asked the Member States to send national reports for that period. 

The third report will allow the Commission and other interested parties to determine whether 
the Directive continues to fulfil its purpose and whether any modification is necessary. 

2.13.  Late payment 

Directive  2000/35/EC17  aims  to  combat  late  payment  in  commercial  transactions  between 
businesses  and  between  businesses  and  public  authorities.  Experience  since  it  entered  into 
force  and  reports  following  external  studies  have  shown  that,  although  attitudes  to  late 
payment have changed, the Directive actually has little impact. 

Several high level political messages have underlined the need for an amended instrument to 
combat late payment in commercial transactions. The Small Business Act [COM(2008)394] 
highlighted  the  key  importance  of  SMEs  to  the  competitiveness  of  the  EU  economy  and 
stressed that effective access to finance was one of the major challenges SMEs have to face, 
together with the need to make better use of the opportunities provided by the Single Market. 
The  European  Economic  Recovery  Plan  [COM(2008)800]  stressed  that  sufficient  and 
affordable  access  to  finance  was  a  pre-condition  for  investment,  growth  and  job  creation  in 
the  context  of  the  economic  slowdown  and  asked  the  EU  and  the  Member  States  to  ensure 
that public authorities pay invoices for supplies and services within one month. 

17 

Directive  2000/35/EC  of  the  European  Parliament  and  of  the  Council  of  29  June  2000  on  combating 
late payment in commercial transactions, OJ L 200, 8.8.2000, p. 35–38. 

EN 

39 

   EN 

                                                 
Against  this  background,  during  2008  the  Directive  has  undergone  a  revision  exercise;  an 
external  study  was  conducted  during  2007-8  to  assess  the  cost/benefit  relationship  of 
proposals presented in a report on the Directive made in 2006. The Commission also launched 
a public consultation of stakeholders in all official EU languages which closed on 31 August 
2008 and yielded 510 responses. In addition, the European Business Test Panel was consulted 
between  13  May  2008  and  20  June  2008  and  408  responses  were  received.  An  Impact 
Assessment  was  presented  to  the  Impact  Assessment  Board  on  December  2008.  A  proposal 
for a recast Directive was adopted by the European Commission on 8 April 2009. 

During  2008  the  Court  of  Justice  delivered  three  judgments  on  late  payment.  In  one  action 
(based mainly on Art. 3(2) of the Directive) the national provisions at issue were held to be in 
line with the Directive. In the two other cases18 where preliminary references had been made, 
the Court of Justice confirmed that the Directive “governs only certain specific rules intended 
to combat [such] delays, namely, rules on interest for late payments (Article 3), retention of 
title  (Article  4)  and  procedures  for  recovery  of  unchallenged  claims  (Article  5)”.  This 
provided further reason to amend the Directive. 

The  European  Commission  has  received  several  “complaints”  denouncing  late  payments, 
especially  by  public  administrations.  The  replies 
the 
correspondents about the scope of the Directive and the competence of national authorities for 
the resolution of problems. 

these  enquiries 

informed 

to 

2.14.  Weapons 

Council  Directive  91/477/EEC  on  control  of  the  acquisition  and  possession  of  weapons  has 
been amended by the Directive 2008/51/EC of the European Parliament and of the Council of 
21 May 2008, which is to be transposed by Member States by 28 July 2010. The rationale of 
the  amending  directive  is  twofold:  to  comply  with  the  requirements  of  a  United  Nations 
Protocol  against  the  illicit  manufacturing  of  and  trafficking  in  firearms,  signed  by  the 
Community  in  2001,  and  to  enhance  security  in  firearms-related  issues.  In  2008,  the 
Commission  offered  the  Member  States  assistance  in  facilitating  appropriate  and  timely 
transposition.  The  Commission  will  intensify  its  contacts  with  the  Member  States  in  the 
course of 2009, in particular through the creation of a Contact Group, which will provide the 
opportunity to tackle possible problems related to transposition measures. 

2.15. 

Product liability 

Directive  85/374  on  product  liability  is  a  consolidated  tool  that  strikes  a  fair  balance  in 
spreading risk among citizens and producers, while ensuring the safety of citizens in relation 
to products put into circulation in the internal market.  

In  2008  two  requests  for  preliminary  rulings,  still  pending  at  the  end  of  March  2009,  were 
referred to the Court of Justice19. In the first, the Appellate Committee of the House of Lords 
in the UK asks for clarification of the meaning of the words “instituted proceedings against 
the producer” in article 11 of the Directive 85/374. The second relates to the scope of Articles 
9  (concept  of  “damage”)  and  13  (“rights  of  an  injured  person  under  the  rules  of  the  law  of 

18 

19 

Case C-306/06, Deutsche Telekom, judgment of 3 April 2008 and case C-265/07, Caffaro, judgment of 
11 September 2008. 
Case C-358/08, Aventis Pasteur SA c M. Declan O’Byrne and case C-285/08, Moteurs Leroy Somer. 

EN 

40 

   EN 

                                                 
contractual  or  non-contractual  liability  or  a  special  liability  system”).  Both  judgments  are 
expected later in 2009. 

2.16.  Defence goods 

According  to  established  ECJ  case-law,  EC  law  applies  to  defence  goods  unless  Member 
States makes use of article 296 EC, on a justifiable case-by-case basis. However, no internal 
market measure had ever addressed the circulation of defence goods within the EU.  

As a result, EU defence industries were denied the usual benefits of the internal market, which 
has hindered industrial specialisation and cost-efficient consolidation. Pan-European defence 
companies  are  emerging  and  EU  armed  forces  rely  more  and  more  on  one  another  in  the 
framework  of  ESDP,  yet  there  is  no  regulatory  framework  supporting  this  industrial  and 
strategic pan-Europeanization. 

In December 2007, the Commission tabled the article 95-based directive simplifying the terms 
and  conditions  of  intra-Community  transfers  of  defence-related  products  with  a  view  to 
securing and simplifying the free circulation of defence goods within the EU. The directive is 
an internal market instrument tailor-made for the particular nature and sensitivity of defence 
goods.  

In 2008, swift negotiations in the Council and the Parliament paved the way for first reading 
agreement  on  16  December  2008.  The  directive  will  be  published  around  June  2009  with  a 
two-year transposition period. In the meantime, the Commission will pay peculiar attention to 
the  certification  of  the  main  European  defence  companies  as  certification  testifies  to  their 
ability to reap the maximum advantage from the EU simplified transfers regime. 

2.17.  Non-harmonised area 

Current position 

Articles 28-30 EC ensure the easy cross-border exchange of goods within the Internal Market 
in  areas  that  are  not  subject  to  harmonisation  by  Community  legislation.  The  Commission 
monitors  the  correct  application  of  these  rules  and  opens  infringement  procedures  against 
Member States when necessary. 

In  2008  the  Commission  dealt  with  fewer  complaints  and  infringement  cases  in  the  various 
non-harmonised fields covered by Article 28-30 EC - 73 in 2008 compared with 85 in 2007. 
The  main  areas  are:  registration  of  vehicles,  construction  products,  food  supplements  and 
parallel imports of medicines and plant protection products. Today’s restrictions on the free 
movement of goods often relate to requirements for products imposed in one Member State 
that  are  additional  to,  or  more  stringent  than,  those  imposed  in  another.  Market  access  for 
imported products can also be hampered by complicated and time-consuming administrative 
procedures. 

The majority of complaints (around 2/3) are brought by small and medium-sized enterprises. 
This  confirms  findings  that  in  contrast  to  large  operators  who  have  been  very  successful  in 
benefiting  from  the  opportunities  of  the  single  market,  SMEs  often  find  it  fragmented  and 
difficult to penetrate. 

In  2008  several  infringement  cases  were  closed  following  agreement  between  the 
Commission  and  the  Member  States  on  solutions  to  the  problems.  Italy,  for  instance,  lifted 

EN 

41 

   EN 

regional  provisions  prohibiting  the  import  of  green-listed  waste  from  other  Member  States. 
Italy  responded  to  the  Commission’s  intervention  by  issuing,  within  just  1  month,  a  new 
measure which revoked the prohibition.  

However, in other cases it was not possible to reach agreement and the Commission decided 
to bring proceedings before the Court of Justice: 

•  Against  the  Czech  Republic  for  obstacles  to  the  registration  of  second-hand  cars 
originating  from  other  Member  States,  in  particular  by  requesting  an  additional  road 
worthiness test.20; 

•  Against Belgium for unduly restricting the trade in birds born and bred in captivity21; 

•  Against  Austria  for  prohibiting  certain  heavy  goods  vehicles  from  using  a  major 

transit motorway in Tyrol22; 

The Court of Justice delivered the following judgments, thereby further clarifying the scope 
of Articles 28 to 30 of the EC Treaty. 

• 

• 

• 

• 

• 

• 

In  case  C-227/06,  the  Court  declared  that,  by  encouraging  economic  operators  to 
obtain  Belgian  marks  of  conformity  prior  to  marketing  in  Belgium  construction 
products  lawfully  manufactured  and/or  marketed  in  another  Member  State,  Belgium 
had infringed free movement of goods principles.23  

In case C-265/06, the Court held that by prohibiting the affixing of tinted film to the 
windows of motor vehicles Portugal had contravened Article 28 EC.24 

In case C-286/07 concerning the registration of second-hand cars originating in other 
Member States, the Court considered that the requirement that, prior to the registration 
of  a  car  in  Luxemburg,  the  owner  of  a  used  car  must  submit  an  excerpt  from  the 
commercial register of the seller (not required in relation to cars bought from a seller 
in Luxemburg) constituted an obstacle to free movement of goods25 

In case C-170/07, the Court held that a Polish measure requiring used vehicles which 
had previously been registered in other Member States  to undergo testing as to their 
general condition prior to registration is in breach of Article 28 EC.26 

In  case  C-249/07,  the  Court  held  that  a  system  requiring  prior  authorisation  for  the 
seeding, in Dutch coastal waters, of oysters and mussels coming lawfully from other 
Member States and being of species native to the Netherlands, was contrary to Articles 
28 EC and 30 EC.27 

In case C-524/07, the Court pointed out that, by making the registration of imported 
used  vehicles  dependent  on  more  stringent  provisions  then  applied  to  domestic 
vehicles, Austria was in breach of Article 28-30 EC.28 

20 

21 
22 
23 
24 
25 
26 
27 
28 

Case C-294/08, Commission v Czech Republic, following an amendment of the Czech legislation the 
Commission abandoned its action. 
Case C-100/08, Commission v Belgium, pending. 
Case C-28/09, Commission v Austria, pending. 
Judgment of 13 March 2008, C-227/06, Commission v Belgium. 
Judgment of 10 April 2008, C-265/06, Commission v Portugal. 
Judgment of 24 April 2008 , Case C-286/07, Commission v Luxembourg. 
Judgment of 5 June 2008, Case C-170/07, Commission v Poland. 
Judgment of 4 December 2008, Case C-249/07, Commission v Netherlands. 
Judgment of 11 December 2008, Case C-524/07, Commission v Austria. 

EN 

42 

   EN 

                                                 
In two judgments the Court dismissed the proceedings brought by the Commission. In case C-
201/06 it clarified the conditions under which an authorisation for the parallel import of plant 
protection  products  should  be  granted,  rejecting  the  interpretation  proposed  by  the 
Commission.29 In case C-141/07 on the supply of medicinal products directly to hospitals, the 
Court confirmed that German law created a trade restriction but held that it was justified to 
protect public health.30 

The  Commission  continued  to  find  pro-active  solutions  outside  or  in  parallel  with  the 
infringement procedure under Article 226 EC through the SOLVIT problem-solving network, 
the  preventive  mechanism  of  Directive  98/34/EC  (whereby  Member  States  are  obliged  to 
notify  new  national  technical  rules  to  the  Commission  at  the  draft  stage)  and  bilateral 
meetings organised with Member States to discuss active complaints and infringement cases 
as  well  as  various  horizontal  issues.  In  2008  the  new  EU  PILOT  mechanism  was  used  to 
facilitate contacts with Member States and resolve some complaints more swiftly. 

Changes underway 

National  rules  on  the  characteristics  and  performance  of  products  continue  to  fragment  the 
internal  market,  especially  for  SME’s  which  often  face  the  costly  choice  of  either  adapting 
their  products  to  the  requirements  of  the  Member  State  of  destination,  or  refraining  from 
entering  the  national  market.  This  should  change  when  Regulation  (EC)  764/2008  (the  so-
called “Mutual Recognition Regulation”) begins to apply on 13 May 2009. 

This regulation puts an end to the unlimited powers of national authorities to withdraw from 
their market a product lawfully marketed in another Member State. Before taking any action 
against  a  product  lawfully  marketed  in  another  Member  State,  they  will  have  to  start  a 
dialogue  with  the  business  and  indicate  the  technical  or  scientific  reasons  why  the  product 
constitutes  a  risk  for  the  user  or  the  environment.  The  dialogue  will  give  the  economic 
operator  the  opportunity  to  challenge  these  reasons  and  to  discuss  the  matter  with  the 
competent authorities before any final decision is taken. 

Another  new  aspect  is  the  establishment  of  one  or  more  "Product  Contact  Points"  in  each 
Member  State.  Their  main  task  will  be  to  help  SME’s  in  getting  access  to  another  national 
market by providing them with information about technical rules on products. The Regulation 
also aims to clarify the product categories to which the principle of mutual recognition applies 
by  creating  a  non-exhaustive  list  of  products  which  are  not  subject  to  EC  harmonising 
legislation. The list will be accessible on the Europa website from 13 May 2009. 

In 2009, attention will focus on ensuring the correct application of the regulation. Work has 
already begun with the creation and first meeting in March 2009 of the Mutual Recognition 
Advisory Committee set up by the regulation and further consideration of a telematic network 
to  facilitate  the  exchange  of  information  between  product  contact  points  and  competent 
authorities. Further meetings of the committee are planned for 2009. Work is also underway 
on  a  website  providing  information  on  the  practical  functioning  of  the  regulation.  The  first 
annual reports from Member States will be received and reviewed in 2009. 

Evaluation 

29 
30 

Judgment of 21 February 2008, Case C-201/06, Commission v France. 
Judgment of 11 September 2008, Case C-141/07, Commission v Germany. 

EN 

43 

   EN 

                                                 
Article 28 EC remains an essential legal instrument in the evaluation of cross-border obstacles 
to  trade.  As  this  provision  applies  only  to  the  non-harmonised  area,  its  scope  fluctuates  in 
accordance with developments in secondary Community legislation. 

In  2008  a  further  slight  decrease  in  the  number  of  open  infringement  cases  was  observed, 
thereby  confirming  a  longer  term  trend.  Nevertheless,  the  volume  of  infringement  cases 
remains substantial and shows that there is still a significant degree of non-compliance with 
the  principle  of  the  free  movement  of  goods  and  a  lack  of  understanding  of  the  concept  of 
mutual recognition, resulting in practical barriers to cross-border trade in goods.  

As  regards  mutual  recognition,  Regulation  (EC)  No  764/2008  should  reduce  the  number  of 
problems  and  complaints  occurring  as  a  result  of  Member  States  incorrectly  applying 
recognition procedures and thereby denying access to their markets.  

As  regards  the  specific  sector  of  vehicle  registration,  which  still  triggers  a  lot  of  citizen 
complaints, new framework Directive 2007/46/EC, to be transposed by the end of April 2009, 
may create more legal certainty, which could facilitate the re-registration of used vehicles in 
other Member States. 

2.18. 

Preventive rules of Directive 98/34/EC 

Current position 

In  2008,  preventive  action  continued  under  Directive  98/34/EC  through  the  provision  of 
information,  advice,  interpretation  and  guidance  with  regard  to  draft  national  technical 
regulations  of  the  27  Member  States,  the  EFTA  countries  and  Turkey  concerning  products 
and Information Society Services. 

In  2008,  there  was  more  fruitful  collaboration  between  the  Member  States  and  the 
Commission  on  several  levels.  Firstly,  three  meetings  of  the  Committee  on  “Standards  and 
Technical  Regulations”  were  held  to  discuss  current  problems  connected  with  the 
implementation  of  Directive  98/34/EC.  These  meetings  not  only  play  an  important  role  in 
supervising  the  operation  of  the  98/34  procedure  and  in  the  examination  of  policy  issues 
raised  by  the  notifications,  but  also  remind  the  Member  States  to  notify  regularly  to  the 
Commission all their draft technical regulations. 

Secondly, seminars were held in Malta, Greece, Denmark, Bulgaria, Belgium, and Estonia on 
the operation of the notification procedure. The seminars were attended by representatives of 
national  authorities  and  industry.  These  seminars  are  an  excellent  opportunity  for  the 
Commission to present Directive 98/34/EC as a key instrument of the Internal Market, which 
prevents  problems  ex-ante  and  avoids  infringement  procedures.  Moreover,  the  seminars 
strengthen relations between the Commission and representatives of the national authorities. 
The  opportunity  to  present  information  about  the  obligation  to  notify  national  technical 
regulations  and  the  notification  procedure  itself,  as  well  as  discussions  and  exchanges  of 
views  on  all  problems  connected  with  the  operation  of  the  98/34  procedure,  are  all  very 
important.  In  addition,  IT  meetings  were  held  in  France,  Spain  and  Germany  to  present  the 
new version of the Technical Regulations Information System application. Last but not least, 
a  conference  to  celebrate  the  25th  anniversary  of  the  notification  procedure  took  place  in 
November  which  gathered  together  national  authorities,  economic  operators  and  services  of 
the Commission. On that occasion, several proposals regarding improvement of the Directive 
98/34/EC  procedure  were  made  by  the  Member  States  and  economic  operators  that  will  be 
further investigated by the Commission. 

EN 

44 

   EN 

As  to  the  future,  the  figures  for  the  first  quarter  of  2009  suggest  that  a  high  number  of 
notifications will be received and acted upon over the year. 

Changes underway 

There  were  3  new  complaints  in  2008,  all  concerning  failures  to  notify  national  technical 
regulations  under  Directive  98/34/EC.  These  are  classified  as  priority  cases  for  the 
Commission services. 6 complaints registered in 2007 and one registered in 2006 were closed 
in 2008. 

Evaluation 

The steady high number of notifications (634) and reactions from the Commission (199) and 
the  Member  States  (184)  underlines  the  importance  of  Directive  98/34/EC  as  a  tool  for  the 
prevention  of  barriers  to  intra-Community  trade  -  and  indeed  for  better  regulation  since  it 
provides a forum for making suggestions to improve the quality of national legislation. Its ex 
ante  operation  means  that  time-consuming  and  sometimes  controversial  infringement 
procedures can be avoided. 

3.  COMPETITION 

3.1. 

Current position 

3.1.1.  General Introduction 

The infringement-related work in the competition sector focuses on 

• 

the monitoring of Member States' behaviour in relation to liberalized network industries 
and financial services,  

•  non-compliance with Commission recovery decisions,  
• 

the correct transposition and implementation of secondary legislation.  

Most of the infringement cases handled by the Commission services in this sector have their 
origin  in  a  complaint  submitted  by  undertakings  or  citizens  that  are  based  on  a  breach  of 
Article 86(1) EC in conjunction with Articles 81 and/or 82 EC or Articles 81, 10, 3(g) EC by 
the Member State concerned. Out of a relatively stable number of 35-45 pending infringement 
cases,  76%  are  complaints,  14%  of  the  cases  concern  the  wrong  transposition  or  non-
communication of Directives, and 10% of the cases deal with the non-recovery of State aids 
pursuant to Art. 228 EC. 

The relatively low number of infringement cases dealt with by the Commission services in the 
competition  sector  can  be  explained,  on  the  one  hand,  by  the  very  stable  acquis  –  no  new 
Directives in the field of competition law have been adopted in 2008 – and, on the other hand, 
by  the  fact  that  most  cases  in  the  competition  field  derive  from  the  infringement  of  Treaty 
provisions by undertakings (antitrust, mergers) or by Member States granting State aid, none 
of which constitutes an infringement covered by this Annual Report. 

As in 2007, the control of the transposition of Directives in 2008 focused on 

• 

the Financial Transparency Directive in the field of State aid (80/723/EEC as 
subsequently amended); and 

EN 

45 

   EN 

• 

the field of electronic communications, particularly with regard to the Directive on 
Competition in the Markets for Electronic Communications and Services 
(2002/77/EC). 

Proceedings  pursuant  to  Art.  228  EC  constitute  another  important  component  of  the 
Commission infringement work in the competition sector as they not only seek to remedy an 
infringement  of  competition  rules  by  the  Member  State  but  also  because  the  recovery  of 
incompatible state aid is necessary to remove the distortion of competition resulting from the 
granting of incompatible aid. These proceedings are initiated where a Member State does not 
comply with a Commission decision requiring the recovery of incompatible state aid. In a first 
step, the Commission may refer the Member State directly to the ECJ pursuant to Art. 88(2) 
EC in derogation of Art. 226 EC. If the Member State still fails to recover the aid although the 
Court has found  that this failure constitutes an infringement, the Commission  may  refer the 
Member State again to the ECJ, this time pursuant to Art. 228 EC. This Annual Report only 
covers the last stage of the recovery proceedings, i.e. from the sending of the Letter of Formal 
Notice pursuant to Art. 228 EC onwards. 

3.1.2.  Work done in 2008 

In  2008,  the  main  focus  in  competition  policy  in  relation  to  State  conduct  was  to  improve 
competitive  conditions  in  liberalised  network  industries  (e.g.  post  and  telecommunication, 
electricity,  electronic  communications)  and  financial  services  and 
to  ensure  non-
discriminatory access to infrastructure, as well as full and proper transposition of legislation. 
The implementation of these priorities is reflected in the infringement cases dealt with in 2008 
on which significant progress has been made over the year.  

For instance in the energy sector, the Commission handled a number of complaints based on 
Art. 86 in conjunction with Art. 82 EC and investigated an infringement of Article 21 of the 
Merger Regulation with a view to opening up national energy markets allowing companies to 
enter and compete with incumbents. In the same vain, the Commission services have actively 
pursued infringement cases in the field of electronic communications to open up the recently 
liberalised  broadcasting  markets  and  allow  competitors  to  benefit  from  the  technological 
developments.  A  more  detailed  account  of  the  cases  handled  in  2008  that  have  entered  the 
formal infringement procedure can be found below. 

Postal sector 

On  7  October  2008,  the  Commission  adopted  a  decision  pursuant  to  Art.  86(3)  EC  finding 
that,  by  extending  the  monopoly  of  the  postal  incumbent,  Slovenská  Pošta,  to  delivery 
services  of  hybrid  mail,  a  sector  which  was  so  far  open  to  competition,  the  Republic  of 
Slovakia  had  infringed  Art.  86  in  conjunction  with  Art.  82  EC.  It  also  set  a  one-month 
deadline  to  inform  the  Commission  of  the  measures  undertaken  to  put  an  end  to  the 
infringement.  As  this  deadline  passed  without  having  informed  the  Commission  of  the 
adoption  of  any  such  measures,  the  Commission  adopted  on  16  December  2008  a  Letter  of 
Formal  Notice  pursuant  to  Art.  226  EC  for  non-compliance  with  the  decision  of  7  October 
2008. 

Energy sector 

In  its  efforts  to  promote  competition  in  the  recently  liberalised  energy  markets,  the 
Commission adopted a Decision on 5 March 2008 pursuant to Art. 86(3) EC concerning the 
Greek  lignite  and  electricity  markets.  The  Decision  concerns  the  privileged  rights  to  extract 

EN 

46 

   EN 

and exploit lignite granted by the Hellenic Republic to Public Power Corporation S.A. (PPC), 
the former electricity monopolist. The Commission found that the granting of these privileged 
rights  to  PPC  has  created  inequality  of  opportunity  between  economic  operators.  The 
Commission also concluded that by granting PPC the quasi-exclusive right to exploit lignite – 
the cheapest available fuel in Greece – and thereby enabling PPC to protect and reinforce its 
dominant  position  on  the  wholesale  electricity  market  to  the  detriment  of  its  competitors, 
Greece has violated Art. 86(1) in conjunction with Art. 82 EC. Following the Decision and in 
the course of 2008, the Commission continued to work together with Greece on the remedies 
to be implemented to end the infringement and to ensure that PPC's competitors gain access to 
the lignite market. 

On  31  January  2008,  the  European  Commission  sent  Spain  a  Letter  of  Formal  Notice  for 
failure  to  comply  with  a  Commission  decision  of  5  December  2007  finding  that  Spain  had 
breached  Article  21  of  the  Merger  Regulation31  by  subjecting  the  approval  decision  of  the 
acquisition  of  control  over  Endesa  by  Enel  and  Acciona  to  a  number  of  conditions,  thereby 
unduly interfering with the Commission's exclusive competence to decide on a concentration 
with Community dimension.32 As the Spanish authorities' reply to the Letter of Formal Notice 
did  not  remove  all  the  Commission's  concerns  and  as  Spain  did  not  take  any  measures  to 
comply with the Commission decision of 5 December 2007, the Commission sent Spain on 15 
May  2008  a  Reasoned  Opinion  asking  it  to  withdraw  the  conditions  imposed  on  the 
takeover.33 

Electronic communications 

In  the  context  of  an  infringement  procedure  in  the  broadcasting  sector  against  Italy34  for 
failure  to  comply  with  the  EC  regulatory  framework  on  electronic  communications,  the 
Commission continued in 2008 to closely monitor the transition (switch-over) from analogue 
to  digital  terrestrial  broadcasting.  The  Italian  legislation  regulating  the  switch-over  placed 
unjustified  restrictions  on  the  provision  of  broadcasting  transmission  services  and  attributed 
unjustified  advantages  to  incumbent  analogue  operators,  thereby  creating  the  risk  of 
reinforcing  their  market  power  in  the  provision  of  digital  TV  broadcasting  transmission 
services.  In  June  2008,  the  Italian  authorities  adopted  new  amendments  with  the  aim  of 
removing  the  Commission's  concerns  expressed  in  the  Reasoned  Opinion.  The  Commission 
has been in contact with the Italian authorities since then on the elaboration of new criteria for 
the  "digitization"  of  terrestrial  television  networks,  which  should  lead  to  a  situation  where 
more frequencies will be available to newcomers and to smaller existing broadcasters.  

31 

32 

33 

34 

OJ 2004, L 24/1, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0139:EN:NOT  
This case is linked to another infringement action concerning the takeover of Endesa by E.ON which 
was  also  made  subject  to  a  number  of  conditions  imposed  unilaterally  by  Spain.  In  this  case,  after 
sending  a  Reasoned  Opinion  on  7  March  2007,  the  Commission  decided  on  28  March  2007  to  refer 
Spain to the Court of Justice pursuant to Art. 226 EC. In its judgment handed down on 6 March 2008 
(C-196/07), the Court declared Spain to be in violation of Community law by not lifting the conditions 
and thereby not complying with the Commission's Article 21 decision. 
On  17  July  2008,  the  European  Court  of  Justice  delivered  its  judgment  on  the  infringement  action 
brought by the Directorate General for Internal Market against Spain concerning the Royal Decree n. 
4/2006, which was the legal basis for imposing the conditions on the acquisition of Endesa. The Court 
declared the Decree incompatible with Community law. 
A Reasoned Opinion in this case was sent to Italy on 18 July 2007. 

EN 

47 

   EN 

                                                 
On  6  June  2008,  the  Commission  sent  a  Letter  of  Formal  Notice  to  the  Slovak  Republic 
concerning  Section  2(6)  of  the  Slovak  Competition  Act  which  excludes  the  applicability  of 
the Competition Act in situations where the conduct of the undertakings is at the same time 
subject  to  sector  specific  ex-ante  regulatory  obligations,  such  as  in  the  electronic 
communications,  energy  or  postal  sectors.  As  a  result  of  the  provision,  the  Slovak  national 
competition  authority  cannot  exercise  its  powers  to  apply  EU  competition  law,  namely 
Articles 81 and 82 EC, and the national regulators' competence to apply (ex ante) regulatory 
measures cannot replace the role of competition law that is applied ex post. The Commission 
therefore considered this provision of the Competition Act to be incompatible with Article 10 
EC and Regulation 1/200335 and initiated infringement proceedings.36 

Financial services 

On 10 May 2007, the Commission adopted a decision on the basis of Article 86(3) EC finding 
that the exclusive  right for the distribution of a savings book product (Livret A) granted by 
France to three banks (Banque Postale, Caisses d’Epargne and Crédit Mutuel) constituted an 
infringement  of  Article  86(1)  EC  in  conjunction  with  the  freedom  of  establishment  and  the 
freedom to provide services (Articles 43 and 49 EC) due to the resulting obstacles for French 
and  foreign  competitors  to  enter  and  develop  the  market  for  liquid  savings  in  France.  The 
decision  also  set  a  deadline  to  amend  the  legislation  within  nine  months.  As  no  such 
amendment  was  adopted  within  the  prescribed  period,  the  Commission  sent  a  Letter  of 
Formal Notice on 5 June 2008 with a view to obliging France to end the infringement. As a 
result  of  the  infringement  proceedings,  France  opened  up  the  distribution  of  Livret  A  on  1 
January 2009. 

Art. 228 EC cases 

On  31  January  2008,  the  Commission  issued  a  Reasoned  Opinion  pursuant  to  Art.  228  EC 
against  Italy  for  failure  to  comply  with  a  judgment  of  the  ECJ37  condemning  Italy  for  non-
execution of the Commission's recovery decision of 11 May 1999 regarding employment aid. 
The  Reasoned  Opinion  informed  Italy  that  the  measures  it  had  taken  to  implement  the 
Commission  decision  were  insufficient,  also  due  -  to  a  very  significant  extent  -  to  the 
willingness of domestic courts to suspend the execution of recovery orders. Italy has adopted 
a series of legislative measures to speed up the recovery proceedings by imposing strict legal 
limitations on the ability of national judges to issue suspension decisions where the recovery 
of illegal State aid is at stake. However, in spite of this law, the Commission to date has not 
been  informed  of  a  complete  recovery  of  the  aid.  The  Commission  is  currently  assessing 
whether to refer the case to the ECJ pursuant to Art. 228(2) EC, allowing the ECJ to impose a 
lump sum and a daily penalty payment until the aid has been recovered. 

In a similar case against Italy for the non-recovery of aid to publicly-owned utility companies 
("municipalizzate"), the Commission sent a Reasoned Opinion on 1 February 2008 after the 
ECJ had condemned Italy on 1 June 2006 for failure to comply with the obligations stemming 
from the Commission's recovery decision of 5 June 2002.38 Also in this case, the key issue is 

35 

36 

37 
38 

OJ 2003 L 1/1, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R0001:EN:NOT  
This case raises similar issues to those raised in a previous infringement proceeding against the Czech 
Republic. That case was closed in 2007 after the contested provision was amended. 
C-99/02, Commission v Italy. 
C-207/05, Commission v Italy. 

EN 

48 

   EN 

                                                 
the lack of effectiveness of recovery procedures under Italian law whereas the new legislative 
measures  adopted  by  Italy  to  remedy  this  situation  have  not  had  the  desired  effect  on  the 
overall  recovery  process.  Therefore,  the  Commission  is  currently  assessing  whether  to  refer 
this case to the ECJ pursuant to Art. 228(2) EC with a view to imposing a lump sum and daily 
penalty payments on Italy. 

On  26  June  2008,  the  Commission  issued  a  Reasoned  Opinion  against  Spain  for  failure  to 
comply with the judgment of 14 December 2006 in which the ECJ confirmed that Spain had 
failed  to  fulfil  its  obligations  under  six  Commission  recovery  decisions  of  20  July  2000 
concerning two incompatible tax regimes.39 Although significant progress has been made in 
the  recovery  of  the  incompatible  aid,  the  decisions  are  still  not  fully  implemented.40  The 
Commission services are therefore assessing whether to propose that Spain be referred to the 
ECJ pursuant to Art. 228(2) EC. 

In  the  area  of  recovery  of  incompatible  state  aid,  the  Commission  has  made  significant 
progress with respect to the execution of recovery decisions by Member States. For instance, 
the  amount  of  illegal  and  incompatible  aid  recovered  has  increased  from  €  2.3  billion  in 
December  2004  to  €  9.3  billion  at  31  December  2008  (i.e.  90.7%  of  the  total  amount  to  be 
recovered). Accordingly, the percentage of illegal and incompatible aid still to be recovered at 
the  end  of  2008  has  fallen  from  75%  to  9.3%.  This  is  due  to  the  efficient  enforcement  of 
recovery  decisions  by  the  Commission  pushing  Member  States  to  recover  incompatible  aid 
from the beneficiaries.  

3.2. 

Evaluation based on the current situation 

Against  the  background  of  the  stable  acquis  in  the  competition  law  field  and  the  relatively 
constant if not decreasing number of pending infringement cases in this sector, the situation 
can be described as stable and satisfactory, not indicating any particular problems that would 
require  urgent  attention  or  the  modification  of  the  Commission  priorities  in  this  sector. 
Likewise,  there  are  no  new  measures  due  to  be  adopted  in  the  near  future  nor  relevant 
implementation  plans,  guidelines,  expert  group  meetings,  transposition  workshops  or 
management networks.  

The  current  financial  and  economic  crisis  has  no  immediate  impact  on  the  Commission 
infringement  work  in  this  sector,  as  it  cannot  constitute  a  justification  to  delay  recovery 
because the beneficiary became insolvent or otherwise entered into financial difficulties. On 
the  contrary,  Commission  services  will  continue  to  pursue  their  infringement  cases  on  the 
basis of Art. 228 EC and see to it that all incompatible aid is recovered. This is necessary to 
ensure a level playing field between competitors and a market of undistorted competition – a 
requirement  which  becomes  all  the  more  important  in  the  current  economic  circumstances 
where companies struggle to stay on the market even in conditions of undistorted competition. 
As  already  explained  before,  the  Commission  has  achieved  a  very  good  track  record  in  the 
recovery  field.  The  enforcement  action  of  the  Commission  services  can  therefore  focus  on 
those instances where Member States have still not shown the desired results in their recovery 
efforts, mainly because of national legislation creating obstacles to effective recovery.  

39 
40 

Joined Cases C-485/03 to C-490/03, Commission v Spain. 
Among others, The Commission Services have requested a certification by an independent body that the 
lists of beneficiaries are completed and that the amounts recovered are correct. This certification has not 
been submitted to date. 

EN 

49 

   EN 

                                                 
The  primary  focus  of  attention  for  2008  as  set  out  in  the  25th  Annual  Report  -  the 
improvement of the competitive conditions in the liberalised markets and in financial services 
- have been fully taken up in the infringement work of the Commission services in the sector 
of  "Competition".  The  infringement  procedures  in  the  energy,  postal  and  financial  services 
sectors  have  made  important  progress  which  have  –  or  will  in  the  very  near  future  -  result 
either in the closing of the case or have already led to the sending of a Letter of Formal Notice 
or  Reasoned  Opinion  in  2008.  Infringement  action  on  the  basis  of  Art.  86  EC  complaints 
thereby  has  to  be  seen  as  a  complementary  tool  to,  firstly,  Community  legislation  aimed  to 
liberalise  certain  sectors  of  the  economy  (which  is  mainly  adopted  by  other  Commission 
services) and, secondly, to the direct application of Articles 81, 82 and 87 EC (the assessment 
of which falls outside the scope of this Annual Report). The infringement cases dealt with by 
the  Commission  services  in  the  context  of  liberalisation  therefore  concern  the  residual 
problems  of  the  granting  of  special  or  exclusive  rights  by  Member  States,  i.e.  instances  of 
such rights which "survived" the liberalisation and which have not been tackled on the basis 
of the direct application of Art. 81, 82 or 87 EC.  

In the field of electronic communications and the correct implementation of the Directive on 
Competition  in  the  Markets  for  Electronic  Communications  and  Services  (2002/77/EC),  the 
Commission services have actively monitored changes to the relevant provisions in the Italian 
broadcasting market and maintain its efforts to ensure effective competition in this sector. 

With  respect  to  the  transposition  of  the  Financial  Transparency  Directive  (80/723/EEC  as 
subsequently amended), the Commission could close in 2008 infringement proceedings with 
Denmark,  Italy,  Luxembourg,  Slovakia  and  Latvia.  Yet,  two  Member  States  (UK  and 
Belgium) have still not fully transposed or communicated the national transposition measures 
to  the  Commission  within  the  prescribed  period,  i.e.  20  December  2006.  It  is  therefore 
envisaged to proceed with the sending of the Reasoned Opinion to these two Member States 
in the first half of 2009 as a matter of priority. 

3.3. 

Priorities and planned action 

For 2009, infringement action is envisaged in sectors that have recently been liberalised or are 
in the process of liberalisation, such as energy or postal services. The main focus of attention 
for  the  year  2009  will  therefore  follow  closely  that  established  for  2008:  the  Commission 
services  will  continue  to  focus  on  these  sectors  by,  for  instance,  proceeding  with  the 
infringement  procedure  against  Slovakia  for  closing  a  part  of  the  postal  market  to 
competition; or by ensuring, in cooperation with the Greek authorities, that the lignite market 
is open to undertakings wishing to compete with the incumbent in the provision of wholesale 
electricity. 

Another area of priority action in 2009 concerns the continued monitoring of the transposition 
of  the  Financial  Transparency  Directive  and  the  Electronic  Communications  and  Services 
Directive by Member States. The former will result in the sending of two Reasoned Opinions 
to  the  UK  and  Belgium  for  the  non-communication  of  measures  to  implement  the 
Transparency Directive correctly and in time.  

In the field of complaints-handling, the current economic crisis will require the Commission 
to  ensure  that  Member  States  do  not  violate  Art.  86(1)  EC  by  granting  special  or  exclusive 
rights to their own companies in an effort to protect national markets from competition.  

EN 

50 

   EN 

Finally,  long  standing  non-recovery  cases  will  if  necessary  in  2009  be  referred  to  the  ECJ 
pursuant to Art. 228 EC with a view to imposing a lump sum and daily penalty payments on 
the Member State concerned to ensure effective recovery of the aid granted. 

4. 

EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES 

4.1. 

Free movement of workers and coordination of social security schemes 

4.1.1.  Current Position 

4.1.1.1.  Introduction 

In the field of free movement of workers, the Commission deals with problems linked to an 
incorrect application of the relevant provisions of the EC Treaty and of regulations existing in 
that  area.  Over  the  years,  problems  have  been  brought  to  the  attention  of  the  Commission 
through  individual  complaints  which  has  led  the  Commission  to  increase  its  recourse  to 
problem-solving mechanisms and it intensifies communication to prevent problems. 

1. 

2. 

4.1.1.2.  Report on progress made in 2008 regarding free movement of workers 

The  Commission  carried  out  a  systematic  review  of  the  legislation  of  all  Member 
States  following  two  preliminary  judgments  of  the  ECJ  regarding  the  nationality 
condition for posts of master and chief mate of ships where the prerogatives of public 
authority  are  exercised  by  private  sector  workers.  Out  of  20  procedures  opened  on 
this issue in 2004, 7 were still ongoing in 2008. In three cases the Court of Justice 
confirmed  its  previous  judgments:  France,  Italy  and  Spain41.  The  cases  against 
France  and  Italy  were  closed  in  2008  after  the  nationality  condition  was  abolished. 
After  the  Czech  rules  had  been  brought  into  line  with  Community  law,  the 
Commission decided to withdraw its case from the Court. The Commission decided 
to  refer  one  more  case  to  the  Court  of  Justice  (Greece)  and  2  cases  (Finland, 
Lithuania) were closed after the national rules had been correctly amended.  

In  relation  to  the  issue  of  the  recognition  of  previous  professional  experience 
acquired in one Member State for the purpose of access to the public sector as well 
as  for  determining  the  working  conditions  (e.g.  salary,  grade)  in  another  Member 
State, again good progress was made. Following a judgment of the Court of Justice42, 
the Commission closed one case against Italy as the national rules had been correctly 
amended and subsequently four cases which were dealt with under this infringement 
procedure  were  also  closed.  Several  other  cases  on  this  topic  were  closed  after  the 
reform of the national rules before the cases were transmitted to the Court of Justice 
(France  –  recognition  of  professional  experience  of  doctors;  Austria  –  change  of 
in 
legislation  concerning  recognition  of  professional  experience  completed 
Switzerland by no longer restricting such recognition to periods completed after the 
entry into force of the free movement of persons Agreement with Switzerland). 

41 

42 

C-89/07  (Commission  v.  France)  ECR  [2008]  I-00045;  C-447/07  (Commission  v.  Italy)  judgment  of 
11.09.08, not yet published; C-94/08 (Commission v. Spain) judgment of 20.11.08, not yet published. 
Case C-371/04, Commission v. Italy, ECR [2006] I-10257. 

EN 

51 

   EN 

                                                 
3. 

4. 

5. 

6. 

7. 

The Commission services have received many queries and complaints concerning the 
residence rights of migrant workers in the host Member State. It is partly due to the 
fact  that  in  May  2006,  Directive  2004/38/EC  effectively  entered  into  force 
introduced  new  residence  formalities  and  some  important  new  rights  (such  as  the 
right  of  permanent  residence).  As  the  Commission  indicated  in  its  report  on  the 
application  of  the  Directive  presented  in  December  2008  (COM  (2008)840)43,  the 
result of the transposition was rather disappointing. Not one single Member State has 
transposed the Directive effectively and correctly in its  entirety. Not  one Article of 
the  Directive  has  been  transposed  effectively  and  correctly  by  all  Member  States. 
Consequently,  there  were  still  many  problems  in  practice  regarding  the  correct 
application  of  the  Directive.  In  particular,  the  rights  of  family  members  of  migrant 
workers, who are third country nationals, were often not respected. Those cases were 
dealt with by SOLVIT centres which were very efficient in this field as they could 
often ensure an appropriate and quick solution for the complainants (such as ensuring 
the actual granting of a residence card to a third country family member). 

In  the  situation  of  economic  crisis,  more  and  more  replies  had  to  be  provided 
concerning the rights of jobseekers – questions on how long they are entitled to stay 
in  the  host  Member  State,  whether  they  have  access  to  social  benefits  and  social 
they  are 
assistance,  and  whether 
unsuccessfully seeking employment for a long time in another Member State. There 
were  also  a  number  of  queries  about  insufficient  assistance  provided  by  national 
employment agencies to migrant workers. 

they  are  protected  against  expulsion 

if 

Citizens' complaints concern also the violation of their rights as migrant workers by 
private  employers  such  as  discriminatory  treatment  in  access  to  work  or  working 
conditions.  However,  as  in  this  case  the  Commission  cannot  intervene,  it  can  only 
limit itself to provide the information about the migrant's rights and advise them to 
seek solutions through means available at the national level. The Commission notes 
however that enforcement of these rights at a national level is often problematic. 

A recurring topic of queries was also the application of transitional arrangements for 
workers  from  EU8  and  EU2.  There  were  both  requests  for  information  and 
complaints about the existence of  restrictions as such (by citizens) and calls to end 
them  (parliamentary  questions).  However,  on  this  basis  the  Commission  services 
have not identified complaints which would demonstrate an incorrect application of 
transitional arrangements. Therefore, on the basis of last year's experience, it seems 
that there was no general problem of application of the transitional arrangements. 

Employment  in  the  public  sector  represents  in  many  Member  States  an  important 
part of the labour market. Therefore, the action of the Commission in this field has a 
significant effect on the migrant workers' rights; in particular there is a lot of labour 
mobility in the public teaching and health sectors. 

The Commission dealt in particular with the following issues: 

–  abolition  of  nationality conditions access for  employment in the public sector in 
(4)  EC. 

the  Court  on  Article  39 

jurisprudence  of 

line  with 

the 

43 

http://www.cc.cec/sg_vista/cgi-
bin/repository/getdoc/COMM_PDF_COM_2008_0840_F_EN_RAPPORT.pdf 

EN 

52 

   EN 

                                                 
The  effect  of  the  actions  of  the  Commission  carried  out  in  this  field  since  1988 
was  that  many  Member  States  undertook  extensive  reforms  opening  their  public 
sectors. There are however still posts where access is limited to nationals even if 
the  post  in  question  does  not  involve  the  exercise  of  public  authority  and  the 
responsibility for safeguarding the general interest of the State. The difficulty of 
dealing  with  this  issue  is  that  it  requires  case-by-case  analysis  in  view  of  the 
nature of the tasks and responsibilities covered by each post. 

–  the issue of taking into account of periods of employment acquired in another 

Member State for the purposes of access to the public sector and for determining 
working conditions (e.g. salary, grade) in the same way as applies to comparable 
experience acquired in the host Member State. 

The Commission was very active also in this field before 2008. Due to many 
complaints received in the past on this issue, infringement procedures were 
carried out against nearly all EU15 Member States concerned (which have 
statutory rules on this issue). Thanks to this activity all of these Member States 
reformed their legislation. Nevertheless, the Commission received other 
complaints in 2008 which reveal remaining problems. This problem also has not 
yet fully been tackled in the "EU10 and EU2" Member States. The Commission 
received also a number of complaints regarding incorrect interpretation or wrong 
application of the national rules even if they were reformed in conformity with 
Community law. In these cases, the Commission services advised the complainant 
to seek redress at national level and possibly via the SOLVIT system. The 
Commission pays particular attention to evidence of general problems of wrong 
application. 

–  Other  complaints  regarding  public  sector  concerned:  discriminatory  working 
conditions  (unrelated  to  the  issue  of  recognition  of  professional  experience),  no 
equal treatment in relation to the taking into account of foreign diplomas for the 
purpose  of  access  to  the  public  sector  and  for  determining  working  conditions, 
disproportionate language requirements in access to posts. 

8. 

Sport:  for  many  years  the  Commission  has  been  dealing  with  the  issues  of 
Community 
to  free  movement  of  professional  sportsmen  and 
sportswomen.  In  2008,  the  Commission  services  have  in  particular  focused  on  the 
following points: 

law  related 

–  The  quotas  on  nationality  applied  in  professional  sport:  in  the  follow-up  to  the 
Bosman's ruling44 the Commission undertook extensive action, in order to assure 
the  respect  of  EC  law.  The  Commission  analysed  and  discussed  proposals  of 
European  and  international  sport  governing  bodies,  which  were  aiming  at  the 
establishment  of  quotas  on  nationality  or  regulating  the  transfers  of  players. 
However, given the fact that infringement proceedings for breach of Community 
law in accordance with Article 226 of the EC Treaty can only be initiated against 
a Member State of the European Union, the Commission services have sometimes 

44 

C-415/93. 

EN 

53 

   EN 

 
 
                                                 
encountered difficulties in enforcing EU law in Member States where a behaviour 
of private actors violating EU law could not be attributed to the State. 

–  The  Commission  was  also  closely  involved  in  the  analysis  and  the  discussions 
surrounding the UEFA's rule ''home grown players". Its analysis was made public 
through a Press Release45.  

The issue of equal treatment of third country nationals, citizens from countries with 
which  the  European  Union  has  signed  an  international  agreement.  It  is  within  this 
framework that the Commission has prepared and ensured the follow-up of the case-
law  of  the  Court  of  Justice,  namely  in  the  cases  Kolpak46,  Simutenkov47  and 
Kahveci48.  The follow-up has consisted  in  answering individual requests as well as 
disseminating  information  on  the  obligation  for  professional  sport  clubs  to  treat 
equally  third  country  nationals,  coming  from  countries  with  which  the  European 
Union has signed an international agreement containing an equal treatment clause. 

4.1.1.3.  Report on progress made in the field of social security coordination 

A number of infringements concerning benefits for disabled persons were closed in 
2008. In 2004, the Commission started infringement procedures against Finland, the 
UK  and  Sweden  as  it  took  the  view  that  a  number  of  benefits  for  disabled  persons 
provided  by  these  Member  States  have  been  unjustifiably  categorised  as  "special 
non-contributory benefits" by the co-legislators in the framework of Regulation (EC) 
No 647/200549 and that these benefits were in fact common social security benefits 
and  therefore  exportable.  In  addition  to  these  infringement  procedures,  the 
Commission  also  lodged  an  annulment  procedure  based  on  Article  230  of  the  EC 
Treaty (case C-299/05). In its judgment of 18 October 2007, the Court stated that the 
benefits concerned must be qualified as "social security benefits" and not as "special 
non-contributory  benefits".  As  the  3  Member  States  involved  confirmed  their 
willingness to abide with the judgment of the Court and taking into account that the 
necessary  steps  have  been  made  in  the  Administrative  Commission  on  Social 
Security for Migrant Workers (CASSTM) and the fact that the Commission did not 
receive  any  complaints  in  this  respect,  the  Commission  closed  the  4  infringement 
procedures in June 2008. 

In  the  field  of  social  security  coordination,  the  Commission  services  have  received 
many  queries  and  complaints  concerning  the  application  of  Regulation  (EEC)  No 
1408/71 and its implementing Regulation, in particular, from migrant workers about 
their social security rights, e.g. which legislation applies to them, their entitlement to 
sickness  insurance  benefits  and  family  benefits,  how  to  apply  for  a  pension. 
Complaints  concerned  residence  clauses  in  national  legislation  for  various  kind  of 
social  security  benefits,  incorrect  application  of  the  principle  of  aggregation  of 

IP/8/807 of 28 May 2008. 
C-438/00. 
C-265/03. 
C-152/08. 
Regulation  (EC)  No  647/2005  of  the  European  Parliament  and  of  the  Council  of  13  April  2005 
amending  Council  Regulation  (EEC)  No  1408/71  on  the  application  of  social  security  schemes  to 
employed  persons,  to  self-employed  persons  and  to  the  members  of  their  families  moving  within  the 
Community  and  Council  Regulation  (EEC)  No  574/72  laying  down  the  procedures  for  implementing 
Regulation (EEC) No 1408/71, OJ L 117, 4.5.2005. 

9. 

1. 

2. 

45 
46 
47 
48 
49 

EN 

54 

   EN 

                                                 
insurance periods, cumbersome or incorrect administration of cases involving a EU 
element. 

As regards sickness insurance benefits, 4 major issues have been dealt with. 

–  Following  the  introduction  of  a  general  sickness  insurance  scheme  in  the 
Netherlands  on  1.1.2006,  the  Commission  services  received  more  or  less  four 
hundreds  complaints  from  Dutch  pensioners  residing  in  another  Member  State, 
who suddenly fell under the scope of Regulation 1408/71, in particular Article 28 
or 28a stipulating that a person in receipt of a legal old-age or invalidity pension 
and  who  resides  in  another  Member  State  than  the  one  that  pays  the  pension,  is 
entitled  to  sickness  benefits  according  to  the  legislation  of  the  Member  State  of 
residence  on  behalf  of  the  Member  State  that  pays  the  pension.  The  latter  may 
withdraw  sickness  insurance  contributions  from  the  pension  paid.  The  Dutch 
pensioners claimed that they could not be obliged to pay Dutch sickness insurance 
contributions  and  that  they  were  entitled  to  opt-out.  The  Commission  examined 
the Dutch legislation and concluded that it was in line with Regulation 1408/71. 

–  Another issue dealt with by the Commission concerned a decision of the French 
sickness insurance institution to exclude EU nationals residing in France, who are 
non-active  but  not  yet  in  receipt  of  a  state  old-age  pension  from  access  to  the 
Couverture Maladie Universelle (CMU). According to the French legislation, all 
persons residing for more than 3 months in France and who are not covered by a 
French  or  foreign  legal  sickness  insurance  scheme  are  obliged  to  join  the  CMU 
(which is a contributory sickness insurance scheme). Following the intervention of 
the  Commission, 
their  decision  and 
the  French  authorities  reconsidered 
maintained the CMU coverage of EU nationals residing in France for more than 3 
months. 

–  The Commission services received many queries from pre-retired British nationals 
residing  in  the  Valencia  region.  Many  of  them  moved  to  Spain  following  the 
decision  of  the  Valencia  authorities  to  offer  free  health  care  to  EU-nationals 
owning a property in the Valencia region. In 2008, the Valencia health authorities 
decided to stop the free health coverage for non-active EU nationals who are not 
in  receipt  of  a  state  old-age  or  invalidity  pension.  The  analysis  carried  out 
demonstrated that as the persons concerned are not in receipt of a state pension, 
they cannot rely on Regulation 1408/71 to claim sickness insurance benefits at the 
expenses of the Member State that pays the pension. According to Article 13(2)(f) 
of  Regulation  1408/71,  post-active  persons  are  covered  by  the  social  security 
legislation of the Member State of residence, namely Spain. As a consequence, the 
Spanish social security legislation determines the conditions of eligibility of post-
active EU nationals to health care and no action could be initiated at Commission 
level. 

–  The  Commission  services  received  many  queries  about  the  European  Health 
Insurance  Card  (EHIC),  namely  how  to  apply  for  it  or  how  to  use  it.  The 
Commission  opened  infringement  procedures  against  Cyprus,  as  regards  the 
eligibility conditions for receiving a European Health Insurance Card and against 
Italy  where  EU  students  who  are  studying  temporarily  in  Italy  are  required  to 
present a form E-106 instead of a European Health Insurance Card. 

EN 

55 

   EN 

As  regards  pensions,  the  Commission  received  various  complaints  about  the  payment  of 
pensions into the beneficiary's bank account in the Member State of residence. It seems that 
several Member States have problems with such payments. The SEPA (Single Euro Payment 
Area)  should  be  the  answer  to  this  problem.  However  the  Commission  opened  an 
infringement procedure against Belgium, where legislation does not allow the payment of the 
pension directly to an account without having the foreign bank guarantee that it will repay the 
amount, should payments have been wrongly made. 

1. 

2. 

The  Commission  presented  a  proposal  for  a  new  Regulation  implementing 
Regulation  883/2004  on  31  January  2006.  The  new  simplified  and  modernised 
Regulation 883/2004 will apply on the date of entry into force of this implementing 
Regulation. 

The Commission presented three other proposals for a Regulation in the framework 
of Regulation 883/2004: 

–  a  proposal  determining  the  content  of  Annex  XI  of  Regulation  883/2004  (COM 

(2006) 7) 

–  a proposal modifying Regulation 883/2004 and its Annexes (COM (2007) 376). 

–  a  proposal  aiming  at  extending  the  provisions  of  Regulation  883/2004  and  its 
implementing  Regulation  to  third  country  nationals  who  are  not  yet  covered  by 
these provisions solely on the ground of their nationality (COM(2007) 439). 

Proposals (1) and (2) has been merged by the EP and Council during the first reading since 
both  proposals  relate  to  the  Annexes  to  Regulation  883/2004  and  both  amend  some  of  the 
same Annexes. 

In  2008,  significant  progress  was  made  in  view  of  the  entry  into  application  of  Regulation 
883/2004 which involved: 

–  the follow-up of the work done in the Council Working Group and the EP. This 
has implied in particular the deliverance of the opinion on EP's amendments at the 
first  reading  and  the  Communication  concerning  the  common  position  of  the 
Council (COM(2008) 896)). 

–  the  organisation  of  the  electronic  exchange  of  data.  The  implementation  of 
Regulation  requires  that  the  transmission  of  data  between  institutions  should  be 
carried  out  by  electronic  means  under  a  common  secure  network.  The  EESSI 
system is an ambitious and unique tool of e-administration and will enable 31 
countries  to  exchange  electronically  social  security  information  between  their 
administrations thereby fulfilling the ultimate aim of strengthening the protection 
of mobile citizens' social security rights. This will in turn facilitate and speed up 
the decision-making process for the actual calculation and payment of benefits to 
citizens who move around Europe. 

4.1.2.  Evaluation of the current situation 

In 2008, the services of the Commission received for both sectors (free movement and social 
security  coordination)  an  impressive  number  of  letters  and  petitions  (3000)  of  European 

EN 

56 

   EN 

citizens,  approximately  balanced  between  both  sectors.  Globally,  the  volume  of  incoming 
queries and complaints is relatively stable. 

The  nature  of  the  queries  remains  more  or  identical  but  obviously  takes  into  account  new 
legislation such as Directive 2004/38/EC and the development of the economic crisis. 

The total number of infringements concerning free movement of workers and social security 
coordination  evolved  in  2008  from  49  procedures  at  the  beginning  of  the  year  to  38  in 
December 2008. 25 files were closed during this year and 14 new procedures were opened. 
The priority was put on procedures that were opened before 2006 and as result 13 could be 
closed after solutions were found to problems. Monthly decision-taking in the framework of 
infringement  allowed  the  service  to  speed  up  and  make  more  efficient  dealing  with 
procedures. 

Since the introduction of EU Pilot in 15 April 2008 a number of complaints have been dealt 
with  successfully  through  this  instrument.  This  has  enabled  to  solve  problems  raised  by 
complainants without initiating an infringement procedure. It is complemented by a system of 
filtering  of  letters  concerning  social  security  in  cooperation  with  the  representatives  of  the 
Member  States  in  the  CASSTM  put  in  place  in  2005.  Solving  problems  mechanisms  are 
privileged tools to favour quick and rapid solutions to citizens' queries and complaints. 

The  Commission  services  also  use  in  their  monitoring  task  the  work  done  by  networks  of 
academic  experts,  whose  reports  on  the  application  of  Community  law  in  the  field  of  free 
movement of workers and coordination of social security are published on the website50. 

In view of the very high number of queries which does not decrease over the years, substantial 
effort  was  made  in  terms  to  supplement  monitoring  with  improved  communication  tools  to 
better inform the citizens about their rights as regards free movement of workers and social 
security coordination. In particular, a brochure on rights of migrant workers "Do you want to 
work  in  another  EU  Member  State?  Find  out  about  your  rights!  (Update  2007)"  has  been 
made available on the website.51 In the field of social security the brochure "The Community 
provisions  on  social  security.  Your  rights  when  moving  within  the  European  Union"  is 
available  on  the  website52.  The  brochure  "Moving  in  Europe.  Your  social  security  rights", 
containing information about national social security rights of 25 Member States, available on 
the website53. 

4.1.3.  Evaluation results - priorities for 2009/2010 

The monitoring work presented above cannot be strictly planned as it depends largely on the 
number  and type  of complaints sent to the Commission. However, in order to set priorities, 

50 

51

52

53

Network of experts on free movement of workers: 
http://ec.europa.eu/social/main.jsp?catId=475&langId=en; Tress network: 
http://ec.europa.eu/social/main.jsp?catId=600&langId=en  

http://bookshop.europa.eu/eubookshop/download.action?fileName=KE3008406ENC_002.pdf

&eubphfUid=10049296&catalogNbr=KE-30-08-406-EN-C 

http://bookshop.europa.eu/eubookshop/bookmarks.action?target=EUB:NOTICE:KE6404022:E

N:HTML&request_locale=EN 

http://ec.europa.eu/employment_social/social_security_schemes/national_schemes_summaries/

index_en.htm 

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   EN 

                                                 
 
 
 
the importance of the file, from the point of view of its political impact is taken into account. 
The problems which seem to be widespread in several Member States are also given priority. 
As  described  above,  the  horizontal  exercise  regarding  the  nationality  condition  for  posts  of 
master  and  chief  mate  of  ships  was  very  successful.  However,  due  to  diversity  of  problems 
brought  up  constantly  to  the  attention  of  the  services  of  the  Commission,  it  is  not  easy  to 
concentrate the effort on only one particular issue. As during the last year, in 2009 particular 
attention will be paid to the ongoing infringement procedures which have been opened more 
than 3 years ago. 

To supplement monitoring activities and in response to the calls by the EPSCO Council54 and 
European  Parliament55,  the  Commission  will  also  step  up  its  efforts  to  provide  better 
information to citizens on their rights as migrant workers. 

In  the  field  of  social  security  coordination,  the  Commission  has  launched  a  pan-European 
information campaign in January 2009. The objective of this campaign is to raise awareness 
on the benefits of the EHIC, both among people who travel and among health professionals 
who welcome patients from other EU countries and presenting a European Health Insurance 
Card.  The  campaign  started  with  11  priority  Member  States  identified  on  the  basis  of  the 
number of cards in circulation while concerned with either many tourists, or study destination 
for students. 

In  the  framework  of  the  entry  into  application  of  Regulation  (EC)  No  883/2004  and  its 
implementing Regulation in 2010, the Commission is planning a major information campaign 
on the new social security coordination rules targeting on the one hand the European citizens 
and  on  the  other  hand  the  social  security  institutions  of  the  Member  States  which  have  to 
apply the new provisions. 

One communications is foreseen for 2010: a communication on the rights of migrant workers 
– updating and reviewing the Communication of 2002 (COM (2002) 694). Also in 2010 the 
Commission is planning to launch an information campaign on workers' rights. 

4.1.3.1.  Priorities regarding free movement of workers 

The Commission services have asked Member States (members of the Technical Committee 
on free movement of workers) to provide up-to-date information on issues related to the free 
movement  of  public  sector  workers  (in  particular  nationality  condition;  recognition  of 
professional  experience  for  the  purposes  of  access  to  posts  and  for  determining  working 
conditions [e.g. salary; grade]; other legal aspects of free movement of public sector workers 
e.g.  language  requirements;  taking into  account  of  diplomas  in the  recruitment  process  etc). 
Depending on the outcome of the information collection and also in view of the information 
contained in other reports56 and in view of the citizens' complaints, the monitoring follow-up 
will have to be decided on in relation to the different issues at stake (possibly more systematic 
infringement procedures against Member States from 2010 onwards). 

54 
55 

56 

Conclusions of the EPSCO Council of 9 May 2009. 
Vălean  report  on  the  application  of  Directive  2004/38/EC  and  Gacek report  "Problems  and  prospects 
concerning European citizenship". 
Reports  of  the  "Network  on  free  movement  of  workers"  of  the  last  years;  Report  of  the  Human 
Resources  Working  Group  of  the  European  Public  Administration  Net  work  (EUPAN)  on  "Cross-
Border Mobility of Public Sector Workers" published in 2006. 

EN 

58 

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Another  primary  focus  for  the  Commission  services  will  be  to  ensure  the  respect  of 
provisions  of  the  Directive  2004/38/EC  regarding  migrant  workers  and  their  family 
members. The Commission will work together with the Member States to make sure that the 
Directive  is  correctly  transposed  and  implemented  across  the  EU.  In  order  to  achieve  this 
result,  the  Commission  will  fully  use  its  powers  conferred  to  it  by  the  Treaty  and  launch 
infringement procedures when necessary. 

Open  infringement  procedures  against  Spain  and  Greece  where  the  issue  of  nationality 
condition for access to posts of master and chief mate of ships remains will be pursued. 

The  Commission  services  have  launched  a  study  aiming  to  provide  information  on  the 
involvement  of  the  different  Member  States  in  the  organisation  and  the  functioning  of 
professional sport activities. The results of this study will permit the Commission services to 
obtain  a  general  overview  of  the  question  and  take  into  consideration  the  possibility  to 
undertake infringement actions against Member States, which can be held responsible for the 
behaviour of national professional sport associations violating the free movement of workers 
provisions. 

The  Commission  services  will  still  be  working  in  close  cooperation  with  International  and 
European governing bodies (the FIFA and UEFA authorities) on proposed rules which could 
have an impact on the fundamental principle of free movement of workers. 

4.1.3.2.  Priorities regarding social security coordination 

The objective is that the new system of coordination enters into application in the first half of 
2010.  In  order  to  realise  this  objective,  two  Regulations  were  adopted.  The  first  Regulation 
contains  provisions  necessary  to  implement  Regulation  (EEC)  No  883/2004.  The  second 
Regulation  adopted  aims  at  amending  a  number  of  provisions  of  Regulation  (EEC)  No 
883/2004 and at determining the content of Annex XI of Regulation (EEC) No 883/2004. 

The  proposal  concerning  the  extension  of  the  provisions  of  Regulation  883/2004  and  its 
implementing  Regulation  to  third  country  nationals  who  are  not  yet  covered  by  these 
provisions solely on the ground of their nationality is based on Article 63 (4) EC Treaty and 
will be adopted according to the consultation procedure. The Social Question Working Party 
of the Council started its discussion of the proposal under the Czech Presidency. The EP and 
the  European  Social  and  Economic  Committee  adopted 
their  (favourable)  opinion 
respectively in July 2008 and January 2008. 

In order to  prepare the entry into force  of the new system of coordination, the Commission 
has organised a number of thematic training seminars on the different social security sectors 
for  institutions  between  June  and  October  2009.  Together  with  the  Member  States  in  the 
framework of the CASSTM, the Commission intends to publish series of Explanatory notes 
for the social security institutions at the beginning of 2010. The purpose of these Explanatory 
notes will be to explain the background of the new provisions and some key concepts to social 
security institutions. 

Moreover, as regards the decision of the French sickness insurance institution to refuse access 
to the CMU for non-active EU nationals, further appropriate steps should be taken in 2009. 

EN 

59 

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4.1.4. 

Summary 

Priorities  set  up  for  2008  have  been  met  with  many  infringements  procedures  successfully 
closed  and  many  issues  resolved  through  problem-solving  mechanisms.  The  forthcoming 
years should follow the same trend with the positive impact of the preventive approach based 
on  administrative  cooperation  and  on  an  increased  communication  towards  citizens  and 
national authorities.  

Nevertheless,  in  view  of  the  forthcoming  entry  into  force  of  Regulation  883/04,  and  during 
the period of adjustment for national authorities, it can not be excluded that more complaints 
will have to dealt with and will increase the already workload in that area. 

4.2. 

Labour Law 

4.2.1.  Current position 

4.2.1.1.  Introduction 

At  present,  in  the  area  of  labour  law,  the  deadline  for  transposition  has  expired  for  all 
directives  in  force,  with  the  exception  of  one,  i.e.  Directive  2008/104/EC  on  temporary 
agency work, for which the transposition deadline will expire by 5 December 2011.  

Furthermore, Directive 2009/38/EC on the establishment of a European Works Council or a 
procedure in Community-scale undertakings and Community-scale groups of undertakings for 
the purposes of informing and consulting employees (Recast)57, as well as Council Directive 
2009/13/EC 
the  European  Community 
the  Agreement  concluded  by 
Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) on 
the  Maritime  Labour  Convention,  2006  and  amending  Directive  1999/63/EC58  have  been 
recently formally adopted. 

implementing 

The Directives applicable in the area of labour law cover a variety of issues and subjects, such 
as  collective  redundancies,  European  Works  Council,  information  and  consultation  of 
employees, posting of workers in the context of the provision of services, fixed term and part-
time work, temporary agency work, transfer of undertakings, employer insolvency, protection 
of young people at work, and working time.  

For a list of the measures in force in that sector please refer to Annex I  

Further details can also be found on: 

http://ec.europa.eu/labour_law 

4.2.1.2.  Main activities in 2008 

Monitoring the application of labour law implies the management of infringement procedures, 
the  preparation  of  monitoring  reports  and  the  setting  up  and  activation  of  various  expert 
groups. 

1. 

Management of infringements 

57 
58 

OJ L 122, 16.05.2009 
OJ L 124, 20.05.2009 

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60 

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Along the lines set out horizontally by the Commission for 2008, giving priority to 
the handling of Article 228 procedures and of non communication procedures, efforts 
were stepped up in order to close a considerable number of open infringements for 
non communication and non conformity. The significant decrease in the total number 
of  outstanding  cases,  as  well  as  the  considerable  shortening  of  delays  in  handling 
these, were  nevertheless  compensated  by  17  new  infringements  which  had  to  be 
opened  for  non  transposition  of  Directive  2005/47.  Also  there  remains  a  large 
number  of  "old  complaints"  [2959]  concerning  the  application of  the  working  time 
Directive 2003/88 following the SIMAP-Jaeger rulings60 which are pending since the 
Commission proposed amendments revising this Directive in September 2004. As a 
result, the total number of outstanding infringements (including those related to the 
consequences  of  the  SIMAP-Jaegerrulings)  is  currently  76  (compared  to  78  on 
31.12.2007).  Without  the  latter,  the total  number  of  open  infringements  procedures 
would have decreased by 31%.  

With  regard  to  the  non  communication  cases,  the  infringement  proceedings  against 
Member States which had failed to notify the national measures transposing Directive 
2002/14/EC,  establishing  a  general  framework  for  informing  and  consulting 
employees  in  the  European  Community,  continued.  The  case  brought  against 
Belgium continued under Article 228 EC, following the judgment from the Court of 
Justice61,  but  was  closed  following  the  adoption  of  the  necessary  transposition 
measures. 

As regards Directive 2002/74/EC, due for transposition by 8 October 2005, the case 
against France continued under Article 228 of the EC Treaty following the judgment 
from the Court of Justice 62, but was closed following the adoption and notification of 
the necessary national measures transposing the Directive. 

Regarding Directive 2003/72/CE due for transposition by 18 August 2006, the cases 
against  Belgium63  and  Greece64  referred  to  the  Court  of  Justice  were  withdrawn 
following  adoption  of  the  necessary  transposition  measures,  while  the  case  against 
Luxembourg following the ruling of the Court of Justice  65 continued under Article 
228 EC. 

With  respect  to  Directive  2006/109/EC  (adaptation  of  Directive  94/45/EC  on  the 
establishment  of  European  Works  Council  following  accession  of  Bulgaria  and 
Romania),  due  for  transposition  by  1  January  2007,  the  remaining  5  infringement 
proceedings  for  non  communication  could  be  closed  following  the  adoption  of  the 
necessary national measures. 

59 

60 
61 
62 
63 
64 
65 

However, the extent of non conformity in Greece in the medical sector led the Commission to send a 
letter  of  formal  notice  covering  10  complaints  concerning  working  hours  which  greatly  exceed  the 
limits to weekly working time set up in Directive 2003/8/EC 
Judgment of 3.10.2000 in case C-303/98 and judgment of 9.09.2003 in case C-151/02 
Judgment 29.3.2007, C-320/06 
Judgment 27.9.2007, C-9/07 
Pending case C-92/08 
Pending case C-82/08 
Judgment 9.10.2008, case C-70/08 

EN 

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With respect to Directive 2005/47/EC66 of 18 July 2005 on the Agreement between 
the Community of European Railways (CER) and the European Transport Workers’ 
Federation  (ETF)  on  certain  aspects  of  the  working  conditions  of  mobile  workers 
engaged  in  interoperable  cross-border  services  in  the  railway  sector,  due  to  be 
transposed by 27 July 2008, infringement proceedings for non communication were 
launched against 17 Member States that had failed to take the necessary transposition 
measures within the required time limit.  

As  regards  problems  of  non-conformity  of  the  national  transposition  measures  of 
Directives in the area of labour law, a number of proceedings in progress continued. 
For  example,  the  case  against  Luxembourg  for  incorrect  transposition  of  Directive 
96/71/EC  ('posting  of  workers')  continues  under  Article  228  EC  following  the 
judgment  of  the  Court  of  Justice67.  The  case  against  France  for  incorrect  and 
insufficient transposition of Directive 80/987/EEC, and in particular Article 8, is also 
still open.  

2. 

Monitoring reports 

In order to have a comprehensive picture regarding labour law in Member States, a 
series of studies were commissioned, with a view to taking stock of the state of play 
regarding  the  transposition  and  application  in  the  national  legal  orders  of  EU  10 
member States of all labour law directives. The final output of this exercise, launched 
in  2005  (see  previous  reports),  consists  in  a  series  of  reports,  which  will  be 
completed  with  reports  concerning  Bulgaria  and  Romania  (for  which  the  necessary 
studies were commissioned at the end of 2008) expected for the second semester of 
2009. 

The  contents  of  these  reports  have  in  the  meantime  started  to  be  used  in  recently 
published  implementation  reports  required  by  Directives.  An  example  is  the 
Communication  on  the  review  of  the  application  of  Directive  2002/14/EC 
(information  and  consultation  of  workers)  in  the  EU68,  and  an  accompanying  Staff 
Working  Document69.  The  analysis  has  enabled  the  Commission  to  identify  a 
number of outstanding issues where correct and full transposition of the Directive's 
requirements by Member States may be at stake, necessitating further clarification or 
verification.  These  issues raise  either questions of interpretation of the Directive or 
doubts as regards the compliance of implementing measures with the Directive. As 
indicated  in  the  implementation  report,  the  Commission  intends  to  examine  such 
issues  more  closely  in  co-operation  with  the  national  authorities  of  the  Member 
States concerned. 

Also, the importance of occupational pension schemes increases and the employer's 
insolvency  is  a  risk  associated  to  their  operation,  the  implementation  of  Article  8 
(concerning  old-age  benefits  under  supplementary  company  or  inter-company 
pension  schemes)  and  related  provisions  of  Directive  80/987/EC  ('employer's 
insolvency')  was  examined  in  a  Staff  Working  Document70.  Most  Member  States 

66 
67 
68 
69 
70 

OJ L 195, 27.7.2005, p. 15–17 
Judgment 19.6.2008, case C-319/06, Commission vs Luxembourg. 
COM (2008) 146 final, 17.3.2008 
SEC (2008) 334 
SEC (2008) 475 of 11 April 2008. 

EN 

62 

   EN 

                                                 
having in place specific measures aimed at meeting the requirements of Article 8 of 
Directive  80/987/EEC,  the  results  of  the  examination  and  analysis  revealed 
nevertheless that, in certain cases, issues can be raised as regards the extent to which 
some of these measures are sufficient to protect the interests of employees and retired 
persons in the event of insolvency of the employer. Further investigation is therefore 
needed in order to address the following issues: 

–  how to protect employees and retired persons against the risk of under-funding of 

the pension schemes, and to what extent;  

–  how to guarantee any unpaid contributions to the pension schemes;  

–  how to deal with cases where the supplementary pensions scheme is managed by 

the employer himself. 

As  a  follow-up  of  this  Staff  Working  Document,  the  Commission  services  will 
pursue  this  investigation  through  bilateral  contacts  with  Member  States  and  will 
launch a further study on the above topics in 2009. 

Following  the  publication  of  a  Staff  Working  Document  in  200671  concerning  the 
implementation  of  Directive  99/70  on  fixed-term  work  by  EU-15  countries,  a  new 
Staff  Working  Document  was  published  in  2008  on  the  implementation  of  this 
Directive in EU1072 to have a full picture regarding the application of that Directive. 
Also in this case, the analysis has enabled the Commission to identify a number of 
outstanding 
the  Directive's 
requirements by Member States may be at stake, necessitating further clarification or 
verification.  The  Commission  intends  to  examine  such  issues  more  closely  in  co-
operation with the national authorities of the Member States concerned. 

issues  where  correct  and  full 

transposition  of 

3. 

European network of legal experts in the field of labour law 

To  complete  the  horizontal  analysis  of  conformity  of  labour  law,  the  European 
Network  of  Labour  Law  Experts  was  created  as  of  23.12.2007  and  produced 
quarterly flash-reports providing information on recent key legal developments in the 
area of labour law, particularly in those areas that are most relevant for the control of 
EU  legislation.  This  systematic  reporting  and  monitoring  of  recent  developments, 
carried  out  under  Commission  supervision  allowed  the  Commission  services  to 
identify  problems  encountered  in  the  national  legislation,  its  application  and 
administrative practice, and to act in a preventive manner, if necessary.  

4. 

Strengthening pro-active co-operation : committee of experts 

Moreover,  as  regards  the  posting  of  workers  Directive,  in  view  of  the  problems 
encountered  by  companies  willing  to  post  workers,  with  authorities  in  another 
Member  State,  and  following  an  extensive  monitoring  exercise  carried  out  in  2006 
and 2007 with respect to application measures, including controls and administrative 
the  Commission's 
the  outcome  was  presented 
cooperation  (of  which 
Communication  of  13  June  2007  'Posting  of  workers  in  the  framework  of  the 

in 

71 
72 

SEC (2006) 1074, 11.8.2006. 
SEC (2008) 2485, 17.9.2008 

EN 

63 

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provision of services: (maximising its benefits and potential while guaranteeing the 
protection of workers73 and a attached Staff Working Document74) on 3 April 2008, 
the Commission adopted a Recommendation on enhanced administrative cooperation 
in the context of posting of workers in the framework of the provision of services75 
as  a  first,  concrete  follow-up  of  the  measures  indicated  in  the  June  2007 
Communication. This Recommendation calls on national governments to take urgent 
action  to  remedy  shortcomings  in  the  implementation,  application  and  enforcement 
of the legislation pertaining to posting of workers through better cooperation between 
information.  Furthermore, 
improving  access 
national  administrations  and 
following endorsement of the main points of this Recommendation by Council in its 
conclusions  on  9  June  2008,  the  Commission  adopted  a  Decision  setting  up  the 
Committee of Experts on Posting of Workers76 on 19 December 2008. 

to 

4.2.2.  Evaluation based on the current situation  

The importance of labour law for workers in Member States, as well as its importance for the 
perception  of  the  European  Union  as  a  whole,  has  justified  a  horizontal  analysis  of  the 
implementation  of  the  Directives  in  Member  States.  Thanks  to  that  systematic,  horizontal 
analysis  of  the  implementation  of  all  labour  law  Directives,  launched  in  2005,  and  to  the 
contribution of the experts network and other expert groups, the Commission has a fairly good 
view  of  the  legal  situation  in  all  Member  States  as  regards  the  implementation  of  those 
Directives. While, by and large, all Directives are now transposed in all Member States, and 
the Commission has made visible progress in 2008 to prioritise and accelerate the handling of 
open  infringements,,  there  are  still  a  number  of  critical  areas  where  the  application  of 
Community law is far from satisfactory.  

First and foremost, this is the case with the Working Time directive, where the law or legal 
and  administrative  practice  in  many  Member  States  does  not  comply  with  jurisprudence  or 
certain  provisions  of 
time, 
compensatory  rest,  multiple  contracts,  doctors  in  training,  public  sector  workers  and  the 
individual opt-out). A very substantial action is needed in order to clarify the application of 
the  Directive,  ensure  effective  conformity  across  the  EU  and  provide  a  response  to  the 
numerous complaints introduced by citizens or professional organisations.  

the  Directive  2003/88  (particularly  as  regards  on-call 

Moreover,  the  implementation  of  Directive  96/71  concerning  the  posting  of  workers  in  the 
framework of cross-border service provision has raised some critical issues, given the variety 
of industrial relations systems, particularly in the light of recent case-law (Viking-Line, Laval, 
Rûffert  and  Commission  v/  Luxembourg)  which  will  be  necessary  to  follow  closely.  The 
analysis of the implementation of Directives 99/70 on fixed-term work and 97/81 on part-time 
work,  both  resulting  from  agreements  between  social  partners,  revealed  a  number  of 
deficiencies which have to be addressed via EU Pilot or administrative letters.  

Finally, the current economic crisis has put to a severe test those legal provisions which aim at 
providing protection to workers in the event of major restructuring operations. This is the case 
in  particular  of  the  Directives  on  information  and  consultation  of  workers,  collective 
dismissals, transfer of undertakings and the protection of employees in the case of insolvency. 

73 
74 
75 
76 

COM (2007) 304 final 
SEC (2007) 747 
OJ 2008 C85/1, 4.4.2008; see also corrigenda OJ C89/18 of 10.4.2008 
OJ 2009 L8/26 

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It seems justified to inquire whether the objectives of such provisions have been effectively 
reached.  

4.2.3.  Translation of the evaluation into priorities and actions in 2009 

Four implementation reports currently under preparation are expected to be adopted in 2009. 
Such  reports  may  identify  situations  in  Member  States  deserving  further  examination  and 
eventually  may  justify  the  launch  of  infringements:  a  Commission  Report  on  the 
implementation of Directive 94/33 (Young People at Work), of Directive 91/383/EC (Health 
and  Safety  of  a-typical  workers),  of  Directive  2003/72/EC  (Employee  Involvement  in  the 
European  Cooperative  Society)  as  well  as  of  the  Article  25  of  Directive  2003/88  (working 
time of fishermen). 

The  Commission  intends  to  bring  further  clarity  to  the  implementation,  application  and 
enforcement of the Directive 96/71 on posting of workers. It will launch a study on the legal 
aspects  and  another  on  the  economic  and  social  impact  of  the  Directive,  and  will  promote 
exchange of information and debate on the implementation of the Directive in the framework 
of  the  Expert  Committee  which  was  launched  in  line  with  the  Commission  Decision  of  19 
December 2008. It will also monitor closely the legal changes implemented in some member 
States in response to the recent Court rulings.  
On the basis of the contents of the implementation reports drafted following examination of 
the  legal  situation  in  the  Member  States  after  the  2004  enlargement, follow-up  actions  of 
clarification  with  respect  to  the  fixed  term  Directive  99/70,  as  well  as  part  time  Directive 
97/81 will be carried out through bilateral contacts (EU-PILOT or administrative letters) .  

It is also the intention to proceed, in 2009, to further analysis and examination of a number of 
problems/issues 
(information  and 
consultation). Moreover,  in  the  conclusions  of  the  Communication  on  the  review  of  the 
application of Directive 2002/14/EC, the Commission indicates that it intends to take further 
action aimed at facilitating correct enforcement of the Directive.  

the  context  of  Directive  2002/14 

identified 

in 

Knowledge by management and labour of their respective rights and obligations in the area of 
information  and  consultation  is  an  indispensable  prerequisite  for  the  full  and  effective 
exercise  of  these  rights  in  the  workplace.  Therefore  Commission  also  intends  to  undertake 
action  geared  to  awareness-raising,  as  well  as  to  promote  exchange  of  best  practices  and  to 
enhance  capacity-building  of  all  stakeholders,  by  way  of  seminars,  training  courses,  studies 
and financial support for projects submitted by representatives of employers and employees. 

In  addition,  in  2009  an  expert  working  group  will  be  established  to  discuss  a  number  of 
outstanding  issues  re  the  application  of  the  insolvency  Directive  (Council  Directive 
80/987/EEC and its codified successor Directive European Parliament and Council Directive 
2008/94/EC) in transnational situations, taking into consideration the clarifications given by 
the  ECJ  in  its  judgment  in  the  Holmquist  case  (C-310/08),  as  well  as  address the  issue 
of administrative  cooperation  required  by  the  Directive.  The  protection  to  be  provided  to 
employees  and  retirees  of  insolvent  companies  where  these  are  covered  by  complementary 
pensions deserves special attention and will be the subject of an evaluation study in 2009 

Last but not least, with respect to planned actions for 2009, the Commission will strengthen 
preventive measures by providing technical assistance to the Member States in the process of 
transposition  and  implementation  of  the  recently  adopted  Directive  2008/104/EC  on 
temporary agency work. For this purpose a group of governmental experts will be set up. The 
Commission  will  also  establish  a  group  of  experts  to  assist  Member  States  in  the 

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implementation process of the recast European Parliament and Council Directive 2009/38/EC 
on European Works Councils adopted on 23 April 2009.  

4.2.4. 

Summary 

With  all  the  ongoing  initiatives,  including  the  establishment  of  several  expert  groups,  the 
Commission  has  increased  capacity  to  analyse  and  identify  problematic  issues,  pursue  its 
activities of control of Community legislation as well as to strengthen the range of preventive 
measures available. 

This  should  further  improve  the  implementation,  application  and  enforcement  in  practice  of 
the 'acquis' in labour law, with a special focus on the critical areas identified above. However, 
the  sensitive  and  often  highly  controversial  nature  of  the  issues  at  stake  may  hamper 
achieving effective progress. 

It  is  expected  that  the  launching  of  new  procedures,  including  through  the  EU-Pilot,  may 
increase the workload considerably, which may require further prioritization. 

4.3. 

Health and safety at work 

4.3.1.  Current Position 

4.3.1.1.  Introduction  

Health  and  safety  at  work  is  the  most  developed  corpus  of  legislation  in  the  field  of 
employment and social affairs. Its application over the last 15 years has, inter alia, contributed 
to a substantial reduction of the accidents at work. 

4.3.1.2.  Main activities in 2008 

Monitoring  the  application  of  health  and  safety  at  work  law  implies  different  activities  at 
various  levels  such  as  initiating  and  follow-up  of  infringement  procedures,  management  of 
complaints, involvement of committees and expert groups, drafting and adoption of practical 
implementation reports and non-binding good practice guides and initiating legal measures if 
necessary. 

1. 

Management of infringements: 

As  for  infringements  it  should  initially  be  highlighted  that  during  2008  it  was 
possible to close all infringement proceedings for non communication. 

–  Non-communication infringement cases: 

The  case  against  Austria  for  failure  to  transpose  Directive  2003/18/EC  was 
withdrawn upon notification of the necessary transposition measures, although it had 
already been referred to the Court of Justice. 

In  all  the  8  cases  against  Austria,  Czech  Republic,  Germany,  Denmark,  Hungary, 
Italy,  Luxembourg  and  the  United  Kingdom  for  the  failure  to  transpose  Directive 
2006/15/EC  establishing  a  second  list  of  indicative  occupational  exposure  limit 
values, the necessary transposition measures were received and thus the cases could 
be  closed.  In  the  cases  against  Germany,  Luxembourg  and  the  United  Kingdom  a 

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reasoned  opinion  had  already  been  sent,  while  in  the  Austrian  case,  a  decision  had 
already been taken to refer the case to the Court of Justice. 

–  Non-conformity infringement cases: 

Given  the  persistent  problems  of  non-conformity  of  the  transposition  of  the 
framework directive 89/391/EEC and of its individual directives, many proceedings 
in  progress  have  continued.  For  example,  the  case  against  Germany  related  to  the 
responsibility of the employer for accidents at work was closed. In the case against 
France  concerning  the  application  of  the  provisions  of  Directive  89/391/EEC  to 
RATP and SNCF, the Court of Justice ruled in favour of the Commission77 and the 
proceedings  continued.  In  the  case  against  Poland  on  this  directive,  a  reasoned 
opinion was sent. In November 2008, Poland changed the legislation in accordance 
with  the  reasoned  opinion  and  the  infringement  procedure  could  subsequently  be 
closed at the beginning of 2009. 

In  relation  to  individual  directives,  in  the  proceedings  against  Italy  on  Directive 
92/57/EEC  on  the  construction  sites,  the  Court  of  Justice  ruled  in  favour  of  the 
Commission78 indicating that the Italian transposition of Article 3(1), which provides 
for  an  obligation  to  appoint  one  or  more  coordinators  for  safety  and  health  matters 
for  any  construction  site  on  which  more  than  one  contractor  is  present,  was  not 
conform.  In  addition,  infringement  proceedings  against  Austria  were  opened 
concerning  this  Directive,  while  the  procedures  against  Denmark  and  Sweden 
followed their course. 

The  analysis  of  the  national  measures  transposing  Directive  93/103/EC  continued 
and  Italy  (through  the  EU  Pilot  project)  and  Greece  were  asked  to  provide  several 
clarifications and an infringement proceeding was launched against Spain in 2009.  

The  monitoring  activities  performed  by  the  Commission  in  2008  have  not  been 
limited  to  the  infringements  proceedings  since  the  work  on  the  analysis  of  the 
national legislation has also been continued; for instance clarifications were asked to 
Italy  as  regards  the  transposition  of  certain  provisions  of  Directive  2003/18/EC  on 
asbestos. 

2. 

Complaints management  

During 2008, more than 10 complaints concerned Health and Safety at Work. Some 
of  these  complaints  resulted  in  the  launching  of  infringement  procedures.  In 
particular,  a  letter  of  formal  notice  was  sent  to  Sweden  in  respect  of  a  complaint 
regarding  the  implementation  of  Directive  89/391/EEC.  Following  a  complaint,  a 
complementary letter of formal notice was also sent to Denmark concerning several 
points  of  Annex  IV  to  Directive  92/57/EEC,  in  the  framework  of  the  on-going 
infringement proceedings concerning Directive 92/57/EEC. 

Furthermore,  a  letter  of  formal  notice  was  sent  (in  2009)  to  the  UK,  following  a 
complaint concerning the transposition of Article 3 of Directive 2003/18/EC. 

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Case C-226/06, judgment of 5 June 2008. 
Case C-504/06, judgment of 25 July 2008. 

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3. 

Management of the acquis through committees and expert groups 

The  Committee  of  Senior  Labour  Inspectors  (SLIC)  assists  the  Commission  on 
problems  relating  to  the  enforcement  of  Community  law  on  health  and  safety,  and 
encourages  its  effective  enforcement,  notably  by  means  of  a  closer  cooperation 
between the national labour inspection services.  

In order to allow the members of the Committee to engage in a practical, interactive 
exchange of experience and opinion, the number of its  members  per  Member State 
will  be  reduced  from  two  to  one  as  from  1  January  2010  (Commission  Decision 
2008/823/EC of 22 October 2008, OJ L 288, 30.10.2008, p. 5). 

One  mechanism  to  fulfil  its  tasks  is  the  rapid  exchange  of  inspection-related 
problems and solutions amongst the EU-27 Member States and EFTA countries. In 
2008, the Committee developed further its use of the Commission's CIRCA extranet 
as  a  practical  information  exchange  system.  The  Committee  may  expand  its  use  to 
support discrete topics such as chemical substances and machinery. In the latter case, 
to enhance its work on market surveillance, the Committee will promote the sharing 
experience  on  compliance  and  enforcement  about  issues  identified  at  the  national 
level with the Machinery Directive and on the use of machinery.  

4. 

Practical Implementation Reports 

During 2008, a Communication was adopted by the Commission to the Council, the 
European  Parliament,  the  European  Economic  and  Social  Committee  and  the 
Committee of Regions on the practical implementation of Health and Safety at Work 
Directives  92/57/EEC  (temporary  and  mobile  sites)  and  92/58/EEC  (safety  signs  at 
work)79. 

In  addition,  during  2008,  a  draft  was  finalised  for  a  Communication  from  the 
Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and 
Social Committee and the Committee of Regions on the practical Implementation of 
the  provisions  of  the  Health  and  Safety  at  Work  Directives  93/103/EEC  (fishing 
vessels) and 92/29/EEC (medical treatment on board vessels). 

Also during 2008, a draft was finalised for a Communication from the Commission 
to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee  and  the  Committee  of  Regions  on  the  practical  Implementation  of  the 
provisions  of  the  Health  and  Safety  at  Work  Directives  92/91/EEC  (mineral-
extraction  through  drilling)  and  92/104/EEC  (surface  and  underground  mineral 
extraction). 

5. 

Information  and  risk  awareness  raising  campaigns  of  Senior  Labour  Inspectors 
Committee (SLIC) 

The  European  campaigns  launched  under  the  initiative  of  the  Senior  Labour 
Inspectors  Committee  (SLIC)80  largely  contribute  to  better  compliance  in  the  field 
with EU legislation. European campaigns are indeed an effective means by which the 

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COM(2008) 698 of 6 November 2008. 
Commission Decision 95/319/EC of 12 July 1995, OJ L 188, p. 11. 

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labour inspection services can cascade a common message to stakeholders. In 2008, 
the Member States of the SLIC designed and delivered a joint-initiative targeting the 
risk of injury from the manual handling of loads in the construction and retail trade 
employment sectors. The campaign was supported by straightforward brochures and 
posters, available free on the Internet, together with an e.learning toolkit about risk 
assessment and practical ways to avoid and reduce the risk of injury (available on the 
web site of the European Agency for Safety and Health at Work). 

6. 

Non-binding good practice guides 

In 2008 the Commission has drawn up a practical non-binding guide in order to help 
the  employers,  and  in  particular  those  from  SME's,  to  implement  the  provisions  of 
Directive 2003/10/EC81 dealing with the risks arising from noise at work. 

7. 

Enlargement 

During 2008, works continued as regards the EU enlargement area, namely as far as 
health  and  safety  at  work  issues  are  concerned  in  EU  candidate  and  potential 
candidate  countries.  Several tasks  in  this  respect  were  performed  during  2008  inter 
alia  on  the  analysis  of  the  Croatian  legislation  with  the  health  and  safety  at  work 
acquis,  on  the  contributions  provided  to  the  Annual  Progress  Reports,  on  the 
eligibility  of  certain  applications  for  TAIEX  funding,  on  the  analysis  of  certain 
projects under Instrument of Pre-Accession assistance. Participation was ensured in 
bilateral  meetings  with  Turkey,  FYROM,  Croatia,  Albania  (twice)  and  Serbia  to 
cover  the  aspects  of  health  and  safety  at  work  and  contributions  were  made  to  the 
bilateral meetings with Bosnia and Herzegovina, Kosovo, Montenegro. Participation 
was also ensured in several training sessions/seminars dedicated to the acquis in the 
field of health and safety at work in candidate and potential candidate countries. 

All these initiatives constitute important prevention instruments aiming at ensuring a 
complete  and  correct  implementation  of  the  acquis  by  the  candidate  and  potential 
candidate countries. 

4.3.2.  Evaluation of the current situation 

Accidents  at  work  and  work-related  diseases  are  a  heavy  burden  in  social  and  economic 
terms, and action to improve health and safety standards at work offers great potential gains 
not only to employers, but also to individuals and society as a whole. 

It  is  essential  that  the  Community  acquis  is  implemented  effectively  in  order  to  protect  the 
lives  and  health  of  workers  and  to  ensure  that  the  companies  operating  within  the  large 
European market are placed on an equal footing. 

The implementation of the EU directives in the field of health and safety at work is bearing 
fruit at European level. According to European Statistics on Accidents at Work methodology 
(ESAW), the latest statistics show that less than 4 million accidents at work resulting in more 
than three days of absence from work occurred in the EU-15 in 2006. In absolute terms, this 
corresponds  to  a  33.3%  decrease  compared  to  1995.  For  fatal  accidents,  this  trend  is  more 
marked with a reduction of 40.3% over the same period. In terms of incidence rate (per 100 

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000  workers)  for  accidents  in  the  nine  main  branches  of  economic  activity  of  the  employer 
(NACE), non-fatal accidents at work were down by 29.4% against 40.7% for fatal accidents. 

Priorities  set  for  2008  were  largely  met  but  it  should  be  borne  in  mind  that  the  work 
performed in the EU enlargement domain is time consuming and demanding as well as certain 
tasks to be performed within short deadlines. These activities therefore had a certain impact 
on the priorities set regarding the control and monitoring of the application of Community law 
in the EU Member States.  

4.3.3.  Evaluation results (priorities and planned actions for 2009) 

The Resolution of European Parliament of 15 January 2008 on the Health and Safety Strategy 
2007-201282 expressly requests to the Commission to intensify its work on the monitoring of 
the transposition of the health and safety at work directives.  

The analysis of the conformity of all the health and safety at work directives should continue 
to  be  indicated  as  a  priority  issue  as  an  incorrect  transposition  could  be  a  source  of 
occupational accidents or diseases, with particular serious negative consequences in terms of 
human  lives  or  physical  integrity  and/or  important  economic  impact  for  the  society  and  the 
concerned enterprises.  

However, as the analysis of the transposition of all provisions and annexes of the health and 
safety at work directives is a highly time-consuming task requiring highly specialised human 
resources  (not  only  lawyers  but  also  doctors,  chemical  engineers,  mines  engineers,  etc.),  a 
prioritisation was essential. 

Priority  continued  to  be  given  to  the  analysis  of  the  conformity  of  the  transposition  of 
Framework  directive  89/391/EEC,  which  establishes  the  main  principles  of  prevention  of 
occupational risks that apply to all sectors of activity. To continue these works as regards the 
correct transposition in the 12 new Member States will remain a priority for the Commission, 
which will launch infringement proceedings when necessary. 

Work  on  the  analysis  of  the  conformity  of  Framework Directive 89/391/EEC is  particularly 
complex and time-consuming due to the high number of pieces of legislation communicated 
by Member States to the Commission as implementing measures (eg. in some cases more than 
70 separate measures). Another main priority for 2009/2010 will continue to be the analysis of 
the  conformity  of  5  individual  directives  related  to  the  highest  risk  sectors:  construction 
(directive 92/57/EEC), maritime sector (directives 92/29/EEC and 93/103/EC) and extractive 
industries (directives 92/91/EEC and 92/104/EEC).  

These priorities are in line with the main objectives of the Community Strategy 2007-2012 on 
Health  and  safety  at  Work83  in  particular  those  of  reducing  occupational  accidents  and 
diseases and guaranteeing the proper implementation of EU legislation. 

In  particular,  during  2009,  the  Communication  from  the  Commission  on  the  practical 
Implementation  of  the  provisions  of  the  Health  and  Safety  at  Work  Directives  93/103/EEC 
(fishing  vessels)  and  92/29/EEC  (medical  treatment  on  board  vessels)  will  undergo  inter-
service consultation and will be submitted to the Commission for adoption and subsequently 

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Resolution 2007/2146 
COM(2007) 62 

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to the European Parliament, the Council, the European Economic and Social Committee and 
the Committee of Regions. 

In addition, the Communication from the Commission on the practical Implementation of the 
provisions  of  the  Health  and  Safety  at  Work  Directives  92/91/EEC  (mineral-extraction 
through drilling) and 92/104/EEC (surface and underground mineral extraction) will undergo 
inter-service consultation in 2009 and will be submitted to the Commission for adoption and 
subsequently  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee and the Committee of Regions. 

It should also be noted that a meeting will be held in October 2009 to discuss with Member 
States  the  transposition  of  Directive  2006/25/EC  (artificial  optical  radiation)  for  which  the 
period for transposition expires in April 2010. 

4.3.4. 

Summary 

In  general  the  difficulties  with  establishing  and  following  a  rigid  prioritisation  for  the 
monitoring of EU directives in the field of health and safety at work should be highlighted.  

On the one hand, Member States continuously adopt new national legislation in the field of 
Directive  89/391/EEC  and  its  individual  directives,  requesting  the  Commission  to  focus  on 
these new changes that often are not officially communicated to it. This makes the conformity 
analysis a never ending exercise. On the other hand, the dialogue established with the national 
administrations  determines  the  follow-up  and  calendar  of  the  procedure.  Moreover, 
complaints, petitions, Parliamentary questions or mail from the citizens in certain cases raise 
non-conformity  issues  that  need  to  be  urgently  investigated,  requesting  an  adaptation  of  the 
work plan.  

The  acquis  in  the  field  of  health  and  safety  at  work  constantly  needs  to  be  up-dated  or 
completed with a view to adapting it to new risks or to technical changes. Furthermore, the 
acquis is subject to periodical reviews as regards possibilities for simplification. The current 
exercise  on  the  measuring  of  administrative  costs  that  includes  two  directives  (Framework 
Directive  89/391/EEC  and  Construction  sites  directive  92/57/EEC)  is  particularly  time-
consuming for lawyers and has a serious impact on the progress of other activities in the area.  

In  addition  to  this,  the  workload  for  legal  experts  is  increased  by  replies  to  EP  and  citizens 
questions and by multiple requests for briefings whenever a fatal accident at work attracts the 
attention  of  media.  These  reasons,  as  well  as  short-term  changing  political  considerations 
evolving make out-of-date any rigid prioritisation. 

4.4. 

Antidiscrimination and gender equality 

4.4.1.  Current position  

4.4.1.1.  Introduction 

The  legislative  domain  of  anti-discrimination  and  gender  equality  represents  the 
highest number of infringement proceedings within the whole sector of employment 
social  affair  and  equal  opportunities  (i.e.  over  100  currently).  The  handling  and 
monitoring of all these cases is a heavy workload and in future when at all possible 
alternatives to infringement proceedings will be initiated.  

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4.4.1.2.  Report on progress as regards anti-discrimination 

1. 

Monitoring of infringements 

All the Member States have now transposed Directives 2000/43/EC and 2000/78/EC 
based  on  Article  13  EC.  Infringement  proceedings  remain  open  for  incorrect 
transposition of these Directives. 

At the end of 2008, the situation is as follows: 

–  Concerning  Directive  2000/43/EC,  two  Member  States  have  received  a  letter  of 
formal notice (AT and DE), two Member States have received a complementary 
letter of formal notice (NL and MT) and 16 Member States have been notified a 
reasoned opinion. 

–  Concerning  Directive  2000/78/EC,  6  Member  States  have  received  letters  of 
formal  notice  (LT,  PT,  SK,  BE,  AT  and  DE),  4  have  received  complementary 
letters of formal notice (LV, LT, PL and UK), 9 have received reasoned opinions 
and one has received a complementary reasoned opinion. 

In  this  field  dealing  with  fundamental  rights,  the  Commission  departments  made  a 
detailed  monitoring  of  national  laws.  This  might  explain  the  high  number  of 
infringement  cases,  together  with  other  factors,  in  particular  the  novelty  of  the 
legislation, the complexity of transposing highly complex notions (direct and indirect 
discrimination, reasonable accommodation, etc.). 

The infringement proceedings raise complex issues, connected with different areas of 
law, as the Directives (essentially Directive 2000/43/EC) have a large material scope 
which  led  to  the  organisation  of  bilateral  meetings  with  national  authorities  and 
brought clarification on a number of issues. 

2. 

Preparation of legislation 

The Commission has adopted in July 2008 a proposal for a Directive implementing 
the  principle  of  equal  treatment  between  persons  irrespective  of  religion  or  belief, 
disability, age or sexual orientation outside employment. 

The  proposal  mirrors  the  material  scope  of  Directive  2000/43/EC  and  builds  upon 
legal notions and standards used in this Directive as well as in Directive 2000/78/EC. 

From this point of view, the monitoring of the conformity of Directives 2000/43/EC 
and 2000/78/EC has an evident impact on the negotiations since the Commission is 
challenging some interpretations at national level of notions also being discussed in 
the context of this proposal. It is therefore necessary to ensure a separation between 
the two exercises. 

4.4.1.3.  Report on progress made regarding gender equality 

1. 

Monitoring of infringements procedures 

The  proceedings  concerning  non-communication  of  the  national  measures  to 
transpose Directive 2004/113/EC have progressed. Six Member States have not yet 

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communicated  their  national  measures  and  the  infringement  proceedings  remain 
therefore open. In 3 cases, the issue has been already referred to the European Court 
of Justice (CZ, EL and UK), in two cases, a reasoned opinion has been notified (PL 
and Estonia) and in one case, a letter of formal notice has been sent to the Member 
(Latvia). 

regards  Directive  2002/73/EC,  one 

As 
for  non 
communication remains open, against Belgium. Following the judgment of the Court 
of Justice of 17 July 2008, a procedure under Article 228 EC has been engaged. 

infringement  procedure 

As  regards  the  monitoring  of  the  conformity  of  national  measures  transposing 
Directive  2002/73/EC,  the  Commission  departments  made  a  detailed  monitoring  of 
national  laws.  This  might  explain  the  high  number  of  infringement  cases,  together 
with other factors, in particular the complexity of transposing complex notions. 

The situation of infringement proceedings is as follows: 

–  11 Member States have received a letter of formal notice (CZ, DE, DK, FR, IE, 

LV, PL, PT, SE, SK and UK). 

–  One Member State has received a complementary letter of formal notice (NL). 

–  8 Member States have received reasoned opinions (AT, EE, FI, HU, IT, LT, MT 

and SI). 

Following the first two stages of the infringement proceedings, the dialogue between 
the Member States and the Commission was initiated and new texts of law adopted 
by certain Member States which were scrutinised. 

Concerning  the  monitoring  of  Directive  96/34/EC,  two  cases  have  been  closed 
following  the  reply  of  the  Member  States  to  the  letters  of  formal  notice  (CY,  LV) 
three remain open (MT, HU and EE). 

There are currently five cases under Article 228 of the EC Treaty. 

2. 

Preparation of new legislation 

The  Commission  has  adopted  in  October  2008  two  legislative  proposals  to  review 
Directives 92/85/EEC and 86/613/EEC.  

Both proposals are to be adopted by the European parliament and the Council under 
the procedure laid down in Article 251 (co-decision). 

At  this  stage,  it  does  not  seem  likely  that any  of  the  texts  is  adopted  after  the  first 
reading.  Inter-institutional  negotiations  should  therefore  continue  during  the  whole 
year 2009. 

Recently, the European cross-industry social partners (ETUC, BUSINESSEUROPE, 
CEEP and UEAPME) concluded an agreement which revises their former agreement 
on  parental  leave  of  14  December  1995.  Upon,  their  request,  the  Commission  will 
adopt  a  proposal  for  a  Directive  giving  legal  effect  to  the  new  agreement  during 
summer 2009. 

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The  effectiveness of the existing Community law concerning the  principle of  equal 
pay for equal work or work of equal value has been analysed in 2008. If necessary, 
legislative proposals could be made in 2009, based on this analysis. 

4.4.2.  Evaluation of the current situation 

The  co-existence  of  three  legislative  proposals  in  discussion  and  a  high  number  of 
infringement  proceedings  had  some  negative  implications  with  regard  to  keeping 
deadlines  for  dealing  with  infringements.  On  the  other  hand,  the  simultaneous 
challenge of the transposition of certain provisions by Member States and the inter-
institutional discussion of similar provisions in the new proposals presents the risk of 
"contamination" that should be prevented. 

4.4.3.  Evaluation results (priorities and planned actions for 2009) 

The  number  of  legislative  proposals  on  the  table  and  the  high  number  of 
infringement  cases  open  impose  a  prioritisation  of  the  work  in  that  field.  On  that 
basis,  in  addition  to  the  inter-institutional  negotiations  of  the  legislative  proposals, 
the main priorities for 2009 will be: 

–  Cases under Article 228 EC; 

–  Proceedings  for  non-communication  of  national  measures  to  transpose  Directive 
2004/113/CE;  The  deadline  for 
transposition  of  Directive  2004/113/EC 
implementing  the  principle  of  equal  treatment  between  men  and  women  in  the 
access to and supply of goods and services was 21 December 2007. Its Article 16 
states  that  the  Commission  shall  present  a  report  on  the  practices  of  Member 
States concerning insurance. The Commission announced, during the negotiations 
in Council of this Directive, its intention to set up a working group composed of 
representatives  of  Member  States  and  stakeholders.  The  group  held  its  first 
meeting beginning of 2009. 

–  Proceedings  for  non-communication  of  national  measures  transposing  Directive 
2006/54/EC; The monitoring of the conformity of national measures to transpose 
Directive  2006/54/EC  will  start  in  the  second  half  of  2009.  Since  this  Directive 
recasts  several  existing  Directives  but  does  not  introduce  very  significant 
substantial  changes,  it  is  expected  that  the  monitoring  will  lead  to  only  a  small 
number of infringements 

–  Cases concerning the transposition of Directive 96/34/EC; 

–  Cases concerning the transposition of Directive 2002/73/EC; 

–  Cases concerning the transposition of Directives 2000/43/EC and 2000/78/EC. 

Close cooperation with National Equality Bodies and the use of tools like EU Pilot 
could  allow  a  quicker  handling  of  complaints.  Furthermore,  at  national  level, 
Equality  Bodies  which  contribute  to  a  better  application  of  Community  law  in 
Member  States  could  lead  to  a  reduction  of  the  number  of  complaints  lodged  by 
citizens with the Commission. 

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In  addition,  it  has  become  evident  that  bilateral  discussions  with  national 
administrations  regarding  the  implementation  of  Directive  2000/43/EC  are  a  useful 
tool  to  better  understand  the  issues  at  stake  and  the  complexities  of  each  national 
legal framework. These bilateral meetings will continue being organised in 2009 and 
it  is  expected  that  following  the  dialogue  between  the  Member  States  and  the 
Commission, the Commission will be able to close a substantive number of cases and 
reduce the number of remaining grievances.  

It should be stressed that, still in the field of gender equality, Directive 2006/54/EC 
(the Recast Directive) had to be transposed by Member States by 15 August 2008 at 
the  latest.  Nevertheless,  according  to  Article  33  of  the  Directive  "Member  States 
may, if necessary to take account of particular difficulties, have up to one additional 
year  to  comply  with  this  Directive".  Since  there  is  no  obligation  to  inform  the 
Commission of the need to use this additional period, the Commission will launch (if 
needed)  infringement  proceedings  for  non-communication  of  the  national  measures 
to transpose this Directive only after 15 August 2009. 

4.4.4. 

Summary 

In gender equality, although most of the legislation has been in place for a long time, 
two  Directives  are  recent  (2004/113/EC  and  2006/54/EC).  The  monitoring  of  the 
transposition is very likely to lead to an increase of the number of cases open. 

On  the  other  hand,  it  is  expected  that  most  of  the  cases  concerning  non-
communication  of  national  measures  for  Directive  2002/73,  as  well  as  some  cases 
concerning Directive 2002/73 will be closed in 2009.  

The  legislative  proposals  recently  adopted  essentially  update  and  modernize  the 
existing  legal  framework,  with  less  substantial  changes  in  this  area  and  should 
therefore  imply  less  infringement  proceedings.  In  addition,  it  is  expected  that 
national Equality Bodies will contribute to a reduction of the number of complaints 
concerning this area of Community law. 

As  far  as  anti-discrimination  is  concerned,  the  Commission  has  adopted  a  proposal 
for a new Directive on the 2nd July 2008. Once adopted, the Directive will extend the 
protection outside employment for age, religion, sexual orientation and disability. 

Based  on  previous  experience  it  is  likely  that  this  new  legal  text  will  require 
comprehensive monitoring to ensure its transposition and conformity.  

In  both  areas,  the  Commission  will  anticipate  the  number  of  infringement 
proceedings  by  the  setting-up  of  a  group  of  experts  in  order  to  discuss  the 
implementation of the Directives by Member States. 

In general, it is expected that national Equity Bodies will contribute to a reduction of 
the number of complaints concerning this area of Community law. 

For  the  future,  the  Commission  intends  to  use  extensively  ways  of  problem 
resolution  alternative  to  infringement  proceedings  (EU  Pilot)  but  also  external 
expertise  (Equality  Bodies,  Network  of  Independent  Legal  Experts).  Together  with 
the prioritisation set above, this should allow the management of a workload which is 
not expected to decrease. 

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5. 

AGRICULTURE AND RURAL DEVELOPMENT 

5.1. 

Current position 

5.1.1.  General introduction 

Since  1962  the  Common  Agricultural  Policy  (CAP)  has  established  a  comprehensive  legal 
framework for European agriculture aiming to achieve the objectives set out in the EC Treaty. 
As a fully integrated common policy it replaces a significant amount of national legislation. It 
has  largely  accomplished  its  objectives  while  alleviating  the  social  impact  of  agricultural 
restructuring. As a corollary, farmers and administrations have to deal with a complex set of 
rules and measures contained in 1730 acts of secondary law currently in force. Most of those 
acts  are  Council  or  Commission  Regulations  that  are  "binding  in  their  entirety  and  directly 
applicable  in  all  Member  States".  Access  to  agricultural  legislation  has  been  improved  by 
developments in IT tools. All Community legislation is now freely available via the EUR-Lex 
website. Consolidation and codification of legal texts both make the "acquis" more accessible 
to citizens and improve legal certainty. 

The CAP is unique in the extent to which it is regulated and financed at EU level. Its common 
approach, in particular, to the single market, makes it possible to guarantee the functioning of 
an internal market of agricultural products. An EU framework ensures that rural development 
programs are carried out under common rules without creating unfair competitive advantages. 
Basic  standards  in  the  field,  for  example,  of  organic  farming  and  labelling  are  settled  on  a 
common  basis.  This  requires  robust  legislation,  and  effective  financing  and  monitoring 
mechanisms to protect the public interest and ensure accountability. 

Taking into account the significant volume of agricultural law and the 50 years history of the 
CAP (Stresa Conference dated July 1958), it may be considered as a quite stable "acquis" that, 
on  the  one  hand,  is  subjected  to  frequent  technical  modifications  under  the  comitology 
procedure,  and  on  the  other  hand,  undergoes  on  a  regular  basis,  much  more  profound 
modifications.  The  last  one  of  these,  the  2003  reform,  brought  about  radical  change  to  the 
CAP, especially its income support policy. It established the single payment scheme and the 
single  area  payment  scheme  where  direct  income  support  for  farmers  is  largely  decoupled 
from production and introduced the cross-compliance system, (see Council Regulation (EC) 
No 1782/200384 repealed by Regulation (EC) N° 73/2009). It also established comprehensive 
common  rules  for  direct  support  in  most  sectors.  The  effect  of  these  reforms  has  been 
reviewed in the "Health Check" 2008, based on which the Council decided on adjustments in 
policy and budgetary priorities. 

The policy is divided into two pillars: the first pillar consists of a framework for supporting 
the  income  of  farmers  through  the  payment  of  direct  aid  and  a  system  for  managing  and 
supporting  agricultural  markets.  The  second  pillar  of  the  CAP  provides  a  framework  to 
support the development of rural areas of the Community. The first pillar is 100% financed by 
the  Community  budget,  whereas  the  second  pillar  is  co-financed  by  the  Community  budget 
and  those  of  the  Member  States.  Beginning  on  1st  January  2007  the  programmes  for  rural 

84 

Council  Regulation  (EC)  No  1782/2003  of  29  September  2003  establishing  common  rules  for  direct 
support  schemes  under  the  common  agricultural  policy  and  establishing  certain  support  schemes  for 
farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) 
No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 
2358/71 and (EC) No 2529/2001. 

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development have been implemented on the basis of a new strategic planning model based on 
a Community framework positions and national strategic plans (see Council Regulation (EC) 
No 1698/200585). 

To  these  two  principal  pillars  could  be  added  another  important  element  of  the  policy 
consisting  of  the  quality  policy:  notably  four  specific  EU  quality  schemes  have  been 
introduced to develop geographical indications, organic farming, traditional specialities, and 
products from the outlying regions of the EU. These schemes identify to consumers products 
having specific qualities resulting from a particular origin and/or farming method. 

Since the 2007 financial year the financing of the CAP is regulated by Regulation (EC° No 
1290/200586  ,  which  introduced  two  distinct  funds.  The  first  pillar  is  now  financed  by  the 
European Agricultural Guarantee Fund (EAGF) and the second pillar (rural development) is 
financed by the European Agricultural Fund for Rural Development (EAFRD). 

The  implementation  of  the  CAP  is  a  joint  responsibility  between  the  Commission  and  the 
Member States, referred to as shared management. While the Commission is responsible for 
the  overall  legal  framework  and  for  implementation  of  the  budget,  under  the  shared 
management concept, the responsibility for implementation at the level of final beneficiaries 
has been delegated to the Member States. The extent of the responsibilities of the Members 
States  may  in  particular  be  considered  very  extensive  as  regards  the  implementation  of  the 
measures of the second pillar for which a "bottom up" approach has been followed that leaves 
to the Member States, regions and Local Action Groups much more latitude in adjusting the 
programmes to local needs. 

Since  the  Green  Paper  of  1985,  the  CAP  has  been  the  subject  of  a  continuing  and  regular 
process  of  reform.  This  policy  also  contributed  significantly  to  the  regulatory  simplification 
process notably in 2007 - 2008 by the adoption of the single Common Market Organisation 
regulation.  A  common  market  organisation  (CMO)  in  the  agricultural  sector  governs  21 
sectors  which  until  2007  were  individual  CMOs.  It  provides  a  single  legal  framework 
governing the domestic market, trade with third countries and rules regarding competition87. 

5.1.2.  Report of work done in 2008 

5.1.2.1.  Management of the "acquis" through committees and experts groups 

To  ensure  that  the  European  Commission's  responsibility  for  the  adoption  of  secondary 
legislation  is  exercised  in  close  consultation  with  the  governments  of  the  Member  States, 
various committees of government representatives have been set up by the Commission and 

85 

86 

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Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the 
European Agricultural Fund for Rural Development (EAFRD) – See also Commission Regulation (EC) 
No  1974/2006  of  15  December  2006  laying  down  detailed  rules  for  the  application  of  Council 
Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for 
Rural  Development  (EAFRD)  and  Commission  Regulation  (EC)  No  1975/2006  of  7  December  2006 
laying  down  detailed  rules  for  the  implementation  of  Council  Regulation  (EC)  No  1698/2005,  as 
regards  the  implementation  of  control  procedures  as  well  as  cross-compliance  in  respect  of  rural 
development support measures. 
Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural 
policy. 
Council  Regulation  (EC)  No 1234/2007  of  22 October  2007  establishing  a  common  organization  of 
agricultural  markets  and  on  specific  provisions  for  certain  agricultural  products  (Single  CMO 
Regulation). 

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are  chaired  by  a  Commission's  representative.  The  Commission  has  thus  developed  a  long 
tradition  of  cooperation  with  Member  States  that  presents  the  opportunity  to  discuss  and 
prepare the implementation of common rules and to prevent or solve problems related to their 
application at an early stage. 

In  this  regard,  226  meetings  of  25  management  and  regulatory  committees  presented  the 
opportunity to discuss the implementation of CAP legislation with the representatives of the 
Member States. This process also has the effect that Member States are reminded of their duty 
to  comply  with  Community  law.  It  should  also  be  noted  that  as  of  1st  January  2008  the 
application of the “single CMO Regulation” (EC) No 1234/2007 was gradually phased in to 
the extent that the previously existing sector-based management committees for the common 
organisation of the markets were replaced on a step by step basis by one single management 
committee  for  the  Common  Organisation  of  Agricultural  Markets  (cf.  Article  195  of  that 
Regulation). The transition was finalised in October 2008. The “single CMO-committee” with 
5 experts groups replaced 15 sectoral management committees. 

Moreover,  in  2008  the  Commission  was  assisted  by  a  number  of  advisory,  permanent  and 
temporary groups of experts (in total 128). These contacts helped to clarify facts and rule out 
misunderstandings. 

5.1.2.2.  Enquiries, problems and complaints management 

The  examination  of  complaints  from  citizens  and  companies  and  internally  detected  cases 
gave grounds for the Commission to intervene with the Member States on the basis of article 
226  EC  in  72  cases  covering  various  fields  of  the  Common  Agricultural  Policy.  In  several 
cases  the  Commission  referred  questions  relating  to  the  application  of  Community  law  to 
Member  States  using  the  new  EU  Pilot  system.  The  eight  cases  opened  in  2008  in  the  EU 
Pilot system concerned different sectors of the CAP. 

Particular attention was drawn to the correct application of the Community legislation in the 
field  of  direct  payments.  This  question  was  raised  in  two  cases.  A  case  concerned  the 
establishment of the Farm advisory system in Portugal. Two cases concerned the application 
of Community legislation in the field of the rural development, namely the eligibility criteria 
for Less Favoured Area aids in Finland and the separation between the Managing Authority 
and the Paying Agency in Germany. The remaining cases related to other fields of the CAP 
such as export refunds, quality of agricultural products or the transparency of beneficiaries of 
CAP payments. 

5.1.2.3.  Management of infringements 

In  the  area  of  agriculture  and  rural  development,  monitoring  the  application  of  Community 
law  under  Article  226  of  the  EC  Treaty  procedure  concentrates  on  two  main  objectives: 
removing  barriers  to  the  free  movement  of  agricultural  produce  and  ensuring  that  the  more 
specific mechanisms of agricultural regulations are applied effectively and correctly. 

In  the  context  of  ensuring  that  the  specific  mechanisms  of  the  agricultural  regulations  are 
properly applied in the Member States, specific attention continued to be paid in 2008 to the 
application of the milk quota regime. Particular attention was devoted to its application in new 
Member  States,  in  parallel  with  a  special  enquiry  in  this  area  conducted  by  the  Court  of 
Auditors. 

Furthermore, the Commission also examined the compatibility of certain national rules on the 
obligatory indication of origin for olive oil in Italy. 

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Particular  attention  has  been  paid  to  the  treatment  of  instances  of  non-compliance  with  the 
Court  judgments.  In  2008,  this  resulted  in  following  the  progress  made  by  Portugal  to 
implement  a  judgment  of  the  Court  where  the  Court  declared  that,  by  levying  charges  on 
beneficiaries  during  the  programming  period  1994-1999  which  were  neither  voluntary  nor 
optional  and  which  did  not  constitute  remuneration  for  services  rendered  by  the 
administration,  but  rather  served  to  finance  tasks  for  which  the  Portuguese  State  is 
responsible, the Portuguese Republic failed to fulfil its obligations under Council Regulation 
(EEC)  No  4253/88,  as  amended  by  Council  Regulation  (EEC)  No  2082/9388  .  The 
Commission considers that by limiting, for administrative reasons, the reimbursement of the 
illegal charges to beneficiaries introducing a request within the final deadline of one month, 
Portugal did not fulfil its obligation to implement the Court's judgment correctly in view of 
the  principles  of  effectiveness  and  proportionality.  For  this  reason  the  Commission  opened 
Article  228  infringement  proceedings  against  Portugal  in  2007.  Portugal  presented  a  plan 
programming the reimbursement of the amounts resulting from the charges illegally collected 
from the beneficiaries. 

Furthermore the Commission continued monitoring the application of the so-called "Breakfast 
directives",  which  lay  down  particular  compositional  and  labelling  requirements  for  the 
products including honey, chocolate, jams and fruit juices.89 In line with the other priorities 
defined  in  the  communication  "Europe  of  results",  in  2008  the  Commission  monitored  the 
transposition  of  one  agricultural  directive.  Following  the  adoption  of  the  Council  Directive 
2007/61/EC90,  which  provided  for  the  deadline  for  transposition  of  31st  August  2008,  the 
Commission,  taking  account  of  its  priorities,  closely  scrutinised  the  communication  of  the 
national  transposition  measures.  In  October  2008  the  Commission  has  opened  infringement 
proceedings  against  Belgium,  the  Czech  Republic,  Greece,  Italy,  Cyprus,  Luxembourg, 
Portugal and Romania for non-communication of national transposition measures of Council 
Directive 2007/61/EC. 

More specifically, concerning chocolate (Directive 2000/36/EC), the Commission has decided 
to  refer  Italy  to  the  Court  of  Justice  for  failing  to  amend  its  legislation  on  the  labelling  of 
chocolate  products.  Infringement  proceedings  have  been  opened  against  Italy  because  the 
Commission  considers  that  the  indication  "pure  chocolate"  cannot  guarantee  accurate  and 
impartial information for the consumer. In fact, this system of labelling creates a situation in 
which  chocolate  containing  vegetable  fats  other  than  cocoa  butter  may  be  perceived  by  the 
consumer as being a lower-quality product than "pure chocolate" – which would contain fat 
exclusively  in  the  form  of  cocoa  butter.  But  in  its  judgment  of  16 January 2003  in  Case C-
14/00  Commission  v  Italian  Republic  the  Court  of  Justice  considered  that  the  addition  to 
cocoa  and  chocolate  products  of  vegetable  fats  other  than  cocoa  butter  did  not  entail 
substantial alteration of their composition or nature. In order to comply with the mechanism 

88 

89 

90 

Judgment  of  5  October  2006  in  case  C-  84/04,  Commission  v.  Portuguese  Republic,  Rec  2006,  p.I-
9843. 
The list of products is not exhaustive. The products referred to above due to their nature and constant 
consumption  require  particular  supervision  of  the  application  of  the  following  directives:  Council 
Directive 2001/110/EC of 20 December 2001 relating to honey , Directive 2000/36/EC of the European 
Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for 
human consumption,Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies 
and marmalades and sweetened chestnut purée intended for human consumption and Council Directive 
2001/112/EC  of  20  December  2001  relating  to  fruit  juices  and  certain  similar  products  intended  for 
human consumption. 
Council  Directive  2007/61/EC  of  26  September  2007  amending  Directive  2001/114/EC  relating  to 
certain partly or wholly dehydrated preserved milk for human consumption. 

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introduced  by  Directive  2000/36/EC  for  providing  the  consumer  with  neutral  and  objective 
information,  the  Italian  rules  should  refer  either  to  the  absence  of  vegetable  fats  other  than 
cocoa butter or to the sole presence of the fat concerned, namely cocoa butter. 

5.1.2.4.  Petitions 

In  2008  the  Commission  received  5  petitions  related  to  agriculture  which  covered  a  wide 
range  of  issues  such  as  obtaining  EU  agricultural  subsidies  under  the  single  farm  payment 
system in Romania, implementation of agricultural policies in the Republic of Bulgaria, and 
suspension of production at the 'Lublin' sugar factory in Poland. 

5.1.2.5.  New legislation 

2008 has been a very active year in pursuing the reforms of the Common agricultural Policy 
and  particularly  with  the  successful  outcome  of  the  "Health  check"  reflection  process 
launched in 2007 on how to improve the efficiency of the Common Agricultural Policy in the 
future. 

Approval of the "Health check" 

Indeed, on 20 November 2008 EU agriculture ministers reached a political agreement on the 
Health  Check  of  the  Common  Agricultural  Policy.  These  political  adjustments  have  been 
formalised  by  Council  Regulations  (EC)  N°  72/2009,  73/2009  and  74/200991.  The  Health 
Check modernises, simplifies and streamlines the CAP and removes restrictions on farmers, 
thus  helping  them  to  respond  better  to  signals  from  the  market  and  to  face  new  challenges. 
The modifications concern the main areas of the CAP: direct aid system, market instruments 
and  rural  development  policy.  Among  a  range  of  measures,  the  agreement  abolishes  arable 
set-aside, increases milk quotas gradually leading up to their abolition in 2015, and converts 
market intervention into a genuine safety net. The Health Check also concluded that rules for 
direct  payments  have  been  reviewed  and  simplified.  Ministers  also  agreed  to  increase 
modulation, whereby direct payments to farmers are reduced and the money transferred to the 
Rural  Development  Fund.  This  will  allow  a  better  response  to  new  challenges  and 
opportunities  faced  by  European  agriculture,  including  climate  change,  the  need  for  better 
water  management,  the  protection  of  biodiversity,  and  the  production  of  green  energy. 
Member States will also be able to assist dairy farmers in sensitive regions adjust to the new 
market situation. 

Reform of specific market instruments 

91 

Council  Regulation  (EC)  No  72/2009  of  19  January  2009  on  modifications  to  the  Common 
Agricultural Policy  by  amending  Regulations  (EC)  No  247/2006,  (EC)  No 320/2006,  (EC)  No 
1405/2006,  (EC)  No  1234/2007,  (EC)  No  3/2008  and  (EC)  No 479/2008  and  repealing  Regulations 
(EEC) No 1883/78, (EEC) No 1254/89, (EEC) No 2247/89, (EEC) No 2055/93, (EC) No 1868/94, (EC) 
No 2596/97, (EC) No 1182/2005 and (EC) No 315/2007; Council Regulation (EC) No 73/2009 of 19 
January  2009  establishing  common  rules  for  direct  support  schemes  for  farmers  under  the  common 
agricultural  policy  and  establishing  certain  support  schemes  for  farmers,  amending  Regulations  (EC) 
No 1290/2005,  (EC)  No  247/2006,  (EC)  No  378/2007  and  repealing  Regulation  (EC)  No  1782/2003 
and Council Regulation (EC) No 74/2009 of 19 January 2009 amending Regulation (EC) No 1698/2005 
on support for rural development by the European Agricultural Fund for Rural Development (EAFRD). 

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2008 was not only the year of the Health Check. The Commission also launched the School 
fruit programme, encouraging good eating habits in young people92. It took an important step 
in  simplifying  the  marketing  standards  for  fruits  and  vegetables93.  Besides  simplification  of 
CMO rules (for instance simplifying and reducing the number of products for which import 
and export licences are required and with a horizontal Regulation concerning private storage 
replacing  sectoral  ones),  the  acquis  concerning  several  sectors  was  modified  to  a  greater  or 
lesser extend in 2008. 

The spirit drinks Regulation (EC) No110/2008 established a clear and simplified framework 
for  the  definition,  description,  presentation,  labelling  and  the  protection  of  geographical 
indications of spirit drinks94. 

The  wine  reform  initiated  in  2006  resulted  in  Council  Regulation  (EC)  No 479/2008  on  the 
common  organisation  of  the  market  in  the  wine  sector  which  had  as  its  principal  aim  to 
reinforce  competitiveness95  entered  into  force  on  1st  August  2008  except  for  certain 
regulatory  measures  (wine  making  practices,  geographical  indications  and  labelling)  which 
enter into force one year later. This new organisation is simpler than its predecessor, transfers 
considerable power and responsibility to Member States via the national support programmes 
and strengthens the legislative support for quality via the registration and protection rules for 
products  with  designation  of  origin  or  geographical  indication  status.  It  also  sets  a  clear 
framework for the production potential in the sector, provides a solution to the long-standing 
problem of non-respect of planting restrictions and also fixes  an end date for these planting 
restrictions  (1.1.2016  with  an  option  for  Member  States  to  extend  for  some  cases).  The 
Commission  adopted  Regulation  (EC)  No 555/2008  implementing  the  first  phase  of  the 
reform  concerning  support  programmes,  trade with  third  countries,  production  potential  and 
controls in the wine sector96. Further implementing rules are being prepared concerning wine 
making practices and geographical indications. 

The single CMO project was continued. The Council adopted Regulation (EC) No 361/200897 
which integrated fruit and vegetables into the single CMO following the reform of the sector. 
The  Commission  also  made  a  proposal  to  the  Council98  for  the  of  integration  wine  into  the 

92 

93 

94 

95 

96 

97 

98 

Council Regulation (EC) No 13/2009 of 18 December 2008 amending Regulations (EC) No 1290/2005 
on  the  financing  of  the  common  agricultural  policy  and  (EC)  No 1234/2007  establishing  a  common 
organisation of agricultural markets and on specific provisions for certain agricultural products (Single 
CMO Regulation) in order to set up a School Fruit Scheme. 
Commission  Regulation  (EC)  No  1221/2008  amending  Regulation  (EC)  No  1580/2007  laying  down 
implementing rules of Council Regulations (EC) No 2200/96, 2201/96 and 1182/2007 in the fruit and 
vegetable sector as regards marketing standards. 
Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the 
definition,  description,  presentation,  labelling  and  the  protection  of  geographical  indications  of  spirit 
drinks and repealing Council Regulation (EEC) No 1576/89. 
Council Regulation (EC) No 479/2008 of 29 April 2008 on the common organization of the market in 
wine,  amending  Regulations  (EC)  No 1493/1999,  (EC)  No 1782/2003,  (EC)  No 1290/2005,  (EC) 
No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999. 
Commission  Regulation  (EC)  No  555/2008  laying  down  detailed  rules  for  implementing  Council 
Regulation  (EC)  No  479/2008  on  the  common  organisation  of  the  market  in  wine  as  regards  support 
programmes, trade with third countries, production potential and on controls in the wine sector. 
Council  Regulation  (EC)  No  361/2008  of  14  April  2008  amending  Regulation  (EC)  No  1234/2007 
establishing  a  common  organisation  of  agricultural  markets  and  on  specific  provisions  for  certain 
agricultural products (Single CMO Regulation). 
COM (2008) 489 final. 

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single CMO. Adoption of this proposal would complete the simplification process by bringing 
the last free-standing sector into the single CMO. 

The  tobacco  and  hops  "acquis"  were  modified  by  the  adoption  of  Commission  regulations 
following the application of the single CMO Regulation to those sectors on 1 July 2008. 

Direct payments and cross compliance 

Beyond  the  scope  of  the  "Health  check"  exercise,  Community  law  in  the  direct  payments 
sector  was  subject  to  several  changes  aiming,  for  instance,  to  adapt  the  implementation 
rules99. As regards cross compliance changes were made to improve in terms of efficiency and 
simplification  the  rules  governing  the  implementation  of  this  system  according  to  the 
conclusions  of  the  report  to  the  Council100  on  this  matter  (minor  infringements  and  a  "de 
minimis" rule for sanctions)101. 

Rural development102 

Designed to take further the policy review initiated with the 2003 reforms some of the main 
issues addressed by the "Health Check" were climate change, bio-energy, water management, 
and  biodiversity  and  identified  as  crucial  and  new  challenges  for  European  agriculture.  A 
specific support for innovation related to these priorities shall facilitate the strengthening of 
these priorities. 

Additionally  accompanying  measures  in  the  dairy  sector  have  been  identified  as  a  further 
crucial  and  new  challenge  for  European  agriculture.  As  of  1st  January  2010  Member  States 
shall  provide  support  in  their  rural  development  programs  in  accordance  with  their  specific 
needs  for  types  of  operations  addressing  the  new  challenges  which  will  be  equal  to  the 
amounts from modulation. 

More  funding  will  be  available  to  the  Member  States  via  an  increase  in  compulsory 
modulation  and  the  introduction  of  progressive  modulation  in  order  to  address  these 
challenges,  beginning  in  2009  (available  in  rural  development  from  2010).  A  higher 
Community  co-financing  rate  on  increased  modulated  funds  will  be  available  for  these  new 
challenges  but  also  for  the  amounts  from  unspent  funds  from  the  1st  pillar  (standard  rate: 
75%; convergence regions: 90%). 

99 

100 
101 

102 

Commission  Regulation  (EC)  No 319/2008  of  7  April  2008  amending  Regulation  (EC)  No 795/2004 
laying  down  detailed  rules  for  the  implementation  of  the  single  payment  scheme  provided  for  in 
Council  Regulation  (EC)  No 1782/2003  establishing  common  rules  for  direct  support  schemes  under 
the  common  agricultural  policy  and  establishing  certain  support  schemes  for  farmers,  and  Regulation 
(EC) No 796/2004 laying down detailed rules for the implementation of cross-compliance, modulation 
and  the  integrated  administration  and  control  system  provided  for  in  Council  Regulation  (EC) 
No 1782/2003. 
COM(2007) 147 final, 29.3.2007. 
Council Regulation (EC) No 146/2008 of 14 February 2008 amending Regulation (EC) No 1782/2003 
establishing  common  rules  for  direct  support  schemes  under  the  common  agricultural  policy  and 
establishing  certain  support  schemes  for  farmers  and  Regulation  (EC)  No 1698/2005  on  support  for 
rural development by the European Agricultural Fund for Rural Development (EAFRD). 
The  picture  given  in  this  paragraph  indicates  the  evolutions  occurred  in  2008  and  does  not  take  into 
account  the  modifications  introduced  by  Council  Regulation  (EC)  XXXX/XXXX  [amending 
Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for 
Rural Development (EAFRD) and Regulation 1290/2005 on the financing of the common agricultural 
policy] which had not yet been adopted when this report was drafted. 

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Selecting which of the new challenges will be reinforced with the additional resources from 
the  'Health  Check'  should  be  based  on  an  assessment  of  the  needs  in  each  Member  State. 
Member  States  will  therefore  have  to  revise  their  national  strategy  plans  and  their  rural 
development  programs  and have to submit them to the Commission no later than 30th June 
2009.  New  Member  States  will  not  have  to  modify  their  national  strategy  plans  and  the 
deadlines  to  revise  and  submit  their  rural  development  programs  will  be  30th  June  2012 
regarding the EU-10. As for Bulgaria and Romania the rules for modulation will not apply at 
all before 2013. 

Quality policy 

Quality: Quality being one of the EU's strengths to compete on a global market and respond 
to  consumer  demand,  the  Commission  decided  to  launch  a  reflection  process  to  improve 
European quality policy. In order to be in a position to do so, the Commission wished to first 
have  the  benefit  of  being  appraised  of  the  opinion  of  stakeholders.  For  that  reason,  the 
Commission released, on 15 October 2008, a “Green Paper on Agricultural Product Quality 
Policy:  product  standards,  farming  requirements  and  quality  schemes”  (COM  (2008)  641 
final), opening a public consultation exercise until 31.12.2008. Building on the operation of 
current  EC  quality  policy  instruments,  the  conclusions  of  the  Food  Quality  conference  in 
2007, and studies on food quality assurance and certification schemes, the Green Paper refers 
to a range of policy ideas and options and is a first step towards a possible revision of policy. 

Organic: The Community organic farming legislation underwent a profound revision process 
based on the European Action Plan for Organic Food and Farming (COM (2004) 415 final). A 
milestone  of  this  process  is  the  new  Council  Regulation  (EC)  No  834/2007  on  organic 
production  and  labelling  of  organic  products103,  supplemented  by  implementing  regulations 
adopted in 2008 (Regulations (EC) No 889/2008104 on production, labelling and control and 
Regulation (EC) No 1235/2008105 on import of organic products). These Regulations replace 
the old Regulation (EEC) No 2092/91 as from 1 January 2009 onwards. 

Clearance of accounts 

In  2008,  the  Commission  adopted  Regulation  (EC)  No  1034/2008106  amending  Regulation 
(EC)  No  885/2006  with  a  view  to  strengthening  and  improving  the  recovery  of  irregular 
payments from final beneficiaries. 

103 

104 

105 

106 

Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic 
products and repealing Regulation (EEC) No 2092/91. 
Commission  Regulation  (EC)  No  889/2008  of  5  September  2008  laying  down  detailed  rules  for  the 
implementation  of  Council  Regulation  (EC)  No 834/2007  on  organic  production  and  labelling  of 
organic products with regard to organic production, labelling and control. 
Commission  Regulation  (EC)  No 1235/2008  of  8 December  2008  laying  down  detailed  rules  for 
implementation  of  Council  Regulation  (EC)  No 834/2007  as  regards  the  arrangements  for  imports  of 
organic products from third countries. 
Règlement (CE) n o 1034/2008 de la Commission du 21 octobre 2008 modifiant le règlement (CE) n o 
885/2006  portant  modalités  d’application  du  règlement  (CE)  n  o  1290/2005  du  Conseil  en  ce  qui 
concerne  l’agrément  des  organismes  payeurs  et  autres  entités  ainsi  que  l’apurement  des  comptes  du 
FEAGA et du FEADER. 

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5.1.2.6.  Preventive measures 

In  the  field  of  prevention  the  Commission  continues  to  be  active  as  the  following  actions 
demonstrate. 

Comitology 

As  already  referred  to,  the  Commission  makes  use  of  the  management  and  regulatory 
committees,  advisory,  permanent  and  temporary  groups  of  experts  to  promote  better 
implementation and identifying and addressing potential problems as early as possible. 

In  order  to  contribute  to  the  smooth  application  of  sectoral  regulations,  bilateral  meetings 
were  organised  regularly  with  Member  States  in  the  margins  of  the  Committee  meetings. 
Where needed, missions to MS capitals to receive a global view of procedures and practices at 
national level were also organised. “Bilaterals” with MS provided the competent services of 
the  Commission  with  the  opportunity  to  deal  positively  with  some  recurrent  problems 
encountered by MS in the drafting of applications as well as in interpretation of a number of 
legislative  provisions.  The  Commission  also  provided  practical  suggestions  to  improve  the 
quality  of  applications,  for  instance  in  the  quality  sector,  for  registration  and  amendments. 
This  contributed  to  reducing  time-consuming  formal  exchanges  concerning  Commission 
requests for additional information. Regarding the preparation of the transposition of Council 
Directive 2007/61/EC, the Commission placed the question on the agenda of the single CMO 
committee on several occasions in order to follow the progress made by the Member States 
and to offer any assistance if needed for transposition. In the context of the implementation of 
the  fruit  and  vegetable  reform,  the  responsible  agricultural  department  prepared  32 
interpretation notes, including 94 FAQ. 

Moreover, a register of interpretative notes on agricultural law (called RIPAC) has existed for 
a  long  time  and  new  interpretative  notes  are  regularly  being  created  and  put  in  that  register 
accessible for the Member States. The notes are usually drawn up as a result of a written or 
oral question posed by a Member State. 

Technical standards directive (Directive 98/34/EC) 

Directive  98/34/EC  of  the  European  Parliament  and  of  the  Council  of  22  June  1998  laying 
down  a  procedure  for  the  provision  of  information  in  the  field  of  technical  standards  and 
regulations  requires  Member  States  and  Members  of  the  European  Free  Trade  Association 
who  have  signed  the  Agreement  on  the  European  Economic  Area  plus  Switzerland  and 
Turkey to give each other and the Commission prior notification of all draft rules containing 
technical  standards  or  rules  in  order  to  avoid  creating  new  barriers  to  trade  in  the  internal 
market. As such, this directive can be considered as an ideal preventive instrument enabling 
the filtering of any national technical rule that could jeopardize the functioning of the internal 
market. 

In this context, in 2008 the relevant departments of the Commission were formally consulted 
on  74  notifications  relating  to  the  agricultural  sector.  Examination  of  these  draft  texts 
subsequently led to the issuing of five comments and six detailed opinions. 

Furthermore,  concerning  the  obligatory  indication  of  origin  for  olive  oil  in  Italy  the 
Commission  issued  a  "blockage"  on  a  notified  draft  national  measure  intended  to  replace  a 
decree which is the subject of on-going infringement proceedings. The notified measure was 

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therefore subject to both a detailed opinion and a blocking decision by the Commission until 
1st May 2009. 

Simplification 

The  Commission  strategy  for  simplifying  the  regulatory  environment  (COM(2005)535)  set 
out an ongoing simplification programme of measures to be adopted between 2005 and 2008 
with  a  view  to  improving  the  quality  and  effectiveness  of  the  "acquis".  As  far  as  the 
agricultural sector is concerned, the Communication on Simplification and Better Regulation 
for  the  Common  Agricultural  Policy  (COM  (2005)  509)  led  to  the  creation  of  the  rolling 
Common Agricultural Policy Simplification Action Plan. The Action Plan is used to identify, 
plan  and  monitor  the  implementation  of  the  simplification  projects  within  the  agricultural 
sector. Launched at the end of 2006, it has evolved from 20 to around 50 projects; 43 projects 
have already been implemented (removal of the obligation to have a licence for beef exports 
without export refunds, end of the obligation for a farmer to have a plot of land at his disposal 
for at least 10 months in order to apply for direct payments, for imports, licence requirements 
were  reduced  from  500  to  65  and  for  exports,  only  43  licence  requirements  remain.,  etc). 
Simplification is aided by the reforms of the sugar, wine and fruit and vegetable sectors and 
the inclusion of these sectors into the Single Payment Scheme and the single CMO. 

On  technical  aspects,  it  is  interesting  to  mention  that  almost  300  obsolete  acts  have  been 
repealed.  The  adoption  of  the  single  CMO  replaces  21  individual  common  market 
organisations with one, reducing the number of articles from around 920 to around 230 and 
repealing  78  Council  acts.  The  number  of  legal  instruments  for  State  Aid  has  been  reduced 
from six to three. A new IT system ISAMM, to facilitate the exchange of information between 
the Commission and the Member States, is in its final development phase107. 

Assessment of rural development programs 

In  2008  Commission  went  on  with  the  appraisal  of  the  new  rural  development  programs. 
Indeed, 2008 was marked by the completion of the approval of rural development programs, as 
25 out of the total of 94 programs which had already received a favorable opinion of the Rural 
Development  Committee  in  December  2007  or  for  which  the  main  preparatory  work  was 
finished  by  the  end  of  2007  were  formally  approved  by  the  Commission  in  early  2008 
following  the  carry-over  of  commitment  appropriations  from  2007  to  2008,  according  to 
Article  9  (2)  of  the  Financial  Regulation.  The  remaining  15  programs  were  approved 
throughout the year. The Commission launched the European Network for Rural Development 
provided  for  in  Article  67  Council  Regulation  (EC)  No.  1698/2005.  In  February  2008  also 
three  pre-accession  assistance  programs  under  IPARD  were  formally  approved  by  the 
Commission after having received a favorable opinion of the Rural Development Committee 
in  December  2007  and  after  the  related  commitment  appropriations  were  carried  over  from 
2007  to  2008,  according  to  Article  9  (2)  of  the  Financial  Regulation.  The  programs  were 
modified  by  Commission  decisions  in  October  and  December  2008  to  take  account  of  the 
2010  financial  allocations  as  decided  in  the  multi-annual  indicative  planning  documents 
(MIPDs and to remove certain inconsistencies and to amend editorial shortcomings). 

107 

For  a  comprehensive  updated  presentation  on  simplification  in  agriculture,  see:  Communication  from 
the European Commission to the Parliament and the Council "A simplified CAP for Europe - a success 
for all (COM(2009) 128 final). 

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Moreover, in the framework of the design of the modifications of the implementing rules of 
the EAFRD (amending Regulation (EC) No 1974/2006) the new rules have been explained to 
Member States in order to provide clarity. Desk officers are given guidance through training 
courses in order to give the necessary assistance to the Member States during the consultation 
processes regarding the modification of programs including monitoring and evaluation issues. 

Clearance of accounts 

EAGF and EAFRD expenditure is implemented under shared management through a 
comprehensive management and control system based on four levels consisting of108: 

–  A  compulsory  administrative  structure  at  the  level  of  the  Member  States: 
management  and  control  of  the  expenditure  is  entrusted  to  dedicated  paying 
agencies, which prior to their operation must be accredited by the Member States 
on  the  basis  of  a  comprehensive  set  of  accreditation  criteria  laid  down  in 
Community law. 

–  Detailed systems for ex-ante controls and dissuasive sanctions: These systems are 
to  be  applied  by  the  paying  agencies  and  contain  some  common  features  and 
special rules tailored to the specificities of each aid regime. The systems generally 
provide  for  exhaustive  ex-ante  administrative  controls  of  100%  of  the  aid 
applications,  cross-checks  with  other  databases  where  this  is  considered 
appropriate  as  well  as  pre-payment  on-the-spot  controls  of  a  sample  of 
transactions ranging between 1% and 100%, depending on the risk associated with 
the  regime  in  question.  If  the  on-the-spot  controls  reveal  a  high  number  of 
irregularities, additional controls must be carried out.  

In  this  context,  the  by  far  most  important  system  is  the  IACS  (Integrated 
Administration and Control System), which in financial year 2008 covered 87.5% of 
EAGF  expenditure  (EUR  36  906.5  million  out  of  EUR  42  181.2  million).  To  the 
extent  possible,  the  IACS  is  also  used  to  manage  and  control  rural  development 
measures relating to parcels or livestock, which in 2008 accounted for around 73% of 
payments under the EAFRD (excluding advances). 

–  Ex-post  controls:  In  addition  to  the  ex-ante  controls,  all  aid  measures  other  than 
direct payments covered by the IACS are subject to ex-post controls under either 
Council  Regulation  (EC)  No  485/2008  or,  for  rural  development  measures, 
Commission  Regulation  (EC)  No  1975/2006.  Moreover,  the  paying  agencies' 
annual  accounts  and  the  functioning  of  their  internal  control  procedures  are 
verified and certified on an ex-post basis by the certification bodies. 

–  Clearance  of  accounts:  The  clearance  of  accounts  through  the  Commission 
consists  of  both  an  annual  financial  clearance  and  a  multi-annual  conformity 
clearance. 

Taken  together,  these  four  levels  are  designed  to  ensure  the  legality  and  regularity  of  the 
transactions at the level of the final beneficiaries. In the current context of the report on the 
application  of  Community  law,  the  conformity  clearance  mechanism  is  particularly  worth 

108 

For  more  explanations  on  the  management  of  the  agricultural  budget  and  its  audit  tools,  see: 
http://ec.europa.eu/agriculture/fin/clearance/factsheet_en.pdf. 

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mentioning as it pertains to the correct application of the legislation establishing the common 
agricultural policy.  

Indeed, meanwhile the financial clearance covers the integrality, accuracy and veracity of the 
paying agencies' accounts, the conformity clearance relates to the legality and regularity of the 
underlying  transactions.  It  is  designed  to  exclude  from  Community  financing  expenditure 
which  has  not  been  executed  in  compliance  with  Community  rules,  thus  shielding  the 
Community budget from expenditure that should not be charged to it (financial corrections). In 
contrast,  it  is  not  a  mechanism  by  which  irregular  payments  to  beneficiaries  are  recovered, 
which according to the principle of shared management is the sole responsibility of Member 
States.  Financial  corrections  are  determined  on  the  basis  of  the  nature  and  gravity  of  the 
infringement and the financial damage caused to the Community. Where possible, the amount 
is calculated on the basis of the loss actually caused or on the basis of an extrapolation. Where 
this is not possible, flat-rates are used which take account of the severity of the deficiencies in 
the  national  control  systems  in  order  to  reflect  the  financial  risk  for  the  Community.  Where 
undue  payments  are  or  can  be  identified  as  a  result  of  the  conformity  clearance  procedures, 
Member  States  are  required  to  follow  them  up  by  recovery  actions  against  the  final 
beneficiaries. However, even where this is not possible because the financial corrections only 
relate  to  deficiencies  in  the  Member  States'  management  and  control  systems,  financial 
corrections are an important means to improve these systems and, thus, to prevent or detect 
and  recover  irregular  payments  to  final  beneficiaries.  The  conformity  clearance  thereby 
contributes  to  the  legality  and  regularity  of  the  transactions  at  the  level  of  the  final 
beneficiaries. 

In 2008, the Commission adopted three conformity clearance decisions: 

•  Decision 2008/321/EC of 8 April 2008 excluding an amount of EUR 83.00 million 

from Community financing; 

•  Decision 2008/582/EC of 8 July 2008 excluding an amount of EUR 410.31 million 

from Community financing; 

•  Decision 2008/960/EC of 8 December 2008 excluding an amount of EUR 528.53 

million from Community financing. 

Moreover,  in  2008,  the  Commission  carried  out  120  on-the-spot  missions  in  the  Member 
States and launched 138 desk checks. These audits covered 47.6% of total EAGF and EAFRD 
expenditure. 

While  the  financial  consequences  will  only  be  determined  at  the  end  of  the  conformity 
clearance  procedures,  the  results  of  the  audits  are  already  known.  Most  of  the  audits 
performed  in  2008  have  not  revealed  any  deficiencies  in  the  control  systems  which  would 
suggest that those systems are ineffective in determining the eligibility of claims or preventing 
irregularities109. 

109 

For  a  more  detailed  description  of  the  conformity  clearance  activities,  see  the  2008  Annual  Activity 
Report of the Directorate General for Agriculture and Rural Development 

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5.2. 

Evaluation 

5.2.1.  General evaluation 

Taking  into  account  the  volume  of  Community  law  currently  in  force  in  the  agricultural 
sector,  the  "acquis"  in  the  agricultural  sector  may  be  considered  as  globally  stable  and 
manageable or subjected to technical up-dating or clarification effected through Comitology 
(see  above).  This  updating  is  not  generally  expected  to  be  controversial  or  difficult  to 
implement due to the well-established and well-understood framework in which this will take 
place and given previous experience of the relatively smooth adoption and timely entry into 
effect of this type of measure. 

In  the  agricultural  sector  it  may  be  considered  that  preparatory  working  contacts  between 
experts, review of problems arising and multilateral and/or bilateral exchange of information 
constitute proportionate and sufficient means to ensure correct implementation. Furthermore, 
besides  its  role  in  the  adoption  of  implementing  rules,  the  Management  Committees,  which 
meet  regularly,  are  a  privileged  forum  for  the  exchange  of  information  and  best  practise 
between MS and the Commission. 

In  any  case,  as  already  explained,  the  agricultural  sector  makes  use  of  the  clearance  of 
accounts mechanisms to monitor through its audits the application of secondary agricultural 
legislation. 

5.2.2. 

Sector based remarks 

5.2.2.1.  Market instruments 

As regards the functioning of this sector-based "acquis", no major problems were encountered 
in 2008. The "acquis" can be considered as stable providing a generally satisfying situation. 

In line with the priorities defined in the 25th report to EP for agricultural sector, particularly 
regarding the follow up of the application of the fruit and vegetables CMO reform, this new 
legislation  has  being  monitored  and  managed  through  the  adoption  of  implementation 
measures and through interpretative notes regarding Regulation (EC) N°1580/2007 that led to 
a  globally  satisfying  situation.  No  new  enforcement  proceedings  were  required.  The  same 
may be stated concerning the wine and sugar sectors subject to reform. 

The  audits  performed  in  2008  (covering  such  aid  schemes  as  export  refunds,  sugar  and 
industrial  use,  fruits  and  vegetable,  wine  restructuring  and  grubbing  up,  public  storage,  etc) 
generally show a very high degree of conformity by Member States110. 

5.2.2.2.  Direct payments and cross compliance 

Direct payments scheme 

110 

Deficiencies which would suggest that the control system in question is ineffective in determining the 
eligibility of claims or preventing irregularities, were detected in only the following Member States for 
quite  specific  schemes  or  geographical  regions  that  were:  Bulgaria  (wine  restructuring,  France 
(POSEIDOM implementation in Réunion), Greece (dried grapes expenditures), Italy (Citrus processing 
in Sicily and Calabria). 

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The "acquis" in the direct payments sector is stable and its application by the Member States 
was generally satisfactory but some specific issues have created implementing difficulties for 
Member States, for example regarding the ownership of payment entitlements. 

One  of  the  principles  behind  the  CAP  Reform  is  that  EU  support  should  benefit  the  active 
farmer.  However,  in  some  Member  States  (Germany,  Finland,  The  Netherlands)  a  legal 
controversy  arose  between  tenants  and  landowners  about  the  ownership  of  entitlements. 
Landowners want to recover entitlements from tenants upon expiry of the lease agreement. A 
ruling  of  the  Dutch  lease  tribunal  confirmed  that  the  entitlements  shall  return  to  the 
landowners. The granting of direct payments  was  never based on the ownership of the land 
but  on  the  agricultural  activity  exercised  on  that  land.  The  purpose  of  the  Single  Payment 
Scheme  (SPS)  is  to  provide  security  of  income  for  active  farmers,  thus  making  the  SPS 
entitlements  personal  in  character  and  therefore  tied  to  the  individual  concerned.  Unless 
agreed otherwise by private contract, a landowner who had leased out his land would not have 
any right to intervene in what happens to payment entitlements allocated to his tenant, even 
upon  expiry  of  the  lease  agreement  (ref.  Article  46  of  Council  Regulation  1782/2003).  The 
Commission requested Finland to change a provision in its national law and it subsequently 
amended it. The Commission is seeking further clarifications on this amendment. According 
to  the  Commission,  the  Dutch  law  is  in  conformity  with  Community  rules.  However,  the 
ruling of the Dutch lease tribunal is not in line with Regulation (EC) No 1782/2003. This case 
is now subject to a referral to the Court of justice for preliminary ruling (Case C-470/08 – Van 
Dyck). 

As regard the implementation of control mechanisms by the Member States, audits performed 
in 2008 showed that the basic elements of IACS were established and generally operational. 
Significant  IACS  control  deficiencies  which  would  suggest  that  the  system  is  ineffective  in 
determining  the  eligibility  of  claims  or  preventing  irregularities,  were  only  detected  in 
Cyprus, Malta and Romania. As regards Greece, it has to be noted that the most recent on-the-
spot audit in this Member State has shown that it has carried out its action plan and that an 
operational LPIS-GIS is now in place. Regarding the entitlements, in the period 2005-2007 all 
Member  States  except  Malta  and  Slovenia  (envisaged  2009)  have  been  subject  to  audits. 
These audits showed generally no major weakness. 

Cross compliance 

Regarding cross compliance, which was identified as a priority in the 25th report to the EP on 
monitoring the application of Community law, its scope was subject in the past to criticisms 
from both farmers and national administrations (report to the Council on the application of the 
system of cross compliance establishing common rules for the direct support schemes under 
the common agricultural policy and establishing certain support schemes for farmers111. The 
main  problems  highlighted  were  that  certain  provisions  were  not  directly  related  to  farming 
activity.  The  lack  of  flexibility  of  the  GAEC  framework  was  also  emphasised.  The 
management  of  cross  compliance  was  also  subject  to  criticisms  because  it  was  seen  as  too 
complicated.  In  particular  the  improvements  made  to  the  first  pillar  in  2007  following  the 
report to the Council were not applicable to the second pillar. 

The Health Check has addressed these issues. The provisions not related to farming activity 
have been withdrawn from the scope of cross compliance and the possibility to apply certain 

111 

COM(2007)147final of 29 March 2007. 

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GAEC standards on an optional basis has been recognised, while clarifying that no standards 
may  be  defined  which  are  not  provided  for  in  the  EU  context.  The  management  rules  have 
also  been  reviewed  at  Council  level  to  extend  the  simplification  already  made  to  direct 
payments  also  to  rural  development.  Changes  to  the  implementing  rule  have  furthermore 
better  harmonised  the  management  rules  between  direct  payments,  rural  development  and 
wine. The Council has however concluded the Health Check discussion on cross compliance 
with a request to pursue the efforts of simplification. 

The  European  Court  of  Auditors  has  issued  in  2008  a  report  on  cross  compliance112.  It 
recommends  inter  alia  that  Member  States  better  define  obligations  at  farm  level  and 
recommends also further streamlining of the functioning of the system of cross compliance. 

5.2.2.3.  Rural development 

Taking  in  account  the  approval  procedure  by  the  Commission  of  rural  development 
programmes  (see  above),  the  global  situation  of  their  application  may  be  considered  as 
stabilised  and  globally  satisfactory,  unless,  in  the  light  of  the  recent  approval  of  these 
programmes, experience is not enough to base clear conclusions on what the main problems 
could be. The audits performed in 2008, mainly concentrated on Axis 2 and more specifically 
on agri-environmental measures, did not reveal control deficiencies which would suggest that 
the  system  in  question  is  ineffective  in  determining  the  eligibility  of  claims  or  preventing 
irregularities.  However,  the  control  systems  in  relation  to  Axis  2  measures  could  still  be 
further improved. 

5.2.2.4.  Quality policy  

Quality 

Whilst  Community  agricultural  product  quality  legislation  could  be  described  as  a  fairly 
stable "acquis" characterised by a globally satisfactory situation, nonetheless, in the course of 
analysis of this field, it has become clear that a strategic framework for EU action is needed in 
the short term and could usefully be included in a Communication. Moreover, the existing EU 
quality  schemes  (geographical  indications  and  traditional  specialities)  and  measures  are  in 
need of attention and a policy review could be envisaged. In particular, procedures should be 
streamlined  and  simplified,  as  applications  from  Member  States  are  often  incomplete  and  it 
appears  that  in  a  number  of  cases  Member  States  do  not  carry  out  their  examination  of 
applications  properly  before  submission  to  the  Commission.  These  problems  should  be 
tackled within the framework of the above mentioned revision of the Quality Policy. 

Organic 

Regarding  the  implementation  of  the  Community  rules  regarding  organic  products, 
with  this  new  legislative  framework  (see  above),  the  situation  is  significantly 
improved.  For  the  first  time,  the  objectives  and  principles  of  organic  farming  are 
defined at EU level. Competences between the Commission and the Member States 
are  clearly  fixed.  Controls  are  under  the  responsibility  of  Member  States  and 
logically  placed  under  the  roof  of  the  Official  Food  and  Feed  Control  (OFFC) 
established by Council Regulation (EC) No 882/2004. The implementing rules have 
been simplified wherever it was possible with the agreement of the Member States in 

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Special Report 8/2008. 

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the  relevant  Regulatory  Committee,  and  derogations  made  truly  exceptional. 
However no new development was undertaken, apart from organic yeast rules. 

Against this background, the global situation of application of these rules may be considered 
as stabilised and globally satisfactory. Furthermore, given the recent approval of these rules, 
experience is not enough to base clear conclusions on what the main problems could be. It is 
not expected that application or enforcement would create special difficulties as most of the 
new legislation is directly inspired by the previous one. However, some recent cases seems to 
indicate  that  the  accreditation  of  control  bodies  which  is  now  a  formal  obligation  to  be 
respected by the Member States when they delegate their control tasks, may be a field where 
certain  control  bodies  experienced  difficulties,  apparently  due  to  delays  in  obtaining  the 
necessary accreditation certificate from the relevant authority. 

5.2.2.5.  Technical standards directive (Directive 98/34/EC) 

Following the information available to the Commission the functioning of Directive 98/34/EC 
in  the  agricultural  sector  appears  to  be  satisfactory.  In  2008  there  were,  for  example,  no 
infringement  procedures  launched  against  the  Member  States  for  not  following  detailed 
opinions. 

One  less  significant  exception  to  the  smooth  functioning  of  Directive  98/34/EC  was  the 
Latvian  request  in  May  2008  to  get  one  of  their  notifications,  regarding  requirements  for 
integrated  production,  treated  in  accordance  with  the  urgent  procedure  laid  down  in  Article 
9(7) of Directive 98/34/EC. This provision stipulates that certain cases, occasioned by serious 
and  unforeseeable  circumstances  relating  to  the  protection  of  public  health  or  safety,  the 
protection of animals or the preservation of plants must be treated urgently. 

Latvia justified their request for an urgent procedure by stating that unless the notified rules 
were adopted urgently the legal basis for integrated agricultural production and the control of 
this  process  would  not  be  possible.  This  would,  in  turn,  prevent  the  Latvian  farmers  from 
profiting  from  the  aid  foreseen  in  the  Rural  Development  Plan  (RDP)  for  2007-2013. 
However, Commission's examination of the request showed that the reasons given by Latvia 
would  not  satisfy  the  requirements  for  an  urgent  procedure  as  laid  down  in  Article  9(7)  of 
Directive  98/34/EC  as  the  notified  measure  did  not  relate  to  a  serious  and  unforeseeable 
situation. The Latvian request was therefore rejected. 

5.3. 

Evaluation results 

5.3.1.  Priorities and action planed 2009 

5.3.1.1.  Legislative and management priorities and action programming 2009 

Market instruments 

Beyond the ongoing pursuit of legal and operational simplification, , including the completion 
of  the  single  CMO  by  the  integration  of  the  wine  sector,  balanced  against  protection  of  the 
budget expenditures and the principles of subsidiarity and shared management of the budget, 
or simplification of the hops regime by eliminating the burdensome requirements to register 
cultivation contracts, the Commission will launch the process needed for the adoption of the 
second phase of the wine reform notably concerning three draft regulations, two of which are 
subject  to  consultation  of  WTO  partners  in  the  context  of  the  Agreement  on  Technical 
Barriers  to  Trade.  These  regulations  concern  wine-making  practices  and  restrictions, 

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Protected  Designation  of  Origin  (PDO)  and  Protected  Geographical  Indication  (PGI)  wines, 
traditional  terms,  labelling  and  presentation  of  certain  wine  sector  products,  the  vineyard 
register,  obligatory  declarations  and  accompanying  documents.  Simplification  initiatives  are 
still being drafted for intervention, electronic data communication, food aid for most deprived 
persons, and the fruit juice directive. Moreover, the Commission is taking necessary step to 
contribute  to  the  evaluation  of  the  tobacco  and  hops  regimes  and  to  amend  the  "acquis"  if 
necessary, to establish new procedures for Community registration of PDOs and PGIs in the 
wine sector and of PGIs in the spirit drinks sector. The adoption of the draft amendments to 
Regulation  (EC)  N°  1019/82  on  marketing  standards  for  olive  oil  which  introduces  an 
obligation to indicate the origin on the labels of extra virgin and virgin olive oils should put an 
end  to  the  difficulties  encountered  in  this  sector  with  Italy  that  had  established  a  system  of 
compulsory origin labelling on olive oil packaging. 

The financial and economic situation in Member States and globally are having an impact on 
agricultural products. An additional priority for the moment is to monitor the market situation 
for each of the products. The price volatility, in particular in the milk sector, requires sharp 
market  monitoring  and  quick  reactions  by  using  the  existing  market  measures  as  reviewed 
under the "Health check". 

Direct payments and cross compliance 

The  proper  application  of  the  newly  revised  legislation  in  the  context  of  the  Health  check 
requires  the  adoption  of  detailed  implementing  rules,  particularly  for  Regulations  (EC) 
N°73/2009 and 74/2009. New implementing regulations will include recasts of Commission 
Regulations (EC) No 795/2004, 796/2004 and 1973/2004 to establish the implementing rules 
of Regulation (EC) No 73/2009 needed for 2009 and a cleaning up of obsolete rules as well as 
implementing rules needed as from 2010 (especially regarding Articles 68 to 72 of Regulation 
(EC)  No  73/2009).  Moreover,  the  Commission  intends  to  provide  advice  to  Member  States 
regarding  the  implementation  of  these  regulations  and  to  continue  with  efforts  on 
simplification of the functioning of cross compliance. 

Rural development 

The implementation of the Health Check implies the modification of the Implementing Rules 
of  the  EAFRD  (amending  Regulation  (EC)  No  1974/2006).  The  implementing  rules  for 
controls  in  rural  development,  Regulation  (EC)  No  1975/2006,  will  be  amended  in  order  to 
clarify and simplify it and to take into account changes made to Regulation (EC) No 796/2004 
which has been amended several times and to which there are cross-references. 

Regulation  (EC)  No  1975/2006  already  sets  out  an  application  deadline  for  payment  claims 
for area and animal-related measures. This deadline is in accordance with that one set for the 
first  pillar  and  aligns  the  system  with  IACS.  In  order  to  guarantee  better  cash  flow  for  the 
beneficiaries and to further streamline the controls of area and animal-related measures under 
the first and second pillar and to guarantee the quality of the controls, a payment deadline for 
these measures is proposed to be set in Council Regulation (EC) No 1698/2005. 

As a consequence of the Health Check and the European Economic Recovery Package, which 
will  imply  additional  financial  resources  for  rural  development,  all  National  Strategy  Plans 
and consequently Rural Development Plans have to be revised. 

Quality policy 

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Quality:  In  order  to  ensure  a  more  efficient  application  of  the  Regulations,  the  ongoing 
productive bilateral "dialogue" with MS will be enhanced. A priority will be also to build on 
continuous  improvements  in  scrutinizing  techniques  applied  to  applications,  so  as  to  further 
accelerate the treatment of files and management of the relevant procedures. In the light of the 
potential  for  inconsistencies  stemming  from  the  independent  development  of  the  diverse 
instruments  that  comprise  agricultural  product  quality  policy,  the  need  to  ensure  overall 
coherence cannot be overstated. Therefore, a comprehensive and coherent global package on 
Quality will be the essential element. Contributions received from respondents to the public 
consultation of the Green Paper on agricultural product quality policy provide the basis for the 
Commission’s Communication, to be adopted in May 2009. 

Organic: The proper application of the newly revised organic Community legislation requires 
the  adoption  of  detailed  implementing  rules  also  in  new  fields  like  organic  aquaculture  and 
organic  wine.  The  scope  of  the  Community  rules  was  extended  to  these  fields  so  as  to 
harmonize private and national rules for a better functioning of the market and to respond to 
increased consumer demand. The implementing rules will be adopted within the framework of 
the  Comitology  procedure.  A  Regulatory  Committee,  namely  the  Standing  Committee  for 
organic  farming  (SCOF)  must  deliver  its  opinion  before  adoption  of  the  new  rules  by  the 
Commission.  Beside  this  role,  the  SCOF  meets  regularly  to  exchange  information  and  to 
discuss  best  practices  in  Member  States.  Regarding  the  difficulties  encountered  with 
accreditation  bodies,  if  they  cannot  be  solved  by  MS,  before  opening  infringement 
proceedings,  a  satisfactory  solution  will  be  looked  for  though  bilateral  contacts  and  open 
discussion of problems encountered by the Member States within the Standing Committee of 
Organic Farming (SCOF). 

Clearance of accounts 

For 2009, the annual work plan foresees 139 conformity audits with missions plus 5 IT audits 
and several desk checks of which the number is estimated to be around 50 based on last years' 
experience. 

5.3.1.2.  Enforcement priorities 

As  already  mentioned,  in  the  area  of  agriculture  and  rural  development,  monitoring  the 
application  of  Community  law  under  Article  226  EC  proceeding  concentrates  on  two  main 
objectives: removing barriers to the free movement of agricultural products and ensuring that 
the more specific mechanisms of agricultural regulations are applied effectively and correctly. 

In the use of the infringement procedure, priority will be granted to cases which raise issues 
concerning  the  compatibility  of  Member  States'  legislative,  regulatory  or  administrative 
measures  with  Community  agricultural  rules  and  to  cases  where  Member  States  concerned 
refrain from applying the aforementioned common rules, in both cases where such problems 
jeopardize  the  effectiveness  of  important  mechanisms  of  the  common  agricultural  policy, 
particularly regarding the 1st pillar. 

For  the  years  2009  and  2010,  the  Commission  will  in  particular  be  vigilant  in  pursuing 
infringements of the type described in the previous paragraph challenging the application of 

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the CMO's reform in the fruit and vegetable and wine sectors and those which would affect 
the application of the direct payment regime , and in particular "cross compliance"113. 

Furthermore, if the bilateral contacts established with MS with the aim to convince them to 
accredit  correctly  the  control  bodies  in  the  organic  products  sector  fail,  the  Commission 
would make use of the infringement procedure. 

6. 

ENERGY AND TRANSPORT 

6.1. 

ENERGY - Internal electricity and gas market  

6.1.1.  Current position 

6.1.1.1.  General introduction  

Relevant  legislations  for  the  internal  electricity  and  gas  market  are:  Directives  2003/54  and 
55, of 26 June 2003 concerning common rules for the internal market in electricity and gas, 
respectively;  Directive  2005/89  of  18  January  2006,  concerning  measures  to  safeguard 
security of electricity supply and infrastructure investment; Regulation 1228/2003 of 26 June 
2003,  on  conditions  for  access  to  the  network  for  cross-border  exchanges  in  electricity; 
Regulation  1775/2005  of  28  September  2005  on  conditions  for  access  to  the  natural  gas 
transmission networks.  

6.1.1.2.  Report of work done in 2008 

Enquires, problems and complaints 

in  2008.  Problems  reported  mainly  refer 

the 
Some  complaints  were  received 
malfunctioning  of  cross-border  trade,  the  preferential  treatment  of  national  supplier  in  the 
electricity sector and to the protection of national markets through the imposing of electricity 
export fees. In the gas sector, the publication of the relevant entry and exit points, contracted 
and available capacities, and historical flows was found to be unsatisfactory in a number of 
Member States.  

to 

Coexistence  of  open  energy  markets  and  regulated  energy  prices  was  still  to  be  registered 
quite  commonly  among  EU  Member  States  in  2008:  more  than  half  of  the  Member  States 
have regulated prices which in the majority of Member States are not confined to household 
customers.  The  negative  effects  of  regulated  energy  prices  was  and  still  is  to  be  a  major 
concern  in  terms  of  the  proper  functioning  of  the  internal  energy  market.  Indeed  regulated 
prices  can  lead  to  a  distortion  of  competition  and  do  not  send  the  right  price  signals  to  the 
market (influencing investments and incentives for energy efficiency).  

Management of infringements 

More than four years after the time-limit (1 July 2004), the implementation of the Electricity 
2003/54/EC and Gas Directives 2003/55/EC ("second package") is still not entirely complete. 
Several  Member  States  have  correctly  implemented  both  Directives  through  appropriate 
national  legislation  and  some  progress  has  also  to  be  registered  in  other  Member  States.  In 

113 

The  use  of  the  infringement  procedure  will  be  favoured  in  cases  where  the  absence  of  financial 
consequences of the infringement would not allow for recourse to the clearance of accounts procedure. 

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some  cases  Member  States  brought  their  national  laws  into  line  with  EU  legislation  after 
reasoned opinions being issued by the Commission. 

As  regards  Directive  2005/89  Member  States  were  obliged  to  transpose  and  implement 
provisions of the Directive by 24.02.2008. Ten Member States notified complete transposition 
before  the  time-limit.  Infringement  cases  for  non  communication  were  started  against  the 
remaining 17 Member States. Twelve of these notified the transposing measures by the end of 
2008. 

New legislation 

In 2008 the Commission negotiated with the Council and the Parliament five new legislation 
acts  (third  internal  energy  market  package)114,  which  identified  several  malfunctions  in  the 
electricity and gas markets and proposed remedies. In June and July 2008, the package passed 
its  first  reading  in  the  European  Parliament;  in  October  2008,  the  common  position  was 
adopted by the Council. The third package was finally adopted mid 2009115.  

6.1.2.  Evaluation of the current position 

In 2008  a great  deal of  effort was  put into enhancing  competition  on  the  wholesale  market; 
significant progress was made through the regional initiatives. There also seems to be a new 
trend  towards  building  new  energy  infrastructure.  However  in  spite  of  some  encouraging 
results and the benefits of the liberalisation process, the full potential of liberalisation has not 
yet been realised. While the situation in more mature markets is demonstrating the potential 
benefits of energy market liberalisation, there are still a number of areas and Member States 
where  significant  obstacles  to  the  efficient  functioning  of  the  electricity  and  gas  market 
persist.  A  major  concern  is  the  incomplete  implementation  of  European  electricity  and  gas 
legislation.  There  are  still  some  areas  and  Member  States  where  the  existing  legislation 
(second internal market package) has not yet been properly implemented or where the need 
for  new  legislation  has  become  evident.  For  this  reason,  during  2008  the  Commission  has 
taken  actions,  on  the  one  hand,  to  ensure  the  correct  implementation  of  EU  legislation  at 
national level through  the application  of infringement procedures and, on the other hand, to 
complement the internal market legislation with the third internal energy market package.  

6.1.3.  Evaluation results  

The  Commission's  services  have  identified  the  main  areas  where  there  is  failure  to  comply 
with the electricity and gas Directives and Regulations and the main actions to be undertaken. 
In particular, infringement proceedings will focus in the gas and electricity sector on specific 
items  such  as:  regulated  prices,  penalties,  transparency  and  capacity  allocation  of  networks; 
third party access and consumer protection, all in both sectors, and security of supply in the 
electricity sector. 

114 

The package comprises: 
An Electricity Directive amending and completing the existing Electricity Directive 2003/54 
A Gas Directive amending and completing the existing Gas Directive 2003/55 
An Electricity Regulation amending and completing the existing Electricity Regulation 1228/03 
A Gas Regulation amending and completing the existing Gas Regulation 1775/05 
A Regulation establishing an Agency for the Cooperation of Energy Regulators 

115  http://ec.europa.eu/energy/gas_electricity/third_legislative_package_en.htm 

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In addition meetings with MS are planned in order to facilitate the transposition of the third 
package. 

6.1.4. 

Sector summary 

While the situation in more mature markets is demonstrating the potential benefits of energy 
market liberalisation, there are still some areas and Member States where significant obstacles 
to the efficient functioning of the electricity and gas market persist. While there are still some 
areas and Member States where the existing legislation (second internal market package) has 
not yet been properly implemented, the need for new legislation has become evident. 

The Commission's efforts are therefore concentrating in ensuring an efficient implementation 
of the existing and forthcoming legislation, by combining action in two fields: 

- Remedial field: The main areas where there is failure to comply with the electricity and gas 
Directives and Regulations and the main actions to be undertaken have been identified, on this 
basis, infringement proceedings will focus in 2009 on specific items such as: regulated prices, 
penalties, transparency and capacity allocation of networks; third party access and consumer 
protection, all in both sectors, and security of supply in the electricity sector. 

- Preventive field: different actions will be planned in order to facilitate the transposition of 
the third internal energy package. 

6.2. 

ENERGY - Coal and Oil 

6.2.1.  Current position 

6.2.1.1.  General introduction 

Of the relevant legislation in the area of coal and oil, the bulk of the Commission's work in 
Community  law  management  in  2008  concerned  Directives  2006/67  (Council  Directive 
2006/67/EC of 24 July 2006 imposing an obligation on Member States to maintain minimum 
stocks of crude oil and/or petroleum products – Codified version ; OJ L 217, 8.8.2006, p. 8) 
and  94/22  (Directive  94/22/EC  of  the  European  Parliament  and  of  the  Council  of  30  May 
1994 on the conditions for granting and using authorizations for the prospection, exploration 
and production of hydrocarbons; OJ L 164, 30.6.1994, p. 3). 

Other relevant legislation includes:  

Council  Directive  73/238/EEC  of  24  July  1973  on  measures  to  mitigate  the  effects  of 
difficulties in the supply of crude oil and petroleum products (OJ L 228, 16.08.1973, p1-2), 
Council Decision 68/416/EEC of 20 December 1968 on the conclusion and implementation of 
individual  agreements  between  Governments  relating  to  the  obligation  of  Member  States  to 
maintain  minimum  stocks  of  crude  oil  and  /or  petroleum  products  (OJ  L  308,  23.12.1968, 
p.19. 

6.2.1.2.  Work done in 2008 

Infringements 

With  respect  to  Directive  94/22,  the  Commission  continued  to  process  publication  requests 
received  from  Member  States  pursuant  to  the  provisions  of  the  Directive  but  also  followed 

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implementation  of  the  same  Directive  in  Member  States.  Several  infringements  procedures 
were pursued in 2008:  as regards the obligation  of Member States to duly notify competent 
authorities,  the  Commission  issued  both  a  letter  of  formal  notice  and  a  reasoned  opinion  in 
2008  in  a  procedure  opened  against  Belgium;  in  a  file  concerning  Poland,  an  infringement 
procedure reached the stage of the reasoned opinion, where the Commission asked Poland to 
correct its procedures for granting rights over oil and gas resources. 

As regards Directive 2006/67, infringement cases were also treated in 2008, related either to 
the  non-compliance  with  the  obligatory  stocks  minima  set  in  the  legislation  or  with  other 
aspects  of  the  legislation.  An  infringement  procedure  against  Belgium  for  insufficient  stock 
levels resulted in an ECJ ruling in favor of the Commission (case C-510/07) in July 2008. An 
infringement procedure against Ireland was launched in 2008 on the grounds that its national 
legislation allows stocks to be used as collateral. 

New legislation 

The March 2007 European Council underlined the need to enhance the security of supply for 
the EU and highlighted the need to review EU oil stocks mechanisms. 

Though no particular system in a Member State has to date demonstrably failed to provide for 
adequate  supplies  in  case  of  crisis  nor  has  been  ruled  as  inadequate  e.g.  by  the  ECJ,  the 
number and character of infringement proceedings in specific instances cast strong doubts on 
current practices,  especially when considered together with other circumstantial evidence of 
possible irregularities in the current system found e.g. through International Energy Agency 
and/or Commission activities and/or assessments. 

In  particular,  analysis  of  the  current  system  reveals  flaws  which  might  prevent  it  from 
functioning  suitably  in  case  of  an  actual  supply  disruption.  There  are  doubts  whether  the 
current system could guarantee that the stocks held for emergencies would be fully available 
and  could  be  effectively  mobilized  as  needed.  The  EU  also  lacks  coordinated  intervention 
procedures, rendering prompt decision making and effective actions very difficult in practice. 
Finally, the current system exists in parallel with an IEA system, resulting in dual obligations 
for Member States who are also members of the IEA. 

A public consultation was carried out between April and June 2008 to ascertain the views of 
all interested parties on possible revision of the existing legislation on emergency oil stocks, 
including platforms such as the Oil Supply Group and the Fossil Fuels (also known as Berlin) 
Forum,  informal  meetings  with  Member  States,  the  stakeholder  community  and  external 
experts, and the external expertise of the International Energy Agency (IEA). 

Based  on  the  results  of  these  consultations,  the  Commission  adopted  in  November  2008  a 
Proposal  for  a  Council  Directive  imposing  an  obligation  on  Member  States  to  maintain 
minimum stocks of crude oil and/or petroleum products (COM/2008/0775 final).The proposal 
pays  special  attention  to  the  provisions  addressing  availability  of  stocks,  administrative 
arrangements  needed  for  proper  stocks  management  and  rules  for  an  EU  crisis  mechanism 
that could work complementarily with the IEA rules. 

6.2.2.  Evaluation of the current position 

The  draft  legislation  is  presently  discussed  in  the  Council.  Its  adoption  is  foreseen  for  late 
2009 and will represent a satisfactory development which will improve the current situation. 

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Once  adopted,  the  proposal  will  replace  the  current  three  pieces  of  EU  legislation  on 
emergency stocks. By aligning the stockholding obligation with that of the IEA, it will also 
simplify Member States’ administrative procedures. 

6.2.3.  Evaluation results 

The Commission's resources will be concentrated on the negotiation and adoption of the new 
Directive, and its correct implementation afterwards. 

6.2.4. 

Sector summary 

Analysis  of  the  current  system  for  the  security  of  supply  in  oil  and  petrol  revealed  some 
weaknesses  that  might  prevent  it  from  functioning  suitably  in  case  of  an  actual  supply 
disruption,  due  in  particular  to  the  lack  of  coordinated  intervention  procedures  at  EU  level, 
that  would  rend  a  prompt  and  effective  reaction  very  difficult  in  practice,  and  to  the  co-
existence  of  the  EU  system  with  the  IEA  system,  resulting  in  dual  obligations  for  Member 
States who are also members of the IEA. 

The  proposal  for  a  new  Directive  that  intends  to  replace  the  current  three  pieces  of  EU 
legislation  on  emergency  stocks  pays  special  attention  to  the  provisions  addressing 
availability of stocks, administrative arrangements needed for proper stocks management and 
rules  for  an  EU  crisis  mechanism  that  will  be  complementary  to  the  IEA  rules,  and  will 
contribute to simplify Member States’ administrative procedures. 

6.3. 

ENERGY - Renewable energy sources 

6.3.1.  Current position 

6.3.1.1.  General introduction 

Main pieces of Community acquis are: 

- Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 
on  the  promotion  of  electricity  from  renewable  energy  sources  in  the  internal  electricity 
market  

- Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the 
promotion of the use of biofuels or other renewable fuels for transport. 

- Directive 2009/28/EC of the European Parliament and of the Council of 5 June 2009 on the 
promotion  of  the  use  of  energy  from  renewable  sources  and  amending  and  subsequently 
repealing Directives 2001/77/EC and 2003/30/EC. 

6.3.1.2.  Report on the work done in 2008 

A range of infringement procedures have been launched to encourage Member States to take 
further  action;  16  cases  are  still  open.  The  inadequate  action  by  Member  States  reflects  the 
need for a stronger regulatory framework. The Commission is  still  pursuing  Member States 
who  are  not  making  sufficient  progress  towards  their  targets.  In  2008  several  cases  were 
successfully closed. 

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But in addition, in January 2008 the Commission proposed a new Directive on the promotion 
of  the  use  of  energy  from  renewable  sources,  which  imposes  legally  binding  targets  and  a 
range of supplementary measures that should spur growth in the future, to enable the EU to 
reach the new 20% 2020 target. 

The successful negotiations on this proposal resulted in political agreement in December and 
adoption of Directive 2009/28/EC. Thus the Community will have a new legal framework for 
the  promotion  of  renewable  energy  from  2010  and  the  two  existing  directives  will  be 
repealed. 

6.3.2.  Evaluation of the current position 

Whilst some progress has been made, the EU is unlikely to meet the 2010 targets established 
by the Directives. 

Regarding Directive 2001/77/EC only six Member States have made over 50% of the effort 
needed to each their 2010 target (based on their reference year); eight Member States actually 
have the same or even a lower share of renewable electricity than in their reference year and 
five  Member  States  had  negative  growth  in  their  renewable  electricity  share  in  the  last  two 
years. 

Regarding Directive 2003/30/EC, five Member States had not made any of the effort needed 
to reach their 2010 targets and only one Member State has reached its target. In addition 15 
Member States achieved zero or even negative growth in their share of renewable energy in 
transport in the last two years. 

6.3.3.  Evaluation results 

6.3.3.1.  Priorities 

A  progress  report  issued  in  [April  2009  (COM(2009)192)]  on  the  Directives  builds  on  the 
findings of the earlier progress reports (COM(2006)849 and SEC(2008)57).  

6.3.3.2.  Planned action 

As the 2010 target is essentially a minimum requirement for the agreed 2020 targets in each 
Member State, efforts will be dedicated to ensure the enforcement of the existing directives.  

In  addition,  the  Commission  will  open  proceedings  against  the  worst  performing  Member 
States as a signal that the 2010 targets must still be achieved.  

6.3.4. 

Sector summary 

The  Commission  has  continued  to  enforce  the  existing  acquis  on  renewable  energy  and  the 
progress reports it has prepared over the years have highlighted the inadequate attention given 
to  this  issue  by  most  Member  States.  The  Commission  therefore  proposed  a  new,  broader 
legislative  regime,  in  the  context  of  the  energy  and  climate  package.  Many  resources  were 
devoted in 2008 to prepare, explain and then negotiate the new Directive, which was agreed in 
December  2008.  Year  2009  will  be  spent  helping  Member  States  implement  the  new 
Directive  (preparing  the  template  for  the  national  action  plans,  guidance  on  biofuel 
sustainability,  transparency  platform…).  This  will  ensure  that  the  ground  is  prepared  for 
Member States to develop their renewable energy sources to achieve their 2020 objectives.  

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6.4. 

ENERGY - Energy Efficiency of Products 

6.4.1.  Current position 

6.4.1.1.  General introduction 

Main provisions in this field are as follows: 

- Directive 2005/32/EC of 6 July 2005 establishing a framework for the setting of ecodesign 
requirements for energy-using products 

-  Directive  92/75/EEC  of  22  September  1992  on  the  indication  by  labelling  and  standard 
product  information  of  the  consumption  of  energy  and  other  resources  by  household 
appliances 

6.4.1.2.  Report on the work done in 2008 

With regard to the energy efficiency of products the activity was focused on: 

(a) the implementation of Framework Directives 2005/32/EC and 92/75/EEC. To  this  end 6 
public consultations and 4 meetings of the Committee on the Ecodesign and Energy Labelling 
of  Energy-using  Products  (EELEP)  were  held.  This  has  led  to  the  endorsement  by  the 
Committee and a subsequent adoption by the Commission of 5 implementing regulations of 
Directive  2005/32/EC,  setting  ecodesign  requirements  for  standby  and  off  mode  electric 
power consumption of electrical and electronic household and office equipment, for external 
power supplies, for simple set-top boxes, for tertiary and domestic sector lighting equipment 
(including a phase-out of incandescent bulbs). These implementing measures will be directly 
applicable  in  Member  States  and  are  expected  to  result  by  2020  in  annual  energy  savings 
amounting  to  125  TWh.  In  parallel  there  was  ongoing  work  (preparatory  studies,  impact 
assessments, stakeholder meetings) for the preparation of additional implementing measures 
for almost 20 product groups. In what regards the transposition of Directive 2005/32/EC, out 
of the 21 infringement procedures for non-communication of transposition that were initiated 
in September 2007 all but 5 could be closed by the end of 2008. 

(b) the revision of Framework Directives 2005/32/EC116 and 92/75/EEC117, the latter as a part 
of the Commission's Second Strategic Energy Review - Securing our Energy Future adopted 
in November 2008. The two proposals essentially aimed at broadening the scope of the two 
directives,  to  include  also  energy-related  products.  Furthermore  the  recast  of  Directive 
92/75/EEC  aimed  at  simplifying  legislation  and  ensuring  a  uniform  implementation  on  the 
internal  market  by  using  implementing  Regulations  instead  of  implementing  Directives.  It 
also  clarifies  the  respective  responsibilities  of  manufacturers  and  distributors  as  regards 
labelling  by  aligning  the  according  definitions  with  the  newly  adopted  'New  Approach' 
package.  Both  proposals  were  preceded  by  public  consultations  and  were  accompanied  by 
impact assessments. 

(c)  the  tabling  of  a  new  legislative  proposal  on  the  labelling  of  tyres  with  respect  to  fuel 
efficiency and other essential parameters (COM/2008/0779) which aims at increasing vehicles 

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Proposal for a Directive of the European Parliament and of the Council establishing a framework for the 
setting of ecodesign requirements for energy related products (COM(2008)399) 
Proposal  for  a  Directive  on  the  indication  by  labelling  and  standard  product  information  of  the 
consumption of energy and other resources by energy-related products (COM(2008)778) 

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fuel  efficiency  while  supporting  the  market  transformation  towards  fuel  efficient  tyres.  The 
proposal  was  preceded  by  a  public  consultation  and  was  accompanied  by  an  impact 
assessment. 

All of the above activities contributed to the EU goals on energy efficiency. 

6.4.2.  Evaluation of the current position 

The activities carried out in 2008 resulted in the tabling of several legislative proposals that 
are expected to have a significant contribution to the EU goals on energy and climate change. 
These activities also paved the way for the adoption of additional measures in 2009.  

6.4.3.  Evaluation results 

6.4.3.1.  Priorities 

Priority  will  be  given  to  the  enforcement  of  the  existing  legislation  and  to  ensuring  that,  as 
from 2009, the forthcoming legislation and accompanying measures are applied by Member 
States as swiftly and quickly as possible. 

6.4.3.2.  Planned Action 

Efforts will be concentrated in the negotiation and forthcoming adoption by the Council and 
the European Parliament of the three legislative proposals on energy labeling, ecodesign and 
labeling of tyres. 

Resources will also be devoted to the preparation of implementing measures concerning the 
ecodesign  and  labeling  of  such  products  as  televisions,  refrigerators,  washing  machines, 
motors, water heaters and other. 

6.4.4. 

Sector summary 

In  the  context  of  the  Second  Strategic  Energy  Review  adopted  in  November  2008,  the 
Commission's activities in the field of Energy Efficiency of Products are concentrated in the 
enforcement  of  the  existing  acquis  and  in  the  negotiation  and  forthcoming  adoption  by  the 
Council  and  the  European  Parliament  of  the  three  legislative  proposals  on  energy  labeling, 
ecodesign  and  labeling  of  tyres.  It  is  also  expected  that  the  Commission  will  adopt  several 
implementing  measures  under  Directive  2005/32/EC  and  Directive  92/75/EEC  addressing 
such products as televisions, refrigerators, washing machines, motors, water heaters and other. 

6.5. 

ENERGY - Energy performance of buildings  

6.5.1.  Current position 

6.5.1.1.  General introduction 

Main piece of Community acquis is Directive 2002/91/EC of the European Parliament and of 
he Council of 16 December on the energy performance of buildings. 

6.5.1.2.  Report on the work done in 2008 

The main activity in the field of energy efficiency in the building sector was the tabling of a 
proposal for a recast of the Directive of the European Parliament and of the Council on the 

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energy performance of buildings (COM(2008)780final), as a part of the Commission's Second 
Strategic  Energy  Review  -  Securing  our  Energy  Future  in  November  2008.  This  proposal 
intends to simply and strengthen the provisions of current Directive 2002/91/EC on the energy 
performance  of  buildings  (hereafter:  "EPBD")  and  thus  to  increase  the  energy  efficiency  of 
Europe's building stock, to tackle climate change and to contribute to an increased security of 
energy supply. 

In  order  to  provide  the  Commission  with  the  necessary  input  and  background  information, 
several consultation rounds and events were organised. 

During  the  second  EU  Sustainable  Energy  Week  in  January  2008  a  specific  conference 
focused on the Commission's ideas for extending the scope of the Directive and discussed the 
practical aspects of its implementation with the involvement of different stakeholders who are 
engaged in the daily application of the EPBD. This stakeholder conference was supplemented 
by  2  meetings  of  the  Member  States'  representatives  of  the  Energy  Demand  Management 
Committee  (buildings  formation).  The  public  had  a  chance  to  express  its  views  during  the 
public  consultation  that  was  held  between  April  and  June.  Apart  from  the  organised 
consultation  initiatives,  a  great  effort  was  made  in  answering  numerous  individual  opinions 
and requests for information.  

This effort in dissemination and consultation was continued with the further development of 
the  Buildings  Platform  (www.buildingsplatform.org)  as  an  information  point  with  regard  to 
the  Energy  Performance  of  Buildings  Directive.  To  support  European  countries  in 
implementing  the  Directive,  the  Concerted  Action  EPBD  was  further  developed  by  the 
Commission. This instrument is intended to promote dialogue and exchange of best practice. 
As an active forum of national authorities from 29 countries, it focuses on finding common 
approaches to the most effective implementation of this EU legislation.  

The  work  on  the  new  proposal  did  not  divert  the  attention  from  the  enforcement  of  the 
existing legislation. Infringement proceedings continued against 13 Member States for failure 
to notify the transposing measures for the Directive; 13 cases could be closed in the course of 
the  year,  after  notification  of  the  relevant  texts.  The  examination  of  the  notified  national 
implementing  measures  having  highlighted  some  shortcomings,  the  Commission  opened  a 
total of 6 new non-conformity cases. 

6.5.2.  Evaluation of the current position 

Overall, it can be concluded that the present situation is evolving according to the priorities. 
The Commission has tabled an ambitious proposal that strengthens the current legislation; it 
also made considerable progress in enforcing its existing legislation.  

6.5.3.  Evaluation results 

6.5.3.1.  Priorities 

Attention  will  focus  on  the  enforcement  of  the  existing  legislation  and  to  ensuring  that,  as 
from 2009, the forthcoming legislation and accompanying measures are applied by Member 
States as swiftly and quickly as possible. 

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6.5.3.2.  Planned Action 

Efforts  will  be  concentrated  in  addressing  the  shortcomings  in  the  implementation  of 
Directive  2002/91/EC  and  in  paving  the  way  for  the  implementation  of  the  newly  proposed 
legislation recasting this Directive. 

6.5.4. 

Sector summary 

In  the  context  of  the  Second  Strategic  Energy  Review  adopted  in  November  2008,  the 
Commission's activities in the field of Energy Performance of Buildings are concentrated in 
the enforcement of Directive 2002/91/EC and in the negotiation and forthcoming adoption by 
the Council and the European Parliament of the newly proposed recasting Directive. 

6.6. 

ENERGY - Energy end-use efficiency and energy services 

6.6.1.  Current position 

6.6.1.1.  General introduction 

Main piece of Community acquis is Directive 2006/32/EC of the European Parliament and the 
Council of 5 April 2006 on energy end-use efficiency and energy services. 

6.6.1.2.  Report on the work done in 2008 

With regard to Energy end-use efficiency and energy services, the efforts in consolidating the 
existing  legislation  were  continued.  Focus  was  laid  on  the  implementation  by  the  Member 
States and the follow-up of their National Energy Efficiency Action Plans (NEEAPs). After 
ensuring  that  all  Member  States  complied  with  their  reporting  obligations,  the  Commission 
started with the assessment the submitted reports. 

The Plans submitted varied considerably in quality, and since this reporting effort was a first 
for  the  Member  States,  the  Commission  attached  great  importance  to  consultation  and 
dialogue. In meetings with representatives of the Member States the Commission conveyed its 
observations,  giving  them  the  opportunity,  where  necessary,  to  review/improve  their  Plans. 
An overall discussion was organised under the umbrella of the EU Sustainable Energy Week. 
By helping the Member States meeting their obligations, the Commission contributed to the 
strengthening of their energy policy and to the sustainability of their individual goals. 

The Commission also pursued the implementation of the Directive by organising two Energy 
Demand Management Committee meetings (energy services formation) and an equal number 
of expert working groups. Apart from discussing the progress on the NEAAPs, a major effort 
was made in preparing the development of a set of harmonised energy efficiency indicators. 

The  overall  effort  on  energy  end-use  efficiency  and  energy  services  resulted  in  the 
Communication "Energy efficiency: delivering the 20% target" (COM(2008)772 final). This 
document provides an analysis of the efforts made in the field of energy efficiency. Although 
it is too early to assess the full effects the existing legislation, a quantitative evaluation of the 
expected  impact  of  the  most  relevant  efficiency  measures  when  fully  implemented,  reveals 
that the EU and Member States are not doing well enough and that more action is needed. 

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6.6.2.  Evaluation of the current position 

As  far  as  the  establishment  of  the  NEEAPs  is  concerned,  the  situation  is  stable  and 
acceptable. The Member States have generally reacted positively to our remarks on their first 
NEEAPs  and  this  should  bode  well  for  the  quality  of  the  subsequent  NEEAPs,  the  next  of 
which, the second, is to be submitted not later than 30 June 2011. 

Regarding  transposition,  the  Commission  will  start  an  in-depth  analysis  of  the  notified 
legislation and, where necessary, start infringement proceedings for non-compliance. 

6.6.3.  Evaluation results 

6.6.3.1.  Priorities 

Primary attention will be paid to the enforcement of the existing legislation. 

6.6.3.2.  Planned Action 

Efforts  will  be  concentrated  in  making  sure  that  Member  States  are  taking  appropriate 
measures to transpose the provisions of the Directive 2006/32 into national law and that they 
are applied and enforced effectively. 

6.6.4. 

Sector summary 

With  regard  to  Energy  end-use  efficiency  and  energy  services,  focus  was  laid  on  the 
implementation  by  the  Member  States  of  the  Directive  and  the  follow-up  of  their  National 
Energy Efficiency Action Plans (NEEAPs). Although it is too early to assess the full effects 
of  the  existing  legislation,  a  quantitative  evaluation  of  the  expected  impact  of  the  most 
relevant  efficiency  measures  when  fully  implemented,  reveals  that  more  action  is  needed  at 
EU  and  national  level.  Efforts  will  therefore  concentrate  in  consolidating  the  existing 
legislation, monitoring the actual implementation and enforcement of Directive 2006/32 and 
addressing cases of non-compliance. 

6.7. 

ENERGY - Combined heat and power generation (cogeneration, CHP) 

6.7.1.  Current position 

6.7.1.1.  General introduction 

Main  piece  of  legislation  is  Directive  2004/8/EC  of  the  European  Parliament  and  of  the 
Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand 
in the internal energy market. 

6.7.1.2.  Report on the work done in 2008 

Work  done  during  2008  with  regard  to  cogeneration  is  well  reflected  in  the  Commission's 
Second Strategic Energy Review - Securing our Energy Future adopted in November 2008. 

The  main  achievement  was  the  approval  of  the  detailed  guidelines  for  calculation  of 
electricity  from  cogeneration  (C(2008)  7294)  in  November  2008.  These  guidelines  are  the 
result  of  a  extended  dialogue  between  the  Commission  and  the  Member  States.  In  the 
framework  of  the  adoption  procedure,  2  committee  meetings  have  been  organised.  The 
unanimous  approval  by  the  Committee  Members  showed  the  general  acceptance  of  the 

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Commission's  proposal.  The  decision  on  the  detailed  guidelines  is  a  key  element  in  the 
implementation process of the Directive.  

The adoption of the guidelines also allowed the Commission to step up its efforts in enforcing 
the implementation of the Directive. Member States now dispose of all elements necessary for 
a complete transposition of all their obligations. 

In addition the Commission also issued the communication "Europe can save more energy by 
combined heat and power generation" (COM(2008) 771 final). With this Communication the 
Commission  intended  to  report  on  the  current  status  of  the  combined  heat  and  power 
generation in the EU, and to present possibilities for its development. 

6.7.2.  Evaluation of the current position 

In  general,  the  situation  regarding  cogeneration  is  evolving.  Although  some  Member  States 
encounter  difficulties  in  meeting  their  reporting  and  transposition  obligations,  the  overall 
trend is positive. 

The Guidelines for calculation of electricity from cogeneration having been adopted, there is 
no remaining obstacle for full transposition of the Directive. 

6.7.3.  Evaluation results 

6.7.3.1.  Priorities 

Primary attention will be paid to achieving full transposition in the Directive in all Member 
States and to remove outstanding barriers to the development of cogeneration. 

6.7.3.2.  Planned action 

The Commission will increase its efforts with regard to the follow-up and enforcement of the 
existing  legislation.  Six  months  after  the  publication  of  the  Guidelines,  infringement 
procedures will be opened for failure to implement the Directive provisions, as relevant. 

The  Commission  will  continue  to  monitor  the  process  and  will  present  further  proposals  if 
appropriate to foster cogeneration. As a first step, the Commission will evaluate the Energy 
Efficiency Action Plan in 2009 with a view to producing an update. 

6.7.4. 

Sector summary 

As  monitoring  of  the  implementation  continues,  despite  the  absence  of  or  late  reporting  by 
Member  States,  the  Commission  acknowledges  the  administrative  and  non-administrative 
barriers  hampering  the  development  of  cogeneration.  Some  of  these  barriers  have  been 
already addressed by the Commission, such as the set-up of harmonised efficiency reference 
values  and  the  adoption  of  Community  detailed  guidelines  for  the  calculation  of  electricity 
produced from cogeneration, as previously mentioned. 

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6.8. 

ENERGY - Nuclear Energy 

6.8.1.  Current position 

6.8.1.1.  General introduction 

In  terms  of  control  of  implementation,  the  main  piece  of  secondary  legislation  is  Directive 
96/29/Euratom laying down basic safety standards for the protection of the health of workers 
and  the  general  public  against  the  dangers  arising  from  ionizing  radiation  (Basic  Safety 
Standards  Directive),  as  supplemented  by  a  series  of  directives  covering  fields  such  as 
medical applications of ionising radiation (Directive  97/43/Euratom), information in case of 
radiological emergency (Decision 87/600/Euratom and Directive 89/618/Euratom); protection 
of  so-called  "outside  workers"  (Directive  90/641/Euratom);  shipments  of  radioactive  waste 
and substances (Directive 2006/117/Euratom and Regulation (Euratom) No 1493/93), and the 
control of high activity sealed radioactive sources (Directive 2003/122/Euratom). 

Commission  Regulation  (Euratom)  No  302/2005  defines  the  nature  and  extent  of  the 
requirements  referred  to  in  Articles  78  and  79  of  the  Euratom  Treaty  on  the  application  of 
nuclear safeguards. 

6.8.1.2.  Report of work done in 2008 

The Group of Experts provided for in Article 31 of the Euratom Treaty met twice in June and 
November 2008. One of the June meeting's main topics was the positive opinion given by the 
Group  on  the  draft  proposal  for  a  Euratom  Council  Directive  on  radioactive  substances  in 
water  intended  for  human  consumption.  The  November  meeting  discussed  mainly  the 
ongoing  recast  of  the  Basic  Safety  Standards  Directive.  During  this  meeting  the  Group 
delivered  a  positive  opinion  on  the  extension  for  10  years  of  Council  Regulation  733/2008 
(EC)  No  733/2008  (codified  version  of  Council  Regulation  (EEC)  No  737/90)  on  the 
conditions governing the import of agricultural products following the Chernobyl accident.  

The  European  High  level  Group  on  Nuclear  Safety  and  Waste  Management  or  European 
Nuclear Safety Regulators Group (HLG or ENSREG) met five times. In particular, it gave its 
input  to  the  Commission's  draft  proposal  on  the  nuclear  safety  directive.  The  Group  has  to 
submit regular  reports on  its activities to the Commission, the European Parliament  and  the 
Council.  The  first  report  of  the  Group  is  expected  by  17  July  2009,  two  years  after  its 
creation. 

The European Nuclear Energy Forum (ENEF), endorsed by the European Council in March 
2007,  is  a  platform  to  engage  in  a  broad  discussion  among  all  stakeholders  on  the 
opportunities  and  risks  of  nuclear  energy.  Hosted  successively  in  Bratislava  and  Prague, 
ENEF  held  its  two  biannual  meetings  on  22-23  May  and  3-4  November  2008.  It  gave  a 
supportive opinion on the requirement to propose a revised nuclear safety directive. The next 
plenary session of the Forum will take place in Prague under the Czech Presidency on 29 May 
2009. 

In 2008, the Commission dealt with 31 notifications under Article 33 Euratom. Most of them 
concerned the implementation of Directive 2006/117/Euratom of 20  November 2006  on the 
supervision  and  control  of  shipments  of  radioactive  waste  and  spent  fuel,  whose  correct 
implementation  was  one  of  the  main  priorities  of  the  Commission  Services  in  2008.  The 
submission  of  draft  texts  under  Article  33  Euratom  allows  the  Commission  to  make 
appropriate recommendations or remarks before the finalisation of the national procedure for 

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the adoption of transposition measures, so that possible instances of non-compliance can be 
identified even before the texts are adopted. 

The  Commission  services  conducted  seven  verification  missions  under  Article  35  Euratom. 
The purpose was to provide an independent assessment on the adequacy of facilities intended 
to  monitor  levels  of  radioactivity  in  the  environment.  All  verifications  started  with  a 
preliminary  audit  of  the  monitoring  and  inspection  activities  carried  out  by  the  relevant 
national authorities and of the legal framework in force. 

Seven  opinions  were  adopted  by  the  Commission  in  accordance  with  Article  37  of  the 
Euratom Treaty, concerning plans for the disposal of radioactive waste. 

On  15  July  2008,  the  Commission  issued  its  opinion  under  Article  43  Euratom  Treaty 
concerning the completion on units 3 and 4 of Mochovce Nuclear Power Plant in the Slovak 
Republic.  In  its  viewpoint  the  Commission  underlined,  inter  alia,  the  need  of  additional 
security requirements to be fully in line with the Euratom Treaty requirements. 

On  external  relations,  Article  103  Euratom  establishes  a  procedure  for  the  preliminary 
examination of the compatibility with the Treaty of draft agreements or contracts which are 
about to be concluded, within the scope of the Treaty, between a Member State and a third 
party. In 2008, a total of 23 notifications were examined by the Commission. 

Under Article 105 Euratom, new Member States communicate to the Commission, within 30 
days  from  their  accession  to  the  EU,  the  agreements  or  contracts  they  may  have  concluded 
with  a  third  party  prior  to  their  accession.  Concerning  the  two  newest  Member  States, 
Bulgaria and Romania, the contracts and agreements that could not be dealt with in 2007 were 
checked and grandfathered in 2008. 

In the Euratom area, several long-standing infringement procedures could be closed in 2008 
and  the  total  number  of  infringement  procedures  decreased  to  a  total  of  6  at  the  end  of  the 
year. Prioritisation was not applied in the management of infringement procedures, as all files 
could be managed in the normal timeframe and fell roughly under the same level of priority.  

During 2008, 6 petitions were dealt with related to the Euratom provisions. Adequate answers 
were provided but the EP's Petitions Committee did not yet accept the closure of the cases.  

A proposal for a Council Directive (Euratom) setting up a Community framework for nuclear 
safety was adopted by the Commission on 26 November 2008. It transposes into Community 
law  the  IAEA  Fundamental  Safety  Principles  and  the  obligations  of  the  Convention  on 
Nuclear  Safety.  It  strengthens  substantially  the  independent  role  of  national  Regulators  and 
improves transparency on nuclear safety. 

As  part  of  the  Second  Strategic  Energy  Review,  the  2007  Nuclear  Illustrative  Programme 
(PINC) was updated, making a number of recommendations: proposing that future new build 
is  of  the  latest  technology;  ensuring  the  highest  standards  of  nuclear  safety  as  well  as 
simplifying and harmonising the currently differing licensing requirements and procedures in 
the Member States. It highlights that by 2020, nearly two-thirds of EU electricity production 
could be carbon free if rapid investment decisions are taken with regard to renewable energy 
sources as well as nuclear energy. 

The  revision  of  the  Basic  Safety  Standards  Directive  is  also  the  opportunity  for  the 
consolidation  of  existing  radiation  protection  legislation  involving  four  other  Directives  and 

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incorporating  one  Commission  Recommendation.  In  2008,  the  revision  and  consolidation 
made  good  progress  and  a  first  entire  draft  text  was  prepared.  Part  of  the  draft  text  was 
presented to the Article 31 Group of Experts for a first discussion.  

The  Commission  undertook  the  revision  of  its  Recommendation  on  the  implementation  of 
Art.  37  of  the  Euratom  Treaty  with  a  view  to  clarify,  simplify  and  improve  its  provisions 
based on the experience. In 2008 the revision made good progress and after 3 meetings of the 
assigned  Working  Group  of  Article  37  Experts,  the  Commission  will  be  in  a  position 
beginning 2009 to prepare a consolidated draft revised text to be presented mid 2009 to the 
Article 37 Group of Experts. 

As potential co-sponsor, the Commission took a very active part in the ongoing revision of the 
International Basic Safety Standards, prepared by the International Atomic Energy Agency. 

Based  on  the  experience  with  two  radiological  alert  situations  in  2008  (Krsko  NPP,  IRE 
the  ECURIE118  emergency 
Fleurus), 
communication  guidelines,  amongst  other  reasons  to  allow  for  a  reduced  threshold  for 
international communications on nuclear incidents. 

the  Commission  undertook 

revision  of 

the 

Preparations  are  underway  to  move  towards  a  broad  cooperation  agreement  with  Russia  on 
the peaceful uses of nuclear energy, covering nuclear trade based on reciprocity and market 
access  (as  the  current  negotiating  mandate  from  2003  provides)  as  well  as  nuclear  safety, 
waste  management,  physical  protection,  non-proliferation, liability issues etc. To this end, a 
revised  mandate  for  negotiation  of  a  broad  Euratom-Russia  cooperation  agreement  in  the 
peaceful uses of nuclear energy is being prepared. 

The Commission adopted a proposal for a Council Decision on the new mandate to recast the 
Euratom-Canada  agreement,  with  a  view  to  simplify  the  current  agreement  (modified  in 
several  occasions  since  it  signature  50  years  ago)  and  to  include,  at  Canada's  request,  new 
provisions, mainly on technology transfer and on the contamination principle. 

Preventive measures were taken for the implementation of Directive 2006/117/Euratom on the 
supervision and control of shipments of radioactive waste and spent fuel, which was due to be 
transposed by 25 December. Its correct implementation was prepared and supervised by the 
way of 26 procedures under Article 33 Euratom. On 5 March 2008, the Commission adopted 
the standard document foreseen in the Directive, to be used for all shipments within its scope, 
and  on  4  December  2008,  the  Commission  adopted  a  Recommendation  establishing  criteria 
for the export of radioactive waste and spent fuel to third countries. The criteria aim to enable 
the Member States' competent authorities to evaluate whether a third country to which exports 
are not prohibited has the ability to manage waste or spent fuel safely. 

6.8.2.  Evaluation of the current position 

The current situation for the control of the existing acquis is stable. Whereas in 2008 a large 
number of existing infringements cases could be solved and closed, early 2009 the number of 
files  increased  following  the  expiry  of  the  Member  States'  deadline  for  implementation  of 
Council  Directive  2006/117/Euratom  in  December  2008.  The  resulting  workload  should  be 
manageable, as Member States are expected to make progress with transposing this Directive 
in the first months of 2009 (based on the information resulting from Article 33 submissions). 

118 

European Community Urgent Radiological Information Exchange for Nuclear Emergencies 

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108 

   EN 

                                                 
The immediate future situation should be manageable, too, and much effort will be devoted to 
the  control  of  conformity  of  the  most  recently adopted  Directives,  which  might  result  in  an 
increase in the number of infringement procedures. 

In  the  medium  term,  a  significant  intensification  of  the  workload  is  expected  when  the  two 
major proposals for new Directives (on nuclear safety and recasting the BSS) will have to be 
implemented.  

6.8.3.  Evaluation results 

6.8.3.1.  Priorities 

A priority objective for 2009 will remain to achieve a high level of safety and security for the 
European citizens. 

The  Commission's  efforts  will  focus  on  the  one  hand  on  consolidating  the  acquis  in  place, 
through the monitoring of the implementation of most recently adopted directives, and, on the 
other hand, on further legislative developments. 

6.8.3.2.  Planned Action  

A  systematic  conformity  check  will  be  made  concerning  Directive  2003/122/Euratom  on 
High-Activity Sealed Sources and Orphan Sources. 

The  control  of  transposition  and  implementation  of  Directive  2006/117/Euratom  on  the 
surveillance  and  control  of  shipments  of  radioactive  waste  and  spent  fuel  will  be  started. 
Concerning this Directive, a Commission Recommendation is planned for the establishment 
of a secure and effective data transmission system. 

The  negotiations  for  the  adoption  of  a  Community  framework  on  nuclear  safety  will  be 
pursued, with a view to a prompt adoption. 

6.8.4. 

Sector summary 

Given  the  renewed  and  growing  interest  in  nuclear  energy,  the  Commission  is  called  to 
accompany the expected development with an advanced legal and binding framework based 
on the Euratom Treaty that maintains and improves the high standard of regulation achieved 
in the EU Member States. Primary attention will be given to the consolidation of the existing 
legislation,  to  the  updating  of  the  radiation  protection  acquis  and  to  the  establishment  of  a 
legislative framework that allows the Community to fully use its competences in the field of 
nuclear  safety.  The  key  actions  in  the  near  future,  for  which  substantial  work  was  already 
carried  out  during  2008,  will  therefore  concern  the  control  of  implementation  of  the  most 
recent Directives, on high activity radioactive sources and on shipments of radioactive waste 
and nuclear fuel; the negotiation and implementation of the proposal for a Council Directive 
setting  up  a  Community  framework  for  nuclear  safety,  and  the  recast  of  the  Basic  Safety 
Standards, for which a proposal is expected during the course of 2010, that will set modern, 
unified standards for the protection of the health of the citizens in the European Union. 

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6.9. 

TRANSPORT - Passengers' rights 

6.9.1.  Current position 

6.9.1.1.   

General introduction 

Since  the  2001  White  Paper,  where  the  Commission  announced  the  establishment  of 
passengers’  rights  in  all  modes  of  transport  and  its  intention  to  place  users  at  the  heart  of 
transport  policy,  three  Regulations  will  have  entered  into  force  by  the  end  of  2009,  in  the 
sectors of aviation and rail transport: 

- Regulation (EC) Nº 261/2004, establishing common rules on compensation and assistance to 
passengers in the event of denied boarding and of cancellation or long delay of flights;  
-Regulation  (EC)  Nº  1107/2006  concerning  the  rights  of  disabled  persons  and  persons  with 
reduced mobility when travelling by air; 
- Regulation (EC) Nº 1371/2007 on rail passengers’ rights and obligations, applicable as from 
December 2009. 

These pieces of legislation are complemented with Regulation (EC) Nº 2027/97 of 9 October 
1997  on  air  carrier  liability  in  the  event  of  accidents,  as  amended  by  Regulation  (EC)  No 
889/2002.  The  overall  regulatory  background  on  air  passenger  rights  also  includes  other 
legislation,  for  example:  Regulation  1008/2008,  on  common  rules  for  the  operation  of  air 
services  in  the  Community;  Directive  96/67,  which  defines  the  conditions  for  access  to  the 
ground-handling  market  at  European  airports,  and  therefore  could  be  used  as  leverage  to 
improve the quality of baggage handling in order to prevent baggage damage or mishandling; 
and  Regulation  (EC)  No  2111/2005  of  the  European  Parliament  and  of  the  Council  of  14 
December  2005  on  the  establishment  of  a  Community  list  of  air  carriers  subject  to  an 
operating ban within the Community and on informing air transport passengers of the identity 
of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC.   

6.9.1.2.   

Report on the work done 

The Commission's activities continued efforts in order to guarantee a correct implementation 
of  the  provisions  protecting  air  passengers'  rights  in  general,  and  those  of  passengers  with 
reduced mobility in particular when travelling by air. 

-  Passengers  with  reduced  mobility  (PRM).  A  stakeholders'  conference  was  organised  in 
January 2008 to ensure a successful full application of Regulation nº 1107/2006 as from July 
2008 and to make each category of operators aware of the specific needs and constraints of 
the stakeholders concerned. A workshop with the PRM organisations was held to ensure that 
these  organisations  can  fulfil  the  responsibilities  foreseen.  A  first  meeting  of  National 
Enforcement Bodies (NEB) appointed under this Regulation was held in December 2008. 

On  7  August  2008,  the  Commission  adopted  a  Communication119  on  the  level  of 
compensation  that  can  be  deemed  appropriate  for  destroyed,  damaged  or  lost  mobility 
equipment.  While  the  number  of incidents  with  this  type  of  equipment  seems  to  be  limited, 
the  fact  is  that  the  value  of  such  specialised  mobility  equipment  could  exceed  the  amounts 
covered  by  the  Montreal  Convention.  The  training  requirements  under  Regulation  Nº 

119 

Communication  on  the  scope  of  the  liability  of  air  carriers  and  airports  in  the  event  of  destroyed, 
damaged or lost mobility equipment of passengers with reduced mobility when travelling by air (COM 
(2008) 510 final). 

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1107/2006  should  help  to  avoid  this  kind  of  incidents.  The  report  foreseen  for  2010  will 
assess again the scale of the problem after the entry into force of this regulation. 

- The APR Regulation. The Commission kept working towards a homogeneous application of 
Regulation (EC) No 261/2004 in all the Member States; it followed up the use of the standard 
complaint  form  and  the  respect  of  the  common  understanding  between  NEB  and  between 
NEB and air companies. A joint meeting with all NEB, airline and consumer associations was 
held  early  December  2008,  which  started  an  evaluation  phase  on  the  implementation  of  the 
Regulation. 

6.9.2.  Evaluation of the current position 

While  Regulation  261/2004  ensures  a  high  level  of  protection  for  air  passengers,  the  high 
number  of  complaints  and  enquiries  received  by  the  Commission  from  unsatisfied  air 
passengers  (about  10,000  during  2008),  as  well  as  the  outcome  of  contacts  with  national 
authorities  and  stakeholders  show  that  full  implementation  and  enforcement  of  their 
provisions is not sufficiently ensured in all situations and Member States. 

As  for  Regulation  1107/2006,  the  proactive  and  preventive  approach  adopted  to  prepare  its 
full entry into force in July 2008 has already yielded results insofar as the Commission has 
helped  the  NEB  to  establish  the  basis  for  an  efficient  collaboration  and  exchange  of 
information.  From  the  information  gathered  by  the  Commission  in  2008-2009,  the  main 
problems for a correct application of the Regulation are currently related to the interpretation 
of the exception to the "non discrimination principle" based on safety grounds.  

6.9.3.  Evaluation results 

The priority remains guaranteeing a full application of air passenger rights. The Commission 
resources  will  be  concentrated  first  in  ensuring  that  Member  States  correctly  enforce  the 
regulation  and  sanction  infringements.  As  part  of  the  ongoing  evaluation  for  the  APR 
Regulation,  an  independent  evaluation  study  will  be  concluded  early  in  2010,  analyzing  the 
four  years  of  operation  of  Regulation  No  261/2004.  Secondly,  a  public  consultation  will  be 
launched before the end 2009, in view of a  communication to be adopted in 2010 which will 
review  the  state  of  play  of  application  by  all  the  parties  concerned,  including  the  national 
authorities  responsible  for  enforcing  passengers’  rights.  The  necessity  for  possible  further 
legislation will be evaluated. 

As for the PRM Regulation, an evaluation study is currently on-going and will be available 
early  2010.  Another  meeting  with  the  NEB  will  be  held  in  November  2009,  in  view  of  the 
report to be adopted early 2010 as requested by Article 17 of the Regulation. 

While much attention will be paid to the need for the course to procedures, as appropriate, the 
management  of  enquiries  from  passengers  is  expected  to  be  rationalised  by  national 
authorities  and  the  Commission's  resources  will  be  concentrated  on  the  monitoring  of  the 
activity of the NEB. A collaboration contract has been thus signed between DG COMM and 
DG TREN in 2008 to take advantage of the synergies and "know how" from the two services 
to deal efficiently with the impressive amount of passengers' enquires and complaints. 

6.9.4. 

Sector summary 

While  the  Community  legislative  framework  offers  a  high  level  of  protection  for  air 
passengers,  including  those  with  reduced  mobility,  the  fact  is  that  respect  by  air  companies 

EN 

111 

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and  enforcement  by  national  authorities  is  not  always  as  satisfactory  as  it  should.  The 
Commission's  efforts  are  concentrating  on  removing  outstanding  problems  and  making  sure 
that the Member States assume their part of the responsibility.  

Lessons  learnt  from  evaluating  the  application  of  air  passengers'  rights  have  revealed 
shortcomings  in  the  drafting  of  the  APR  and  the  PRM  Regulations  such  as  an  ambiguous 
definition  of  the  responsibilities  of  NEB  for  enforcement  and  lack  of  reporting  obligations 
from  NEB.  This  has  helped  the  Commission  to  improve  the  texts  of  the  two  legislative 
proposals it has adopted at the end of 2008 on the rights of passengers when travelling by sea  
and inland waterway and by bus.120 

The main objectives for 2009-2010 are strengthening the rights of passengers in case of lost 
luggage and to assess the need for action in the event of airline bankruptcies.  

6.10.  TRANSPORT - Inland Waterway Transport  

6.10.1.  Current position 

6.10.1.1. General introduction. 

Inland waterway transport plays an important role for the transport of goods in Europe. More 
than 37 000 kilometres of waterways connect hundreds of cities and industrial regions. Some 
20  out  of  27  Member  States  have  inland  waterways,  12  of  which  have  an  interconnected 
waterway networks. The potential for increasing the modal share of inland waterway transport 
is,  however,  significant.  Compared  to  other  modes  of  transport  which  are  often  confronted 
with  congestion  and  capacity  problems,  inland  waterway  transport  is  characterized  by  its 
reliability, its low environmental impact and its major capacity for increased exploitation.  

The main pieces of Community acquis in this field are the following:  

-  Directive  2006/87/EC  laying  down  technical  requirements  for  inland  waterway  vessels,  as 
amended.  It  establishes  harmonised  conditions  for  issuing  technical  certificates  for  inland 
waterway vessels. It is aimed at increasing the safety of passengers and freight transport by 
inland  waterway  in  Europe.  This  Directive  repealed  and  replaced  Directive  82/714/EEC  as 
from 30th December 2008. 

- Directive 2005/44/EC on harmonised river information services (RIS) on inland waterways 
in  the  Community.  It  established  a  framework  for  the  deployment  and  use  of  RIS  in  the 
Community and for the establishment and further development of technical requirements and 
specifications  for  harmonised  and  interoperable  RIS.  It  defines  further  the  minimum 
requirements to be fulfilled by Member States to enable the setting-up of RIS.  

6.10.1.2. Report on the work done in 2008 

During the year 2008 the Community acquis had considerable developments. 

120 

Proposal  for  a  Regulation  of  the  European  Parliament  and  the  Council  concerning  the  rights  of 
passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004; 
Proposal for a Regulation of the European Parliament and of the Council on the rights of passengers in 
bus and coach transport. 

EN 

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   EN 

                                                 
A  follow-up  of  the  transposition  of  Directive  2005/44/EC  was  performed  and  continuous 
monitoring  of  the  implementation  of  the  Directive  was  ensured  via  frequent  meetings  with 
authorities  and  stakeholders,  expert  group  meetings  and  conformity  checks.  Commission 
regulations  defining  technical  specifications  were  processed,  as  well  as  amendments  of 
existing Commission regulations defining technical specifications were prepared. The process 
of  ensuring  the  proper  implementation  of  the  Directive  in  2009  and  beyond  will  continue 
along the same line. 

The  technical  annexes  to  Directive  2006/87/EC  continued  to  be  further  aligned  with 
legislation agreed in the framework of the Central Commission for Navigation on the Rhine. 
For  this  purpose  3  meetings  of  the  of  experts  from  EU  Member  States  and  the  Central 
Commission for Navigation on the Rhine and 2 meetings of the Inland Waterway Transport 
Committee as regards Technical requirements for inland waterway vessels were held. Three 
amending  Directives  were  adopted  (Commission's  Directives  2008/67/EC,  2008/87/EC  and 
2008/126/EC) and a fourth amending Directive was prepared for adoption in 2009.  

For  the  proper  implementation  of  the  Directive  regular  communication  with  the  Member 
States  is  performed,  a  Joint  Seminar  of  Inspection  Bodies  from  the  Member  States  of  the 
Danube Commission, the Central Commission for Navigation on the Rhine (CCNR) and the 
EU  was  organised  in  Budapest,  workshops  have  been  attended  in  Member  States  and  an 
unregistered number of questions from citizens, and inspection bodies were answered. Good 
cooperation  with  the  International  River  Commissions  and  the  United  Nations  Economic 
Commission  for  Europe  (UN-ECE)  on  technical  requirements  for  inland  waterway  vessels 
was maintained.  

6.10.2.  Evaluation of the current position 

The  situation  keeps  evolving,  and  an  increased  workload  is  foreseen  due  to  necessary 
legislative  developments,  including  rectifications  needed  in  published  legislation,  and  work 
linked to the fact that the transposition deadline for three new directives elapsed at the end of 
2008. 

6.10.3.  Evaluation results 

As in the past, priority will be given to strengthening the competitive position of the inland 
waterway transport in the transport system, and to facilitate its integration into the intermodal 
logistics chain.  

One  amending  Directive  will  be  proposed  after  a  positive  advice  of  the  Committee.  A 
Corrigendum  for  several  languages  has  to  be  prepared  and  launched.  The  procedure  for  the 
recognition  of  classification  societies  has  to  be  completed.  The  relation  with  the  River 
Commissions,  and  especially  the  chaired  secretary  of  the  Joint  Working  Group,  should  be 
reflected.  The  following  projects  should  be  taken  up:  Harmonisation  of  additional  technical 
requirements  on  zone  1  and  2  waterways  and  Joint  Seminar  of  Inspection  Bodies  from  the 
Member States of the Danube Commission, the CCNR and the EU. 

Infringement  procedures  will  be  launched  against  Member  States  not  having  transposed  the 
newest Directives, and in particular Directive 2006/87. Specific follow up will be needed in 
particular in connection with national additional requirements and derogations allowed by this 
Directive. 

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6.10.4.  Sector summary 

With a view to strengthening the competitive position of the inland waterway transport in the 
transport system, and to facilitate its integration into the intermodal logistic, the Commission 
will  reinforce  its  administrative  capacity  in  order  to  keep  developing  the  harmonisation  of 
additional technical requirements on zone 1 and 2, on the one hand, and to monitor that the 
individual implementation of Directive 2006/87, as amended, does not prejudice the existing 
harmonisation. 

6.11.  TRANSPORT - Logistics and co-modality  

6.11.1.  Current situation 

Council Directive 96/53 on the maximum authorised weights and dimensions for heavy goods 
vehicles and buses circulating within the Community has been in place for more than 12 years 
already. The  Directive  sought  to  eliminate the differences between  standards in force in the 
Member States which had an adverse effect on the conditions of competition and constituted 
an obstacle to traffic between Member States. This is why common standards for the weights 
and  dimensions  have  been  established  to  permit  the  improved  use  of  these  vehicles  by 
creating a balance between their rational and economical use in traffic between MS.  

The  Directive  has  been  completely  transposed,  and  no  infringement  procedures  have  been 
started  until  now.  A  study  has  been  performed  in  2008  to  investigate  the  feasibility  for  its 
possible  amendment  in  order  to  increase  the  efficiency  of  heavy  goods  vehicles.  Several 
workshops have been performed in this respect.  

6.11.2.  Evaluation of the current position 

The  Community  acquis  in  this  field  is  generally  stable  although  some  adaptations  and 
improvements might be appropriate. 

6.11.3.  Evaluation results 

A  report  for  the  economic  development  of  combined  transport  and  the  application  of 
Community law in that area is to be drawn up this year in line with Council Directive 92/106 
on  combined  transport  of  goods,  aiming  to  define,  where  necessary  further  measures  to 
promote combined transport operations. 

6.11.4.  Sector summary 

With a view to improve the efficiency and sustainability of freight transport in Europe, which 
is  a  main  goal  of  the  European  transport  policy,  the  Commission  will  continue  to  study  the 
necessities and possibilities of further development of the existing legislation, as well as the 
necessities  for  issuing  new  acts  in  order  to  promote  and  encourage  the  performance  of 
multimodal transportation as a drive for a competitive and sustainable freight transport system 
in Europe. 

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6.12.  TRANSPORT - Inland Transport 

6.12.1.  Current position 

6.12.1.1. General introduction 

In road transport the most important pieces of legislation concern the enforcement of social 
rules,  working  time  and  road  charging  (Directive  2006/22/EC,  Directive  2002/15/EC, 
Directive 1999/62/EC, respectively).  

In the rail sector, the 1st railway package (Directives 91/440/EEC as amended, 95/18/EC as 
amended  and  2001/14/EC)121  constitutes  the  basis  of  the  institutional  architecture  of  the 
sector.  

As  for  road  safety,  the  legislation  covers  the  driving  licence  (Directive  91/439/EEC),  the 
initial qualification and periodic training of professional drivers (Directive 2003/59/EC), the 
road  worthiness  testing  (Directive  96/96/EC),  the  compulsory  use  of  safety  belts  (Directive 
2003/20/EC) and the registration of vehicle documents (Directive 99/37/EC). 

The  transport  of  dangerous  goods  by  road  and  rail  is  covered  by  two  directives  (Directives 
94/55/EC and 96/49/EC, respectively). These will be replaced and repealed as from June 2009 
by Directive 2008/68/EC, also applicable to inland waterways. 

6.12.1.2. Report on the work done in 2008 

The  Commission  brought  five  Member  States  before  the  Court  for  not  having  adopted  the 
necessary  legislation  transposing  Commission  Directive  2006/22/EC  on  the  implementation 
of  European  social  legislation  relating  to  road  transport  activities  by  1  April  2007.  In  three 
cases  Member  States  subsequently  notified  transposition  and  the  Court  cases  could  be 
withdrawn. Two cases were still pending by the end of 2008.  

As  regards  working  time  in  road  transport,  the  Commission  continued  the  control  of 
implementation concerning Directive  2002/15. The national measures of the Member States 
were  assessed  and  in  the  case  of  six  Member  States  the  transposition  measures  had  to  be 
considered  not  to  be  in  conformity  leading  to  infringement  proceedings.  Infringement 
proceedings were also initiated against seven Member States that failed to submit the biannual 
report on the implementation of this Directive. 

The  Commission  adopted  a  proposal  to  modify  Directive  2002/15/EC.  The  aim  of  this 
proposal  is  four-fold:  to  clearly  put  false  self-employed  drivers  in  the  category  of  mobile 
workers,  to  exclude  genuine  self-employed  drivers  from  the  directive,  to  make  the 
enforcement more harmonised and to clarify the night time provisions. 

In 2008 the Commission closed 4 infringement proceedings concerning the non-conformity of 
national measures with Directive 1999/62/EC on the charging of heavy goods vehicles for the 
use  of  certain  infrastructures;  one  new  case  was  opened.  The  Commission  pursued  one 
Member  State  for  its  road  charging  system  for  passenger  cars  which  the  Commission 
considered incompatible with Article 12 TEC. 

121 

Directive  91/440/EEC  on  the  development  of  the  Community's  railways;  Directive  95/18/EC  on  the 
licensing of railway undertakings, and Directive 2001/14/EC on the allocation of railway infrastructure 
capacity and the levying of charges for the use of railway infrastructure and safety certification. 

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115 

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The  Commission  opened  infringement  proceedings  against  19  Member  States  which  had 
failed to transpose in time Directive 2006/38/EC, modifying Directive 1999/62. All Member 
States  were  required  to  do  so  by  10  June  2008  at  the  latest.  The  Directive  establishes  a 
common European framework for charging hauliers for the costs of the use of infrastructure 
in  order  to  avoid  distortions  of  competition  between  transport  undertakings  of  the  Member 
States and to ensure the proper functioning of the internal market. 15 cases were resolved in 
the reporting period and 4 cases remain pending. 

In the rail sector Member States efforts focussed on the transposition of the Directives of the 
first  railway  package  (91/440/EEC  as  amended,  95/18/EC  as  amended  and  2001/14/EC), 
which was due by 15 March 2003 or upon accession in the case of the new Member States. 
The first railway package defines basic requirements such as the independence of the essential 
functions  of  an  infrastructure  manager  from  rail  operators,  the  charging  scheme  for 
infrastructure charges, the setting up of rail regulatory bodies. On this basis, it provides for the 
opening  of  the  rail  freight  market  to  all  eu-licensed  operators,  from  2003  on  the  Trans 
European Rail Freight Network, from 1 January 2006 for all international rail freight transport 
and from 1 January 2007 for all rail freight transport. 

The  Commission  had  adopted  on  3  May  2006  a  report  on  the  implementation  of  the  1st 
railway package (COM(2006) 189 final) which contained important findings  on the  state of 
implementation in the Member States and announced the criteria that the Commission would 
apply  for  controlling  implementation  in  each  individual  member  state,  in  particular  on  the 
issue of independence of essential functions.  

In  order  to  complement  the  general  findings  of  the  report  with  concrete  data  from  Member 
States, and to evaluate whether these Directives had been correctly and completely transposed 
into Member States' law and regulations, the Commission's services sent out questionnaires to 
the  Member  States  in  June  and  November  2007.  After  analysing  the  replies  to  these 
questionnaires, the Commission sent letters of formal notice to 24 Member States on 27 June 
2008. 

In  the  road  safety  sector  currently  17  infringement  proceedings  are  open,  all  for  non-
communication  of  the  transposition  of  directives.  Two  proceedings  concerning  the  non-
transposition of Directive 2003/59/EC on professional driver education are pending before the 
European  Court  of  Justice.  Four  Member  States  received  reasoned  opinions  for  the  non- 
communication of the transposition of the Directive 2007/38/EC on the retrofit of blind spot 
mirrors, which had to be transposed by 6 August 2008. The remaining proceedings concern 
the  non-transposition  of  an  amendment  to  directive  91/439/EEC  on  driving  licences 
introduced by directive 2008/65/EC, which needed to be transposed by 30 September 2008. 

6.12.2.  Evaluation 

As far as the enforcement of social rules and working time in road transport is concerned, the 
Commission assessed in detail the application of the working time rules in the Member States, 
in  particular  as  regards  the  possible  inclusion  of  self-employed  in  the  scope  of  Directive 
2002/15/EC.  The  assessment  showed  that  the  grounds  for  the  inclusion  of  genuine  self-
employed drivers in the working time were not sufficient as the policy objectives (including 
road  safety)  pursued  by  the  legislation  in  respect  of  this  category  of  drivers  were  already 
sufficiently ensured by other applicable rules, namely Regulation (EC) 561/2006 on driving 
time  and  rest  periods  and  Regulation  (EEC)  3821/85  on  the  recording  equipment 
(tachograph).  In  addition,  any  enforcement  of  working  time  rules  concerning  genuine  self-

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employed drivers appeared to be ineffective, and out of proportion with the high cost related 
to it. Therefore, this specific category of drivers should remain excluded from the scope of the 
Directive.  

In  the  railway  sector  the  letters  of  formal  notice  sent  to  24  Member  States  for  incorrect 
transposition  of  the  first  railway  package  targeted  three  main  shortcomings:  1)  the  lack  of 
independence  of  the  infrastructure  manager  in  relation  to  railway  operators,  2)  insufficient 
implementation of the rules of the Directive on track access charging, such as the absence of a 
performance  regime  to  improve  the  performance  of  the  railway  network  and  the  lack  of 
incentives of the infrastructure manager to reduce costs and charges and 3) the failure to set 
up an independent regulatory body with strong powers to monitor competition in the railway 
sector and rule on complaints. 

These  are  areas  which  are  essential  for  the  opening  of  the  railway  markets  in  the  Member 
States.  

The  opening  of  infringement  proceedings  in  the  road  safety  sector  is  due  mainly  to  the  late 
transposition  of  the  directives.  Apart  from  infringement  procedures,  the  Commission  is 
requested  to  take  a  position  on  the  very  numerous  petitions  on  this  subject  which  citizens 
address  to  the  European  parliament  These  petitions  mainly  concern  the  non  recognition  of 
driving licences and road traffic laws of the Member States. 

6.12.3.  Evaluation results 

For the road transport sector, four Directives will require special attention also in 2009: 

- Directive 2002/15, on the organisation of working time of persons performing mobile road 
transport  activities,  as  a  consequence  of  the  proposed  modification  of  the  night  time 
provisions; 

-  Directive  2006/22,  determining  the  minimum  level  of  enforcement  for  the  European 
provisions on driving times and rest periods, and on the use of the tachograph; 

- Directive 2006/38 amending Directive 1999/62/EC on the charging of heavy goods vehicles 
for the use of certain infrastructures. The control of the correct application of the new rules 
which had to be transposed by June 2008 will continue; 

- Directive 2006/1/EC on hired vehicles, the application of which by Member States will be 
reviewed  with  a  view  to  identifying  shortcomings  of  the  current  regime  and  possible 
amendments thereto. 

In  the  rail  sector  and  on  the  basis  of  the  replies  by  Member  States  to  the  letters  of  formal 
notice the Commission will consider how to proceed on the infringement cases in 2009. These 
proceedings will concentrate on the remaining issues that could not be resolved in the three 
areas mentioned above.  

In  the  field  of  road  safety  sector,  the  Commission's  services  will  continue  informing  and 
reminding  the  Member  States  in  bilateral  and  multilateral  meetings  of  their  transposition 
obligations 

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6.12.4.  Summary by sector 

6.12.4.1. Road transport Sector 

The ongoing revision of the market access rules for the transport of goods and passengers by 
road will be finished in 2009. By then the regulatory framework of the road transport sector 
will  be  modernised  and  streamlined.  The  Commission  will  continue  to  control  the 
implementation  and  application  of  the  social  rules,  in  close  cooperation  with  the  Member 
States.  In  the  area  of  road  charging  the  Commission  has  proposed  an  amendment  to  the 
"Eurovignette"  Directive  currently  in  force  allowing  for  the  inclusion  of  external  costs  in 
infrastructure charging. In parallel, the control of the implementation of the rules presently in 
force will continue. 

6.12.4.2. Railway sector 

In  the  rail  sector  and  on  the  basis  of  the  replies  of  Member  States  to  the  letters  of  formal 
notice  (1st  railway  package),  and  information  on  legislative  changes  or  commitments,  the 
Commission  will  consider  how  to  proceed  on  the  infringement  cases  in  2009.  These 
proceedings will concentrate on the remaining issues that could not be resolved in the three 
areas mentioned above (independence of essential functions of an infrastructure manager from 
rail undertakings, infrastructure charging, independence and powers of regulatory bodies).  

6.12.4.3. Road Safety sector 

As far as the road safety sector is concerned the main problem remains the late notification of 
the  transposition  of  directives.  This  is  why  efforts  will  continue  to  be  undertaken  to  inform 
and remind the Member States in bilateral and multilateral meetings, an at an early stage, of 
their  transposition  obligations  within  the  agreed  deadlines.  This  will  concern  the  directives 
which  still  need  to  be  transposed,  namely  the  directive  on  road  infrastructure  safety 
management and the third driving licence directive. 

6.13.  TRANSPORT - Air Transport 

6.13.1.  Current position 

6.13.1.1. General introduction 

Internal market, air transport agreements and multilateral relations sector  

The  sector  covers  areas  such  as  the  implementation  measures  necessary  following  the  so 
called "Open skies judgments" of 5 November 2002,122 where the Court identified a number 
of  breaches  of  Community  law  in  existing  bilateral  agreements  between  certain  Member 
States  and  the  United  States  of  America,  and  which  implied  assisting  Member  States  to 
remedy the situation of around 1400 bilateral agreements. 

It  covers  also  areas  of  the  internal  market  such  as  the  monitoring  of  Public  Service 
Obligations and Computer reservation System. 

The sector of the internal market, air transport agreements and multilateral relations is mainly 
ruled by Treaty, Court judgments and regulations. 

122 

C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98.  

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The most important legal instruments and related work and reporting in 2008 are: 

- Articles 10 and 43 of the EC Treaty 

- Case-law on external competences (ERTA)123 

-  Regulation  (EC)  No  847/2004  on  the  negotiation  and  implementation  of  air  service 
agreement between Member States and third countries (Committee Regulation). 

-  The  new  Regulation  (EC)  No  1008/2008  of  24  September  2008  which  replaces  (recasts) 
Regulations No 2407/92, No 2408/92 and No 2409/92 on common rules for the operation of 
air services in the Community. 

-  Regulation  (EC)  No  2299/89  of  24  July  1989  on  a  code  of  conduct  for  computerized 
reservation systems. 

Single sky and modernisation of air traffic control 

In  this  sector,  the  Commission  is  responsible  for  implementing  and  developing  the 
Community  air  traffic  management  (ATM)  policy  in  order  to  achieve  the  Single  European 
Sky (SES). 

The sector is mainly dealing with the implementation of the following legal instruments: 

- The framework Regulation (EC) N° 549/2004; 

- The service provision Regulation (EC) N° 550/2004; 

- The airspace Regulation (EC) N° 551/2004; 

- The interoperability Regulation (EC) N° 552/2004. 

- Directive 2006/23/EC on a Community air traffic controller licence 

Air safety and environment  

The  sector  deals  with  the  application  and  further  development  of  the  aviation  safety  regime 
within the European Community. 

It  covers  also  the  areas  dealing  with  air  transport  environment  (such  as  Emissions  Trading 
Scheme, ETS) and noise-related legislation. 

The air safety and environment sector is mainly ruled by Regulations and Directives. 

The most important legal instruments and related work and reporting in 2008 are: 

- The new Regulation (EC) No 216/2008 which replaces Regulation (EC) No 1592/2002 on 
common  rules  in  the  field  of  civil  aviation  and  establishing  a  European  Aviation  Safety 
Agency (EASA). 

123 

Case 22/70, Commission v Council - European Agreement on Road Transport 

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- Regulation (EC) No 2111/2005 on the establishment of a Community list ('blacklist') of air 
carriers  subject  to  an  operating  ban  within  the  Community  and  on  informing  air  transport 
passengers of the identity of the operating air carrier 

-  Directive  2004/36/EC  on  the  safety  of  third-country  aircraft  using  Community  airports 
(SAFA) as amended by the new Directive 2008/49/EC. 

- The new Regulation (EC) 351/2008 implementing Directive 2004/36/EC (SAFA) as regards 
the prioritisation of ramp inspections on aircraft using Community airports. 

-  The  new  Regulations  (EC)  No  8/2008  and  859/2008  amending  Council  Regulation  (EEC) 
No  3922/91  as  regards  common  technical  requirements  and  administrative  procedures 
applicable to commercial transportation by aeroplane (EU OPS). 

Infrastructures and airports 

This  sector  implements,  or  supervises  the  implementation  of  the  "action  plan  for  airport 
capacity, efficiency and safety" that the Commission adopted in 2007 to increase the output of 
the existing infrastructures and to optimize the planning of new infrastructures, whilst raising 
safety standards at highest levels and enhancing the environmental compatibility of airports. 
Within this context, the sector notably set up and supervises the Community Observatory on 
airport capacity. 

The sector is involves the implementation of the following legal regulatory instruments: 

- Council Regulation (EEC) N° 95/93 of 18 January 1993 on common rules for the allocation 
of slot at Community airports; 

- Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at 
Community airports; 

- The newly adopted Directive 2009/12/EC of the European Parliament and of the Council of 
11 March 2009 on airport charges; 

- Some of the requirements of Regulation (EEC) No 2408/92 of 23 July 1992 on access for 
Community  air  carriers  to  intra-Community  air  routes  (now  recast  in  Regulation  (EC)  No 
1008/2008). 

Aviation security 

Regulation  (EC)  No  2320/2002  of  the  European  Parliament  and  of  the  Council  of  16 
December  2002  establishes  common  rules  in  the  field  of  civil  aviation  security.  This 
Regulation  is  complemented  by  detailed  implementing  rules  taking  the  form  of  several 
Commission Regulations and a Commission Decision. In particular, the rules require Member 
States to establish and implement a national civil aviation security programme complemented 
by a quality control programme in order to ensure the application of the common standards. 
Member  States  also  have  to  designate  a  single  appropriate  authority  responsible  for  the 
coordination and the monitoring of the implementation of its national civil aviation security 
programme  and  ensure  the  availability  of  sufficient  resources  to  monitor  compliance. 
Regulation (EC) No 2320/2002 also requires from the Commission to carry out inspections of 
national administrations and a suitable sample of airports in all Member States. 

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For more details on the legislation applicable, please see annex I. 

6.13.1.2. Report on the work done in 2008  

Internal market, air transport agreements and multilateral relations sector  

- Internal market 

Regulation (EC) No 1008/2008 of 24 September 2008 on common rules for the operation of 
air services in the Community (recast) entered into force on 1st November 2008. It allows the 
adoption  by  Member  States  of  Public  Service  Obligation  (PSO)  for  reason  of  economic 
development and territorial continuity though air services. 

According to the Regulation Member States must respect several obligations and Commission 
has the power to carry on investigations in case of unjustified access restriction. 

In  2008,  several  meetings  were  held  with  Member  States  and  stakeholders  (airports)  to 
explain  the  functioning  of  the  new  Regulation,  which  simplifies  the  procedures.  The 
Commission  produced  guidelines  to  improve  the  implementation  of  the  Regulation  and  to 
organise  partnership  with  Members  States  in  order  to  avoid  infringement  cases  in  this  area. 
Practically,  a  functional  mail  box  has  been  created  for  the  transmission  of  Member  States 
requests.  Through  this  channel,  Commission  has  received  PSO  projects  for  checking  the 
conformity,  in  particular  of  the  socio-economic  context,  before  publication.  An  exhaustive 
inventory  of  all  public  service  obligations  in  force  was  set  up,  published  on  Europa  and  is 
being updated on a monthly basis.  

In 2008, the Commission carried out audits of Computer Reservation Systems on the ground 
of complaints from CRS and Airlines, which were unfounded (Article 10 of Regulation (EC) 
No 2299/89).  

The  proposal  for  a  Regulation  on  a  Code  of  Conduct  for  computerised  reservation  systems 
(CRS)  suggests  the  removal  of  impracticable  provisions  that  were  subject  to  uncertainty. 
During the legislative process, the Commission's services held numerous meetings with CRS 
and  Travel  agents  to  explain  and  convince  them  on  the  benefit  of  modernisation  and 
simplification of the existing Regulation such as price transparency and protection of personal 
data. The new Regulation will enter into force in March 2009.  

- Air transport agreements 

In order to improve the good application of Community law, the Commission has produced a 
legislative  guideline  containing  all  legislation  and  updated  every  two  years.  This  legislative 
guideline explains to the Member States the legislation in force and gives examples on how to 
implement it. This document is used in different ways: it is a tool to explain Community law 
to third countries when new agreements to ensure the conformity of third country regulations 
are  being  negotiated  particularly  for  neighbouring  countries  of  the  Mediterranean  Sea  and 
Balkans which have started to implement common air transport policy provision.  

In 2008, the Commission services provided new Member States and neighbouring countries 
assistance  with  technical  experts.  For  this  specific  action,  Commission  services  update 
regularly the expert's data base. 

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The  Commission  services  are  working  on  an  European  Civil  Aviation  Code  with  a  double 
objective: to give a detailed overview to third countries of the architecture of Community Air 
policy during the negotiations and to help new Member States and neighbouring countries in 
the institutional building issues. 

For the bilateral agreements, the committee established by Regulation (EC) No 847/2004 met 
twice in 2008. This committee is assessing the acceptance by third countries of Community 
clauses on designation, safety, environment, ownership and control and other technical issues. 
In 2008, the Commission managed to put into conformity 222 additional bilateral agreements 
through committee decisions and two infringement cases could be closed. 

Single sky and modernisation of air traffic control 

On 25 June 2008, the Commission adopted a proposal to amend the basic regulations and a 
proposal to extend the competence of EASA (European Aviation Safety Agency) to air traffic 
management. 

The adoption by the Council and the European Parliament of these proposals will contribute 
to the practical implementation of the Single European Sky for instance through the definition 
of  mandatory  deadlines  for  the  implementation  of  key  elements  like  the  functional  airspace 
blocks  (FABs)  or  the  competence  of  EASA  on  the  certification  of  air  traffic  management 
systems. 

Infringement  procedures  were  initiated  against  20  Member  States  that  did  not  communicate 
the transposing measures for Directive 2006/23/EC (Community air controller licence) within 
the deadline (17th May 2008), eight of which could be closed by the end of the year. 

Air safety and environment 

- European Aviation Safety Agency (EASA) 

The  competence  of  EASA  has  been  widened  and  the  amended  basic  Regulation  (EC)  No 
216/2008 entered into force in April 2008. It applies to the safety certification of third country 
airlines  operating  to  or  from  Europe,  to  pilots'  licences  and  to  all  safety  aspects  of  the 
operation of airlines and aircraft. EASA has also been charged with the task of managing the 
SAFA  (Safety  of  Foreign  Aircraft)  Programme  and  the  development  of  enhanced 
implementing rules.  

The Commission presented a new proposal in June 2008 to further extend the Agency's tasks 
to  aerodromes  and  Air  Traffic  Management  safety.  This  is  an  essential  pillar  of  the  Single 
European Sky legislation package and will provide for completion of the safety chain for the 
EASA system. The Council signalled a partial general approach in December 2008, allowing 
for its final adoption in first reading in the course of 2009.  

Furthermore,  the  Commission  adopted  the  necessary  rules  (Regulation  EC  No  287/2008) 
providing for the necessary extension of validity of the certificates of airworthiness until 28 
September  2009  of  certain  types  of  aircraft,  for  which  EASA  had  received  appropriate 
applications  for  certification  (according  to  the  requirements  of  Regulation  N°  1702/2003  as 
modified  by  Regulation  EC  No  375/2007).  Also,  the  Commission  adopted  individual 
decisions (concerning Poland, Hungary and Latvia) affecting the certification of airworthiness 
of  aircraft  of  these  types  to  allow  them  to  be  integrated  into  the  EC  certification  system  in 
derogation of specific requirements of Regulation (EC) No 375/2007.  

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In line  with the  objective of better regulation, the Commission  adopted regulations  to adapt 
the existing airworthiness rules to non-commercial air transport without compromising safety: 
Regulation (EC) No 1056/2008 amending Regulation (EC) No 2042/2003 on the continuing 
airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval 
of  organisations  and  personnel  involved  in  these  tasks;  Regulation  (EC)  No  1057/2008 
amending  the  Appendix  II  of  Annex  to  Regulation  (EC)  No  1702/2003  concerning  the 
Airworthiness Review Certificate (EASA Form 15a).  

- The EC list of banned air carriers 

The  measures  to  prohibit  or  to  restrict  the  operation  of  unsafe  airlines  in  Europe  have 
continued to be applied with the required level of attention. 

Three updates (Regulations EC No 331/2008, 715/2008 and 1131/2008) of the list of banned 
air  carriers  have  been  implemented  in  2008  with  significant  decisions  affecting  additional 
carriers but also releasing others from the list since they have successfully restructured their 
safety oversight systems and procedures.   

- Safety Assessment of Foreign Aircraft (SAFA)  

In order to enhance the efficacy of the EC SAFA programme, the Commission has completed 
the  procedures  for  adoption  of  two  measures,  notably  a  Commission  regulation  on  the 
prioritisation of ramp inspections on certain aircraft and a Commission directive harmonising 
further the methods and the requirements for conducting and reporting such inspections. Both 
instruments were formally adopted in 2008. 

- EU OPS 

The  harmonised  rules  on  air  operations  (OPS)  have  been  further  upgraded  twice,  by 
Regulations  (EC)  No  8/2008  and  859/2008,  and  a  close  monitoring  of  the  way  both  the 
industry  and  the  Member  States  are  complying  with  the  new  rules  applicable  from  16  July 
2008 has been performed. In particular, 40 notifications of temporary exemptions, 23 requests 
for  derogations  (2  positive  Commission  decisions  taken  in  2008)  and  15  notifications  of 
additional national provisions have been received. The Commission has also analysed several 
complaints  or  peaces  of  information  linked  to  potential  infringements  to  the  new  rules  and 
established appropriate contacts with the competent authorities to clarify the situations. Two 
meetings  with  the  competent  authorities  have  served  to  clarify  the  meaning  of  some 
provisions and disseminate best practices on the topic.  

- Occurrence Reporting 

The ability of all national safety authorities and of EASA to constantly improve safety rules 
and to take stock of the negative experience of accidents and incidents has been enhanced by 
two  Commission  Regulations  (EC  No  1330/2007  and  1321/2007)  adopted  in  the  autumn  of 
2007. In particular, these establish the detailed rules to be complied with by Member States 
and all industry stakeholders for the dissemination of incidents information and also to collect 
it into a central European repository of information. The principle of protection of the source 
of information has also been strengthened through a specific position in Regulation 216/2008. 

- Sustainable Development: 

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The main efforts have been invested to ensure that the specificities of aviation have been fully 
taken  into  account  in  the  directive  including  aviation  in  the  European  emissions  trading 
scheme (EU ETS) adopted in November 2008, as well as in the general review of the EU ETS 
completed in December 2008 to ensure that aviation provides a fair contribution to the fight 
against climate change. In this context, the preparation of the implementing rules applicable to 
aviation was also launched in October 2008.  

In  parallel,  an  intense  dialogue  with  third  countries  was  developed  –  bilaterally  and  within 
ICAO  -  aimed  at  convincing  the  rest  of  the  world  that  the  European  initiatives  are  well-
founded and that a global framework to address aviation emissions is needed. The outcome of 
these important activities should be seen in 2009 when the aviation ETS enters into force and 
the ICAO/GIACC and Copenhagen negotiations should be completed. 

Extensive  preparatory  work,  including  a  preliminary  study  and  impact  assessment,  has  also 
been carried out on the options for addressing the climate change impacts of NOx emissions 
from aviation. 

On 15 February 2008 the Commission adopted a Report on the implementation of Directive 
2002/30/EC  on  noise-related  operating  restrictions  at  airports  and,  on  this  basis,  has  been 
examining whether amendments to the Directive would be justified. 

Infrastructures and airports 

-  As  regards  the  Action  Plan  for  airport  capacity,  efficiency  and  safety:  The  Community 
Observatory  on  airport  capacity  was  inaugurated  on  4  November  2008.  It  will  advise  the 
Commission on the implementation of the action plan. 

Measures  aiming  at  enhancing  the  consistency  between  airport  slots  and  flight  plans  have 
been enshrined in the draft Air Traffic Flow Management Regulation, to be adopted in 2009. 
Preliminary  work  started  on  the  cartography  of  the  European  airport  network  and  on  the 
integrated air/rail ticketing. 

-  As  regards  the  implementation  of  Community  law:  Efforts  to  ensure  the  proper 
implementation  of  Directive  96/67/EC  were  intensified,  and  the  situation  at  several  airports 
was assessed in depth. As a result, one reasoned opinion and 2 letters of formal notice were 
prepared. At the same time, a study on the implementation of the Directive was launched and 
completed. It focuses notably on the situation in the Newest Member States. In spite of these 
efforts, new complaints were made to the Commission, which concern 3 Member Sates. 

Concerning the regulation on airport slots, the sector assessed the situation at several airports. 
Besides, 3 new complaints were made to the Commission in this respect, while 3 cases were 
closed. Moreover, the Commission adopted in April 2008 a Communication to clarify some 
provisions of the regulation and make its implementation easier. 

Concerning the harmonization of passenger's departure taxes, the sector dealt with cases in 2 
Member  States,  and  sent  1  letter  of  formal  notice  to  one  of  them.  Both  cases  have  in  the 
meantime been closed. 

The sector also dealt with discrimination in night bans at one airport. At the end of the year, 
the position of the competent authorities on the issues raised by the Commission in relation 
with the night curfew was still pending. 

- As regards the enhancement of economic regulation: Discussions continued on the Proposal 
for a Directive on Airport Charges, to establish a common framework regulating the essential 

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features of airport charges and the way they are set; the Directive was adopted by the Council 
and Parliament on 11th March 2009. 

Aviation security 

During  the  year  2008,  the  Commission  continued  to  fulfil  its  monitoring  obligations  and 
conducted inspections (including follow-up inspections) of 9 national administrations and 18 
airports.  

Five infringement procedures were initiated following inspections of national administrations. 
Most cases relate to an insufficient frequency and scope of national quality control activities 
resulting from a lack of resources to monitor compliance nationally. Two infringement cases 
were  closed  following  full  rectification  of  the  identified  shortcomings.  The  remaining 
infringement cases are being closely followed and informal contacts with the Member States 
have taken place in order to assist them in a swift rectification of deficiencies.  

In order to encourage a reduction in the number and severity of deficiencies identified during 
Commission inspections the following measures have been taken in 2008: 

-  Consistent  implementation  of  a  peer-review  system,  namely  the  active  participation  of 
national  auditors  from  all  Member  States  in  Commission  inspections.  In  addition,  the 
Commission made available to all Member States an updated and more detailed version of its 
harmonised  inspection  methodology  in  order  to  assist  them  in  preparing  for  Commission 
inspections on their territories. 

-  The  Commission  regularly  informed  the  Member  States  of  non-compliances  found  during 
inspections in the Regulatory Committee on aviation security, which met 8 times during 2008. 
These  updates  on  non-compliances  identified  during  inspections  help  Member  States  to 
identify critical areas where deficiencies occur repeatedly.  

- Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 
2008 was adopted. This new Framework Regulation for aviation security, ultimately replacing 
Regulation  2320/2002,  allows  the  Commission  to  review  the  detailed  rules  for  the 
implementation of the common aviation security standards. This revision will improve clarity 
and  consistency,  thus  paving  the  way  for  an  even  higher  compliance  level.  Work  on 
developing  these  new  implementing  rules  is  well  underway  and  will  be  finalised  by  April 
2010. 

6.13.2.  Evaluation of the current position 

6.13.2.1. Internal market, air transport agreements and multilateral relations sector  

Situation in this field is acceptable, evolving according to the priorities and performing very 
well. 

- Internal market 

Since the opening of the market in 1992 which was a major achievement of the Air transport 
policy,  some  progress  has  been  made  to  improve  liberalisation  of  the  sector.  The  rules 
governing the liberalisation of services and tariffs have been simplified and reinforced in 2008 
through the adoption of Regulation (EC) No 1008/2008 (recast) that entered into force on 1st 
November 2008. 

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- Air service agreements 

Much has been achieved since the "open skies" judgments. On a total of 1400 illegal bilateral 
agreements 786 are now in conformity with Community law (222 for 2008). A bilateral Air 
Transport  Agreement  between  the  European  Community  and  its  Member  States,  on  the  one 
hand,  and  the  United  States  of  America,  on  the  other  hand,  was  signed  in  2007,  and 
negotiations have started with Canada. The neighbouring policy is now concrete: agreements 
have been signed with Switzerland, Western Balkans and Morocco, which are participating at 
different levels to the common air policy. 

Certain  bilateral  agreements  such  as  those  concluded  by  Austria  with  China  and  with  Syria 
and  by  Finland  with  Russia  present  however  particular  difficulties,  despite  the  efforts  made 
both by Member States and Commission. 

6.13.2.2. Single sky and modernisation of air traffic control 

Considering  the  limited  number  of  legal  instruments,  the  monitoring  of  the  practical 
implementation seems manageable. 

The  transposition  of  Directive  2006/23  has  not  been  achieved  yet  (or  not  fully)  in  several 
Member States. 

6.13.2.3. Air Safety and Environment  

The appraisal of the present situation of air safety and environment is acceptable and evolving 
according to the established priorities. 

6.13.2.4. Infrastructures and airports 

The  implementation  of  the  Directive  on  groundhandling  remains  of  some  concern.  The 
situation appears unsatisfactory in this respect, notably in some of the new Member States. It 
is  therefore  essential  to  continue  a  close  surveillance  of  Member  State's  transposition 
instruments and the way they are applied. 

6.13.2.5. Aviation security 

Since the introduction of Community rules in 2002 and of Commission inspections in 2004, 
results  of  aviation  security  inspections  have  steadily  improved.  The  compliance  with  main 
provisions during aviation security inspections of airports rose from 62% in 2006 and 69% in 
2007  to  78%  in  2008.  However,  inspections  of  national  administrations  also  showed  that 
several Member States do still not make available sufficient resources to fulfil their national 
quality control obligations. 

The  fact  that  the  Commission  took  a  strict  and  coherent  approach  to  the  rectification  of 
deficiencies  identified  during  Commission  inspections  has  also  contributed  to  the  improved 
inspection results. It is expected that additional infringement cases will be necessary to further 
improve compliance levels in the European Union, in particular as regards the availability of a 
sufficient  number  of  national  auditors  to  monitor  the  correct  implementation  of  aviation 
security  measures  at  European  airports.  However,  the  continued  effort  in  inspections  and 
advice  is  still  likely  to  result  in  a  continued  positive  evolution.  The  entry  into  force  of  the 
revised aviation security rules in April 2010 will then further improve the overall compliance 
level within the European Union. 

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6.13.3.  Evaluation results 

6.13.3.1. Internal market, air transport agreements and multilateral relations sector  

Priorities 

The priorities remain the same:  

-  To  remove  the  illegal  provisions  of  existing  bilateral  air  transport  agreements  between 
Member State and third countries, to negotiate a final agreement with US in order to make the 
Community ratification possible and close the infringements procedures. 

- To maintain partnership with Member States, stakeholders and citizen representatives for a 
harmonised implementation of internal market regulations. 

- To update the new CIRCA Interest Group that was set up to comply with the requirements 
of Regulation (EC) No 1008/2008 concerning the notification of operating licences. 

Planned action 

The key actions programme will be oriented toward priorities: 

-  Meetings  with  third  countries  to  remove  the  illegal  provisions  of  existing  bilateral 
agreements. 

- The organisation of training for Member States, third countries, stakeholders and EC official 
on the Community acquis, the Air transport policy, the practical challenges and objectives of 
the stakeholders in the area of Computer reservation system.  

- Studies to assess different third country markets. 

- To develop activities related to new legislation in the area of Computer Reservation Systems 
such as guidelines, training, expert committee meetings. 

6.13.3.2. Single sky and modernisation of air traffic control 

As in the past, the practical implementation of existing legislation by Member States and by 
relevant  stakeholders  will  be  monitored  in  the  framework  of  the  Single  Sky  Committee 
(Article 5 of Regulation (EC) No 549/2004) and the Industry Consultation Body (Article 6 of 
Regulation (EC) No 549/2004). 

These  instruments  are  complemented  by  the  use  of  existing  arrangements  under  the 
Eurocontrol  Convention.  For  instance  the  CRCO  (Central  Route  Charging  Organisation)  is 
used for the reporting obligations under the charging Regulation (EC) No 1794/2006 and the 
LCIP  (Local  Concergence  Implementation  Plan)  is  used  for  the  reporting  obligations  under 
Article 12 of the framework Regulation (EC) No 549/2004 and under Article 8 of Regulation 
(EC) No 2150/2005 on the flexible use of airspace. 

6.13.3.3. Air Safety and Environment  

Priorities 

Priorities concern the most significant developments in such areas as : 

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- Accident investigation and incident reporting 

- Extension of EASA tasks, fees and charges, supervision of EASA, fines 

- List of banned airlines 

- Aviation environmental issues  

- International cooperation 

- Monitoring of compliance 

Planned action 

The key actions programme will be oriented towards the above listed priorities: 

- Accident investigation and incident reporting 

In  2009  the  Commission  adopt  a  legislative  proposal  to  enhance  accident  investigation  and 
incident reporting. The co-decision process for the adoption of this measure should continue 
in 2010.  

- Extension of EASA tasks, fees and charges, supervision of EASA, fines 

A  high  number  of  proposals  prepared  by  EASA  following  the  entry  into  force  of  the  "first 
extension" amended Regulation (216/2008) in April 2008 will be processed from 2010 – –and 
will result in some 5 to 10 Commission regulations being adopted  between 2010 and 2012. 

On  top  of  these  implementing  rules  specifically  linked  to  the  first  extension  of  tasks,  the 
continuous  update  of  the  technical  Community  legislation  (mainly  initial  airworthiness  and 
maintenance)  following  Opinions  by  EASA  will  continue  in  2010  and  it  will  be  carried 
through comitology procedure. 

As  far  as  the  "second  extension"  of  tasks  is  concerned,  an  adoption  of  the  Commission's 
proposal in first reading is expected in the course of 2009.  

A  thorough  revision  of  the  EASA  fees  and  charges  Regulation  is  also  foreseen.  This 
amendment is necessary to introduce the new fees and charges to be paid by the Industry for 
the new certification activities the Agency will start to execute following the "first extension" 
of tasks.  

In 2010 the Commission intends to adopt a regulation to introduce fines and periodic penalty 
payments  to  be  imposed  on  persons  or  undertakings  to  which  the  Agency  has  issued  a 
certificate.  The  mechanism  envisaged  is  such  that  the  Commission  will  impose  the  fine 
following a request from the Agency.  

Finally, the usual activity as "parent Commission service" of EASA will continue, implying 
adoption of the Commission's Opinion on the Agency's Work programme, monitoring of the 
Agency's  drafting  and  implementation  of  the  budget  and  staff  policy  plan,  follow  up  to 
various audits (including the Court of Auditors recommendations), etc. 

- List of banned airlines 

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Recent analysis of ICAO and SAFA reports shows a worrying negative trend in terms of third 
Countries'  safety  performance.  As  a  consequence,  the  effort  in  auditing  third  countries' 
airlines and administrations will have to be strengthened.  

The update of the Community list of banned airlines every four months will continue. 

A  report  on  the  implementation  of  the  Regulation  following  the  first  three  years  of 
implementation will be proposed by the Commission in 2009. 

- Aviation environmental issues  

Proposals  are  planned  for  measures  dealing  with  aviation  noise    emissions  from  airplanes 
(2009-2010). 

The  involvement  at  international  level  on  aviation  emissions  reductions  measures,  in 
particular  emissions  trading,  will  require  intense  activities  in  ICAO,  in  the  United  Nations 
Framework Convention on climate change (UNFCCC) after COP15, but also during bilateral 
negotiations with third countries. This is indispensable to ensure a smooth implementation of 
the EC Directive including aviation in the EU ETS.  

- International cooperation 

The management of a number of tailored technical cooperation projects with third countries, 
mainly those affected by the list of banned airlines, aimed at enhancing their aviation safety 
supervisory  capability  and  their  compliance  with  international  air  safety  standards,  will  be 
continued. 

The  work  generated  by  the  negotiation  or  implementation  of  bilateral  EU/third  countries 
aviation  safety  agreements  should  increase  significantly,  implying  the  creation  and 
management  of  some  technical  Committees  (at  least  four  just  for  the  United  States  of 
America) to properly follow up the implementation of the agreements but also to prepare new 
annexes  to  cover  the  new  tasks  entrusted  to  EASA  following  the  first  modification  to 
Regulation  216/2008.  Such  annexes  will  have  to  be  negotiated  in  the  Bilateral  Oversight 
Board  which  the  Commission  has  to  co-chair  at  the  level  of  the  Head  of  Unit  with  large 
technical support of the Unit and EASA. For Brazil, a similar path can be envisaged, the entry 
into force of the bilateral agreement being expected however at the end of 2009 only.  

- Monitoring of compliance 

Monitoring  compliance  with  the  existing  EU  legislation  is  an  ongoing  task.  This  implies  – 
inter  alia  –  the  analysis  and  appropriate  follow-up  of  the  standardisation  inspection  reports 
issued  by  EASA,  as  well  as  ensuring  a  correct  functioning  of  the  SAFA  Directive.  The 
Agency  inspects  at  present  each  Member  State  every  two  years;  as  a  consequence,  the 
Commission  will  analyse  yearly  some  13/14  standardisation  reports  and  follow  them  up  as 
appropriate  -  mainly  initiating  sanction  (withdrawal  of  certificates  or  of  mutual  recognition, 
for example) or  infringement procedures where necessary.  

As far as the 'SAFA Directive' is concerned, its provisions shall be repealed and replaced by 
implementing  rules  enacted  under  Regulation  216/2008/EC.  In  this  sense,  a  continuous 
refinement of the procedural annexes, of the prioritisation of inspections and of the minimum 
training  of  Member  States'  inspectors  is  envisaged  together  with  the  introduction  of  a 
minimum  quota  of  ramp  inspections  to  be  performed  annually  by  Member  States.  This 

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process encompasses a constant dialogue and consultation with the National Administrations 
and other relevant stakeholders through workshops and technical meetings.  

6.13.3.4. Infrastructures and airports 

In 2009 the sector will continue focussing on the proper implementation of the existing law as 
regards  groundhandling,  slots  and  airport  charges.  It  will  also  concentrate  on  the 
implementation of the action plan on airport capacity, and notably on the supervision of the 
works of the Observatory on airport capacity. 

6.13.3.5. Aviation Security 

Priorities 

The  primary  focus  for  the  Commission  in  the  field  of  aviation  security  remain  unchanged, 
namely to further develop harmonised rules in aviation security that ensure an adequate level 
of protection whilst limiting the negative impact on facilitation and to ensure the application 
by all Member States of the common standards contained in Regulation (EC) No 2320/2002 
of the European Parliament and of the Council of 16 December 2002.  

Planned action 

The  Commission  will  continue  to  apply  a  strict  compliance  monitoring  and  enforcement 
policy to ensure an adequate protection of its citizens. The Commission therefore intends to 
continue its inspections at a similar frequency as compared to 2008. Particular emphasis will 
be given to ensuring that Member States have an adequate number of resources to fulfil their 
obligations.  

In  order  to  ensure  the  timely  entry  into  force  of  the  new  implementing  rules  in  the  field  of 
civil  aviation  security,  the  Commission  will  intensify  work  in  this  field  and  plans  several 
working  group  meetings  involving  stakeholders  and  Member  States.  In  addition,  the 
Commission  plans  to  develop  detailed  guidance  material  to  facilitate  the  smooth  entry  into 
force of the revised common standards. 

6.13.4.  Summary by sector 

6.13.4.1. Internal market, air transport agreements and multilateral relations 

- Internal market 

Concerning  common  rules  for  the  operation  of  air  services,  the  new  Regulation  (Nº 
1008/2008)  contributes  helps  to  the  restructuring  of  the  sector  and  maintains  competitive 
conditions both on international routes and European domestic routes. It also clarifies several 
aspects in the areas of aircraft leasing, public service obligations and traffic distribution rules 
at  airports,  ensuring  that  these  rules  are  applied  with  maximum  transparency  and  without 
discrimination.  

The  Regulation  aims  in  particular  at  simplifying  publicity  obligations,  extending  the 
maximum  period  for  the  exclusive  concessions  which  will  be  4  years  (5  years  for  the  most 
remote regions). It introduces an emergency procedure to cope with the sudden interruption of 
the  services  of  the  operator  serving  a  route  covered  by  public  service  obligations  (OSP).  It 
gives the Commission the possibility of requesting from the Member State more information 
and explanations on the OSP socio-economic context that they intend to create. 

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The  Commission's  proposal  to  simplify  and  modernise  the  Code  of  Conduct  relating  to 
computer reservation  systems (CRS) will partially liberalise the  market and will allow CRS 
providers  and  the  travel  agents  who  are  subscribed  to  widen  their  offer,  thereby  improving 
competition in the air tickets distribution market. Competition is further strengthened by new 
safeguard measures designed to protect consumers and to prevent competitive abuses.  

- Air services agreements 

The objective to bring existing bilateral agreements into line with Community law, following 
the  “open  sky”  case  law,  is  vitally  important  not  only  for  the  European  Community  and  its 
Member States but also for the third countries concerned and for the aviation sector, airlines 
and the users. 

Since  2002,  much  effort  has  been  made  in  order  to  remove  the  illegalities  identified  in 
bilateral  agreements  between  twenty  Member  States  and  the  United  States.  In  2008,  the 
Commission organised several joint committee meetings for the provisional application of the 
Air  Transport  Agreement  between  the  European  Community  and  its  Member  States,  on  the 
one hand, and the United States of America, on the other hand, which was signed in 2007 and 
which  needs  to  be  ratified  by  all  Member  States  before  the  ratification  by  the  European 
Community.  This  legal  constraint  does  not  permit  closure  of  Member  States'  infringements 
that have already ratified the agreement. 

In the framework of Regulation (EC) No 847/2004 and its committee, the Commission assists 
member States tobring other existing bilateral agreements with third countries into conformity 
with EU requirements.  

6.13.4.2. Air Safety and Environment 

The impact of added safety resulting from the Commission's initiatives has been assessed so 
far on the basis of the number of unsafe companies which have been prevented to operate to 
or from Europe and by the number of tourist agents (about 40.000) in Europe which have to 
inform travellers of the list of banned airlines companies operating outside Europe. 

An additional criterion remains the increased level of safety oversight that foreign European 
Civil Aviation Authorities carry out for fear of seeing their operators banned from Europe.  

Furthermore, the role of EASA is to control compliance by Member States and to assist them 
to  enhance  their  safety  level  to  the  legally  required  level.  The  standardisation  activities  of 
EASA have continued to produce significant results as an ever increasing number of Member 
States is being inspected on a yearly basis. In 2008, EASA inspected 21 Member States in the 
area of initial airworthiness and 4 visits to third countries (including Switzerland); 26 Member 
States and 3 non EU JAA States (including Serbia and Norway) as well as 4 inspections in the 
United  States  of  America  in  the  area  of  continuing  airworthiness.  At  the  request  of  the 
Commission, EASA has also carried out 4 supplementary inspections of Member States (2 ad-
hoc 
increased 
considerably  the  number  of  visits  to  Member  States  in  the  area  of  operations,  flight  crew 
licensing  and  synthetic  training  devices  (simulators):  10  Member  States  and  5  JAA  States 
(including  Switzerland)  in  the  area  of  operations;  8  Member  States  and  3  JAA  States 
(including Switzerland) in the area of flight crew licensing and 6 Member States in the area of 
synthetic training devices (simulators). This aspect, enforcement of compliance, is revealing 
itself more and more the key to successful impact of EU aviation safety rules. 

inspections  and  2  follow-up 

inspections).  Furthermore, 

the  Agency 

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6.13.4.3. Infrastructures and airports 

In  2009,  the  focus  of  attention  will  remain  unchanged,  namely  to  ensure  the  proper 
implementation of the economic regulatory framework, and to guard against any possible lack 
of airport capacity by implementing the action plan. 

6.13.4.4. Air Security 

The priorities for the Commission in the field of aviation security remain unchanged, namely 
to  further  develop  harmonised  rules  in  aviation  security  that  ensure  an  adequate  level  of 
protection  and  to  ensure  the  application  by  all  Member  States  of  the  common  standards 
contained in Regulation (EC) No 2320/2002 of the European Parliament and of the Council of 
16 December 2002.  

The  planned  key  actions  are  the  continuation  of  the  well  established  inspection  regime  at 
current frequencies, the strict enforcement of Community rules following the identification of 
deficiencies  and  the  development  of  revised  implementing  rules  for  aviation  security  which 
will  ensure  more  consistency,  clarity  and  harmonisation  while  safeguarding  the  level  of 
protection for European citizens.  

Whilst  the  inspection  and  enforcement  activities  are  put  in  place  on  a  continuous  basis,  the 
development of the new implementing rules will take place during the course of 2009 and be 
finalised  by  April  2010  at  the  latest.  However,  further  reviews  and  adjustments  following 
changes in the threat situation or technological developments are also possible thereafter. 

6.14.  TRANSPORT - Maritime Safety 

6.14.1.  Current position 

6.14.1.1. General introduction 

The  maritime  safety  EU  acquis  aims  at  enhancing  the  safety  of  ships  in  European  waters, 
protecting the marine environment and ensuring appropriate living and working conditions on 
board. The main relevant pieces of legislation in this area are: 

- Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship 
inspection and survey organisations and for the relevant activities of maritime administrations 
(OJ L 319 of 12.12.1994, p. 20). This directive addresses the responsibility of Member States 
as  flag  States  by  establishing  measures  to  be  followed  by  the  Member  States  and 
organisations concerned with the inspection, survey and certification of ships for compliance 
with the international conventions on safety at sea and prevention of marine pollution; 

- Council Directive 95/21/EC of 19 June 1995 on port State control of shipping (OJ L 157 of 
7.7.1995, p.1). This directive sets out rules applicable to Member States in their capacity of 
port States. It provides for increased compliance with international and relevant Community 
legislation on maritime safety, protection of the marine environment and living and working 
conditions on board ships of all flags and for the establishment of common criteria for control 
of ships by the port State and harmonised procedures on inspection and detention; 

-  Directive  2002/59/EC  of  the  European  Parliament  and  of  the  Council  of  27  June  2002 
establishing  a  Community  vessel  traffic  monitoring  and  information  system  (OJ  L  208  of 
5.8.2002, p. 10). The system established in accordance with this directive aims at improving 
the response of the authorities to incidents, accidents and potentially dangerous situations at 

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sea, including search and rescue operations, and at better preventing and detecting pollution 
by ships. 

Other  relevant  legislation  includes  directives  on  marine  equipment  (Directive  96/98/EC), 
harmonised  safety  rules  and  standards  for  passenger  ships  (Directive  98/18/EC),  fishing 
vessels  (Directive  97/70/EC)  and  the  safe  loading  and  unloading  of  bulk  carriers  (Directive 
2001/96/EC),  registration  of  persons  on  board  passenger  ships  (Directive  98/41/EC), 
mandatory surveys for the safe operation of regular ro-ro ferry and high speed passenger craft 
services  (Directive  99/35/EC),  seafarers  hours  of  work  (Directive  1999/95/EC),  stability 
requirements  for  ro-ro  passenger  ships  (Directive  2003/25/EC)  and  Regulations  on  the 
accelerated  phasing-in  of  double  hull  or  equivalent  design  oil  tankers  (Regulation  (EC)  n° 
417/2002), the prohibition of organotin compounds on ships (Regulation (EC) n° 782/2003) 
and  on  the  transfer  of  cargo  and  passenger  ships  between  registers  within  the  Community 
(Regulation  (EC)  n°  789/2004).  Finally,  environment-related  directives  on  port  reception 
facilities  for  ship-generated  waste  (Directive  2000/59/EC)  and  on  ship-source  pollution  and 
on  the  introduction  of  penalties  for  infringements  (Directive  2005/35/EC)  should  also  be 
listed. 

6.14.1.2. Report of the work done in 2008 

The  Committee  on  Safe  Seas  (COSS)  set  up  under  Regulation  (EC)  no.  2099/2002  met  in 
November.  The  meeting  provided  the  opportunity  for  Commission  services  to  discuss  with 
representatives  of  Member  States  issues  such  as  the  update  of  Community  acquis  on 
passenger  ships  in  order  to  reflect  IMO  instruments,  the  stability  regulations  for  ro-ro 
passenger ships, the recognition and the performance criteria of classification societies as well 
as a possible amendment to Regulation (EC) n° 417/2002 on double hull oil tankers. 

Regular meetings on maritime policy took place in 2008 between the Director responsible for 
maritime  safety  and  policy  and  his  counterparts  in  the  Member  States.  These  meetings 
provided also an opportunity to foster clarification and better implementation of the acquis.  

Preparation  of  the  report  assessing  the  implementation  of  Directive  2000/59/EC  on  port 
reception facilities for ship-generated waste continued in 2008 with the aim of submitting it to 
the European Parliament in the 1st semester 2009. 

The European Maritime Safety Agency continued its broad program of inspection visits in the 
Member States. This program was initiated in 2004 at the request and in co-operation of the 
Commission  and  it  currently  covers  the  following  areas:  classification  societies,  training  of 
seafarers, port State control and port reception facilities. The methodology for extending the 
program  to  vessel  traffic  monitoring  and  information  systems  was  established  in  2008 
allowing for the actual launching of the exercise in March 2009. The reports produced by the 
EMSA  teams  serve  as  basis  for  further  Commission  contact  with  the  Member  States  either 
through  requests  for  clarification  or  the  launching  of  infringement  procedures.  In  an  area 
where  there  is  a  reduced  number  of  complaints  received  from  citizens  or  enterprises,  these 
inspections are of great value to the Commission as they allow it to understand how the EU 
maritime safety acquis is implemented in the Member States. 

The number of infringement procedures declined sharply in 2008. This was essentially due to 
the corrective measures introduced by Member States in order to improve the quality of the 
transposition  of  the  acquis  and  its  implementation,  following  pre-judicial  initiatives  by  the 
Commission. Still at the end of the year over 40 procedures remained open. They concentrate 

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essentially on port State control and port reception facilities issues. Noteworthy are also the 
decisions of the Court of Justice in several cases condemning Member States for their failure 
to establish, adopt and implement plans for ship-generated waste. 

6.14.2.  Evaluation of the current position 

Maritime  safety  Community  law  is  relatively  young.  It  is  however  based  in  international 
conventions  and  other  instruments,  for  some  of  which  there  is  considerable  implementation 
experience  in  the  Member  States.  Current  implementation  situation  thus  ranges  from 
relatively  stable,  whilst  not  yet  entirely  acceptable  (for  instance,  for  Directive  95/21/EC  on 
port State control of shipping which is closely related to the rules of the Paris MOU to which 
most Member States have been party to for several years) to more difficult as in the case of 
Directive 2000/59/EC on port reception facilities, where key provisions such as those on the 
coverage of costs by all ships, the monitoring of deliveries and the performance of inspections 
are still implemented unevenly throughout the Union. 

The situation tends to become more complex as 2008 saw the finalisation of a very significant 
package  of  new  Community  maritime  safety  acquis.  This  package,  whose  texts  are  due  for 
publication in the first semester 2009, cover a broad range of issues, some of which consist of 
improvements of current acquis (port State control, vessel traffic monitoring and information 
system, classification societies ), while others are essentially new (accident investigation, Flag 
State  obligations,  liability  of  carriers  of  passengers  by  sea,  insurance  of  shipowners). 
Preparation  of  adequate  transposition  of  the  new  texts  into  national  law  and  of  their 
implementation will be necessary. 

6.14.3.  Evaluation results 

6.14.3.1. Priorities 

There  is  a  clear  continuity  in  the  efforts  to  ensure  an  appropriate  transposition  and 
implementation  of  the  maritime  safety  acquis.  In  terms  of  thematic  areas,  emphasis  will  be 
put  on  the  traditional  areas  of  the  monitoring  of  classification  societies  and  of  the 
implementation  of  directives  on  the  training  of  seafarers,  port  State  control,  vessel  traffic 
monitoring  and  information  system  and  port  reception  facilities.  Transposition  of  Directive 
2005/35/EC (ship-source pollution and penalties) will also be closely monitored.  

We  shall  continue  to  rely  on  the  systematic  assessment  of  implementation  in  the  Member 
States based on the inspections by EMSA to be followed by contacts with Member States and, 
when appropriate direct pre-judicial initiatives. We shall also devote considerable resources to 
trying  to  prevent  transposition  problems,  in  particular  in  the  context  of  the  new  package  of 
legislation. 

A pre-emptive approach is also taken in relation to the alignment to and implementation of the 
acquis  by  accession  countries,  in  particular  Croatia,  through  dialogue  and  assessment  of 
administrative capacity (in co-operation with EMSA). 

6.14.3.2. Planned action 

Contact with national administrations will be ensured through COSS meetings. As far as the 
newest legislation is concerned, a general meeting at Director level with representatives of the 
Member States is scheduled for Fall 2009 with the objective of discussing and clarifying the 
content  of  the  recent  legislative  package  in  preparation  of  transposition  by  Member  States. 

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This  meeting  will  be  complemented  by  dedicated  workshops  with  MS  experts  on  the 
implementation of each of the new legislative texts.  

Follow-up of EMSA inspection reports will be ensured leading to clarification actions and/or 
infringement procedures in the key areas mentioned under point 1. 

6.14.4.  Sector summary 

The  monitoring  and  promotion  of  the  implementation  of  the  maritime  safety  acquis 
concentrates  on  the  traditional  key  areas  (classification  societies,  training  of  seafarers,  port 
State control, vessel traffic monitoring and information system and port reception facilities). 
Dialogue with Member States continues in different fora (COSS, meetings with the Directors-
Generals  of  national  administration,  technical  co-operation  through  EMSA).  Clarification 
initiatives  by  the  services  and,  when  appropriate,  infringement  procedures  are  also 
undertaken. Given the imminent publication of a significant new package of maritime safety 
legislation,  considerable  effort  is  to  be  devoted  to  detailing  and  explaining  the  new  acquis, 
e.g.  by  dedicated  implementation  workshops,  with  a  view  to  facilitate  its  transposition  by 
Member States. 

6.15.  TRANSPORT - Maritime Security 

6.15.1.  Current position 

6.15.1.1. General introduction. 

The  main  objective  of  the  EU  legislation  on  Maritime  Security  is  to  implement  measures 
aimed  at  enhancing  ship,  port  facility  and  port  security  in  the  face  of  the  threats  posed  by 
intentional  unlawful  acts.  The  EU  legislation  intends  to  provide  a  basis  for  harmonised 
interpretation  and  implementation  of  international  measures  to  enhance  maritime  security 
adopted by the Diplomatic Conference of the International Maritime Organization (IMO), in 
2002, with the establishment of the International Ship and Port Facility Security Code (ISPS 
Code) and the ILO /IMO Code of Practice on Security in Ports. 

The main pieces of Community acquis in this field are the following: 

- Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 
2004  on  enhancing  ship  and  port  facility  security:  The  Regulation  takes  into  account 
amendments to the 1974 International Convention for the Safety of Life at Sea (the SOLAS 
Convention) and the maritime security measures imposed by the Regulation are only some of 
the  measures  necessary  in  order  to  achieve  an  adequate  level  of  security  across  all  of  the 
various  transport  chains  linked  to  maritime  transport.  The  Regulation  is  limited  in  scope  to 
security measures onboard vessels and the immediate ship/port interface. 

- Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on 
enhancing port security: The Directive is mainly based on the recommendations contained in 
the ILO/IMO Code of Practice on Security in Ports. The Directive completes the mechanism 
provided for under the Regulation by establishing a security system for all port areas, in order 
to  ensure  a  high  and  comparable  level  of  security  for  all  European  ports.  The  aim  of  the 
Directive is to improve security in port areas not covered under the Regulation and to ensure 
that  the  enhancement  of  port  security  will  support  the  security  measures  taken  under  the 
Regulation,  without  creating  additional  obligations  in  areas  already  governed  by  the 
Regulation. 

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-  Regulation  (EC)  No  324/2008  of  9  April  2008  laying  down  revised  procedures  for 
conducting  Commission  inspections  in  the  field  of  maritime  security:  In  2005,  in  order  to 
monitor the application by Member States of the Regulation and to verify the effectiveness of 
national  maritime  security  measures,  procedures  and  structures,  the  Commission  adopted 
Regulation  (EC)  No  884/2005,  laying  down  procedures  for  conducting  Commission 
inspections  in  the  field  of  maritime  security.  On  9  April  2008,  the  Commission  adopted 
Regulation  (EC)  No  324/2008  laying  down  revised  procedures  for  conducting  Commission 
inspections  in  the  field  of  maritime  security,  which  also  laid  down  “procedures  for  the 
monitoring  by  the  Commission  of  the  implementation  of  Directive  2005/65/EC  jointly  with 
the  inspections  at  the  level  of  Member  States  and  port  facilities  in  respect  of  ports...”.  This 
Regulation, repealing Regulation (EC) No 884/2005, came into force on 1 May 2008. 

6.15.1.2. Report on the work done in 2008 

During the year 2008 the work done on monitoring the application of Community law in the 
field of maritime security had considerable developments. 

- The Maritime Security Committee (MARSEC) met 5 times which were as much occasions 
to discuss with the Member States of the issues involved in the common interpretation of the 
security  standards  defined  at  the  international  level.  Furthermore,  these  issues  are  also 
addressed with the stakeholders from the advisory group (SAGMaS). 

- Follow-up of the infringement procedures launched for the absence of national transposition 
for measures concerning Directive 2005/65/EC within the required deadline: The majority of 
the 22 Member States required to transpose the provisions of the Directive into national law 
only did so after the deadline for implementation (15 June 2007) had passed. Only six of them 
provided notification of national measures before this transposition deadline, quickly followed 
by six other Member States. The average delay in transposition was six months. On 1 January 
2008,  seven  Member  States  had  still  not  adopted  or  transmitted  to  the  Commission  their 
national measures transposing the Directive. Finally, on 18 September 2008, the Commission 
decided to take action before the European Court of Justice, in the absence of notification of 
national  transposition  measures  within  the  required  deadline,  against  the  last  two  Member 
States  which  had  not  yet  met  the  deadline.  The  Commission  also  began  procedures  for 
monitoring the application of this Directive during the inspections carried out in the field of 
port security. 

-  Preparation  of  the  report  assessing  the  implementation  of  the  Directive  on  enhancing  port 
security: This report fulfils the Commission's obligation under Article 19 of the Directive to 
report on its application by 15 December 2008 at the latest, and then subsequently every five 
years, and to provide an overview of the transposition of the Directive by Member States and 
to  identify  possible  problems  found.  However,  in  view  of  the  delay  in  transposing  the 
Directive and in the practical implementation of its provisions by several Member States, the 
report focuses on implementation-related matters and short-term results. 

-  The  inspection  team  carried  out  120  inspections  (22  national  administrations,  46  port 
facilities,  36  ships,  6  recognized  security  organizations,  2  companies;  8  ports).  The 
inspections permitted to check the implementation of the security legislation on the ground by 
the operators concerned, as well as the supervision of it by the Member States. 

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6.15.2.  Evaluation of the current position 

Considering  the  implementation  of  the  Directive,  it  should  be  noted  that  the  delays  in 
preparing  and  adopting  national  transposition  measures  in  a  variety  of  Member  States  have 
had  a  knock-on  effect,  in  that  the  relevant  port  authorities  were  not  able  to  implement  the 
Directive until the national measures had been finally approved and adopted. 

Given,  on  the  one  hand,  the  short  life  so  far  of  Regulation  (EC)  No  324/2008  laying  down 
revised procedures for  conducting  Commission inspections in  the  field of port security and, 
on the other, the delay with which several Member States both transposed the Directive and 
implemented  its  provisions  in  practical  terms,  it  would  be  premature  to  draw  any  final 
conclusions and this work will be kept among the priorities for 2009. 

The inspection team reported on several occasions a lack of control exerted by the Member 
States to check the correct application of Community legislation in the port facilities and ships 
under  their  competence.  This  point  will  also  be  a  priority  in  2009.  The  first  inspections 
concerning  the  monitoring  of  Directive  2005/65/EC  carried  out  into  2008  were  very 
disappointing because the first eight visited ports did not lay out an assessment, nor a plan for 
security. 

6.15.3.  Evaluation results 

As in the past, priority will be given to the achievement of an adequate level of security across 
all of the various transport chains linked to maritime transport. 

Concerning Directive 2005/65/EC, once all national texts have been sent to the Commission 
the Commission will conduct a more detailed examination of national transposition measures 
and subsequent provisions made by Member States in order to make a global assessment (i.e. 
covering  all  relevant  Member  States)  of  whether  the  national  measures  comply  with  the 
relevant  provisions  of  the  Directive  (conformity  checks).  Infringement  procedures  will  be 
launched against Member States not having fully or correctly transposed the Directive. 

Furthermore,  the  working  programme  for  the  performance  of  maritime  security  inspections 
carried  out  by  the  Commission  will  systematically  include  a  section  for  verifying  that  the 
procedures for monitoring the application of the Directive have been correctly applied. 

6.15.4.  Sector summary 

While  the  situation  in  maritime  security  sector  is  demonstrating  the  benefits  of  harmonised 
rules,  enhancing  ship,  port  facility  and  port  security  in  the  face  of  the  threats  posed  by 
intentional unlawful acts, there are still a number of areas where some obstacles to efficient 
maritime security persist. 

The efforts are concentrating in ensuring an efficient implementation of the existing maritime 
security legislation, by combining action in two fields: 

- permanent contact with national administrations through the work of the Maritime Security 
Committee and in the context of preparation and follow up of inspections; 

- based on the results of the inspections carried out by the Commission and on the on-going 
conformity checks, an action plan identifying the main areas where there is failure to comply 

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with the Directive and Regulation will be the basis for initiating different actions, including 
infringement proceedings as necessary. 

7. 

ENVIRONMENT 

7.1. 

Nature Conservation 

7.1.1.  Current position 

7.1.1.1.  General introduction 

The  most  important  pieces  of  nature  conservation  legislation  are  the  Birds  Directive, 
79/409/EEC124  and  Habitats  Directive,  92/43/EEC125.  The  former  sets  out  measures  for  the 
protection, management and control of all species of naturally occurring European wild birds, 
as  well  as  introducing  rules  to  protect  their  habitats.  The  latter  protects  natural  habitats  and 
wild  flora  and  fauna  throughout  the  European  Union  and  establishes  a  European  ecological 
network known as “Natura 2000”. 

Nature conservation legislation constitutes a fairly stable part of the EC environmental acquis. 
Developments in this sector mainly concern the annexes to the Birds and Habitats Directives 
that  have  been  adapted  on  a  number  of  occasions  in  response  to  scientific  and  technical 
progress  and  to  the  successive  enlargements  of  the  European  Union.  The  most  recent 
adaptation is in response to the Accession of Bulgaria and Romania to the European Union on 
1 January 2007. The Community is at present very close to the completion of the Natura 2000 
network and regulatory stability is required.  

7.1.1.2.  Report of work done in 2008 

Designation of Special Protection Areas and Special Areas of Conservation 

Further  substantial  progress  was  made  in  2008  in  the  establishment  of  the  Natura  2000 
network, consisting of Special Protection Areas under the Birds Directive and Special Areas 
of  Conservation  under  the  Habitats  Directive.  In  December  2008,  the  Commission  adopted 
eight  Decisions  updating  existing  or  establishing  new  Biogeographic  Lists  of  Sites  of 
Community Importance (SCIs). The additions include 769 new sites and a total area of 95,522 
km2.  Most  of  the  sites  are  in  the  newer  Member  States.  Romania  and  Bulgaria  have  now 
added  areas  to  the  network  for  the  first  time,  including  areas  along  the  Black  Sea  that  are 
home  to  numerous  varieties  of  rare  and  threatened  plants  and  animals.  Natura  2000  now 
includes  around  25,000  sites,  covering  17%  of  the  EU’s  landmass,  making  it  the  largest 
interconnected network of protected areas in the world.  

Several Member States have increased the number of designated areas following infringement 
procedures  launched  by  the  European  Commission  and  it  is  expected  that  several  of  these 
procedures will be closed in 2009.  

124 

125 

Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds OJ L 103, 25.4.1979, 
p. 1-18. 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna 
and flora OJ L 206, 22.7.1992, p. 7–50. 

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Most  Member  States  are  now  in  a  process  of  designating  their  Sites  of  Community 
Importance  as  Special  Areas  of  Conservation  according  to  Article  4(4)  of  the  Habitats 
Directive. This exercise includes the establishment of detailed conservation objectives for the 
individual  sites  and  the  design  of  appropriate  management  instruments  according  to  Article 
6(1) of the directive. Member States have to designate their SCI as  SACs  not later than  six 
years after the inclusion of the sites in a Community list. As that deadline was 28 December 
2007  for  most  sites  of  the  Macaronesian  biogeographical  region,  an  infringement  procedure 
was launched in 2008 against Portugal and Spain for not having designated sites in that region 
as SACs. For most sites of the Alpine biogographical region the deadline for SAC designation 
is 22 December 2009 and for most sites of the Atlantic and Continental regions it will be 7 
December 2010.  

Little progress has however been made as regards the designation of off-shore marine areas. 
Member States were expected to communicate substantial designations to the Commission by 
end  2008.  A  series  of  Marine  Biogeographic  Seminars  will  start  taking  place  in  2009  to 
evaluate  these  proposals.  The  Commission  will  consider  launching  new  infringement 
procedures against those Member States which have not provided sufficient designations.  

Non-conformity with the Birds and Habitats Directive 

In  2008,  the  Commission  pursued  infringements  dealing  with  non-conformity  of  national 
transposing legislation with the Birds and Habitats Directive. 

In  2008,  as  regards  the  Birds  Directive,  a  first  warning  letter  was  sent  to  Slovakia  and 
Romania  and  second  warning  letters  were  sent  to  Czech  Republic,  Hungary,  Latvia  and 
Lithuania.  The  Commission  also  decided  to  refer  Italy  to  the  European  Court  of  Justice. 
Austria  received  a  first  warning  concerning  the  implementation  of  the  judgment  in  case 
C-507/04. 

As regards the Habitats Directive, a first warning letter was sent to Latvia, Lithuania, Poland, 
Slovakia, Hungary and Romania and a second warning letter was sent to Estonia and Czech 
Republic.  The  Commission  also  decided  to  refer  France  to  the  European  Court  of  Justice. 
Ireland  received  a  first  warning  concerning  the  implementation  of  the  judgment  in  case 
C-183/05. 

Insufficient designation of Special Protection Areas 

Under  the  Birds  Directive,  Member  States  are  obliged  to  designate  all  of  the  most  suitable 
sites as Special Protection Areas to conserve wild bird species. The designation must be based 
on  objective,  verifiable  scientific  criteria.  To  assess  whether  Member  States  have  complied 
with  their  obligation,  the  Commission  uses  the  best  available  ornithological  information. 
Where  the  necessary  scientific  information  provided  by  Member  States  is  lacking,  national 
inventories  of  Important  Bird  Areas  (IBA)  compiled  by  the  non-governmental  organisation 
Birdlife  International,  are  used.  While  not  legally  binding,  the  IBA  inventory  is  based  on 
internationally-recognised scientific criteria. The Court of Justice has already acknowledged 
its scientific value, and in cases where no equivalent scientific evidence is available, the IBA 
inventory is a valid basis of reference in assessing whether Member States have classified a 
sufficient number and size of territories as Special Protection Areas. 

In 2008, the Commission sent a first written warning letter to Bulgaria and a second warning 
letter  to  Romania  for  failing  to  designate  enough  Special  Protection  Areas  on  its  territory. 
Following  the  judgments  of  the  European  Court  of  Justice,  the  Commission  pursued  the 

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infringement  procedure  against  Spain  and  Greece  with  a  first  written  warning  under  Article 
228 of the EC Treaty (Cases C-235/04 and C-334/04). 

Illegal Bird Hunting 

Hunting  is  regulated  in  the  European  Union  by  the  Birds  Directive.  Although  the  Directive 
contains a general prohibition on the killing of wild birds, it does allow certain species to be 
hunted  provided  this  does  not  take  place  during  the  breeding  season  or  migration  periods. 
Hunting  periods  are  set  at  national  levels,  and  vary  according  to  species  and  geographical 
location. Exceptionally, Member States may allow the capture or killing of birds covered by 
the Directive outside of the normal hunting season for a limited number of reasons, although 
such derogations are only available when there is no alternative solution. 

As regards huntable species, the Commission is preparing further management plans on such 
species  with  an  unfavourable  conservation  status.  They  are  not  legally  binding  but  give 
guidelines to Members States to fulfil their obligations on species' conservation. 

In 2008, the Commission decided to take Malta to the Court of Justice for its spring hunting 
practices (case C-76/08). The Court ordered, as an interim measure, that spring hunting was 
not to be allowed in 2008. 

In the judgment in case C-503/06, Commission/Italy, the Court condemned Italy for allowing 
hunting  of  starling  (Sturnus  vulgaris)  under  conditions  which  were  contrary  to  the  Birds 
Directive. 

An update of the guidance document on hunting under Council Directive 79/409/EEC on the 
conservation of wild birds was published. 

Species protection 

The  Habitats  Directive  comprises  an  important  pillar  which  is  related  to  the  protection  of 
species. In particular, Articles 12 and 16 are aimed at the establishment and implementation 
of a strict protection regime for animal species listed in Annex IV(a) of the Habitats Directive 
within  the  whole  territory  of  Member  States.  Focus  is  mainly  on  developing  guidance 
documents  such  as  the  Guidance  document  on  the  strict  protection  of  animal  species  of 
Community interest under the 'Habitats' Directive 92/43/EEC that was finalized in February 
2007.  Specific  guidance  documents  have  also  been  developed  for  the  protection  and 
management  of  large  carnivores.  An  initiative  for  preparing  species  protection  plans  for  a 
number of priority species has been launched. 

Furthermore,  the  Commission  is  preparing  further  action  plans  for  globally  threatened  bird 
species. 

In order to reduce the conflicts between Cormorants and fisheries, the Commission will take 
action, namely through the preparation of  guidance on appropriate use of derogations under 
Article 9 of the Birds Directive. 

In  2008,  the  Commission  took  Spain  to  the  Court  of  justice  for  failure  to  provide  for  strict 
protection of the Iberian Lynx (Lynx pardinus) (Case C-308/08). 

Further judgments of the Court of Justice in 2008 

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In  relation  to  the  protection  of  SPAs  to  be  designated  under  the  Birds  Directive 
(1979/409/EEC),  the  Court  ruled  in  case  C-293/07,  Commission/Greece,  that  Greece  had 
failed to put into place a coherent, specific and complete legal protection regime for SPAs. In 
fact, the protection regime laid down in the Greek legislation did not include all SPAs and it 
provided varying protection of the sites in such a way that the objectives for the protection of 
SPAs,  laid  down  in  Article  4(1)  and  (2)  of  the  Birds  Directive  and  in  Article  6(2)  of  the 
Habitats Directive, were not fulfilled. 

In  cases  T-322/06,  T-323/06,  T-345/06,  T-366/06,  the  Court  of  First  Instance  ruled  that  a 
Commission  decision  to  include  several  Spanish  sites  in  the  Natura  2000-network  does  not 
directly affect the businesses located within them. The actions for annulment of the decision 
therefore were considered inadmissible. 

7.1.2.  Evaluation based on the current situation 

Despite  the  small  number  of  legal  instruments  in  this  field,  nature  conservation  legislation 
accounts for between a fifth and a quarter of environmental infringements. The nature sector 
accounts  for  the  highest  number  of  open  environmental  cases.  The  high  number  of  cases  in 
the nature sector is due mainly to the extent of the network, which now includes around 25, 
000  sites:  there  are  Natura  2000  sites  in  the  vicinity  of  nearly  every  EU  citizen.  This  is 
positive  in  as  much  as  it  brings  the  EU  close  to  its  citizens  but  it  also  means  that  the 
Commission  receives  a  lot  of  complaints  about  threats  to  these  sites.  Although  the  demand 
from  citizens,  specialised  and  active  NGOs  and  the  European  Parliament  is  high,  the 
complaint  and  legal  enforcement  mechanisms  for  nature  conservation  in  the  Member  States 
are often weak or inappropriate.  

In  order  to  rationalise  the  handling  of  this  high  number  of  cases  and  ensure  the  effective 
implementation of the nature directives, the Commission has taken several measures, which 
can be divided into three categories: 

•  Focus on the main implementation priorities: the core obligations of the directives 
transposition  and 
were  effectively  addressed  (i.e.  correct  and  complete 
establishment  of  the  Natura2000  network),  while  systemic  problems  of  bad 
implementation were tackled (e.g. hunting derogations). 

•  Proactive  cooperation  with  Member  States:  this  includes  the  drafting  of 
interpretative guidance documents for the main provisions of the nature directives; 
the development of targeted guidance for economic sectors such as the port sector, 
wind  energy,  the  non-energy  extractive  industry,  and  inland  waterways,  which 
have particular challenges in relation to the legislation; training of the competent 
authorities;  regular  contacts  with  the  national,  regional  and  local  authorities, 
establishment of the “GreenEnforce Network“. 

•  Improvements  in  the  handling  of  complaints:  specific  methods  have  been 
developed  with  the  purpose  of  helping  the  complainants  (i.e.  ad  hoc  nature 
supplementary  information  form,  which  guides  the  complainants  as  regards  the 
information  needed  to  evaluate  a  complaint)  and  making  more  effective  use  of 
complaints (i.e. grouping of complaints in order to focus on systemic breaches). 

Those  measures  have  had  a  significant  effect,  as  they  resulted  in  the  reduction  of  the 
implementation deficit. This is also confirmed by the number of open cases, which has been 

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significantly  reduced,  despite  the  accession  of  12  new  Member  States.  At  the  end  of  2003, 
589 open cases were related to the nature conservation directives while, at the end of 2008, 
168 nature cases were open. 

7.1.3.  Evaluation results 

7.1.3.1.  Priorities 

Priorities will be the following:  

•  Completing the establishment stage of the Natura 2000 network. The terrestrial part of the 
Natura 2000 network is either established or close to establishment in accordance with the 
Habitats and Birds Directives. Habitats and species coverage still needs to be extended in 
places,  mainly  in  the  EU-12  Member  States,  and  legal  action  will  be  pursued  against 
Member  States  when  necessary.  The  process  has  been  launched  to  finalise  the 
establishment of marine sites. Since the scientific knowledge and information available on 
the  existence  and  distribution  of  marine  habitat  and  species  remains  incomplete,  the 
Member  States  were  expected  to  submit  their  proposals  by  end  2008,  based  on  existing 
knowledge,  while  pursuing further necessary surveys. In  order to facilitate  the process, a 
guidance  document  has  already  been  prepared  by  the  Commission  services.  First 
Biogeographic  Seminars  will  take  place  in  2009.  A  guidance  document  on  introducing 
fisheries  measures  for  marine  Natura  2000  sites  in  the  context  of  the  Common  Fisheries 
Policy has also been prepared. 

•  Ensuring a systematically correct approach to Natura 2000 site protection. To enable the 
Natura  2000  network  to  achieve  its  goal  of  conserving  key  elements  of  Europe’s 
biodiversity,  there  needs  to  be  proper  scrutiny  and  minimisation  of,  the  impacts  of 
potentially damaging plans and projects in line with ECJ case-law. Ensuring application of 
best scientific knowledge, examination of alternatives and, where appropriate, provision of 
compensatory  habitats  are  all  major  challenges.  In  this  regard,  the  Commission  services 
issued a guidance document on Article 6(4) of the Habitats Directive, a key provision for 
the  implementation  of  the  nature  directives.  In  addition,  the  Commission  intends  to 
promote  best  practice  within  specific  economic  sectors,  such  as  European  ports,  wind 
energy, non-extractive industries and inland waterway transport. 

•  Ensuring  overall  positive  management  of  Natura  2000  network.  Apart  from  vetting 
potentially  damaging  plans  and  projects,  Member  States  need  to  set  up  effective 
management  systems for  Natura 2000,  supporting human activities such as conservation-
sensitive farming that are beneficial to conservation  objectives  while  also  meeting  socio-
economic needs.  

•  Prioritisation  of  Commission’s  legal  enforcement  work.  In  the  coming  years,  the 
Commission  will  continue  to  pursue  its  legal  enforcement  action  to  help  meet  the  main 
objectives of the nature conservation legislation. To this effect, high priority will continue 
to  be  given  to  pursuing  infringement  cases  concerning  significant  non-conformity  of 
national implementing legislation with the Birds and Habitats Directives, insufficient site 
designations  (mainly  in  the  EU-12  Member  States  and  for  marine  sites)  and  the  lack  of 
adequate  legal  protection  and  management  regimes  for  the  Natura  2000  sites.  Focus  will 
also  be  on  addressing  breaches  concerning  big  infrastructure  projects  or  interventions 
involving EU funding that  have  significant adverse impacts on Natura 2000 sites. In this 
context,  the  Commission  will  take  into  account  considerations  such  as  irreversible 

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ecological damage and, where appropriate, seek interim measures from the European Court 
of  Justice126.  Infringements  concerning  unsustainable  hunting  practices  in  some  Member 
States  will  also  be  followed  up  closely.  In  order  to  better  handle  individual  complaints 
pointing  to  widespread  problems  of  bad  implementation,  the  established  practice  of 
launching  horizontal  infringement  cases  will  continue  to  be  followed.  The  approach  in 
implementing EC  legislation in general is set out  in the Commission  Communication "A 
Europe of results – Applying Community law" (COM(2007)502 final)127. The approach to 
be taken in the implementation of EC environmental law in particular is laid down in the 
Commission Communication on implementing European Community Environmental Law 
(COM(2008)773 final)128. 

7.1.3.2.  Planned action (2009 and beyond) 

In  addition  to  planned  actions  described  under  the  previous  point,  the  Commission  will 
publish  in  2009  a  Communication  on  the  conservation  status  of  Species  and  Habitats 
protected  under  the  Habitats  Directive  following  reports  submitted  by  the  Member  States 
under Article 17 of the Habitats Directive. This assessment together with the final report on 
the implementation of the Biodiversity Action Plan due in 2010 will provide the basis upon 
which the Commission will consider the need to review the existing nature legislation.  

7.1.4. 

Summary by sector 

As regards the designation of Special Protection Areas and Sites of Community Importance as 
part of the Natura 2000 network, further substantial progress was made in 2008. In December 
2008,  the  Commission  adopted  eight  decisions  updating  existing  or  establishing  new 
Biogeographic  Lists  of  Sites  of  Community  Importance  (SCIs).  The  additions  include  769 
new sites and a total area of 95,522 km2.  

Most  Member  States  are  now  in  a  process  of  designating  their  Sites  of  Community 
Importance as Special Areas of Conservation (SAC) according to Article 4(4) of the Habitats 
Directive. Member States have to designate their SCI as SACs not later than six years after 
the inclusion of the sites in a Community list. The deadline for designation as SAC most sites 
on the list of the Macaronesian biogeographical region was on 28 December 2007. For most 
sites  of  the  Alpine  biogographical  region  the  deadline  for  SAC  designation  is  22  December 
2009 and for most sites of the Atlantic and Continental regions it will be 7 December 2010. 
Infringement  procedures  have  been  launched  for  the  non-designation  of  SACs  in  the 
Macaronesian  region.  One  of  the  future  main  challenges  will  be  to  launch  and  manage 
corresponding infringements for the sites in the remaining regions in case they have not been 
designated as SACs before the respective deadlines. 

Species  protection  continues  to  constitute  a  challenge  when  implementing  the  Nature 
Directives. The species listed in the Directives shall be strictly protected but they can also be 
hunted provided the conditions in the Directives are fulfilled. The proper functioning of the 

126 

127 
128 

In the last two years the Commission has three times sought for interim measures in nature protection 
cases. In cases C-503/06, Commission v. Italy and C-76/08, Commission v. Malta, the Court ordered the 
Member States to halt illegal hunting activities on 19 December 2007 and 24 April 2008 respectively. 
In  case  C-193/07,  Commission  v.  Poland,  the  Commission  sought  interim  measures  from  the  ECJ  to 
prevent  a  Polish  motorway  project  causing  serious  habitat  damage:  the  request  was  dropped  when 
Poland agreed to halt the relevant works pending an ECJ judgment. 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0502:FIN:EN:PDF 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0773:FIN:EN:PDF 

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   EN 

                                                 
Natura  2000-network  is  ensured  by  hunting  derogations  granted  on  correct  grounds  and  by 
appropriate  protection  regimes  and  management  of  protected  sites,  including  of  the  species 
present there. 

The priorities in the Nature sector have largely remained the same from previous years. Legal 
enforcement  work  in  this  sector,  as  in  other  environment  sectors,  must  be  prioritised  in  the 
interest of the efficient pursuit of the objectives of environment legislation. The approach to 
be  taken  in  the  implementation  of  EC  environmental  law  in  particular  is  laid  down  in  the 
Commission  Communication  COM(2008)773  final  on  implementing  European  Community 
Environmental Law. 

Therefore, in the coming years, the Commission will continue to pursue its legal enforcement 
action to help meet the main objectives of the nature conservation legislation. To this effect, 
high priority will continue to be given to pursuing infringement cases concerning significant 
non-conformity of national implementing legislation with the Birds and Habitats Directives, 
insufficient site designations (mainly in the EU-12 Member States) and the lack of adequate 
legal  protection  and  management  regimes  for  the  Natura  2000  sites.  Focus  will  also  be  on 
addressing  breaches  concerning  big  infrastructure  projects  or  interventions  involving  EU 
funding  that  have  significant  adverse  impacts  on  Natura  2000  sites.  In  this  context,  the 
Commission will take into account considerations such as irreversible ecological damage and, 
the  European  Court  of  Justice129. 
where  appropriate,  seek 
Infringements concerning unsustainable hunting practices in some Member States will also be 
followed  up  closely.  In  order  to  better  handle  individual  complaints  pointing  to  widespread 
launching  horizontal 
problems  of  bad 
infringement cases will continue to be followed. 

the  established  practice  of 

interim  measures  from 

implementation, 

7.2.  Waste Management 

7.2.1.  Current position 

7.2.1.1.  General introduction 

Waste  legislation  covers  a  large  share  of  the  entire  EU  environmental  acquis  and  includes 
thirteen main legislative acts adopted by the European Parliament and the Council and a large 
number of related decisions adopted through comitology procedures. The overall scope of this 
legislation is the prevention or reduction of waste production, the re-use, the recycling, other 
types of recovery than recycling and the disposal of different categories of waste; permitting 
and control of disposal operations, mainly landfills; and shipments of waste within the EU as 
well as to and from third countries.  

129 

In the last two years the Commission has three times sought for interim measures in nature protection 
cases. In cases C-503/06, Commission v. Italy and C-76/08, Commission v. Malta, the Court ordered the 
Member States to halt illegal hunting activities on 19 December 2007 and 24 April 2008 respectively. 
In  case  C-193/07,  Commission  v.  Poland,  the  Commission  sought  interim  measures  from  the  ECJ  to 
prevent  a  Polish  motorway  project  causing  serious  habitat  damage:  the  request  was  dropped  when 
Poland agreed to halt the relevant works pending an ECJ judgment. 

EN 

144 

   EN 

                                                 
The  basic  requirements  are  laid  down  by  the  Waste  Framework  Directive130  which  is 
complemented  by  specific  legislation  addressing  particular  environmental  threats  associated 
with  waste.  This  specific  legislation  includes  harmonised  rules  on  waste  management 
practices, including strict emission limits and operating requirements for the incineration and 
landfill  of  waste;  harmonised  rules  on  shipments  of  waste;  and  product  specific  recycling 
legislation setting targets for collection and recycling and introducing producer responsibility 
principles  for  specific  waste  streams  derived  from  consumer  goods,  in  particular  packaging 
waste,  end  of  life  vehicles,  waste  electrical  and  electronic  equipment,  mining  waste  and 
batteries.131 

7.2.1.2.  Report of work done in 2008 

During  2008,  EU  waste  legislation  was  subject  to  a  major  exercise  of  streamlining, 
simplifying  and  improving  existing  provisions.  This  included  adoption  by  the  European 
Parliament and the Council of a new Waste Framework Directive in November 2008 and the 
Commission's  proposals  to  recast  directives  on  respectively  the  prevention,  re-use  and 
recovery  of  waste  electrical  and  electronic  equipment  and  the  restriction  of  the  use  of 
hazardous substances in such equipment, submitted in December 2008.132 

The  new  Waste  Framework  Directive  replaces 
the  previous  framework  directive 
(2006/12/EC)  and  the  directives  on  hazardous  waste  (91/689/EEC)  and  waste  oils 
(75/439/EEC)  with  effect  from  12  December  2010.  The  Waste  Framework  Directive 
establishes a clear waste hierarchy, i.e. firstly prevention; then preparing for re-use; recycling; 
other recovery, e.g. energy recovery; and finally disposal as a last option. The directive aims 
to  ensure,  together  with  the  Landfill  Directive  (1999/31/EC)  and  the  Waste  Incineration 
Directive  (2000/76/EC),  that  waste  management  operations  are  environmentally  sound  and 
adequately permitted.  

The  Waste  Framework  Directive  forms  a  basis  for  all  other  EU  waste  legislation  by  laying 
down core definitions. The new directive has been modernised and introduces a new approach 
to waste management that encourages the prevention of waste. Member States are required to 
establish  waste  prevention  programmes  (Article  29).  Other  key  requirements  introduced  by 
the new directive concern the obligation to set up separate collection for paper, metal, plastics 
and  glass  and  the  fulfilment  of  a  number  of  targets  on  preparing  for  re-use,  recycling  and 
other material recovery. By 2020, Member States must recycle 50% of their household waste, 
at  least  paper,  metal,  plastics  and  glass,  and  possibly  similar  waste  and  70%  of  their 
construction and demolition waste. Several provisions remain in the new directive, such as the 
key  requirements  for  Member  States  to  adopt  waste  management  plans  (Article  16)  and 
establish integrated and adequate networks for disposal installations (Article 28). 

130 

131 

132 

Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste 
and  repealing  certain  directives  (OJ  L,  312,  22.11.2008  p.  3).  This  Directive  replaces  Directive 
2006/12/EC  of  the  European  Parliament  and  of  the  Council  of  5  April  2006  on  waste  (OJ  L  114, 
27.4.2006, p. 9) and has to be transposed by the Member States by 12 December 2010. 
For  an  entire  list  of  all  EU  waste  legislation,  please  consult  the  Commission's  Europa  web-site 
http://ec.europa.eu/environment/waste/index.htm.  
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council,  on  waste  electrical  and 
electronic  equipment  (WEEE)  SEC(2008)  2933,  SEC(2008)  2934.  Proposal  for  a  Directive  of  the 
European Parliament and of the Council, on the restriction of the use of certain hazardous substances in 
electrical and electronic equipment SEC(2008) 2930, SEC(2008) 2931. 

EN 

145 

   EN 

                                                 
The  Commission  adopted  in  December  2008  proposals  to  recast  the  directives  on  waste 
electrical and electronic equipment ('WEEE') and restrictions on hazardous substances in such 
equipment  ('RoHS').  These  directives  aim,  inter  alia,  at  diverting  WEEE  from  landfills  and 
incinerators  to  environmentally  sound  re-use  and  recycling  and  at  restricting  the  use  of 
hazardous  substances  in  WEEE.  The  proposals  aim  to  develop  a  better  regulatory 
environment,  one  that  is  simple,  understandable,  effective  and  enforceable.  The  scope  and 
definitions  of  both  directives  would  thus  be  clarified.  The  proposed  directives  would  also 
improve  their  coherence  with  other  EU  legislation  such  as  the  Waste  Framework  Directive 
and REACH and the recent "Marketing of Products" package133.  

The proposals would enhance the implementation and enforcement of current provisions and 
lessen  the  administrative  burden  on  businesses.  It  is  proposed  to  harmonise  registration  and 
reporting  obligations  for  producers  and  to  make  national  registers  interoperable.  It  is 
estimated  that  savings  under  the  proposed  revised  directives  would  amount  to  some  €66 
million.  The  directives  seek  to  better  control  the  illegal  trade  of  electrical  and  electronic 
equipment.  In  this  respect  the  proposed  changes  of  the  WEEE  Directive  includes  minimum 
monitoring  requirements  intended  to  strengthen  Member  States'  inspection  and  monitoring 
with  an  emphasis  on  controlling  waste  treatment  and  waste  shipments.  In  addition,  the 
proposed  revised  WEEE  directive  sets  new  binding  targets  for  the  collection,  reuse  and 
recycling of electrical and electronic equipment. 

A number of new key legislative measures concerning waste were also voted favourably by 
the  technical  adaptation  committees  and  adopted  by  the  Commission  through  comitology 
procedures. Such measures included hazardous waste, end of life vehicles and batteries. 

The delays for Member States to transpose two major pieces of waste legislation expired in 
May  2008  for  the  Directive  2006/21/EC  on  mining  waste134;  and  in  September  2008  for 
Directive 2006/66/EC on batteries and accumulators135. Concerning the Directive on mining 
waste full transposition has been achieved for 13 Member  States and for 15  Member States 
concerning Batteries Directive. In 2008 the Commission initiated legal enforcement actions in 
several cases concerning Member States' failure to communicate their transposition measures 
of those directives.  

The  Commission  also  carried  out  a  number  of  studies  and  taken  legal  action  as  regards  the 
conformity of national transposition measures with several key waste directives, in particular, 
the end of life vehicles directive (ELV), RoHs and the WEEE directive: 

•  With  regard  to  ELV  Directive,  conformity  has  been  achieved  for  seven  Member 
States.  In  2008  the  Commission  has  continued  enforcement  actions  concerning  non-
conform national legislation. As of December 2008, six infringement procedures were 
ongoing against Belgium, Denmark, Finland, France, Italy and Sweden. In 2009, as a 
horizontal exercise for remaining 14 Member States, the Commission will assess the 
national  legislation  in  cooperation  with  the  relevant  Member  States  and  take  legal 
enforcement action where necessary.  

133 

134 
135 

COM(2007)35  final,  Communication  from  the  Commission  to  the  European  Parliament,  the  Council 
and  the  European  Economic  and  Social  Committee,  The  Internal  Market  for  Goods:  a  cornerstone  of 
Europe’s competitiveness Brussels, 14.2.2007. 
OJ L 102, 11.4.2006, p. 15. 
OJ L 266, 26.9.2006, p. 1. 

EN 

146 

   EN 

                                                 
•  With regard to WEEE Directive, conformity is achieved for seven Member States. In 
2008  the  Commission  continued  legal  enforcement  actions  opened  in  2007 
horizontally  against  a  number  of  Member  States.  As  of  end  of  2008,  infringement 
cases  were  open  for  15  Member  States  (Czech  Republic,  Denmark,  Estonia,  Spain, 
Finland,  France,  Ireland,  Hungary,  Italy,  Luxembourg,  Lithuania,  Latvia,  Portugal, 
Sweden  and  Slovakia).  In  2009,  the  Commission  in  cooperation  with  the  remaining 
Member States (Malta, UK, Belgium, Bulgaria and Romania) will assess their national 
legislation and take legal enforcement action where necessary.  

•  With regard to RoHS Directive, legal assessments finalised in 2008 show that correct 
transposition is achieved by 15 Member States, for 8 of them after legal enforcement 
actions  were  launched.  As  of  end  of  2008,  infringement  cases  were  open  for  9 
Member  States  (Czech  Republic,  Denmark,  Spain,  Finland,  France,  Hungary,  Italy, 
Sweden  and  Slovakia).  In  2009  the  Commission  in  cooperation  with  Romania  and 
Bulgaria  will  finalise  the  assessment  of  their  national  legislation  and  will  take  legal 
enforcement action where necessary. 

In 2008, Member States reported on the achievement of the collection and recycling targets of 
the  ELV  directive,  the  WEEE  directive  and  the  Packaging  waste  directive  and  shipment  of 
waste  regulation.  After  the  Commission  sent  reminders  to  Member  States  about  their 
reporting  obligations  in  2007,  in  2008  legal  enforcement  action  was  launched  against  11 
Member States concerning failure to fulfil reporting obligations under the Council Regulation 
259/93/EEC  and  Regulation  1013/2006/EC  on  waste  shipments.  In  2009,  legal  enforcement 
actions will be launched against 9 Member States for not fulfilling their reporting obligations 
under one or more of those Directives. 

With  regard  to  transposition  of  the  Landfill  Directive  1999/31/EC,  legal  action  was  taken 
against 15 Member States for inadequate transposition. To date most of these cases have been 
closed.  Second  warning  letters  were  sent  to  4  Member  States  (Denmark,  Czech  Republic, 
Estonia and France) and 3 Member States (Belgium, France and Spain) were referred to the 
European Court of Justice. The assessment of Bulgaria's and Romania's legislation is ongoing. 

In 2008, there has been one judgment related to illegal landfills (C-442/06 against Italy). The 
two  horizontal  cases  against  France  (C-423/05)  and  Italy  (C-135/05)  are  followed  up  in  the 
Article 228 EC procedure. A first written warning was sent to Italy and to France in 2008. In a 
horizontal  case  against  Spain  concerning  a  significant  number  of  illegal  and  uncontrolled 
landfills, a final written warning was sent in 2008. After a final written warning for Spain's 
failure to comply with the Court ruling C-157/04 (La Gomera) Spain has complied with the 
judgment and the case was closed in 2009.  

With regard to the serious situations in Italy, Campania region and Bulgaria, Sofia concerning 
deficient  implementation,  in  2008  the  Commission  has  worked  very  closely  with  both 
Member  States.  A  final  warning  to  Bulgaria  was  sent  in  November  2008  for  its  failure  to 
provide an adequate system for the disposal of household waste in Sofia. Concerning Italy in 
June  2007  the  Commission  launched  legal  action  against  Italy  over  the  chronic  waste  crisis 
affecting  Naples  and  the  rest  of  the  Campania  region.  The  Commission  considers  that  Italy 
failed to set up an adequate and integrated waste management system in the Campania region 
and to guarantee that waste is collected, treated and disposed of without endangering human 
health and the environment. In view of the continuation of the infringement, the Commission 
referred  the  case  to  Court  of  Justice  in  July  2008.  The  case  is  currently  pending  before  the 
ECJ. 

EN 

147 

   EN 

During 2008 a number of specific actions were carried out in order to address two particularly 
serious  and  wide-spread  implementation  deficits:  illegal  waste  disposal  and  illegal  waste 
shipments.  

•  A  series  of  thirty  awareness  events  and  information  exchanges  with  Member  States  and 
stakeholders  were  completed.  The  events  aimed  to  promote  better  enforcement  and 
inspections  on  the  ground,  focusing  on  illegal  waste  shipments  and  illegal  landfills. 
Following the events a number of conclusions were drawn and a set of recommendations 
were published in a report available on the Commission's Europa web-site.136 

•  The  Commission  supported  via  service  contracts  the  carrying  out  of  a  number  of  joint 
enforcement actions and exchange programs concerning the EU waste shipment regulation, 
organised  by  IMPEL's  cluster  for  transfrontier  shipments  (IMPEL-TFS);  and  inspections 
and monitoring of landfills in co-operation with IMPEL. 

•  A  help-desk  for  the  implementation  of  EU  waste  legislation  was  established  in  order  to 
investigate  and  analyse  inquiries  received  from  citizens,  stakeholders  and  national 
authorities on the implementation and interpretation of the Waste Shipment Regulation and 
the Waste Framework Directive. 

•  Bilateral and multilateral meetings with Member States and stakeholders, including regular 
meetings of a 'Waste Directors' Informal Group', were organised with a view to assist and 
discuss with Member States and stakeholders on issues concerning the implementation of 
EU waste legislation. 

•  Studies  were  initiated  and  are  being  carried  out  in  order  to  examine  how  to  best  address 
implementation problems in the future, for example a feasibility study on the establishment 
of  a  waste  implementation  agency  and  the  need  for  clear  and  specific  criteria  relating  to 
waste shipment inspections and controls. 

Judgments of the Court of Justice in 2008 

A  number  of  important  ECJ  judgments  were  delivered  in  2008.  Italy  was  condemned  for 
incorrect  transposition  of  some  provisions  of  Directive  1999/31/EC  on  landfill  of  waste  (C-
442/06,  10  April  2008,  Commission/Italy)  and  was  condemned  for  maintaining  in  its  law 
provisions  excluding  from  waste  definition some  substances (C-283/07, 22 December 2008, 
Commission/Italy).  The  waste  legislation  remains  one  of  the  main  sources  for  preliminary 
ruling  references  by  national  Courts,  in  particular  as  regard  the  definition  of  waste  and  the 
qualification  of  by-product  (C-188/07,  24  June  2008,  Commune  de  Mesquer;  C-387/07,  11 
December  2008,  MI.VER  Srl).  It  is  expected  that  the  new  legislation  adopted  in  2008 
(Directive 2008/98/EC to be transposed by 12 December 2010) will reduce the uncertainty in 
these domains. In addition, the Court clarified definitions and as regard Directive 2000/76/EC 
on incineration of waste (C-251/07, 11 September 2008, Gävle Krafvärme AB and C-317/07, 
4  December  2008,  Lahti  Energia  Oy).  The  Court  annuled  point  2  of  Commission  Decision 
2005/717/EC as regards tolerances for decaBDE in electric and electronic products (C-14/06, 
1  April  2008,  Parliament/Commission).  As  a  consequence,  from  1  July  2008,  decaBDE  is 
banned from these products. 

136 

The Commission's Europa web-site: http://ec.europa.eu/environment/waste/index.htm.  

EN 

148 

   EN 

                                                 
7.2.2.  Evaluation based on the current situation 

The  overall  situation  of  implementation  of  EU  waste  legislation  is  critical.  The  existing 
implementation  deficits  result  in  significant,  negative  impacts  for  citizens'  health  and 
environment and are widespread throughout the EU. A constantly high number of complaints 
and  petitions137  are  received  concerning  illegal  landfills  in  several  Member  States,  illegal 
waste  shipments  are  frequently  occurring,  notably  electronic  waste  and  end-of-life  vehicles, 
and there is a lack of adequate waste management infrastructure in several Member States. 

The implementation gaps as regards illegal landfills and illegal waste shipments and the lack 
of  adequate  waste  management  infrastructure  remain  persistent  in  large  parts  of  the  EU, 
although the Commission has initiated several actions during 2007 in order to bridge the gaps. 

Further considerable pressure emanates from the fact that by 16 July 2009 all landfills in the 
EU either had to be fully compliant with the technical requirements of the landfill Directive or 
had to be closed. It is not excluded that a number of Member States will not be in a position to 
fulfil this requirement. 

7.2.3.  Evaluation results 

7.2.3.1.  Priorities 

In  view  of  the  seriousness  of  many  existing  infringements,  in  particular  relating  to  illegal 
waste disposal and gaps in waste infrastructure, and due to the long time duration they have 
persisted,  a  high  priority  should  be  given  to  effectively  pursuing  legal  enforcement  actions 
and  proceedings  before  the  Court  of  Justice.  Specific  focus  should  be  given  to  address 
structural and systemic failures by Member States to take effective actions in order to address 
these problems. 

The wide-spread nature of these implementation deficits in large parts of the EU justify that 
they also remain a priority for the Commission's preventive measures next year. The current 
actions  should  continue  with  a  focused  approach  addressing  specific  problems  identified  in 
each of the Member States concerned through bilateral events and meetings. These preventive 
actions should be extended beyond illegal landfills and illegal waste shipments. The serious 
situations of deficient implementation of European waste legislation in the Campania region 
in  Italy  and  Sofia  in  Bulgaria  demonstrate  also  that  improvements  are  needed  beyond  the 
development  of  adequate  waste  management  infrastructure  such  as  waste  prevention 
programmes  and  public  awareness  raising,  the  development  of  recycling  capacities  and  a 
system of separate waste collection. 

Certain key requirements to be implemented by Member States during 2009 should be given a 
high priority. These include the achievement of EU waste reduction and management goals, 
such  as  the  diversion  of  biodegradable  waste  from  landfills;  and  the  obligation  that  all 
landfills comply with the requirements of the Landfill Directive by 16 July 2009. 

As regards illegal waste shipments, the lack of proper enforcement and effective controls and 
inspections  appear  to  be  a  fundamental  problem  in  large  parts  of  the  EU.  The  studies  and 
service  contracts  initiated  by  the  Commission  should  be  completed  with  a  view  to  identify 

137 

At  the  end  of  2008,  the  complaints  and  infringements  concerning  EU  waste  legislation  represented 
nearly 25% of all environmental complaints and infringements. 

EN 

149 

   EN 

                                                 
how  precise  and  clear  criteria  for  waste  shipment  inspections  and  controls  could  be 
established. 

Another  important  priority  is  to  achieve  better  implementation  of  EU  waste  legislation  as  a 
support  to  EU's  industry  and  trade  in  the  waste  sector.  If  properly  implemented,  EU  waste 
legislation may provide opportunities for enterprises to innovate. EU's waste management and 
recycling industries are already making substantial contributions to the EU economy and are 
constantly  developing.  The  legislation  and  its  implementation  should  also  serve  to  take  the 
interests of these stakeholders into consideration. This may provide important gains for both 
environmental  and  enterprise  policies,  for  example  by  providing  better  access  to  secondary 
raw materials or converting one of the most important greenhouse gases - methane gas - from 
landfills into electricity. 

7.2.3.2.  Planned action (2009 and beyond) 

The Commission should aim to fulfil the objectives and priorities set out above through the 
following specific actions: 

•  Pursue effectively and consistently legal enforcement and proceedings before the Court of 
Justice concerning illegal landfills and gaps in waste infrastructure, with a particular focus 
on  structural  and  systemic  failures  by  Member  States  to  address  these  problems.  On  the 
basis  of  conformity  studies  and  in  cooperation  with  Member  States  assess  and  where 
necessary  launch  legal  enforcement  actions  concerning  the  conformity  of  national 
transposition measures with the Directive on packaging and packaging waste, Directive on 
landfill of waste, RoHs Directive, WEEE Directive and ELV Directive. 

•  Organise  awareness  events,  information  exchanges  and  other  bilateral  and  multilateral 
meetings  with  Member  States  and  stakeholders,  with  a  targeted  approach  addressing 
specific  problems  identified  in  each  Member  States  and  covering  the  most  serious  and 
wide-spread  implementation  deficits,  including  illegal  landfills,  illegal  waste  shipments 
and  the  lack  of  adequate  waste  management  infrastructure  existing  in  several  Member 
States. 

•  Develop  clear  and  effective  criteria  for  waste  shipment  inspections  and  controls  with  a 
view to strengthen the enforcement of the Waste Shipment Regulation and prevent illegal 
waste shipments. 

•  Closely  monitor  (a)  Member  States'  compliance  with  the  targets  set  in  the  Landfill 
Directive  for  diverting  biodegradable  waste  from  landfills;  (b)  the  obligations  to  ensure 
that  all  landfills  comply  with  this  directive's  requirements,  in  particular  concerning 
obligations  to  close  all  non-conform  landfills  by  16  July  2009;  and  (c)  the  waste 
management capacity and landfill capacity in each Member State. 

•  Improve  the  development  of  waste  management  plans  and  waste  prevention  programmes 

in order to avoid cases such as in Campania region in Italy and in Sofia, Bulgaria. 

•  Promote  the  establishment  of  best  practices  on  implementation  of  EU  waste  legislation, 

with a particular focus on supporting EU's industry and trade in the waste sector. 

•  Publish implementation reports for several pieces of EU waste legislation.138 

138 

EN 

The  directives  on  waste  oils  (75/439/EEC);  sewage  sludge  (86/278/EEC);  hazardous  waste 
(1999/31/EC);  WEEE 
(91/689/EEC);  packaging  and  packaging  waste 
(2002/96/EC);  the  Waste  Framework  Directive  (2006/12/EC);  end  of  life  vehicles  (2000/53/EC);  and 
the Waste Shipment Regulation (259/93/EEC). 

(94/62/EC); 

landfills 

150 

   EN 

                                                 
7.2.4. 

Sector summary 

The overall situation in implementation of EU waste legislation remains critical, in particular 
with  a  view  to  heavily  impacting  landfill  and  waste  shipment  deficiencies.  2008  was 
characterized  through  a  major  breakthrough  on  the  legislative  side  with  the  adoption  of  the 
new Waste Framework Directive which is seen as the major step towards transforming the EU 
into  a  recycling  society  to  be  fit  for  the  next  decade.  The  recast  of  the  WEEE  and  RoHS 
Directives adopted by the Commission in late 2008 will streamline environmentally friendly 
disposal of e-waste and lessen the administrative burden on businesses. 

Legal  enforcement  to  ensure  transposition  of  various  Directives,  such  as  the  Mining  Waste 
and Batteries Directive, with focus on WEEE and RoHS, ELV, Landfill Directives as well as 
reporting  obligations  under  the  Waste  Shipment  Regulation  remains  as  a  priority  in  2009. 
However,  it  will  be  equally  important  to  complement  down  stream  enforcement  action  by 
stepping  up  up-stream  measures  with  a  view  to  enhanced  waste  prevention,  recycling  and 
separate waste collection. 

Efforts in combating illegal landfill have considerably been stepped up in 2009. As from 16 
July 2009 all non-compliant landfills in Europe had to be closed. Therefore, 2009 is the year 
in which monitoring of compliance with targets set in different pieces of legislation as well as 
legal enforcement through infringement action will continue on a high pace. Such action will 
be supplemented by awareness raising events with Member States and stakeholders on landfill 
and  waste  shipment.  Furthermore,  criteria  will  be  developed  with  a  view  to  strengthening 
implementation  through  inspection,  notably  for  the  Waste  Shipment  Regulation  and  the 
Landfill Directive. It will also be necessary to develop a strategy in order to avoid cases of 
total failure waste management such as in Campania and Sofia. 

7.3. 

Environmental Impact Assessment and Strategic Environmental Assessment 

7.3.1.  Current position 

7.3.1.1.  General introduction 

There are two important pieces of legislation in this sector: Council Directive 85/337/EEC139 
on the assessment of the effects of certain public and private projects on the environment, as 
amended  by  Directives  97/11/EC140  and  2003/35/EC141  (the  EIA  Directive)  and  Directive 
2001/42/EC of the European Parliament and of the Council on the assessment of the effects of 
certain plans and programmes on the environment (the SEA Directive142) 

The  EIA  Directive  obliges  Member  States  to  carry  out  environmental  impact  assessments 
before  certain  types  of  public  and  private  projects  which  are  likely  to  have  a  significant 
impact on the environment are authorised. 

The  application  and  effectiveness  of  environmental  impact  assessment  legislation,  in 
particular the EIA Directive, has been subject to regular reviews in the past. On the basis of 
such reviews, the EIA Directive was subsequently amended twice, in 1997 and 2003: 

139 
140 
141 
142 

OJ L 175, 05.07.1985 
OJ L 073, 14.03.1997 
OJ L 156, 25.06.2003 
OJ L 197, 21.7.2001, p. 30. 

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(cid:131)  Directive 97/11/EC widened the scope of the EIA Directive by increasing the types of 
project  covered,  and  the  number  of  projects  requiring  mandatory  environmental 
impact  assessment  (Annex  I).  It  also  strengthened  the  procedural  basis  of  the  EIA 
Directive  by  providing  for  new  screening  arrangements,  including  new  screening 
criteria  (at  Annex  III)  for  Annex  II  projects,  and  providing  minimum  information 
requirements. 

(cid:131)  Directive 2003/35/EC was seeking to align the provisions on public participation with 
the  Aarhus  Convention  on  public  participation  in  decision-making  and  access  to 
justice in environmental matters. 

The  SEA  Directive  seeks  to  ensure  that  the  environmental  consequences  of  certain  public 
plans and programmes that are likely to have significant environmental effects are identified 
and assessed while they are being prepared and before they are approved. 

7.3.1.2.  Report of work done in 2008 

The EIA Directive 

The  Commission  is  assessing  the  conformity  of  the  national  transposition  measures 
communicated  and  initiates,  when  necessary,  infringement  procedures.  The  EIA  Directive 
generates  a  relatively  high  number  of  complaints,  due  to  its  large  scope  of  application. 
However, given the essentially procedural character of the obligations laid down, only a small 
number  of  complaints  lead  to  infringement  cases.  The  majority  of  the  infringement  cases 
concern bad (incomplete or incorrect) transposition of the Directive's provisions or failure of 
the  Member  States  to  apply  the  screening  mechanism  (article  4(2)  and  Annex  III  of  the 
Directive). 

In 2008, the Commission opened in total 16 new infringement procedures on the basis of the 
EIA  Directive.  Twelve  cases  were  opened  against  Austria,  Belgium,  Bulgaria,  Czech, 
Germany, Italy, Poland and United Kingdom concerning bad application of the EIA Directive, 
10  of  which  were  based  on  a  complaint.  Four  cases  were  launched  against  Italy,  Poland, 
Romania and Slovenia for non-conform transposition of the EIA Directive. Five cases out of 
those opened in 2008 have already been closed. 

The SEA Directive 

The deadline for transposing the SEA directive expired on 21 July 2004, but significant delays 
in  transposition  have  occurred  in  many  Member  States.  For  this  reason,  the  Commission 
launched  non-communication  infringement  proceedings  against  many  Member  States.  All 
these cases have already been closed since all the Member States have already communicated 
their national transposing measures. 

Thus, in 2008 infringement proceedings for non-conform transposition of the SEA Directive 
were  opened  against  the  following  eleven  Member  States:  Bulgaria,  Czech  Republic, 
Denmark, Estonia, Ireland, Latvia, Lithuania, Malta, Poland, Slovenia and United Kingdom. 
For  some  Member  States  the  cases  have  been  already  closed  following  clarification  of 
national authorities and/ or adoption of necessary amendments ensuring compliance with the 
Directive's requirements (Bulgaria, Latvia, Malta and Poland).  

Judgments of the Court of Justice in 2008 

The EIA Directive has been the subject of several cases brought before the European Court of 

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Justice.  The  case-law  of  the  Court  of  Justice  has  contributed  to  a  better  understanding  of 
certain  provisions  of  the  Directive.  In  2008,  the  ECJ  delivered,  inter  alia,  the  following 
rulings: 

In  Case  C-2/07  (Judgment  of  28/02/2008),  in  relation  to  works  at  Liège-Bierset  Airport, 
which  were  alleged  to  have  promoted  its  use  for  air  freight  services  and  to  have  caused  an 
increase in night flights, the Court confirms that the scope of Directive 85/337 is wide and its 
purpose very broad. The ruling mainly relates to the definition of development consent.  

In  Case  C-215/06  (Judgment  of  03/07/2008),  the  Court  dealt  with  the  issues  of  retention, 
permissions  and  "after-the-event  regularisations"  of  unlawful  operations.  The  Court 
concluded  that  "[…]  by  giving  to  retention  permission,  which  can  be  issued  even  where  no 
exceptional  circumstances  are  proved,  the  same  effects  as  those  attached  to  a  planning 
permission preceding the carrying out of works and development, when, pursuant to Articles 
2(1) and 4(1) and (2) of Directive 85/337 as amended, projects for which an environmental 
impact assessment is required must be identified and then – before the grant of development 
consent  and,  therefore,  necessarily  before  they  are  carried  out  –  must  be  subject  to  an 
application for development consent and to such an assessment, Ireland has failed to comply 
with the requirements of that directive." 

In Case C-142/07 (Judgment of 25/07/2008), the question of application of the EIA Directive 
to  the  Madrid  M-30  urban  ring-road  was  raised  in  a  preliminary  ruling  from  a  Court  of 
Madrid (Spain). The Court has underlined that Directive 85/337/EEC (as amended) "…must 
be  interpreted  as  meaning  that  it  provides  for  environmental  impact  assessment  of 
refurbishment  and  improvement  projects  for  urban  roads,  either  where  they  are  projects 
covered by point 7(b) or (c) of Annex I to the directive, or where they are projects covered by 
point  10(e)  of  Annex  II  or  the  first  indent  of  point  13  thereof,  which  are  likely,  by  virtue  of 
their nature, size or location and, if appropriate, having regard to their interaction with other 
projects, to have significant effects on the environment". 

In Case C-66/06 (Judgment of 20/11/2008 Commission / Ireland), the Court declares that, by 
not  adopting,  in  conformity  with  Articles  2(1)  and  4(2)  to  (4)  of  Council  Directive 
85/337/EEC  of  27  June  1985  on  the  assessment  of  the  effects  of  certain  public  and  private 
projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, all 
measures to ensure that, before consent is given, projects likely to have significant effects on 
the environment that belong to the categories of projects covered by point 1(a) to (c) and (f) 
of Annex II to that directive are made subject to a requirement for development consent and 
to an assessment with regard to their environmental effects in accordance with Articles 5 to 
10 of the directive, Ireland has failed to fulfil its obligations under the directive; 

It  is  interesting  to  note  that  the  Court  considered  (paragraph  85)  that  "It  follows  that,  by 
setting  thresholds  which  take  account  only  of  the  size  of  projects  –  to  the  exclusion  of  the 
other criteria laid down in Annex III to Directive 85/337 – for project categories covered by 
point  1(a)  to  (c)  of  Annex  II  to  the  directive  and  by  not  providing  for  a  case-by-case 
examination  for  those  project  categories  ensuring  that  projects  likely  to  have  significant 
effects on the environment do not escape an assessment of their environmental effects, Ireland 
has exceeded the limits of its discretion under Articles 2(1) and 4(2) of the directive and has 
consequently  not  adopted  all  necessary  measures  to  ensure  that  projects  likely  to  have 
significant  effects  on  the  environment  are  made  subject  to  a  requirement  for  development 
consent and to an assessment of their environmental effects in accordance with Articles 5 to 
10 of the directive." 

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7.3.2.  Evaluation based on the current situation 

7.3.2.1.  Implementation of the EIA-SEA Directives 

In the interests of better implementation of the EIA and the SEA Directive, the Commission 
services  have  developed  in  recent  years  a  number  of  guidance  documents  on  particularly 
important aspects of both directives143. 

In addition, the Commission is currently preparing reports on the application of both the EIA 
and the SEA Directives (expected in mid-2009). Regarding the EIA Directive, pursuant to its 
Article  11(3),  the  Commission  services  are  preparing  the  report  on  the  application  and 
effectiveness  of  the  Directive.  The  report  will  address  and  evaluate  the  status  of  the 
application and effectiveness of the Directive and its implementation by the Member States.  

Regarding  the  SEA  Directive,  the  Commission  services  are  preparing  an  implementation 
report  pursuant  to  Article  12(2)  of  the  Directive.  The  report  will  address  and  evaluate  the 
status  of  the  application  and  effectiveness  of  the  Directive  and  its  implementation  by  the 
Member States. It must be remembered however that the Directive was in fact implemented 
very  recently  in  the  Member  States  (deadline  for  transposition  was  21  July  2004)  and 
consequently the experience in its actual implementation is rather limited. In conclusion, the 
conformity of Member States' legislation cannot yet be considered to have been fully secured.  

7.3.2.2.  Enforcement of the EIA/SEA Directives 

Although the Environmental Impact Assessment sector continues to generate a high number 
of complaints, its contribution to the overall number of open cases has decreased. Most open 
cases in the sector still relate to the EIA Directive, but cases relating to the SEA Directive are 
on the increase. The current situation is satisfactory. 

The majority of the infringement cases related to the EIA Directive concern bad (incomplete 
or  incorrect)  transposition  of  the  Directive's  provisions  or  failure  of  the  Member  States  to 
apply the screening mechanism (Article 4(2) and Annex III of the EIA Directive). 

With regard to the SEA Directive, it is relatively recent and there is not sufficient experience 
on its implementation. Given the similar nature of the obligations between the EIA and SEA 
Directives, it is to be expected that problems in the correct application of the SEA Directive 
will be similar to those encountered in applying the EIA Directive. In terms of enforcement, 
early  signs  are  that  decisions  as  to  whether  smaller  plans  and  programmes  or  modifications 
require an SEA (so-called “screening” decisions) could pose problems of bad application.  

7.3.3.  Evaluation results 

7.3.3.1.  Priorities 

In 2008, the Commission services continued applying the priorities identified in the previous 
report  aiming  at  rationalising  the  handling  of  this  high  number  of  cases  and  ensure  the 
effective  implementation  of  the  EIA  and  SEA  directives.  Those  priorities  were  also 
highlighted  by  the  Commission  in  its  communication  COM/2008/773  and  the  Commission 

143 

http://ec.europa.eu/environment/eia/home.htm  

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staff  working  document  accompanying  the  communication.  The  priority  areas  regarding  the 
enforcement of the EIA and SEA Directives include the following: 

(cid:131)  Non-conformity of transposing  measures  for  the EIA/SEA Directives likely to affect 
the attainment of the legislative objectives. These cases now mainly concern the EU-
12 Member States. 

(cid:131)  Breaches concerning big infrastructure projects or interventions involving EU funding. 
(cid:131)  Breaches linked to bad transposition of certain provisions of the environmental impact 
assessment  legislation  likely  to  affect  overall  the  attainment  of  the  legislative 
objectives. 

(cid:131)  Breaches  that  reveal  interpretation  problems  concerning  certain  provisions  of  the 
environmental impact assessment legislation which could have a significant influence 
on the impact of the legislation that would justify seeking clarification from the Court 
of Justice. 

Apart  from  the  above  cases  where  the  Commission  legal  enforcement  action  might  be 
indispensable,  individual  breaches  of  certain  provisions  of  the  environmental  impact 
assessment legislation should primarily be addressed through the existing review mechanisms 
at Member State level. 

The Commission services will continue implementing the priorities recently identified in the 
sectoral  communication  COM/2008/773  and  the  Commission  staff  working  document 
accompanying the communication.  

Depending on the results of future reports and on their application of the EIA and the SEA 
Directives, further amendments to those priorities cannot be excluded. 

7.3.3.2.  Planned action (2009 and beyond) 

The forthcoming reports on the application of both the EIA and the SEA Directives (expected 
in  mid-2009)  will  form  the  basis  for  future  Commission’s  action  in  the  sector,  including  a 
simplification exercise, in terms of clarification of certain provisions of the EIA Directive. 

With  regard  to  EIA  Directive,  based  on  the  findings  of  the  report  the  Commission  services 
will consider appropriate amendments that may lead to a simplification exercise, in terms of 
clarification  of  certain  provisions  of  the  EIA  Directive,  following  the  accession  of  the  new 
Member States, probably through a recast initiative. This will aim to ensure better regulation, 
clearer  provisions  and  strengthened  compliance  by  the  Member  States,  inter  alia  with  the 
relevant rulings of the ECJ.  

With  regard  to  SEA  Directive,  in  light  of  short  experience  on  its  implementation,  it  is 
considered that amendments would be premature at this stage. 

7.3.4. 

Sector summary  

The  EIA  Directive  has  achieved  its  major  objectives.  At  present,  all  Member  States  have 
established relevant comprehensive regulatory frameworks. The EIA Directive is seen as one 
of the EU principal pieces of environmental legislation. However, since the development of 
EIA is an evolving process, the challenge of ensuring that the Directive is implemented in an 
effective  and  consistent  manner  across  all  Member  States  is  continuous.  The  forthcoming 
review  on  the  application  and  effectiveness  of  the  Directive  will  use  the  twenty-year 
implementation experience gained in order to address this challenge. This forthcoming report 

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will  form  the  basis  for  future  Commission’s  action  in  the  sector,  including  a  simplification 
exercise. 

The  SEA  Directive  is  recent  and  there  is  not  sufficient  experience  on  its  implementation. 
Amendments are premature at this stage. The Commission services are currently preparing an 
implementation report, pursuant to Article 12(2) of the Directive. The report will address and 
evaluate the status of the application and effectiveness of the Directive and its implementation 
by the Member States.  

The Commission services will continue the implementation of both Directives on the basis of 
the  priorities  recently  identified  in  the  sectoral  communication  COM/2008/773  and  the 
Commission staff working document accompanying the communication.  

7.4. 

Protecting Water Resources 

7.4.1.  Current position 

7.4.1.1.  General introduction  

Water  legislation  in  the  European  Union  entered  a  new  era  following  the  adoption  of  the 
Water Framework Directive144 which establishes a strategic framework for the protection of 
all  water  bodies,  i.e.  rivers,  lakes,  coastal  waters  and  groundwater  in  a  highly  integrated 
manner. As the cornerstone of EU water policy, the Water Framework Directive provides that 
all water bodies must meet the standard of “good status” as a rule by the end of 2015. To do 
so, Member States must draw up a river basin management plan (RBMP) and a programme of 
measures  for  each  river  basin  district.  The  draft  plans  and  programmes  must  have  been 
submitted to the public for consultation by December 2008 at the latest. It is then foreseen that 
they will be adopted by December 2009.  

The  Water  Framework  Directive  will  repeal  all  existing  EU  water  acts  by  December  2013, 
except  the  Urban  Waste  Water,145  Drinking  Water,146  Bathing  Water147  and  Nitrates 
Directives.148 The implementation of the Water Framework Directive must not jeopardise the 
achievement of the objectives of these remaining EU water acts and vice-versa.  

The  Urban  Waste  Water  Directive,  in  particular,  is  a  key  element  of  EU  water  policy  for 
achieving the Water Framework Directive environmental objective of good status. The Urban 
Waste  Water  Treatment  Directive  requires  that  wastewater  generated  by  agglomerations  is 
collected  and  made  subject  to  secondary  treatment  before  being  discharged  into  the  natural 
environment. More stringent treatment must be applied when wastewater is discharged into so 
called sensitive areas. The original EU15 Member States should have achieved the objectives 
of the Directive in 1998 for sensitive areas, in 2000 for large towns and cites discharging in 

144 

145 
146 

147 

148 

Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a 
framework for Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1–73). 
Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ L 135, 30.5.1991). 
Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 
L330, 5.12.1998). 
Directive  76/160/EEC  of  8  December  1975  concerning  the  quality  of  bathing  water  (OJ  L031, 
5.2.1976).  This  Directive  is  in  the  process  of  being  replaced  by  Directive  2006/7/EC  of  15  February 
2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC (OJ L 
of 4.2.2006). 
Council  Directive  91/676/EEC  of  12  December  1991  concerning  the  protection  of  waters  against 
pollution caused by nitrates from agricultural sources (OJ L 375, 31.12.1991, p. 1–8). 

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normal  areas  and  by  2005  for  smaller  towns  discharging  in  normal  areas.  Regarding  newer 
EU12  Member  States,  which  joined  the  EU  in  2004  and  2007,  their  Accession  Treaties 
provide for extended time periods to meet the objectives of the Directive.  

The Drinking and Bathing Water Directives require Member States to meet binding quality 
standards to ensure safe drinkable water from the tap and clean water for bathing, to monitor 
whether the standards are complied with and to inform consumers and the public accordingly.  

The  Nitrates  Directive  is  also  an  important  instrument  which  deals  with  the  relationship 
between agriculture and water quality. In order to reduce and prevent water pollution caused 
by  nitrate  pollution  originating  from  agricultural  sources,  Member  States  must  designate  so 
called nitrate vulnerable zones and then adopt and implement action programs in these zones 
with  the  aim  of  diminishing  nitrate  and  fertilizer  inputs  to  land.  Monitoring  programs  are 
required to be set up to assess the efficiency of these action programs.  

As  a  complementary  requirement  to  the  Water  Framework  Directive,  water  directives  have 
also  been  adopted  in  recent  years  in  the  field  of  floods,149  marine  waters150  and 
groundwater.151  

7.4.1.2.  Report of the work done in 2008 

Management of the acquis, new legislation and preventive measures  

The  implementation  of  the Water  Framework  Directive  in  2008  was  characterised  by  three 
main  developments.  Firstly,  15  Member  States  published  their  draft  RBMPs  for  public 
consultation, with the remaining Member States planning to publish theirs by June 2009. The 
Commission  also  developed  a  preliminary  outline  for  compliance-checking  in  consultation 
with Member States to form the basis on which the Commission will assess the content of the 
final  RBMPs  in  2010.  Secondly,  the  Commission  adopted  Decision  2008/915/EC  on  the 
results of the intercalibration exercise to ensure that the values used by national authorities to 
monitor  and  assess  the  ecological  status  of  surface  water  bodies  are  comparable  among 
Member States.152 Thirdly, Directive 2008/105/EC was adopted setting environmental quality 
standards  (EQS)  for  the  pollutants  identified  under  the  Water  Framework  Directive  as 
“priority  substances”  and  certain  other  pollutants.153  Member  States  must  use  these  EQS  to 
determine whether the chemical status of surface water bodies is "good".  

The  Commission  continued  the  stakeholder  consultation  process  on  the  future  eventual 
revision of the Drinking Water Directive in 2008 and also drew up two guidance documents 
to support the implementation of the new Bathing Water Directive: Decision 2009/64/EC on 

149 

150 

151 

152 

153 

Directive  2007/60/EC  of  the  European  Parliament  and  of  the  Council  of  23  October  2007  on  the 
assessment and management of flood risks (OJ L 288, 6.11.2007, p. 27–34). 
Directive 2008/56/EC of 17 June 2008 establishing a framework for community action in the field of 
marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, p. 19-40). 
Directive  2006/118/EC  of  the  European  Parliament  and  of  the  Council  of  12 December  2006  on  the 
protection of groundwater against pollution and deterioration (OJ L 372, 27.12.2006, p. 19–31).  
Commission Decision 2008/915/EC of 30 October 2008 establishing, pursuant to Directive 2000/60/EC 
of  the  European  Parliament  and  of  the  Council,  the  values  of  the  Member  State  monitoring  system 
classifications as a result of the intercalibration exercise (OJ L 332, 10.12.2008, p. 20–44). 
Directive  2008/105/EC  of  the  European  Parliament  and  of  the  Council  of  16 December  2008  on 
environmental  quality  standards  in  the  field  of  water  policy,  amending  and  subsequently  repealing 
Council  Directives  82/176/EEC,  83/513/EEC,  84/156/EEC,  84/491/EEC,  86/280/EEC  and  amending 
Directive 2000/60/EC of the European Parliament and of the Council (OJ L 348, 24.12.2008, p. 84–97). 

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the equivalence on microbiological monitoring data allowing the use of alternative monitoring 
methods154  and  a  guidance  document  that  provides  advice  to  Member  States  for  the 
establishment of the bathing water profiles by the 2011 deadline. 

With a view to improving the implementation and enforcement of the Drinking and Bathing 
Water Directives, Member States have used, for the first time, the Water Information System 
for  Europe  electronic  platform  (WISE)  to  meet  their  obligations  to  report  on  drinking  and 
bathing water quality in 2008.155 In the field of reporting, an important implementation step 
regarding  the  Urban  Waste  Water  Directive  was  the  creation  of  the  first  ever  EU-wide 
electronic data collection on waste water infrastructure and performance of treatment plants, 
adapted to the requirements and principles of WISE.  

As  to  the  implementation  of  the  Nitrates  Directive,  the  Nitrates  committee  made  up  of 
Commission and Member State representatives was convened three times in 2008 mainly to 
discuss derogations requested by Denmark, The Netherlands and the United Kingdom. These 
meetings resulted in the adoption of Decision 2008/664/EC allowing Denmark to apply higher 
amounts of livestock manure to land156 and discussions over the Dutch and British derogation 
requests  prepared  the  ground  for  further  derogation  Decisions  in  2009.  In  addition,  the 
Commission continued to assess the implementation of the Nitrates Directive in the various 
Member States, in particular focusing on implementation in France, Greece, Poland, Latvia, 
Lithuania and the Netherlands. 

Management of complaints and of infringements 

The 2008 enforcement work of the Commission in respect of the Water Framework Directive 
mainly concerned its transposition into the law of the Member States:  

•  Non-communication  of  transposing  national  measures:  Italy  and  Luxembourg  were  the 
two  remaining  Member  States,  which  had  still  to  notify  national  transposing  measures. 
Once  a  new  water  Italian  law  had  been  adopted,  the  Commission  was  able  to  close  the 
Case it had initiated against Italy which had led to a Court ruling (C-85/05). Luxembourg 
adopted and published the missing domestic implementing legislation in December 2008 
paving the way for the Commission to close this infringement case. The Court of Justice 
had ruled against Luxembourg on this matter in Case C-32/05.  

•  Non-conformity of national legislation: The Commission started  in 2008 to examine the 
replies of Denmark, Ireland, Sweden, Germany and the United Kingdom to the letters of 
formal  notice  that  had  been  addressed  to  them  in  2007  for  failure  to  transpose  correctly 
and completely the Water Framework Directive. The Commission opened new cases and 
sent letters of formal notice to Slovenia and Hungary in January 2008, Finland in February 
2008,  France  in  April  2008,  Greece,  Malta,  Poland  in  June  2008,  Estonia  in  September 
2008,  the  Czech  Republic,  Latvia,  Slovakia  in  October  2008  and  to  Lithuania  in 
November 2008 for their incomplete and incorrect transposition of the Directive.  

154 

155 
156 

Commission Decision 2009/64/EC of 21 January 2009 specifying, pursuant to Directive 2006/7/EC of 
the European Parliament and of the Council, ISO 17994:2004(E) as the standard on the equivalence of 
microbiological methods (OJ L23 of 27.1.2009). 
http://water.europa.eu/ 
Commission  Decision  2008/664/EC  of  8 August  2008  amending  Decision  2005/294/EC  concerning  a 
request for derogation under point 2(b) of Annex III to and Article 9 of Council Directive 91/676/EEC 
concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ L 
217, 13.8.2008, p. 16–17). 

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Regarding  the  Urban  Waste  Water  Directive,  the  Commission's  enforcement  work  has 
focused on ensuring full compliance with the Directive's obligation to designate all sensitive 
areas and ensure that more stringent treatment is provided to discharges from agglomerations 
into  these  areas  by  1998.  In  2008  the  Commission  sent  France  a  Reasoned  Opinion  under 
Article  228  of  the  EC  Treaty  for  its  failure  to  ensure  compliance  with  the  judgment  of  the 
Court  of  Justice  in  case  C-280/02.  As  a  result  of  this  judgment  a  number  of  additional 
sensitive  areas  were  required  to  be  designated  by  France  and  over  100  agglomerations 
discharging into these areas need to be provided with more stringent treatment. In the same 
year, the Commission decided to refer Ireland to the European Court of Justice for its failure 
to  ensure  compliance  with  these  obligations,  in  particular  in  ensuring  that  more  stringent 
treatment  was  applied  for  numerous  agglomerations  discharging  into  designated  sensitive 
areas.157 The Commission also sent a Reasoned Opinion to Spain under Article 226 of the EC 
Treaty  for  its  failure  designate  additional  sensitive  areas  and  to  ensure  more  stringent 
treatment  was  in  place  for  a  large  number  of  agglomerations  discharging  into  designated 
sensitive areas. For Italy, the infringement action launched to address its failure to designate a 
number  of  water  bodies  as  sensitive  was  closed  in  2008  when  the  Commission  received 
confirmation  of  their  designation.  Assessments  were  then  launched  to  investigate  the 
compliance  with  the  more  stringent  treatment  requirements  for  those  agglomerations 
discharging into the sensitive areas which Italy has now designated. Furthermore, on 8 May 
2008  the  Court  of  Justice  condemned  Portugal  in  Case  C-233/07  for  its  failure  to  ensure 
compliance with Article 3 of the Directive and the conditions set out in Commission Decision 
2001/720/EC  granting  Portugal  a  derogation  regarding  urban  waste  water  treatment  for  the 
agglomeration of the Estoril coast. 

In 2008 the Commission continued its enforcement work to ensure compliance with the end 
of year 2000 deadline for the collecting and secondary treatment obligations in the Directive 
for  urban  waste  water  discharges  from  large  towns  and  cities.  The  Court  of  Justice  gave 
judgment  against  Ireland  for  its  failure  to  comply  fully  with  these  obligations  on  11 
September 2008 in Case C-316/06. In 2008 the Commission followed up the judgment of the 
Court of Justice against Greece in Case C-440/06 for its failure to ensure full compliance with 
the  collecting  and  treatment  obligations  for  certain  large  towns  and  cities  with  a  letter  of 
formal  notice  under  Article  228  of  the  EC  Treaty.  The  Commission  also  decided  to  send  a 
Reasoned Opinion to Spain and France under Article 226 of the EC Treaty for their failure to 
fully comply with these obligations.  

Further  enforcement  action  was  taken  in  2008  under  this  Directive  with  a  letter  of  formal 
notice being issued to Spain under Article 228 of the EC Treaty for its failure to ensure full 
compliance with the judgment of the Court of Justice in Case C-219/05. The Commission also 
addressed  an  additional  Reasoned  Opinion  to  the  United  Kingdom  under  Article  226  of  the 
EC Treaty for its failure to control excessive spills of untreated urban waste waters from its 
storm water overflows.  

For  the  Drinking  Water  Directive  letters  of  formal  notice  were  sent,  in  2008,  to  Belgium, 
Latvia, Hungary and Slovenia on the ground that their national law did not fully and correctly 
transpose the Directive. The Commission was able to close the cases that had been launched 
against  Spain  and  Portugal  in  the  light  of  both  Member  States'  replies  and  initiatives. 
Furthermore,  in  2008  the  Commission  sent  under  Article  228  of  the  EC  Treaty  a  letter  of 
formal notice to France and a Reasoned Opinion to Portugal on the ground that both Member 

157 

Now lodged in the Court as case C-95/09 

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States  had  failed  to  take  all  the  measures  necessary  to  fully  implement  Court  rulings  C-
147/2007  and  C-251/03  respectively  of  the  violation  of  the  "old"  Drinking  Water  Directive 
(80/778/EEC).158 

Concerning the new Bathing Water Directive, the Commission's enforcement work focused 
on  the  notification  by  Member  States  of  the  national  measures  adopted  to  transpose  the 
Directive and on the communication of the first national lists of bathing waters, which were 
due before the start of the 2008 bathing season: 

•  Non-communication  of  transposing  national  measures:  Whereas  Member  States  had  to 
transpose the new Bathing Water Directive and notify these transposing measures to the 
Commission  by  24  March  2008  at  the  latest,  letters  of  formal  notice  were  addressed  in 
July  2008  to  21  Member  States,  namely  Austria,  Belgium,  Bulgaria,  Cyprus,  the  Czech 
Republic,  Denmark,  Estonia,  Finland,  France,  Germany,  Greece,  Hungary,  Lithuania, 
Luxembourg,  the  Netherlands,  Poland,  Portugal,  Romania,  Slovakia,  Sweden  and  the 
United  Kingdom  for  their  failure  to  do  so.  This  proved  successful  as  many  of  these 
Member States transposed and notified their domestic implementing legislation by the end 
of 2008. 

•  Bad  implementation:  After  reminding  Member  States  of  their  obligation  to  publish  and 
communicate, before the start of the bathing season, national lists of bathing waters, the 
Commission followed this up by issuing letters of formal notice to Italy, Luxembourg, the 
Netherlands  and  the  United  Kingdom  in  September  2008.  The  Commission  is  now 
expected  to  close  these  cases  as  the  five  non-compliant  Member  States  subsequently 
communicated their domestic lists by the end of 2008.  

As to the Nitrates Directive, following the designation of additional “vulnerable zones”, the 
Commission  decided  in  2008  to  close  both  cases  which  had  been  initiated  against  Portugal 
and Italy. In December 2008 the Commission decided to refer Luxembourg to the Court, now 
Case  C-526/08  for  having  in  place  a  non-compliant  nitrate  action  programme.  In  2008  the 
Commission services held several meetings with the Spanish and United Kingdom authorities 
to  ensure  the  adequate  amendment  of  their  nitrate  action  programmes  and  enabling  the 
Commission to prepare these cases for possible closure in 2009.  

7.4.2.  Evaluation based on the current situation 

Emission-oriented  legislation,  such  as  the  Urban  Waste  Water  and  Nitrates  Directives,  has 
achieved great progress in protecting water quality. However, considerable challenges remain. 
These  include  addressing  issues  of  water  scarcity,  droughts  and  floods,  ensuring  that  waste 
water  originating  from  small  towns  is  properly  collected  and  treated  and  bringing  about  the 
reduction of priority substances in surface waters. These challenges are now being addressed 
by  a  new  EU  legal  water  framework  whose  scope  has  both  expanded  in  recent  years,  for 
example,  with  the  adoption  of  the  new  Directive  on  flood  risks  and  has  at  the  same  time 
resulted  in  the  streamlining  of  EU  water  law  with  the  repeal  of  Directives  adopted  in  the 
1970s  and  1980s.  The  improvement  of  water  quality  in  Europe  will  depend  largely  on  the 
state of transposition into the law of the Member States of this new EU water legal framework 
and on its full and timely implementation.  

158 

Council  Directive  80/778/EEC  of  15  July  1980  relating  to  the  quality  of  water  intended  for  human 
consumption  (OJ  L  229,  30.8.1980,  p.11).  Directive  80/778//EEC  was  repealed  and  replaced  by 
Directive 98/83/EC on 25 December 2003. 

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The Common Implementation Strategy, an informal process set up in 2001 by Member States, 
accession countries and the Commission under the Water Framework Directive, has delivered 
extensive  guidance  to  promote  the  implementation  of  this  Directive.  Most  Member  States 
have  met  the  first  implementation  deadlines,  including,  the  duty  to  designate  and  identify 
competent  authorities  by  June  2004,  the  requirement  to  carry  out  the  environmental  and 
economic analysis of water uses in river basin districts by March 2005 and the establishment 
of monitoring programmes by March 2007. On the other hand, the proper implementation of 
the Directive may well be affected, inter alia, by its incomplete and incorrect transposition by 
a number of Member States into their national legal systems and by the absence of exhaustive 
national methods for assessing the ecological status of surface water bodies.  

Water  quality  has  improved  following  EU15  Member  States'  encouraging  progress  in 
implementing the Urban Waste Water Directive. Yet, there are still many agglomerations, for 
instance,  in  Belgium,  France,  Italy  and  Spain  that  lack  complete  waste  water  collecting 
systems  and  treatment  facilities.  As  to  the  EU12  Member  States,  the  implementation  of  the 
Directive is characterized by transitional periods foreseen in the Accession Treaties regarding 
the building of the necessary waste water infrastructure and by the fact that the EU has made 
financial support available. 

Concerning both the Drinking and the Bathing Water Directives, assessment surveys show a 
real  improvement  in  terms  of  meeting  environmental  quality  standards  even  if  further 
progress  still  needs  to  be  made.  The  preservation,  enhancement  and  restoration  of  drinking 
and  bathing  water  quality  will  depend  upon  the  correct  and  full  transposition  and 
implementation  of  both  Directives,  but  also  on  the  delivery  of  the  objectives  in  the  Water 
Framework Directive, Urban Waste Water Directive and Nitrates Directive.  

As to the Nitrates Directive, significant progress has been made in the recent years, including 
in  2008,  regarding  the  designation  of  "vulnerable  zones"  and  the  elaboration  and 
implementation  of  monitoring  programmes.  However,  further  improvements  are  clearly 
needed, in particular, with regard to the quality of action programmes as nitrate concentrations 
where there are still major concerns in some intensively farmed areas.  

7.4.3.  Evaluation results 

7.4.3.1.  Priorities 

As  regards  reporting,  the  Commission  will  continue  to  develop  together  with  the  European 
Environmental Agency the Water Information System for Europe (WISE) in 2009, as a single 
platform for water information and reporting which should reduce the overall administrative 
burden involved in reporting. 

The  Commission  will  in  2009,  verify  whether  Member  States  would  have  notified  by  16 
January 2009 at the latest national measures transposing the new Groundwater Directive and 
launch legal actions where Member States fail to meet this deadline.  

As  to  the  implementation  of  EU  water  law,  the  Commission  will  closely  monitor  the 
publication by Member States of their final RBMP and programmes  of measures due  under 
the  Water  Framework  Directive  in  December  2009.  In  this  respect,  the  Commission  will 
continue  to  make  use  of  the  Common  Implementation  Strategy  as  an  informal  platform  to 
foster  better  implementation  and  to  exchange  good  practice.  Regarding  the  Drinking  Water 
Directive,  the  Commission  will  consider  drafting,  in  2009,  a  legislative  proposal  aimed  at 

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revising  the  Directive.  The  Commission  will  also  assess  Member  States'  data  on  drinking 
water quality for 2005-2007 and compile an EU-wide synthesis report. 

7.4.3.2.  Planned action (2009 and beyond) 

Given that the preservation, improvement and restoration of water quality is so closely linked 
to  the  Water  Framework  Directive,  apart  from  dealing  with  existing  transposition-related 
cases,  the  Commission  will  focus  on  ensuring  Member  States  fully  meet  their  obligations, 
including  in  particular  the  adoption  of  appropriate  RBMP  and  programmes  of  measures  for 
each river basin district and the development of national methods for assessing the ecological 
status of surface water bodies. 

The  Commission's  work  regarding  the  implementation  of  the  Urban  Waste  Water,  the 
Drinking  and  the  Bathing  Directives  will  be  based  on  a  twin-track  approach.  On  the  one 
hand, it will continue to promote the exchange of information, experience and cooperation at 
an informal level with Member States and stakeholders. On the other hand, the Commission 
will draw up and publish implementation reports, including a report on bathing water quality 
in  2009,  the  5th  Commission  report  on  the  implementation  of  the  Urban  Waste  Water 
Directive  and  an  EU-wide  synthesis  report  on  drinking  water  quality.  In  addition,  the 
Commission will launch, if necessary, appropriate legal enforcement action against Member 
States that fail to comply with the obligations set out in these Directives.  

The  Nitrates  Directive:  The  Commission's  work  to  ensure  compliant  implementation  will 
continue in 2009 on the basis of detailed assessments of the information provided by Member 
States  in  their  4-year  implementation  reports  and  via  bilateral  contacts.  In  particular,  the 
Commission  will  finalise  in  2009  the  examination  of  the  national  reports  on  the  2004-2007 
period with the aim of publishing a summary report in 2010. The assessment will focus on the 
main  obligations  of  the  Nitrates  Directive,  namely  on  water  monitoring,  the  designation  of 
"vulnerable  zones"  and  the  drawing  up  and  updating  of  nitrates  action  programmes.  It  will 
then need to be decided whether these assessments need to be followed up with infringement 
action. The Commission has also planned to hold four Nitrates Committee meetings in 2009 
to  proceed  with  its  regulatory  work  on  Member  States'  derogation  requests  and  to  give 
Member States the opportunity to exchange information on implementation. 

The  Commission  will  also  focus  on  the  transposition  and  implementation  of  the  following 
new EU water Directives: 

-  The  Flood  Directive,  which  requires  Member  States  to  assess  the  flood  risks  of 
watercourses and coastlines, to map the flood extent as well as assets and humans being at 
risk and to take adequate and coordinated measures to reduce flood risk. The transposition 
deadline  for  this  Directive  is  November  2009  and  the  Commission  will  need  to  assess 
whether Member States have notified national transposing measures on time and if those 
measures correctly and fully transpose the Directive.  

-  The  Marine  Strategy  Framework  Directive  establishes  a  strategic  framework  for  the 
protection  of  marine  waters  in  the  EU  and  requires  Member  States  to  achieve  “good 
environmental status” for all marine waters by 2020 on the basis of an initial assessment 
of  marine  water  quality  by  2012  and  the  implementation  by  2015  of  programs  of 
measures. The Commission's enforcement priorities will focus on these deadlines with the 
first  step  being  to  assess  whether  Member  States  have  notified  national  transposing 
measures  and  designated  competent  authorities  by  the  15  July  2010  deadline.  The 
Commission will then need to assess whether those measures will ensure correct and full 
transposition of the Directive. The Commission will also need to adopt a Decision by mid-

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2010  fixing  criteria  and  methodological  standards  for  determining  "good  environmental 
status".  

- 

-  The new Bathing Waters Directive was required to be transposed into national law by 24 
March 2008. The Commission will need to verify whether the transposition is both correct 
and  complete  and  whether  the  Directive  is  appropriately  implemented,  including  the 
Member States' duty to annually designate and notify bathing waters. 
In  view  of  the  implementation  and  achievement  by  2015  of  the  groundwater  pollution-
related  environmental  objective  set  in  the  Water  Framework  Directive,  the  new 
Groundwater  Directive  establishes  criteria  for  the  assessment  of  "good  groundwater 
chemical status" and for the identification and reversal of significant and sustained upward 
trends  in  pollutant  concentrations.  The  new  Groundwater  Directive  is  required  to  be 
transposed into national law by 16 January 2009 at the latest. Therefore, the Commission 
shall  need  to  check  whether  Member  States  have  met  this  deadline  and  whether  the 
measures adopted ensure the correct and complete transposition of the Directive.  
In  order  to  allow  Member  States  to  meet  the  2015  surface  water  pollution-related 
environmental  objective  set  in  the  Water  Framework  Directive,  Directive  2008/105/EC 
was adopted on 16 December 2008 setting EQS for "priority substances" and certain other 
pollutants to be met to achieve "good ecological status" for surface water bodies. Member 
States are required to transpose Directive 2008/105/EC by 13 July 2010 at the latest. The 
Commission will need to verify whether Member States would have indeed adopted and 
notified  all  national  transposing  measures  by  this  deadline  and  whether  those  domestic 
measures correctly and fully transpose Directive 2008/105/EC. Any non compliance may 
lead to the opening of infringement action.  

- 

7.4.4. 

Sector summary 

Substantial progress regarding the implementation of EU water law has been observed in the 
past  decade  as  a  result  of  increased  awareness  among  decision-makers  of  the  critical 
importance of meeting water quality standards to preserve water resource and the associated 
natural environment and to protect human health. Better implementation has often been driven 
by  informal  and  formal  cooperation  between  Member  States,  industries,  non-governmental 
organisations,  consumers  and  the  Commission  as  well  as  by  infringement  procedures. 
However, more efforts need to be made to ensure full compliance with EU water Directives. 
In respect of the Nitrates Directive, the Commission has noted that several regions within the 
EU show worrying water quality trends for which reinforced action programmes will need to 
be developed. With regard to the Urban Waste Water Directive, Member States must ensure 
that  it  is  fully  applied,  including  in  smaller  towns.  The  implementation  of  EU  water 
legislation  and  the  enhancement,  preservation  and  restoration  of  water  quality  will  greatly 
depend on Member States meeting their obligation to take all required measures to guarantee 
the  achievement  by  2015  of  the  environmental  objectives  of  "good  chemical  and  ecological 
status"  for  surface  water  bodies  and  of  "good  chemical  and  quantitative  status"  for 
groundwaters set in the Water Framework Directive. The Commission will continue to focus 
on  the  proper  transposition  of  EU  water  law,  including  of  the  new  Floods,  Marine  Strategy 
and  Bathing  Water  Directives  and  their  implementation.  The  Commission  will  continue  its 
efforts  to  ensure  that  Member  States  fulfil  their  obligation  under  these  Directives  and  will 
assist them, when necessary, via formal and informal cooperation channels. 

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7.5. 

Air quality 

7.5.1.  Current position 

7.5.1.1.  General introduction  

Ambient air quality 

The  new  Directive  2008/50/EC  of  the  European  Parliament  and  of  the  Council  of  21 May 
2008  on  ambient  air  quality  and  cleaner  air  for  Europe  is  the  key  legal  instrument  in  this 
sector159. The Directive entered into force on 11 June 2008 and merges four Directives160 and 
one Council Decision161 into a singe air quality instrument. It introduces new objectives for 
fine  particles  (PM2.5)  but  does  not  change  existing  air  quality  standards.  Available  evidence 
points to serious problems in complying with the air quality limit values in many European air 
quality  zones  but  the  new  Directive  does,  however,  give  under  certain  conditions  Member 
States  greater  flexibility  in  meeting  some  of  these  standards  in  areas  where  they  have 
difficulty complying. 

Under  the  new  Directive  2008/50/EC  Member  States  have  the  possibility  to  notify  an 
exemption from the application of the limit values for PM10 (and to postpone the limit values 
for  nitrogen  dioxide (NO2) which enter into effect in 2010) provided that certain conditions 
are satisfied. The Commission has nine months from the submission of a notification to assess 
it and to decide whether to raise objections or not. If no objections are raised, the notification 
will be tacitly approved at the expiry of the nine months assessment period. 

Air emissions 

There  are  several  legal  instruments  which  affect  the  emissions  of  certain  air  pollutants  at 
source. These include Directive 98/70/EC relating to the quality of petrol and diesel fuels162, 
Directive 1999/32/EC relating to a reduction in the sulphur content of certain liquid fuels163 
and the Paints Directive 2004/42/EC on the level of solvents (volatile organic compounds) in 
paints, varnishes and refinishing products.  

Environmental noise 

The Noise Directive164 lays down a common approach to avoiding, preventing or reducing on 
a  prioritised  basis  the  harmful  effects  of  exposure  to  environmental  noise.  It  requires  the 

159 
160 

161 

162 

163 

164 

. OJ L 152, 11.6.2008, p. 1–44. 
The  four  directives  merged  into  the  new  directive  are:  Council  Directive  96/62/EC  of  27  September 
1996  on  ambient  air  quality  assessment  and  management;  Council  Directive  1999/30/EC  of  22  April 
1999  relating  to  limit  values  for  sulphur  dioxide,  nitrogen  dioxide  and  oxides  of  nitrogen,  particulate 
matter  and  lead  in  ambient  air; Directive 2000/69/EC of the  European Parliament  and  of  the  Council 
relating to limit values for benzene and carbon monoxide in ambient air; and Directive 2002/3/EC of 
the European Parliament and of the Council relating to ozone in ambient air 
Council Decision 97/101/EC establishing a reciprocal exchange of information and data from networks 
and individual stations measuring ambient air pollution within the Member States. 
Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the 
quality of petrol and diesel fuels and amending Council Directive 93/12/EEC (OJ L 350, 28.12.1998, p. 
58–68). 
Council Directive 1999/32/EC of 26 April 1999 relating to a reduction int he sulphur content of certain 
liquid fuels and amending Directive 93/12/EEC (OJ L 121, 11.5.1999, p. 13–18). 
Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the 
assessment and management of environmental noise (OJ L 189, 18.7.2002, p. 12–25). 

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assessment and mapping of ambient noise in large agglomerations and in the vicinity of major 
roads, railways and airports. 

7.5.1.2.  Report of work done in 2008 

Ambient air quality 

For 2006, around 400 zones in 23 Member States were reported being in non-compliance with 
the  PM10  limit  values.  The  dilemma  has  been  how  to  treat  these  breaches  of  existing 
Community law whilst recognising the explicit possibility for Member States to seek a time 
extension  for  compliance.  The  Commission's  policy  has  been  to  launch  infringement 
proceedings  in  respect  of  those  excesses  which  have  not  been  the  subject  of  a  notification 
from the Member States. 

In 2008, the Commission asked 23 Member States that had reported excesses of the daily and 
annual PM10 air quality limit values for 2005 and 2006 to provide information whether they 
intended  to  notify  an  exemption  from  the  obligation  to  apply  the  limit  values  for  PM10 
pursuant  to  Article  22  of  Directive  2008/50/EC.  Member  States  were  warned  that  if  a 
notification was not submitted prior to 31 October 2008 or compliance with the limit values 
not  achieved,  infringement  proceedings  would  be  launched.  By  the  end  of  the  2008,  11 
Member  States  had  submitted  notifications.  Bulgaria  and  Romania  reported  exceedances  in 
2007 of the PM10 limit values in their first air quality reports submitted in September 2008. 
They were subsequently warned that if a notification of an exemption from the limit values is 
not  submitted  prior  to  31  March  2009  then  infringements  proceedings  may  follow  unless 
compliance has been achieved. So far the Commission has received notifications 16 Member 
States  and  launched  infringement  proceedings  against  Cyprus,  Estonia,  Germany,  Italy, 
Poland, Portugal, Slovenia, Spain, Sweden and UK up until March 2009.  

In 2008, the Commission also continued to pursue infringement procedures it had launched in 
previous  years  against  several  Member  States  (Spain,  France,  Italy  and  Slovenia)  that  have 
shown widespread exceedances of sulphur-dioxide (SO2) limit values that have been in force 
since  1  January  2005.  New  exceedances  were  discovered  in  2007  and  reported  to  the 
Commission in 2008 as part of the formal reporting requirements. These excesses may also be 
the subject of further infringement proceedings in due course. 

Judgments of the Court of Justice in 2008 

The  Court  delivered  a  preliminary  ruling  on  25  July  2008  (Case  C-237/07)  in  relation  to 
Directive  96/62/EC  on  ambient  air  quality  assessment  and  management  whereby  it  has 
clarified that where there is a risk that the limit values or alert thresholds may be exceeded, 
persons directly concerned must be in a position to require the competent national authorities 
to  draw  up  an  action  plan,  even  though,  under  national  law,  those  persons  may  have  other 
courses of action available to them for requiring those authorities to take measures to combat 
atmospheric pollution. 

Air emissions 

In  2008,  the  Member  States  reported  the  first  results  of  the  implementation  of  the  Paints 
Directive  and  the  results  of  their  monitoring  programmes  regarding  the  permitted  levels  of 
solvents in various paint products. 

Environmental noise 

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Under  the  Noise  Directive  Member  States  had  to  send  to  the  Commission  by  30  December 
2007  summary  information  about  their  strategic  noise  maps  that  had  to  be  drawn  up  by  30 
June 2007. Strategic noise maps are required to be drawn up in order to monitor the extent of 
noise  pollution,  to  inform  and  consult  the  public  about  noise  exposure,  its  effects,  and  the 
measures considered necessary to address noise.  

In 2008, most of the Member States reported the Commission the information required. The 
Commission started last year and is currently finalizing its assessment of the quality of these 
noise  maps  in  relation  to  the  requirements  of  the  Directive  (with  the  assistance  of  the 
European  Environment  Agency)  and  will  instigate  horizontal  infringement  proceedings,  if 
appropriate, in respect of non-compliant maps or where no map has been reported. 

7.5.2.  Evaluation based on the current situation  

Ambient air quality 

There remain widespread non-compliance with air quality limit values and particularly those 
for PM10 which is probably the pollutant of most concern given its adverse impacts on health. 
This is due in part to a lack of preparedness by the Member States to undertake the necessary 
assessments of air quality and to put into place the necessary plans and actions to improve air 
quality in good time. The ongoing "time extension" exercise should improve the capacity of 
the Member State authorities to prepare plans and programmes as well as the introduction of 
new measures to tackle air pollutant emissions at source. Community measures such as those 
recently  adopted  on  light  and  heavy  duty  vehicles  will  also  help.  In  addition,  the  recent 
referral to the ECJ in the Janecek case (Case C-237/07) should also lead to improvements as it 
clarifies that individuals have the right to request the preparation of air quality plans before 
national courts. 

Air emissions 

There  are  no  serious  issues  associated  with  the  implementation  of  the  fuel  quality  directive 
except for the occasional failure to report on fuel quality in a timely fashion. The Sulphur in 
liquid  fuels  directive  establishes  maximum  permitted  levels  of  sulphur  in  a  range  of  fuels 
including heating oil,  heavy  fuel oil and marine fuels. There is sufficient information in the 
public domain that there are regular non-compliances in relation to marine fuels. A perceived 
problem of the directive is that the obligation falls to the end user rather than on those placing 
the  relevant  fuel  on  the  market.  The  problem  is  exacerbated  by  the  fact  that  there  is  an 
inconsistency  in  approach  to  fuel  monitoring  amongst  the  Member  States  (often  with  very 
limited information) which derives from the fact that the Directive's provisions are unclear.  

The  reports  submitted  by  the  Member  States  last  year  on  the  implementation  of  the  Paints 
Directive  and  the  results  of  their  monitoring  programmes  regarding  the  permitted  levels  of 
solvents  in  various  paint  products  have  shown  that  there  are  varying  approaches  in  the 
Member  States  with  widely  varying  efforts  regarding  the  number  of  samples  tested.  In 
addition,  there  have  been  numerous  requests  for  clarification  of  the  Directive's  provisions 
particularly  regarding  the  scope  of  the  products  it  covers  and  the  relationship  with  the 
Solvents Directive 1999/13/EC governing the use of solvents at industrial installation. These 
uncertainties persist despite guidance having been prepared by the Commission services. 

Environmental noise 

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The  problems  thus  far  encountered  in  relation  to  the  implementation  of  the  Noise  Directive 
are three-fold. First, Member States have been late in preparing the necessary maps although 
this  is  probably  due  to  the  fact  that  this  is  the  first  attempt  at  undertaking  a  technically 
challenging task. The second problem is that there are no harmonised assessment methods and 
so Member States have used national methods thus making a wider geographical assessment 
or  comparison  more  difficult.  Third,  the  reporting  requirements  are  unclear  such  that  non-
standardised  reporting  of  maps  has  occurred  which  in  some  cases  makes  the  use  of  the 
reported information very difficult. 

7.5.3.  Evaluation results 

7.5.3.1.  Priorities 

Ambient air quality 

In  the  coming  years,  the  Commission  will  continue  to  monitor  closely  the  situation  with 
regard  to  compliance  with  air  quality  limit  values  in  all  Member  States.  It  will  continue  to 
follow its "horizontal approach", which allows air pollution problems to be addressed in a far 
higher number of places than would have been possible if it had only focused on individual 
cities or regions.  

Air emissions 

The  first  priority  is  to  improve  the  compliance  with  the  permitted  sulphur  levels  for  those 
liquid  fuels  covered  by  Directive  1999/32/EC.  Secondly,  a  priority  will  be  to  improve  the 
monitoring and reporting under the both the paints Directive and the sulphur content of liquid 
fuels  Directive.  Finally,  the  definitions  and  scope  of  the  Paints  Directive  could  usefully  be 
clarified. 

Environmental noise 

The  first  priority  is  to  improve  the  consistency  in  the  Member  States'  assessments  of 
environmental  noise  and  the  usefulness  of  the  reported  information.  A  second  priority  is  to 
improve  the  implementation  of  the  Directive  by  the  Member  States  by  providing  greater 
clarity and guidance. 

7.5.3.2.  Planned action (2009 and beyond) 

Ambient air quality 

As  regards  excessive  SO2,  the  Commission  will  continue  to  pursue  the  legal  enforcement 
action it has already launched against several Member States.  

As for PM10, the Commission will assess closely whether time extension requests expected to 
be  submitted  by  most  of  the  Member  States  meet  the  relevant  criteria.  Infringement 
procedures are to be envisaged against Member States in breach of the limit values which do 
not apply for a time extension or do not meet the conditions for obtaining such extension.  

In addition, legal enforcement procedures will be pursued to ensure that Member States fulfil 
their reporting obligations under the air quality legislation.  

Air emissions 

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There are reviews of both directives underway with the intention to bring forward amending 
legislation, if appropriate, in 2010 and 2011 respectively. 

Environmental noise 

The  priorities  for  further  action  will  be  to  complete  the  ongoing  review  of  the  legislation 
including its implementation. In addition, the Commission will consider, in the context of the 
review and the need for harmonised assessment methods and streamlined electronic reporting 
procedures.  Finally,  where  maps  or  action  plans  have  not  been  prepared  or  reported  or  are 
deficient  in  relation  to  the  requirements  of  the  Directive  the  Commission  may  pursue 
infringement proceedings. 

7.5.4. 

Sector summary 

In 2005 a set of legally binding EU air quality limit values became applicable, including limit 
values for particulate matter PM10, pollutant with very important adverse impacts on health. A 
widespread  non-compliance  with  PM10  limit  values  remains,  partly  due  to  challenging  and 
complex  nature  of  this  pollutant  and  the  lower  and  delayed  impact  of  certain  community 
measures. But the main reasons are serious delays in the implementation of the directives in a 
large number of Member States, mainly as regards the drawing up and implementation of the 
necessary  plans  to  ensure  that  air  quality  is  improved  in  good  time.  The  capacity  and 
awareness of the Member State authorities of the need to tackle air pollution at the source and 
to prepare plans and programmes should be increased through the procedure and conditions 
laid down in the new Directive 2008/50/EC on ambient air quality and cleaner air for Europe 
for extending the time required for achieving compliance with the limit values for PM10, NO2 
and benzene, joined with coherent and timely enforcement where appropriate.  

In the coming years, the Commission will continue to monitor closely the air quality situation 
in order to ensure long term and sustainable compliance with the limit values in all Member 
States. In particular, it will be a priority task to assess further time extension notifications as 
well  as  to  follow-up  on  the  decisions  adopted  by  the  Commission.  In  case  objections  are 
raised to the application of a time extension, it will be necessary to pursue the Member States 
concerned through infringement proceedings. A further priority will be to ensure a timely and 
effective implementation of Directive 2008/50/EC. Dissemination of information to the public 
and  cooperation  between  the  Member  States  and  the  Commission  in  order  to  develop 
appropriate policies should continue. 

7.6. 

Climate change 

7.6.1.  Current position 

7.6.1.1.  General introduction 

The most important cross-cutting measures in this domain are the Emissions Trading 
Directive,  2003/87/EC165,  and  Decisions  280/2004/EC166  and  2005/166/EC167.  With  the 

165 

166 

Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a 
scheme for greenhouse gas emission allowance trading within the Community and amending Council 
Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32–46). 
Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning 
a  mechanism  for  monitoring  Community  greenhouse  gas  emissions  and  for  implementing  the  Kyoto 
Protocol (OJ L 49, 19.2.2004, p. 1–8). 

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adoption of the Emissions Trading Directive, the EU has established a scheme for greenhouse 
gas  emission  allowance  trading  within  the  Community  (EU  ETS).  This  is  a  market-based 
instrument  aimed  at  gradually  reducing  emissions  in  selected  sectors.  It  should  help  the 
Community  and  the  Member  States  to  meet  their  Kyoto  Protocol  commitments  to  reduce 
greenhouse  gas  emissions  in  a  cost-efficient  way.  With  the  adoption  of  Decisions 
280/2004/EC and 2005/166/EC the EU established a mechanism for monitoring and reporting 
greenhouse  gas  emissions.  This  makes  it  possible  to  evaluate  more  accurately  and  more 
regularly  the  progress  made  in  reducing  emissions  under  the  United  Nations  Framework 
Convention on Climate Change (UNFCCC) and the Kyoto Protocol.  

7.6.1.2.  Report of work done in 2008 

Policy  

EU ETS Review/Implementation 

On 23 January 2008, the Commission adopted its proposal for an improved and extended EU 
emissions  trading  scheme  (EU  ETS).  This  proposal  was  the  result  of  extensive  stakeholder 
consultations during the first trading period (2005-2007) of the EU ETS. The review showed 
positive  elements,  such  as  the  fact  that  a  real  market  for  trading  in  carbon  allowances  had 
evolved,  which  due  to  its  size  –  the  EU  ETS  is  the  largest  emissions  trading  scheme  in  the 
world - offered new opportunities to implement CO2 abatement measures in a cost-effective 
manner across the EU.  

However, the review also identified a number of specific problems: 

•  Emissions trading can only exploit its environmental strength and justification, if there is 
scarcity  on  the  allowance  market.  However,  the  lack  of  verified  emissions  data  when 
setting  up  the  National  Allocation  Plans  (NAPs)  for  the  first  trading  period  (2005-2007) 
enabled  Member  States  to  support  their  own  industry  by  relying  on  over-optimistic 
projections  justifying  the  issuance  of  more  allowances  than  was  justified  to  ensure  the 
necessary scarcity on the market.  

•  Member States had different levels of ambition for the emission reductions to be asked of 
the  sectors  participating  in  the  EU  ETS,  and  consequently  different  Member  States  set 
different  levels  of  allocation  for  the  same  sector.  They  also  applied  widely  differing 
allocation methods.  

•  The  Commission's  approval  of  NAPs  turned  out  to  be  a  long-lasting,  cumbersome  and 

complex process.  

•  Some sectors were able to pass through the market value of the allowances in their product 

prices to their customers even though they got them for free. 

With  a  view  to  addressing  these  issues,  the  Commission  proposed  a  fully  harmonised 
approach  including  an  EU-wide  and  annually  shrinking  cap  on  allowances  -  to  replace  the 

167 

Commission Decision 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 
280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring 
Community greenhouse gas emissions and for implementing the Kyoto Protocol (OJ L 55, 1.3.2005, p. 
57–91). 

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prevailing bottom-up approach based on NAPs - leading to an emission reduction of 21% by 
2020 as compared to 2005 levels. The Commission also proposed to phase-in auctioning over 
a  period  of  time  as  the  principal  allocation  method  for  all  operators,  and  provided  for 
harmonised  rules  for  the  transitional  free  allocation.  These  elements  do  not  only  guarantee 
that  the  required  emission  reductions  are  achieved,  they  also  increase  the  certainty  and 
predictability in the system, thereby fostering investments to reduce emissions.  

EU ETS/Hydroelectric power production projects 

According  to the  ETS  Directive  as  amended  by  the  Directive  2004/101/EC,  “…  Member 
States may allow operators to use CERs and ERUs from project activities in the Community 
scheme” (Article 11a (1)), with the exception of credits from land use, land use change and 
forestry activities as well as nuclear projects (Article 11a (3)).  

“In  the  case  of  hydroelectric  power  production  project  activities  with  a  generating  capacity 
exceeding 20 MW, Member States shall, when approving such project activities, ensure that 
relevant  international  criteria  and  guidelines,  including  those  contained  in  the  World 
Commission on Dams November 2000 Report “Dams and Development – A New Framework 
for  Decision-Making”,  will  be  respected  during 
the  development  of  such  project 
activities.”(Article 11b (6)) 

The  interpretation  of  this requirement  varied  among  Member  States  and  so  has  led  to  the 
fragmentation of the carbon market and uncertainty for its participants.  

In the course of 2008, Member States have agreed to accept in principle common guidelines 
for  the  approval  of  large  hydropower  project  activities,  which  may  also  constitute  guidance 
for Member States on which carbon credits to accept for compliance. 

The  document  establishes  a  common  understanding  of  the  meaning  of  Article  11b  (6) 
regarding its scope and the means whereby project proponents can establish that their projects 
meet the relevant requirements. It is accompanied by a template enabling project proponents 
to  prepare  Article  11b  (6)  compliance  reports,  which  are  then  verified  by  a  designated 
operational entity (DOE) or another verifier appointed by a Member State.  

The Member  States' agreement to  abide by these guidelines is voluntary. The  final decision 
regarding the acceptance of a project as meeting the aforementioned requirements remains the 
responsibility of the Member State approving the project activity.  

By  29 January  2009,  most  Member  States  in  principle  confirmed that  they  will  publish  the 
guidelines and accompanying template by 1 April 2009 and implement these by 1 July 2009.  

Member  States  will  also  continue  cooperation  on  voluntary  harmonisation  of 
the 
implementation of Article 11b (6), exchanging experience and views on the practical aspects 
of the use of the guidelines and template.  

EU ETS NAP Implementation 

During the year 2008, all Member States notified the revision of their NAPs on the basis of 
the  Commission's  decisions  setting  out  revision  requirements  as  a  condition  for  NAP 
approval. In addition, Member States also notified their installation-level allocation decisions.  

EU ETS Registry 

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The two main tasks for the EU ETS Registries in 2008 were the following:  

•  The linking of the Community Independent Transaction Log (CITL) and all Member State 
registries  to  the  UNFCCC  International  Transaction  Log  (ITL).  This  was  a  complex  IT 
operation  that  required  extensive  planning  and  co-ordination,  and  was  eventually  carried 
out successfully and smoothly and was fully operational in October 2008. 

•  The  amendment  of  the  Registries  Regulation  to  allow  transactions  with  aviation 
allowances through an IT process that does not require the use of the UNFCCC ITL. This 
amendment was successfully adopted on 11 October 2008. 

In  addition,  the  revised  EU  ETS  Directive  agreed  in  December  of  2008  decided  that  from 
2012, all allowances will be held in the Community Registry. This decision will transfer the 
bulk  of  Member  State-level  ETS-related  IT-operations  to  the  Commission,  a  process  which 
will require a significant expansion of the Registry related IT-capacities of the Commission. 

EU ETS/Monitoring, Reporting and Verification 

Monitoring  and  reporting  of  emissions  is  currently  implemented  by  the  Monitoring  and 
Reporting Guidelines (MRG)168 established in accordance with Article 14 of the current EU 
ETS Directive. Consistent implementation of the MRG is required in order to ensure that “a 
ton of carbon emissions is a ton”, no matter where and by whom it has been emitted within 
the  EU.  The  MRG  makes  it  possible  to  provide  for  a  co-ordinated  EU  approach  to 
compliance. 

Thus, in 2008, compliance with the entire Monitoring, Reporting and Verification (MR&V) 
cycle became more important. With this in mind, the Commission chaired and co-organised 
with some Member States a two-day conference on EU ETS compliance on 10-11 September 
2008.  The  Conference  laid  down  the  foundations  of  the  EU  ETS  Compliance  Forum  that 
should start its activities in 2009. Moreover, in 2008, a comprehensive evaluation project was 
carried  out  in  the  27  Member  States  with  respect  to  their  implementation  of  the  MR&V 
compliance cycle.  

An amendment and a new annex to the MRG was also adopted to take account of the addition 
of  a  new  gas  (N2O)  to  the  system,  following  a  request  for  opt-in  from  The  Netherlands.  A 
similar  process  was  launched  for  a  new  sector,  namely  aviation  and  a  new  activity,  namely 
carbon capture and storage (CCS).  

The  revised  EU  ETS  Directive  agreed  in  December  of  2008,  provided  for  a  renewed  legal 
basis  for  Monitoring  and  Reporting  in  Article  14  as  well  as  an  extension  of  the  scope  of 
Article  15  regarding  Verification  to  include  the  Accreditation  of  verifiers.  Moreover,  both 
Articles provide a legal basis for moving from the present MRG to an MR&V system based 
on  two  different  Regulations,  one  for  Monitoring  and  Reporting  and  the  other  for 
Accreditation  and  Verification.  This  development  would  allow  for  the  implementation  of  a 
more harmonised approach across the EU in the third trading period(2013-2020). 

168 

EU  ETS  Monitoring  and  Reporting  Guidelines  2007/589/EC.  Commission  Decision  of  18  July  2007 
establishing  guidelines  for  the  monitoring  and  reporting  of  greenhouse  gas  emissions  pursuant  to 
Directive 2003/87/EC of the European Parliament and of the Council 

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Finally  in  2008,  a  policy  initiative  was  established  on  ETS  Accreditation  and  Verification 
laying down the basis for developing a possible guidance note for the second trading period 
(2008-2012).  This  initiative  will  prepare  the  main  elements  of  the  Regulation  for  the  third 
trading period. The project was finalised in November 2008.  

Implementation and legal enforcement  

Cases related to the ETS Directive: National Allocation Plans 

The individual NAPs adopted by Member States fix the total number of emission allowances 
and set out the methodologies to allocate them to individual installations covered by the EU 
ETS.  NAPs  for  period  2008-2012  are  thus  an  important  element  in  the  Member  States' 
strategies for achieving their relevant emission reduction targets under the Kyoto Protocol. 

It should be noted that the Commission closed in 2007 all the cases it had launched in 2006 
against  those  Member  States,  which  had  failed,  to  submit  by  30  June  2006  their  national 
allocation  plans  (“NAPs”)  for  the  second  trading  period  (2008-2012)  of  the  EU  ETS  as 
required by the Emissions Trading Directive.  

In  2007  several  MS  opposed  the  Commission  decision  on  their  national  allocation  plan.  In 
essence  they  claim  that  the  upper  limit  set  by  the  Commission  on  the  total  quantity  of 
allowances  that  they  may  allocate  was  too  low  and  that  the  Commission  has  exceeded  the 
limits of its discretion when assessing the proposed NAPs by using its own methodology.  

Consequently, 9 Member States have brought annulment actions on the basis of Article 230 
EC before the European Court of Justice (pending cases). Early 2009 the following cases were 
pending  before  the  Court  of  First  Instance  (CFI):  T-183/07  Poland,  T-221/07  Hungary,  T-
194/07  Czech  Republic,  T-369/07  Latvia,  T-368/07  Lithuania,  T-263/07  Estonia,  T-499-
500/07  Bulgaria,  T-483-484/07  Romania.  The  written  part  of  these  procedures  is  over.  The 
Polish and Estonian hearings took place in February 2009. One case (T-32/07 Slovakia) was 
withdrawn at the beginning of 2008. 

Not  only  the  Member  States  brought  actions,  also  companies  allegedly  affected  by  the 
allocation  of  emission  allowances  did.  The  following  cases  initiated  by  companies  against 
various  Commission  NAP  decisions  were  found  to  be  inadmissible  by  the  CFI  (T-130/06 
Drax, T-489/04 U.S. Steel Kosice, T-27/07 U.S. Steel Kosice, T-13/07 Cemex, T-28/07 Fels-
Werke,  T-193/07  Gorazdze  Cement,  T-195-199/07  Lafarge  Cement,  T-203/07  Cemex,  T-
208/07 BOT, T-241/07 Buzzi, T-28/07 Saint Gobain, T-27/07 US Steel Kosice).  

Moreover, the European Court of Justice (ECJ) upheld the judgments of the CFI in T-28/07 
Saint Gobain as well as in T-27/07 US Steel Kosice in Cases C-503/07P – judgment delivered 
on 08 April 2008 - and C-6/08P – judgment delivered on 19 June 2008 - respectively.  

Two  cases  were  initiated  by  Arcelor  not  against  a  Commission  NAP  decision  like  the 
previous  cases  but  against  the  EU  ETS  Directive  itself.  One  was  a  direct  action  (T-16/04 
Arcelor)  brought  before  the  CFI  and  the  other  was  a  preliminary  ruling  referred  to  the  ECJ 
(Case  C-127/07).  In  essence,  both  cases  alleged  that  the  EU  ETS  Directive  breached  the 
principle of equal treatment. In its judgment of 16 December 2008 in Case C-127/07, the ECJ 
found that the EU ETS Directive did not infringe the principle of equal treatment. In Case T-
16/04  Arcelor  before  the  CFI,  the  Court  was  waiting  for  judgment  of  the  ECJ  in  the 
preliminary  ruling  Case  C-127/07  before  delivering  its  own  judgment  on  the  direct  action. 
Proceedings are therefore still pending before the CFI in 2009. 

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Cases related to the ETS Directive: implementing measures  

As far as the Emissions Trading Directive is concerned, following Commission enforcement 
action, all Member States have communicated their national implementing legislation. A 2008 
study on the implementation of the ETS Directive (as amended by Directive 2004/101/EC, the 
so-called Linking Directive) however revealed shortcomings in most Member States.  

Reporting cases under Article 3 (1) and (2) of Decision 280/2004/EC  

Under  Decisions  280/2004/EC  and  2005/166/EC,  Member  States  must  provide  the 
Commission  with  annual  reports  on  their  actual  emissions  of  greenhouse  gases  and  twice-
yearly  reports  on  domestic  climate  change  policies  and  measures  and  emission  projections. 
Given that the Commission needs the information provided by the Member States for its own 
annual report to the UN Framework Convention on Climate Change and the Kyoto Protocol, 
it  has  constantly  reminded  the  Member  States  of  their  reporting  obligations.  As  a  result 
reporting continues to improve in terms of timing and content.  

In 2008, the Commission closed numerous infringement proceedings against Member States 
that  had  failed  to  submit  2007  annual  and  2005  bi-annual  reports  as  they  provided  the 
Commission  the  missing  information.  However,  in  the  case  of  some  Member  States  the 
Commission also had to send a second Reasoned opinion under Article 226 or refer the matter 
before  the  Court  of  Justice  for  the  failure  to  completely  fulfil  the  relevant  reporting 
requirements. 

New cases were opened early 2009 against all the MS (except Austria, Sweden and Romania) 
as their 2008 annual reports on GHG emissions were provided in time but did not cover all the 
information needed for the Commission to draft its own annual report to the UN Framework 
Convention on Climate Change.  

7.6.2.  Evaluation based on the current situation 

EU ETS Review/Implementation 

The  problems  identified  during  the  review  of  the  EU  ETS  showed  that  improvements  were 
needed  to  ensure  that  the  EU  ETS  would  do  what  it  was  set  up  to  do,  namely  contribute 
significantly  -  and  cost  effectively  -  to  the  necessary  greenhouse  gas  emission  reductions. 
Since almost all Member States were over-optimistic when determining their total quantity of 
allowances,  the  environmental  effectiveness  of  the  system  was  put  in  question  –  to  the 
detriment  of  the  overall  efficiency  of  the  scheme  and  thus  to  the  detriment  of  the  overall 
economy  of  the  EU  by  not  reducing  emissions  at  least-cost.  As,  in  addition,  comparable 
sectors in different Member States benefited from different levels of free allocation and were 
allocated  based  on  different  allocation  rules,  there  were  distortions  of  competition  in  the 
internal market.  

The delays associated with the process of approving the NAPs drawn up by Member States 
led to an extended period of uncertainty in the market with respect to the overall cap of the 
EU ETS which was built bottom-up. Such uncertainty hampered the proper functioning of the 
allowance market and the ability of companies to decide on investments in clean technologies.  

Companies  in  some  sectors  were  able  to  pass  on  the  market  value  of  allowances  in  their 
product  prices,  although  they  had  received  the  allowances  for  free.  This  increased  the 
operating  profits  for  these  companies.  Although  the  pass-through  of  opportunity  costs  is 

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rational  from  a  business  point  of  view,  the  windfall  profits  it  created  led  to  negative 
perceptions for the EU ETS. 

Further information on the evaluation of options to address the problems identified during the 
review  of  the  EU  ETS  can  be  found  in  the  impact  assessment  that  accompanied  the 
Commission's proposal169.  

On  the  basis  of  the  issues  identified  in  the  conformity  studies  on  the  implementation  of  the 
ETS  Directive,  the  Commission  decided  end  of  2008  to  address  these  alleged  shortcomings 
through  an  administrative  letter  to  the  Member  States  concerned,  asking  for  clarification  of 
the issues identified in the studies. These letters were issued early 2009.  

EU ETS/Hydroelectric power production projects 

The  requirements  set  out  in  Article  11b  (6)  of  the  amended  ETS  Directive  do  not  apply  to 
credits  purchased  by  Member  State  governments.  This  creates  discrepancy  in  how  project 
developers are treated, even though some Member States apply the same approval criteria to 
projects for government purchase programmes as for projects destined for the EU ETS. 

Given  these  discrepancies  in  treatment,  which  will  continue  until  the  Article  11b  (6) 
guidelines  become  operational;  there  remain  possibilities  for  some  projects  to  be  evaluated 
more  stringently  than  others  depending  on  the  Member  State  concerned.  This  means  that 
existing forum shopping by project developers may continue some time into the future.  

This  is  currently  exacerbated  by  the  fact  that  whereas  Member  States  are  applying  the 
requirements  of  Article  11b  (6)  to  the  approval  of  project  activities,  a  majority  of  Member 
States are reluctant to check subsequently certified emission reductions (otherwise known as 
CERs) surrendered for compliance against the approved project criteria. 

EU ETS NAP Implementation 

The  Commission  duly  assessed  the  NAP  revisions  for  consistency  with  the  requirements  in 
the  Commission's  decisions  and  the  national  installation-level  allocation  decisions  for 
consistency  with  the  revised  NAPs.  On  the  basis  of  these  assessments,  the  Commission 
allowed the Member State to issue carbon allowances to installations.  

The  appeal  by  the  Member  States  on  the  ground  that  the  approach  by  sectors  of  the  ETS 
Directive breached the principle of equal treatment was not granted. The cases brought before 
the  CFI  on  the  NAP’s  do  illustrate  however  that  whilst  drafting  community  legislation 
sufficient  attention  should  be  paid  to  the  precise  role  of  the  Commission,  in  particular  its 
powers of assessment of the Member States input.  

EU ETS Registry 

Linking with the UNFCCC ITL was necessary because credits under the UNFCCC flexibility 
mechanisms,  such  as  CERs  and  emission  reduction  units  (otherwise  know  as  ERUs)  could 
only be imported into the ETS through the link with the ITL. 

169 

http://ec.europa.eu/environment/climat/emission/pdf/com_2008_16_ia_en.pdf  

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The  amendment  of  the  Registries  Regulation  was  necessary  as  international  aviation  is  not 
covered by the Kyoto Protocol and thus, trading in aviation allowances does not belong under 
the supervision of the ITL.  

The  decision  to  hold  all  allowances  in  a  Community  Registry  was  necessary  in  order  to 
simplify the Registry related IT-infrastructure, thereby making it safer and cheaper for the EU 
as a whole, although costs will be concentrated in the Commission. 

EU ETS/Monitoring, Reporting and Verification 

Current  practices  of  Member  States  and  Competent  Authorities  shows  a  wide  range  of 
different  implementation  and  application  of  the  MRG's  requirements,  for  Monitoring  and 
Reporting,  with  different  approaches  persisting  at  national  level.  Varying  Monitoring  and 
Reporting  requirements  mean  that  some  operators  put  more  effort  into  Monitoring  and 
Reporting  than  others,  potentially  leading  to  concerns  over  ‘fairness’  within  the  current 
system. Moreover, some Competent Authorities' monitoring and reporting systems are more 
efficient than others. For  these reasons, there is  scope for improvement of the  level playing 
field across the EU in terms of Monitoring and Reporting so as to ensure the environmental 
integrity and the credibility of the current EU ETS.  

The  EU  ETS  Directive  and  the  MRG  only  regulate  some  fundamental  requirements  and 
aspects  of  the  Verification  process.  Details  are  left  to  Member  States.  Most,  but  not  all 
Member  States  developed  specific  national  verification  guidance  often  based  on 
internationally  acknowledged  criteria.  Quality  checks  of  verification  reports  are  also  carried 
out  in  many  Member  States,  but  not  in  all.  A  level  playing  field  concerning  the  quality  of 
Verification needs to be built up.  

The  same  goes  with  respect  to  Community-wide  Accreditation  of  verifiers,  where  Member 
States show a very diverse picture with a wide range of standards. As a result of the described 
lack of binding guidance on Verification and Accreditation in the current EU ETS Directive a 
plurality of 27 national systems has evolved.  

Evaluation projects on behalf of the Commission and several Member States have identified a 
lack of transparency, as well as a lack of information on quality and consistency of MR&V, as 
the main challenges for the further development of compliance within the EU ETS. 

Reporting under Article 3 (1) and (2) of Decision 280/2004/EC  

Reminding  the  Member  States  of  their  reporting  obligations  at  meetings  (working  group 
level)  and,  where  needed,  through  a  letter  of  formal  notice  does  seem  to  work  as  the  2009 
annual reports have improved in timeliness and completeness compared to those of 2007 and 
2008.  This  may  be  due  to  the  increasing  familiarity  of  the  MS  with  their  reporting 
requirements.  

7.6.3.  Evaluation results 

7.6.3.1.  Priorities 

EU ETS Review/Implementation 

The Commission's proposal on an improved and extended EU ETS was agreed by the Council 
and  the  European  Parliament  in  a  first  reading  agreement  in  December  2008.  It  was  a  key 

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measure  in  the  climate  and  energy  package.  There  were  several  reasons  why  this  complex 
package could be adopted in such a short time. First of all, the European Parliament and the 
Council  agreed  with  the  overall  architecture  of  the  Commission's  proposal.  Secondly,  the 
elections  to  the  European  Parliament  in  June  2009  meant  that  the  adoption  of  the  package 
would  have  been  significantly  delayed  if  not  adopted  in  first  reading.  Thirdly,  and  perhaps 
most  importantly,  the  ongoing  negotiations  on  a  new  international  agreement  on  climate 
change  are  to  conclude  in  Copenhagen  in  December  2009.  By  adopting  the  climate  and 
energy package, the EU gave new impetus to the negotiations by showing that it is possible 
for 27 very different countries to agree ambitious and legally binding climate policies. As for 
the ETS specifically, the fact that the scheme has been much improved and extended means 
that  it  now  has  a  prominent  position  as  a  potential  nucleus  of  the  emerging  global  carbon 
market.  

The European Parliament and the Council did not question the proposed overall architecture 
of the EU ETS, the level of environmental ambition or the level of harmonisation. Thus, the 
problems identified during the review of the EU ETS have been largely addressed.  

The  revised  Directive  still  needs  to  be  formally  adopted  by  the  Council  of  Ministers  and  is 
therefore expected to enter into force in the spring of 2009. The changes to the EU ETS will 
take effect as from the beginning of the third trading period (2013-2020) on 1 January 2013, 
except for the inclusion of the aviation sector which will take effect as from 1 January 2012.  

The Commission will continue its work preparing the numerous implementing measures that 
the revised Directive provides for (15 comitology measures, 7 legislative proposals, reporting 
requirements). The work has become even more urgent as the co-legislators advanced several 
deadlines  for  the  Commission's  deliverables.  For  example,  the  deadline  for  determining  the 
sub-sectors deemed to be exposed to a significant risk of carbon leakage was advanced by 6 
months  to  31  December  2009,  the  deadline  for  adopting  a  Regulation  on  timing, 
administration  and  other  aspects  of  auctioning  was  advanced  by  6  months  to  30  June  2010, 
and  the  deadline  for  adopting  harmonised  rules  for  the  transitional  free  allocation  of 
allowances was advanced by 6 months to 31 December 2010.  

Due to the importance of providing regulatory certainty and predictability to the market, the 
bulk  of  the  necessary  implementing  measures  should  be  ready  well  in  advance  of  the 
beginning of the third trading period in 2013.  

EU ETS/Hydroelectric power production projects 

The Commission will monitor the application of the co-ordinated approach by Member States. 
Should voluntary co-ordination not yield the anticipated results, Article 11a (9) of the revised 
EU ETS Directive stipulates that from 1 January 2013 the Community may take up measures 
restricting the use of specific credits from project types.  

EU ETS NAP Implementation 

By  the  end  of  2008,  only  the  NAPs  of  Bulgaria,  Hungary,  Poland  and  Cyprus  still  awaited 
approval (all of which except for Poland were notified after November 2008). 

The Commission is committed to defending its position in all cases currently pending before 
the CFI. 

EU ETS Registry 

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The main priority now is to prepare the Regulation establishing the Community Registry for 
adoption through comitology. 

EU ETS/Monitoring, Reporting and Verification 

In  2009,  the  Commission's  priority  remains  focused  on  co-ordinating  the  national 
implementation  of  current  MR&V  procedures.  Moreover,  the  Commission  will  develop 
MR&V rules for aviation and CCS. 

7.6.3.2.  Planned action (2009 and beyond) 

EU ETS Review/Implementation 

During  2009  and  2010  the  Commission  plans  to  hold a number  of separate stakeholder and 
expert meetings regarding the list of (sub-)sectors deemed to be exposed to a significant risk 
of  carbon  leakage,  the  auctioning  regulation,  the  harmonised  rules  for  transitional  free 
allocation (benchmarks),  the  need  for  measures to prevent market abuse and the regulations 
on  monitoring  and  reporting  of  emissions  and  on  verification  of  emission  reports  and 
accreditation of verifiers. All of these measures are to be adopted through comitology.  

The first measure to be adopted, by the end of 2009, will be the list of (sub-)sectors deemed to 
be exposed to a significant risk of carbon leakage. 

During  2010,  the  auctioning  regulation  and  the  harmonised  rules  for  transitional  free 
allocation  and  the  amended  registries  regulation  are  to  be  adopted.  The  registries  regulation 
needs  to  be  amended  to  take  account  of  both  the  revised  EU  ETS  and  the  effort  sharing 
decision. The Commission also plans to adopt guidance on free allocation to the power sector 
in 2010. If further examination would show that there is a need to adopt measures to ensure 
that the carbon market is sufficiently protected from insider dealing and market manipulation, 
then these would also be due by the end of 2010.  

In addition, the Commission is to determine and publish the total quantity of allowances for 
the  year  2013  and  the  estimated  quantity  of  allowances  to  be  auctioned  in  September  and 
December 2010, respectively.  

The  exact  access  for  each  operator  to  the  use  of  JI/CDM  credits  within  the  2008  to  2020 
period  should  be  determined  by  early  2011,  and  by  the  end  of  2011,  the  regulation  on 
monitoring and reporting of emissions and the regulation on verification of emission reports 
and accreditation of verifiers are due for adoption. 

On the basis of the explanations given by the Member States to the request for clarification on 
the implementation of the ETS Directive into their national legislation, the Commission will 
decide on further action in 2009. 

EU ETS/Hydroelectric power production projects 

The Commission will set up a website devoted to the co-ordinated approach to Article 11b (6) 
of  the  amended  ETS  directive  by  1  April  2009  and  will  monitor  the  implementation  of 
voluntary guidelines by Member States.  

EU ETS NAP Implementation 

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The outstanding NAPs should be finalised during the first half of 2009. This work stream is to 
close  afterwards,  as  the  legislation  applicable  after  2013  does  not  envisage  NAPs.  Some 
follow-up work does remain in relation to the processing of any changes proposed by Member 
States concerning the installation level allocation decisions. 

The Commission will deliver its defence at the oral stage of the proceedings currently pending 
before the CFI, throughout 2009 and 2010, including replying to any questions raised by the 
CFI.  

EU ETS Registry 

The Regulation establishing the Community Registry should be published in the OJ by the 1st 
quarter of 2010. 

EU ETS/Monitoring, Reporting and Verification 

For  the  period  2009  to  2011,  the  Commission  will  prepare  a  Monitoring  and  Reporting 
Regulation in accordance with the revised Article 14 of the EU ETS and its Annex IV instead 
of the present MRG.  

The  Commission  will  also  prepare  an  Accreditation  and  Verification  Regulation  in 
accordance with the revised Article 15 of the EU ETS and its Annex V. In this way a clear 
legal basis for verification and accreditation will be established. 

Both Regulations will have to be in place by 31 December 2011. 

Reporting cases under Article 3 (1) and (2) of Decision 280/2004/EC  

The Commission will continue to remind the Member States of their (annual and bi-annual) 
reporting obligations. A next round of reminders to the Member States probably concerns the 
bi-annual reports which were due for 15 March 2009.  

7.6.4. 

Sector summary 

In  2008  the  Member  States  and  the  Commission  further  strengthened  their  commitment  on 
combating  climate  change.  In  December  2008  they  agreed  on  the  climate  change  package 
which sets even more ambitious targets whilst providing the necessary framework inter alia 
by  amending  the  ETS  Directive170.  This  is  a  market-based  instrument  aimed  at  gradually 
reducing emissions in selected sectors. It should help the Community and the Member States 
to  meet  their  Kyoto  Protocol  commitments  to  reduce  greenhouse  gas  emissions  in  a  cost-
efficient  way.  This  renewed  and  extended  commitment  will  enable  both  the  Member  States 
and  the  Community  to  achieve  their  ambitious  targets  for  2013  and  2020.  Apart  from  the 
adoption  of  the  package,  a  whole  range  of  legal  and  practical  implementation  actions  were 
decided and carried out in 2008 and will continue in 2009 and on. This included inter alia the 
adoption  of  National  Allocation  Plans  (NAP)  under  the  ETS  Directive,  the  preparation  of 
Guidelines  (on  Hydroelectric  power  production  projects)  and  linking  the  EU  allowances 
registered  in  the  Community  Independent  Transaction  Log  (CITL)  to  the  registration  held 
under  the  Kyoto  Protocol  as  well  as  the  extension  of  the  CITL  so  that  it  can  register 

170 

Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a 
scheme for greenhouse gas emission allowance trading within the Community and amending Council 
Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32–46). 

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allowances issued to aviation. Ongoing legal actions, initiated by the Member States, private 
enterprises and the Commission, aimed at clarifying existing obligations of the Member States 
and  the  Commission  in  the  adoption  of  NAPs  as  well  as  ensuring  that  the  national  legal 
systems  will  be  able  deliver  according  to  the  ETS  Directive.  It  also  included  action  on  the 
reporting  by  Member  States  on  their  greenhouse  gas  emissions  required  under  Decisions 
280/2004/EC171  and  2005/166/EC172.  Monitoring  and  reporting  allows  for  an  accurate  and 
regular  evaluation  of  the  progress  made  in  reducing  emissions  under  the  United  Nations 
Framework  Convention  on  Climate  Change  (UNFCCC)  and  the  Kyoto  Protocol.  Although 
much work was done in 2008, the high level of ambition of both the Member States and the 
Commission  for  cutting  down  greenhouse  gas  emissions  implies  that  a  lot  of  work  is  still 
lying ahead.  

7.7. 

Industrial installations 

7.7.1.  Current position 

7.7.1.1.   

General introduction   

The most important piece of legislation relating to industrial emissions is Directive 2008/1/EC 
concerning  integrated  pollution  prevention  and  control  (IPPC  Directive,  codified  version  of 
Directive  96/61/EC)173.  This  Directive  sets  out  common  permit  rules  for  industrial 
installations  in  order  to  prevent  and  control  emissions  into  air,  water  or  soil.  Installations 
covered by the IPPC Directive are required to operate under an integrated permit granted by 
the competent authorities of the Member States. The provisions of the directive were due to 
enter into effect either in 1999 (for new installations) or before the end of October 2007 (for 
existing installations). 

The Large Combustion Plants (or LCP) Directive, 2001/80/EC174, aims to reduce emissions of 
sulphur dioxide, nitrogen oxides and dust from combustion plants whose rated thermal input 
is  equal  to  or  greater  than  50  MW.  The  control  of  emissions  from  such  plants  plays  an 
important role in the Community’s efforts to combat acidification, eutrophication and ground-
level ozone as part of the overall strategy to reduce air pollution.  

Further important legislation relating to industrial emissions includes the Waste Incineration 
Directive, 2000/76/EC175, and the VOC Solvent Emissions Directive, 1999/13/EC176.  

171 

172 

173 
174 

175 

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Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning 
a  mechanism  for  monitoring  Community  greenhouse  gas  emissions  and  for  implementing  the  Kyoto 
Protocol (OJ L 49, 19.2.2004, p. 1–8). 
Commission Decision 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 
280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring 
Community greenhouse gas emissions and for implementing the Kyoto Protocol (OJ L 55, 1.3.2005, p. 
57–91). 
OJ L 24, 29.01.2008, p. 8-29. 
Directive  2001/80/EC  on  the  limitation  of  emissions  of  certain  pollutants  into  the  air  from  large 
combustion plants OJ L 309, 27.11.2001, p. 1–21 
Directive  2000/76/EC  of  the  European  Parliament  and  of  the  Council  of  4  December  2000  on  the 
incineration of waste(OJ L 332, 28.12.2000, p. 91–111). 
Council  Directive  1999/13/EC  of  11  March  1999  on  the  limitation  of  emissions  of  volatile  organic 
compounds due to the use of organic solvents in certain activities and installations (OJ L 85, 29.3.1999, 
p. 1). 

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The  National  Emission  Ceilings  (NEC)  Directive,  2001/81/EC177,  limits  the  total  national 
emissions  of  certain  air  pollutants  with  the  aim  to  reduce  negative  effects  on  human  health 
and the environment, such as acidification, eutrophication and ground-level ozone. The NEC 
Directive covers air emissions of all economic sectors within the national territories.  

The  Ozone  Regulation178  sets  out  controls  on  production,  importation,  exportation,  supply, 
use  leakage,  recovery  and  lays  down  the  phasing-out  in  line  with  the  definitions  of  the 
Montreal Protocol.  

The  Seveso  II  or  Major  Accident  Hazard  Directive179  applies  to  establishments  in  which 
certain  dangerous  substances  are  present  in  sufficiently  large  quantities  to  create  a  major 
accident  hazard.  It  contains  obligations  on  both  operators  and  Member  State  authorities  to 
take  measures  aimed  at  preventing  major  accidents  and  limiting  their  consequences.  One  of 
the  key  requirements  is  that  emergency  plans  must  be  drawn  up  for  areas  surrounding  so-
called “upper tier“ establishments in order to properly protect the public should an emergency 
arise. 

7.7.1.2.  Report of work done in 2008 

Revision of the existing legal framework 

In December 2007 the Commission adopted a proposal for a directive on industrial emissions 
(IPPC Recast) which was subsequently submitted to the legislative procedure in 2008 and is 
currently  being  negotiated  in  co-decision.  Some  of  the  main  proposed  amendments  to  the 
legislation are the following: 

•  Recasting  the  existing  pieces  of  legislation  (seven  in  number)  into  a  single 

Directive on industrial emissions.  

•  Improving  and  clarifying  the  concept  of  BAT  to  create  a  more  coherent 

application of the current IPPC directive  

•  Introducing  minimum  provisions  with  regard  to  inspection,  review  of  permit 

conditions and reporting of compliance.  

•  Extending  the  scope  of  the  IPPC  Directive  to  cover  certain  activities  (e.g. 

combustion plants between 20 and 50 MW)  

•  Commission action to amend non-essential elements of the Directive supported by 

a Comitology Committee  

Work  in  relation  to  the  revision  of  the  NEC  Directive  also  continued  in  2008  and  is  still 
ongoing.  Although  the  revision  was  scheduled  as  part  of  the  Commission  legislative  work 
programme  for  2006  a  proposal  had  to  await  the  adoption  of  the  Community  energy  and 
climate package. Finalisation of the proposal of the NEC Directive is presently underway. 

177 

178 

179 

Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national 
emission ceilings for certain atmospheric pollutants, OJ L 309, 27.11.2001, p. 22–30 
Regulation  (EC)  No  2037/2000  of  the  European  Parliament  and  of  the  Council  of  29  June  2000  on 
substances that deplete the ozone layer, OJ L 244, 29.9.2000, p. 1–24 
Council  Directive  96/82/EC on  the  control of  major-accident  hazards  involving dangerous  substances 
OJ L 10, 14.1.1997, p. 13–33. 

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In  2008  the  Commission  made  a  proposal  for  a  recast  of  the  Ozone  Regulation  which  is 
expected  to  enter  into  force  as  of  2010,  subject  to  the  agreement  of  the  corresponding 
European Institutions. The recast aims at simplification, clarification and streamlining. Under 
the new regulatory text the production and consumption of ozone depleting substances would 
be  reduced.  This  would  not  only  protect  the  ozone  layer  but  also  reduce  greenhouse  gas 
emissions. 

A  review  of  the  Seveso  II  Directive,  the  provisions  of  which  have  remained  essentially 
unchanged for over 10 years, also continued in 2008 and remains ongoing with Commission 
proposals for possible amendments to the Directive expected in early 2010. 

Compliance promotion and legal enforcement work 

The Commission has developed an action plan for implementation of the existing legislation 
on industrial emissions that forms part of the 2007 Commission Communication "Towards an 
improved policy on industrial emissions"180. It sets out key actions over the timeframe 2008-
2010,  the  details  of  which  are  set  out  within  the  Communication  itself.  During  2008  the 
Commission continued to carry out implementation work in line with the actions specified in 
the action plan. 

Non-conform transposition of the IPPC Directive 

During  2008  the  status  of  transposition  of  the  IPPC  Directive  by  EU-10  MS  has  been 
analysed, and as a result three non-conformity infringement procedures were launched against 
the Czech Republic, Estonia and Lithuania. In addition, following a judgment of the Court in 
May 2008 which condemned Belgium for the non-conform transposition of several provisions 
of  the  directive  (Case  C-271/07),  the  Commission  sent  Belgium  in  December  2008  a  first 
warning letter under Article 228 of the EC Treaty.  

IPPC permits for existing installations under Article 5(1) of the Directive  

After the expiry of the deadline of 30 October 2007 by when all existing IPPC installations 
had  to  obtain  a  permit  issued  in  accordance  with  the  requirements  of  the  Directive,  the 
Commission  requested  an  update  from  all  Member  States  on  the  state  of  play  of  their 
permitting processes. The answers showed that, despite warnings sent by the Commission to 
all  the  MS  on  several  occasions,  the  deadline  for  issuing  the  permits  was  missed  for  about 
10,000  installations.  To  address  these  systematic  breaches,  the  Commission  started 
infringement  procedures  against  several  Member  States  who  were  significantly  lagging 
behind  in  issuing  permits  compliant  to  the  IPPC  Directive.  As  of  December  2008,  eleven 
infringement  procedures  were  ongoing  on  this  ground  against  Belgium,  Bulgaria,  Denmark, 
Estonia, Greece, Spain, Ireland, The Netherlands, Portugal and Slovenia.  

Implementation of the LCP Directive  

Under  the  LCP  Directive,  Member  States  had  to  submit  the  summary  of  their  emission 
inventories  for  years  2004,  2005  and  2006  to  the  Commission  by  31  December  2007.  In 
October 2007, the Commission reminded all MS to this obligation and requested that MS also 
submit  plant-by-plant  emission  data.  These  are  essential  pieces  of  information  for  the 
Commission  in  order  to  assess  the  actual  implementation  of  the  Directive.  In  2008,  the 

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Commission  initiated  infringement  procedures  against  three  Member  States  (Italy,  Sweden 
and Malta) who had not submitted all the information required. Following the submission of 
the missing information, these infringement procedures were subsequently closed. 

Implementation of the Ozone Regulation 

During 2008 no new infringement cases relating to the Ozone Regulation were launched. A 
number of cases against Latvia, Lithuania, Estonia, Cyprus, Denmark, UK, Greece, Malta and 
Italy however remained open from previous years regarding the failure to fulfil the obligations 
in relation to the decommissioning of halons used in fire extinguishers of ships. Nevertheless, 
it should also be noted that the Commission has observed an important progress in fulfilling 
this decommissioning requirement in all the above-mentioned Member States except Malta. 

Non-conform transposition of the Seveso II Directive 

In 2008 the Commission pursued the infringement procedures it had opened against all EU-10 
Member States except Slovakia for non-conform transposition of Directive 96/82/EC and the 
amending  Directive  2003/105/EC  (the  Seveso  II  Directive).  At  the  end  of  2008,  5  of  those 
cases  against  Czech  Republic,  Estonia,  Latvia,  Lithuania  and  Poland  remained  open.  The 
Commission also opened infringement procedures against 5 EU-15 Member States (Denmark, 
Finland,  France, Sweden  and  UK)  for  non-conform  transposition  of  amending  Directive 
2003/105/EC. 

External Emergency Plans under the Seveso II Directive 

The Commission also continued the "horizontal" legal action launched in 2007 against those 
Member States where emergency plans for so-called upper-tier establishments were lacking in 
breach  of  the  Seveso  II  Directive.  In  total,  second  warning  letters  were  issued  against  14 
Member States (Austria, Belgium, Cyprus, Czech Republic, France, Germany, Ireland, Italy, 
Luxembourg, Malta, Netherlands, Portugal, Spain and Sweden). During 2008 most Member 
States  made  significant  progress  towards  getting  the  necessary  plans  in  place  and  several 
cases were closed. However in a few cases, the Commission was obliged to refer the matter to 
the  Court.  By  the  end  of  the  year  6  such  cases  against  Austria,  Belgium,  Germany,  Italy, 
Luxembourg and Spain remained ongoing.  

Judgments of the Court of Justice in 2008 

In  a  judgment  of  20  May  2008  (Case  C-271/07),  the  Court  of  Justice  declared  that  that  by 
transposing in part or incorrectly several provisions of the IPPC Directive, Belgium had failed 
to fulfil its obligations under that directive. 

7.7.2.  Evaluation based on the current situation 

IPPC directive 

The  Commission  has  carefully  monitored  the  transposition  of  the  IPPC  directive  and  the 
related  legislation  on  industrial  emissions  as  well  as  their  implementation.  An  overall 
evaluation of the position and proposed actions are set out in the Commission Communication 
‘Towards an improved policy on industrial emissions’181. This evaluation recognises that the 

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IPPC Directive still falls substantially short of being fully applied and respected. This is partly 
due  to  very  significant  delays  in  the  correct  transposition  and  implementation  of  the 
obligations of the directive in an important number of Member States. The impact assessment 
undertaken  as  part  of  the  review  of  the  IPPC  Directive  has  indicated  that  the  problems 
identified  cannot  be  addressed  without  some  changes  in  the  legislation.  The  main  problems 
relate to the important delays in issuing the IPPC permits, shortcomings in the implementation 
of  the  IPPC  Directive  (in  particular  BAT),  a  need  for  increased  clarity  in  the  legislation, 
restrictions  in  its  scope  and  insufficient  enforcement  of  its  application.  This  has  led  to  the 
adoption  by  the  Commission  in  December  2007  of  a  proposal  for  a  directive  on  industrial 
emissions (IPPC Recast), which is currently being negotiated in co-decision. 

During the monitoring of the application of the IPPC Directive, the main focus has been on 
how  effectively  Member  States  have  implemented  the  directive  by  reference  to  installation-
specific case studies. In particular, the Commission has carried out a detailed analysis of the 
quality  of  the  permits  issued  and  of  the  permitting,  compliance  and  enforcement  regimes 
adopted  by  Member  States.  Based  on  a  two-year  process  of  data  collection  through  an 
extensive  programme  of  ten  studies  and  continuous  consultation  of  stakeholders,  the 
Commission came to the conclusion that the key principles of the current IPPC directive, in 
particular the integrated approach based on 'Best Available Techniques', remain a sound basis 
for the future development of EU legislation on industrial emissions.  

LCP directive 

The  above-mentioned  installation  level  assessments  also  included  several  large  combustion 
plants,  which  are  subject  to  the  minimum  requirements  set  under  the  LCP  Directive. 
Furthermore,  the  Commission  has  evaluated  the  emission  inventories  submitted  by  Member 
States under this Directive. This showed that, two years ahead of the implementation deadline 
of 1 January 2008 for existing plants, many Member States were still far away from achieving 
the  levels  required  by  the  LCP  Directive,  let  alone  from  achieving  the  emission  levels 
associated with application of BAT. The strong lack of BAT implementation in this particular 
sector was one of the main drivers for the Commission to incorporate the LCP Directive into 
the IPPC Recast Proposal and to strengthen the minimum emission limit values applicable for 
these installations.  

Waste incineration directive 

In  connection  with  the  review  of  the  IPPC  Directive  and  related  legislation  on  industrial 
emissions,  a  study182  has  also  been  carried  out  on  the  implementation  of  Directive 
2000/76/EC  on  the  incineration  of  waste  (WID).  The  main  results  were  reported  by  the 
Commission as an annex to the Communication ‘Towards an improved policy on industrial 
emissions’183. It was found that the overall compliance with the Directive in terms of issued 
permits  can  be  considered  as  good.  Also  the  assessment  of  compliance  with  environmental 
requirements has found that, in general, incineration plants meet the air emission limit values 
set  in  the  WID.  A  couple  of  issues  were  however  identified  that  require  further  action. 
Therefore  the  Commission's  IPPC  Recast  Proposal  includes  a  few  changes  to  the  WID 
concerning  possibilities  for  the  competent  authorities  to  grant  exemptions  for  emission 

182 

183 

EN 

Assessment  of  the  application  and  possible  development  of  Community  legislation  for  the  control  of 
- 
waste 
http://circa.europa.eu/Public/irc/env/ippc_rev/library?l=/waste_incineration/final_report/ 
COM(2007) 843 final. 

co-incineration 

incineration 

(Ökopol, 

2007) 

and 

183 

   EN 

                                                 
monitoring  requirements  and  the  alignment  of  an  emission  limit  value  for  cement  kilns  co-
incinerating waste with the BAT levels.  

NEC directive 

The implementation of the NEC Directive has been monitored through the annual reporting of 
emissions  and  projections  by  Member  States  as  well  as  through  in-depth  analyses  of  the 
national  programmes184  developed  by  the  Member  States.  These  evaluations  and  other 
stakeholder  consultations  have  provided  valuable  input  for  the  future  revisions  of  the  NEC 
Directive.  Two  Member  States  (Greece  and  Luxemburg)  failed  to  report  such  national 
programmes  in  2006  and  infringement  procedures  are  ongoing  against  them.  One  Member 
State  (LU)  still  has  not  reported.  The  annual  reporting  of  emissions  and  projections  has 
improved  over  the  years  as  a  consequence  of  Commission  guidance  at  annual  Comitology 
meetings. In 2008, still a few Member States (Luxemburg, Greece, France, Spain) have failed 
to  provide  the  full  annual  reports  and  may  face  infringement  procedures.  The  latest  annual 
reports  indicate  that  most  Member  States  will  be  able  to  meet  the  ceilings  of  the  NEC 
Directive by 2010, but a number of Member States project themselves to be above the limits. 
This fact has led the Commission to further enquiries to the Member States on what additional 
action they plan to respect the ceilings by 2010. 

Ozone Regulation 

Regarding the implementation of the Ozone Regulation, it can be said that while a number of 
infringement cases have remained open from previous years and individual issues may persist, 
in general Member States are in compliance with the Regulation. 

Seveso directive 

The  basic  provisions  of  the  Seveso  Directive  have  remained  essentially  unchanged  since 
1996. Overall, the Directive appears to be being satisfactorily applied and respected. The level 
of  transposition  and  implementation  of  the  Directive  has  continued  to  improve,  and  the 
number  of  outstanding  legal  proceedings  has  steadily  reduced.  However  there  remain 
concerns as regards performance in relation to external emergency plans for so-called upper-
tier  establishments. A  review  of  the  Directive  is  ongoing.  To  inform  the  review  process, 
which  is  expected  to  lead  to  Commission  proposals  in  early  2010,  a  number  of  studies  are 
being undertaken to assess the directive's effectiveness. At this stage, the main change that is 
foreseen  is  the  adaptation  of  Annex  to  the  Directive  to  the  Globally  Harmonised  System  of 
classification of dangerous substances. 

7.7.3.  Evaluation results 

7.7.3.1.  Priorities 

IPPC directive and related legislation on industrial emissions 

The  negative  consequences  for  the  environment  of  the  problems  identified  are  clear  and 
serious. Attention therefore needs to be paid to improved respect for the existing directive and 
to a strong follow-up on full implementation of the existing provisions.  

184 

Consultancy reports available on Commission web page 
http://ec.europa.eu/environment/air/pollutants/rev_nec_dir.htm 

EN 

184 

   EN 

                                                 
Priority is therefore attached to: 

•  Ensuring full transposition of the relevant Community legislation by Member States 
• 
Increased assistance to Member States on implementation 
•  Ensuring that Member States fulfil their reporting obligations.  
•  A  more  systematic  approach  concerning  the  breaches  of  the  IPPC  Directive  and 

launching of infringement procedures 

•  Annual reporting on progress in implementation of the Action Plan and its revision in 

2010 (see further information below). 

•  Development  of  the  legal  framework  through  the  revision  of  the  current  legislation 

and adoption of a new directive 

On  the  basis  of  these  priorities  and  the  work  programming  set  out  below,  it  is  hoped  to 
achieve substantially correct compliance with the existing provisions at the latest by 2012, by 
which time the focus of attention will move to the implementation of the planned legislative 
developments. 

Seveso directive 

Regarding the Seveso II Directive, priority is being attached to ensuring the full transposition 
and implementation of the Directive in all the Member States. Another priority is the ongoing 
review of the Directive. 

7.7.3.2.  Planned action (2009 and beyond) 

2008-2010 Action Plan on implementation of the existing IPPC directive 

The  Commission  will  continue  to  prioritise  work  on  its  current  collective  infringement 
proceedings, covering a large number of deficiencies in several Member States. In the absence 
of clear signs of significant progress by other Member States having fewer, but nevertheless 
important,  deficiencies  in  the  application  of  the  directive,  the  Commission  will  consider 
opening additional proceedings. Infringement proceedings could also be opened against those 
Member States showing a significant delay in fulfilling their reporting obligations. 

The Commission will strengthen its monitoring and supporting mechanisms by revising and 
refocusing the current IPPC Action Plan on Implementation for the time period 2008-2010 as 
set out below.  

•  Ensure full transposition of the legislation on industrial emissions 

The success of the existing legislation relies first of all on effective transposition by 
Member States in their national legal systems. At the end of 2008, Belgium, Czech 
Republic,  Estonia  and  Lithuania  had  still  not  fully  transposed  the  IPPC  Directive. 
The Commission will continue to pursue infringement proceedings to ensure full and 
correct transposition of the industrial emissions legislation. 

•  Support Member States in their implementation of the legislation 

This  will  include  enhanced  information  exchange,  the  development  of  guidance, 
visits  to  authorities  and  training.  This  support  will  continue  throughout  the 
introduction and implementation of the revised legislation. 

•  Enhanced monitoring and compliance checks  

EN 

185 

   EN 

The  Commission  will  continue  to  monitor  the  number  of  IPPC  permits  issued  and 
updated and, where required, investigate the system of monitoring and inspection at 
IPPC installations. Such investigation will cover specific industrial installations and 
sectors, the use of general binding rules, and the analysis of complaints. 

•  Improve  data  collection  for  review  of  BREFs  and  create  stronger  links  with  the 

Research Framework Programme 

The  permit  conditions,  including  emission  limit  values  (ELVs),  used  in  IPPC 
permits must be based on BAT as defined in the IPPC Directive. To continue to help 
the  licensing  authorities  and  companies  to  determine  BAT,  the  Commission  will 
continue  to  organise  the  exchange  of  information  between  experts  from  Member 
States,  industry  and  environmental  organisations  resulting  in  the  adoption  and 
publication by the Commission of BAT Reference Documents (BREFs). 

Seveso directive 

The  Commission  will  continue  to  monitor  implementation  of  the  Seveso  directive  and  take 
action  as  appropriate.  In  particular,  the  Commission  will  continue  to  ensure  that  Member 
States  fulfil  their  obligations  in  relation  to  external  emergency  plans.  The  ongoing  work  in 
relation to the review of the Directive will also continue in 2009 with Commission proposals 
for possible amendments to the Directive expected in early 2010. 

7.7.4. 

Sector summary  

The IPPC directive is a complex legislative instrument, therefore its transposition by Member 
States  into  the  national  legislation  was  suffering  significant  delays  or  was  done  incorrectly 
and  incompletely.  This  resulted  in  late  and  insufficient  implementation  of  its  provisions.  In 
particular, its effectiveness has been weakened by implementation shortcomings relating to a 
low  uptake  of  BAT,  the  misuse  of  flexibility  provided  for  by  the  Directive,  non-transparent 
way  of  permitting  etc.  In  consequence,  several  IPPC  installations  do  not  comply  with  the 
Directive and give rise to infringement procedures, petitions, citizen complaints.  

The ongoing legislative (review) process does not only address the existing deficiencies, but 
provides  for  more  clarity  and  stringency  with  regard  to  permit  conditions  based  on  BAT, 
enforcement regimes and the scope of the legislation.  

However, legislative work of approximately 1,5 years and then implementation of further two 
years  remain  to  be  done  before  the  new  directive  can  become  effective.  During  this  period, 
both  Member  States  and  the  Commission  have  to  focus  on  the  current  provisions,  and 
strengthen their efforts to ensure full compliance with them in order to achieve a high level of 
environment protection and human health. 

7.8. 

Chemicals, Pesticides, Biocides and Biotechnology 

7.8.1.  Current position 

7.8.1.1.  General introduction 

Chemicals 

EN 

186 

   EN 

The  REACH  Regulation  (1907/2006)185,  which  entered  into  force  on  1  June  2007,  is  the 
cornerstone of the EU’s new chemicals legislation. REACH, which is considerably more far-
reaching  than  previous  legislation,  deals  with  the  registration,  evaluation,  authorisation  and 
restriction of chemicals. Registration means the process by which information on the safety of 
chemicals will need to be submitted for registration in a central database, managed by ECHA. 
Evaluation  includes  a  quality  check  of  the  registration  dossiers  and  examination  of  testing 
proposals  and  is  done  by  ECHA;  it  also  includes  a  more  thorough  examination  of  specific 
substances,  where  Member  States  play  an  important  role.  Substances  of  very  high  concern 
will require authorisation for use and before being placed on the market. There is a procedure 
for restriction of manufacturing, placing on the market or using of certain substances where 
there  is  an  unacceptable  risk  to  health  or  the  environment,  which  needs  to  be  addressed  on 
community wide basis. 

The  newly  adopted  Regulation  (EC)  No  1272/2008186  on  the  Classification,  Labelling  and 
Packaging  of  Substances  and  Mixtures  incorporates  the  UN  GHS  (United  Nations  Globally 
Harmonised System) into Community law and will replace after a transitional period certain 
provisions  of  the  current  directives  related  to  the  classification,  packaging  and  labelling  of 
dangerous substances (Directive 67/548/EEC187) and preparations (Directive 1999/45/EC188). 
Provisions of these Directives shall be repealed with effect from 1 June 2015. 

Directive  76/769/EEC,  which  concerns  restrictions  on  the  marketing  and  use  of  certain 
dangerous substances, will remain in force until 1 June 2009, when it will be repealed by the 
REACH Regulation.  

Two other pieces of legislation should be mentioned here. First, persistent organic pollutants 
(“POPs“) are governed by Regulation (EC) No 850/2004189. This legislation implements the 
commitments to which the Community has signed up to under the 1998 UN-ECE Protocol on 
POPs and the UNEP Stockholm Convention on POPs. The Regulation contains requirements 
to eliminate and/or restrict POP substances to a level equal or even stricter that foreseen under 
the international agreements. The obligations from the two international agreements have thus 
been completely transported into Community Law and are as such enforceable according to 
these rules. 

Second, basic provisions concerning the protection of laboratory animals used in experiments 
are contained in Directive 86/609/EEC190. On 5 November 2008 the Commission adopted a 
proposal  to  revise  Directive  86/609/EEC.  One  of  the  key  reasons  for  the  proposed  revision 
was uneven implementation of the directive in the Member States. 

Pesticides, Biocides and Biotechnology  

185 

186 
187 
188 
189

190

Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals  (REACH), 
establishing  a  European  Chemicals  Agency,  amending  Directive  1999/45/EC  and  repealing  Council 
Regulation  (EEC)  No.  793/93  and  Commission  Regulation  (EC)  No  1488/94  as  well  as  Council 
Directive  76/769/EEC  and  Commission  Directives  91/155/EEC,  93/67/EEC,  93/105/EC  and 
2000/21/EC. 
OJ L 353, 31.12.2008, p. 1 
OJ L 196, 16.08.1967, p. 1. 
OJ L 200, 30.07.1999, p. 1. 
OJ L 158, 30.4.2004, p. 7. 
OJ L 358 , 18.12.1986 p. 1. 

EN 

187 

   EN 

                                                 
 
 
Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release 
into  the  environment  of  genetically  modified  organisms  ("GMO")  and  repealing  Council 
Directive 90/220/EEC191 establishes a common methodology for risk assessment and a safety 
mechanism.  It  also  introduces  mandatory  public  consultation  and  GMO  labelling.  Directive 
90/219/EEC  on  the  contained  use  of  genetically  modified  micro-organisms192,  amended  by 
Council  Directive  98/81/EC193  of  26  October  1998,  lays  down  common  measures  for  the 
contained use of genetically modified microorganisms with a view to protecting human health 
and the environment. 

The regulatory framework on plant protection products is governed by Directive 91/414/EEC 
defining strict rules for the authorisation of plant protection products (PPPs) 194. The Directive 
requires very extensive risk assessments for effects on health and environment to be carried 
out, before a PPP can be placed on the market and used. As the current legislative framework 
mainly concentrates on the beginning and the end of life stages of pesticides, the Commission 
adopted  in  June  2006  the  Thematic  Strategy  on  the  Sustainable  Use  of  Pesticides  together 
with a proposal for a Framework Directive on the sustainable use of pesticides and a proposal 
for a Regulation on the placing of plant protection products on the market revising Directive 
91/414/EEC.  It  is  expected  that  the  new  Framework  Directive  on  the  sustainable  use  of 
pesticides will be adopted in the first half of 2009. 

Directive 98/8/EC of the European Parliament and of the Council concerning the placing of 
biocidal  products  on  the  market195  (the  Biocides  Directive)  concerns  the  authorisation  and 
placing  on  the  market  of  biocidal  products  in  the  Member  States,  the  mutual  recognition  of 
authorisations  within  the  Community  and  the  establishment  at  Community  level  of  a  list  of 
active substances which may be used in biocidal products.  

It  should  be  noted  that  the  product  authorisation  stage  of  the  Biocide  Directive  has  not  yet 
been implemented. By 1 March 2009, 27 active substances were included in Annex I and 1 
active substance in Annex IA. The applications for authorisations of products containing these 
active substances are expected to be submitted to the competent authorities in the near future. 
In  accordance  with  Article  16(1)  of  the  Directive,  Member  States  are  allowed  to  apply 
national rules and practices during the implementation of the review programme. 

7.8.1.2.  Report of work done in 2008 

This  sector  of  EC  environmental  law  is  characterised  by  substantial  new  developments,  in 
particular in the chemicals and pesticides sectors; however, legal enforcement action in these 
fields does not constitute a significant workload for the Commission. 

Chemicals 

REACH entered into force on 1 June 2007. This included the establishment of the European 
Chemicals  Agency  (ECHA)  and  the  preparation  of  IT-systems  to  hold  the  new  database. 
Registration of chemicals manufactured or imported in quantities of 1 tonne or more per year 
started  on  1  June  2008.  Between  1  June  and  1  December  2008  manufacturers  had  the 

191

192

193

194

195

OJ L 106, 17.4.2001, p. 1. 
OJ L 117, 8.5.1990, p. 1. 
OJ L 330, 5.12.1998, p. 13. 
OJ L 230, 19.8.1991, p. 1. 
OJ L 123, 24.4.1998, p. 1. 

EN 

188 

   EN 

                                                 
 
 
 
 
 
possibility  to  pre-register  their  phase-in  substances.  Pre-registration,  as  its  name  suggests, 
precedes full registration and provides for extended deadlines. Depending on the volumes and 
the  hazardous  properties  of  substances,  these  extended  deadlines  are  2010,  2013  or  2018. 
ECHA has received  about  2.7  millions pre-registration dossiers. If a company failed to pre-
register by 1 December 2008 it can no longer place its phase-in substances on the market until 
it  has  completed  registration.  Within  the  process  of  authorisation  ECHA  has  identified  15 
substances  of  very  high  concern  (SVHC)  for  the  candidate  list  subject  to  eventual 
authorisation.  Out  of  these  substances  7  were  prioritised  for  authorisation.  After  a 
Commission decision to make a substance subject to authorisation (inclusion in Annex XIV 
REACH)  any  manufacturer,  importer  or  downstream  user  of  that  substance  must  apply  for 
authorisation to use it. 

Member  States  were  obliged  to  notify  to  the  Commission  their  national  provisions  for 
penalties applicable for REACH infringements by 1 December 2008. The Commission drew 
Member  States'  attention  to  that  obligation  during  the  meetings  of  the  REACH  Competent 
Authorities  and  administrative  letters  before  and  after  the  notification  deadline.  A  number  of 
Member  States  did  not  fulfil  that  obligations  and  therefore  by  March  2009  legal  enforcement 
action was launched against 8 Member States. 

Every  three  years  Member  States  shall  forward  to  the  Commission  information  on  the 
application of the POPs Regulation including information on infringements and penalties and 
statistical  data  on  production  and  placing  on  the  market  of  particular  substances.  By  the 
deadline  of  20  May  2008  several  Member  States  had  not  fulfilled  these  obligations.  Five 
Member  States  did  not  provide  any  information  and  nine  Member  States  did  not  send  their 
annual reports. The Commission has sent reminders to Member States about these obligations 
and  urged  to  provide  information  as  soon  as  possible  during  a  meeting  of  the  Competent 
Authorities in January 2009. 

Pesticides, Biocides and Biotechnology  

A  horizontal  enforcement  action  against  Member  States  dealing  with  incorrect  transposition 
of  Directive  on  Contained  Use  of  genetically  modified  micro-organisms196  was  opened  in 
2007  and  continued  in  2008.  In  2008,  the  Commission  received  replies  to  the  first  warning 
letters  that  were  sent  to  twelve  Member  States  and  after  their  assessment  was  able  to  close 
almost half of the enforcement procedures after conformity has been achieved. The remaining 
conformity files are still being assessed with a view to ask Member States  for clarifications 
and comments on their legislation, where necessary. It is expected that the relevant letters will 
be sent to the Member States in 2009.  

In judgment in Case C-121/07 the European Court of Justice decided that France has to pay a 
lump sum of EUR 10 million for failure to comply with Judgment of 15 July 2004 (C-419/03) 
holding  that  France  had  failed  to  transpose  Directive  2001/18/EC  on  the  deliberate  release 
into  the  environment  of  GMOs.  The  Court  also  found  that  France  fully  transposed  the 
Directive in June 2008, thus it considered the imposition of a penalty to be unnecessary. 

In  Case  T-75/06,  the  Court  of  First  Instance  dismissed  an  application  for  the  annulment  of 
Commission  Decision  2005/864/EC  of  2  December  2005  concerning  the  non-inclusion  of 

196

Council  Directive 90/219/EEC  of  23  April  1990  on  the  contained use  of  genetically  modified  micro-organisms  as  amended  by 
Council Directive 98/81/EC. 

EN 

189 

   EN 

                                                 
 
Endosulfan in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations 
for plant protection products containing that active substance. 

In the area of biocidal products, the Biocides Directive stipulates that Member States have to 
take  the  necessary  steps  to  monitor  their  market  and  make  sure  it  complies  with  the 
requirements of the Directive. The second composite report was prepared by the Commission 
in April 2008, covering the period December 2003 to November 2006.  

During  2008  the  Commission  followed  the  transposition  of  the  Commission  Directives 
amending Directive 98/8/EC concerning the placing of biocidal products on the market. The 
Commission has closed most of the open infringement cases. 

All  Member  States  and  Norway,  Iceland  and  Liechtenstein  have  designated  one  or  more 
authorities  to  monitor  compliance  and  to  perform  market  surveillance for  biocidal  products. 
However, most Member States consider that they dispose of insufficient human resources to 
cope with the different monitoring activities due to budgetary constrains and/or organisational 
problems. 

All  Member  States  and  Norway  showed  specific  efforts  to  comply  with  the  phase-out 
provisions  for  certain  biocidal  products 
in  accordance  with  Regulation  (EC)  No. 
2032/2003197. However, only 12 out of 25 Member States198 and Norway confirmed that they 
have mechanisms in place to correctly react to non-inclusion decisions. 

In October 2008, the Commission prepared a report on the evaluation of the implementation 
of Directive 98/8/EC concerning the placing of biocidal products on the market (submitted in 
accordance with Article 18(5) of the Directive) and a progress report on the work programme 
referred to in Article 16(2) of the same Directive.  

During  2008  the  Commission  opened  horizontal  non-communication  cases  concerning 
Commission Directive 2006/140/EC199 of 20 December 2006 amending Directive 98/8/EC of 
the European Parliament and of the Council to include sulfuryl fluoride as an active substance 
in Annex I thereto, against 14 Member States. The referred cases were closed during the year, 
as soon as the transpositions were notified to the Commission.  

The  Commission  also  opened  11  horizontal  non-communication  cases  concerning 
Commission  Directive  2007/20/EC200  of  3  April  2007  amending  Directive  98/8/EC  of  the 
European  Parliament  and  of  the  Council  to  include  dichlofluanid  as  an  active  substance  in 
Annex  I  thereto.  Most  of  the  aforementioned  cased  were  closed  during  the  year,  but  two  of 
them are still open. 

A similar situation followed the implementation of Commission Directive 2006/50/EC201 of 29 
May 2006 amending Annexes IVA and IVB to Directive 98/8/EC of the European Parliament 
and  of  the  Council  concerning  the  placing  of  biocidal  products  on  the  market,  where  out  of 
seven non communication cases opened during 2008, only one is still open. 

197

198

199

200

201

As of 31 December 2007, Regulation (EC) No. 2032/2003 has been repealed and replaced by Regulation (EC) No. 1451/2007. 
Since Bulgaria and Romania have acceded the EU as from 1 January 2007, they are not included in the second composite report 
which covers a period from December 2003 to November 2006. 
OJ L 414, 30.12.2006, p. 78. 
OJ L 94, 4.4.2007, p. 23. 
OJ L 142, 30.5.2006, p. 6. 

EN 

190 

   EN 

                                                 
 
 
 
 
 
In  2008  three  non-communication  cases  were  registered  concerning  Commission  Directive 
2007/69/EC202  of  29  November  2007  amending  Directive  98/8/EC  of  the  European 
Parliament  and  of  the  Council  to  include  difethialone  as  an  active  substance  in  Annex  I 
thereto  and  two  concerning  Commission  Directive  2007/70/EC203  of  29  November  2007 
amending Directive 98/8/EC of the European Parliament and of the Council to include carbon 
dioxide as an active substance in Annex IA thereto. All of these cases are still ongoing. 

7.8.2.  Evaluation based on the current situation 

Chemicals 

As the REACH Regulation entered into force on 1 June 2007 and its main obligations started 
applying on 1 June 2008, there is not yet sufficient information concerning its implementation 
in Member States. In order to ensure compliance, Member States should put in place effective 
monitoring and control measures. The Commission is concerned that Member States may not 
be  able  to  make  sufficient  resources  available  to  ensure  compliance  by  economic  operators. 
Every five years Member States must submit a report to the Commission on the operation of 
the  Regulation  in  their  respective  territories,  including  sections  on  evaluation  and 
enforcement.  The  first  report  has  to  be  submitted  by  1  June  2010.  The  Commission  is 
currently preparing a reporting format and an IT system for these reports. Member States must 
furthermore  lay  down  the  provisions  on  penalties  for  non-compliance  with  the  REACH 
Regulation. The penalties provided for must be effective, proportionate and dissuasive. They 
had to be notified to the Commission by 1 December 2008. By March 2009 notification was 
still missing from 8 Member States. 

With regard to POPs Regulation, the reason for the failure to submit the annual reports could 
be that the Member States may consider them as low priority, as the reporting format only sets 
out  four  questions  which  remain  the  same  every  year.  As  for  the  three  annual  reports,  the 
reasons could be linked to non-ratification of the Stockholm Convention on POPs and/or the 
Protocol  to  the  regional  UNECE  Convention  on  Long-Range  Transboundary  Air  Pollution 
(CLRTAP) on POPs. 

Pesticides, Biocides and Biotechnology  

Concerning the biotechnology sector, the overall situation as regards implementation has to be 
seen as poor. The studies obtained by the Commission and examined by the Commission in 
2007  revealed  a  number  of  shortcomings  in  the  national  implementing  legislation  for 
Directive 90/219/EEC as amended by Directive 98/81/EC in several Member States. In 2008 
the  Commission  continued  legal  enforcement  actions  launched  in  2007  against  several, 
mainly EU-15, Member States concerning incorrect transposition of the Directive. However, 
not all Member States' transposition measures have been appropriately assessed to conclude 
conformity. 

As regards pesticides, the current legislative framework mainly concentrates on the beginning 
and  the  end  of  life  stages  of  pesticides;  therefore,  the  Commission  aims  to  fill  the  current 
legislative gap regarding the use-phase of pesticides at EU level by setting minimum rules for 
the  use  of  pesticides  in  the  Community,  so  as  to  reduce  risks  to  human  health  and  the 
environment from the use of pesticides. The adoption of the new Framework Directive would 

202

203

OJ L 312, 30.11.2007, p. 23. 
OJ L 312, 30.11.2007, p. 26. 

EN 

191 

   EN 

                                                 
 
 
help  to  achieve  a  more  sustainable  use  of  pesticides  by  reducing  the  risks  and  impacts  of 
pesticide  use  on  human  health  and  the  environment  in  a  way  that  is  consistent  with  the 
necessary crop protection. 

In the area of biocidal products, the second composite report prepared by the Commission in 
April 2008, covering the period December 2003 to November 2006, has found that Member 
States  have  made  significant  progress  in  implementing  and  enforcing  the  directive’s 
provisions by taking the appropriate measures. 

All  Member  States  and  Norway,  Iceland  and  Liechtenstein  have  designated  one  or  more 
authorities  to  monitor  compliance  and  to  perform  market  surveillance for  biocidal  products. 
However, most Member States consider that they dispose of insufficient human resources to 
cope with the different monitoring activities due to budgetary constrains and/or organisational 
problems. 

During  2008  the  Commission  followed  the  transposition  of  the  Commission  Directives 
amending Directive 98/8/EC of the European Parliament and of the Council of 16 February 
1998  concerning  the  placing  of  biocidal  products  on  the  market,  most  of  the  opened  cases 
have been satisfactory closed. 

In  2008,  the  Commission  carried  out  an  impact  assessment  which  concluded  that  certain 
changes  should  be  made  to  the  Directive  to  make  it  more  effective  and  efficient,  reducing 
unnecessary  burdens  for  Member  States  and  industry  whilst  maintaining  a  high  level  of 
protection of human health and environment. The Commission intends to present its proposal 
for a revision of the Biocides Directive in the course of the year 2009. 

7.8.3.  Evaluation results 

7.8.3.1.  Priorities 

Chemicals 

Effective  implementation  of  REACH  is  the  main  priority  in  the  chemicals  sector.  The 
Chemicals  Agency  is  playing  a key  role  in  the  effective  implementation  of  REACH.  It  will 
coordinate, over a period of 11 years, the registration of some 30 000 chemical substances in 
use today. To exchange information on enforcement, the Forum for Exchange of Information 
on Enforcement, composed of members nominated by the Member States, was set up within 
ECHA.  The  Forum  coordinates  a  network  of  Member  State  authorities  responsible  for 
enforcement of the Regulation. Its main tasks include: proposing, coordinating and evaluating 
harmonised  enforcement  projects  and  joint  inspections;  identifying  enforcement  strategies 
and,  best  practice  in  enforcement;  and  examining  proposals  for  restrictions  with  a  view  to 
advising on enforceability. 

Pesticides, Biocides and Biotechnology  

In  biotechnology  sector 
transposition  and 
implementation of Directive 90/219/EEC as amended in all Member States. The Commission 
will  also  determine  whether  further  action  is  needed  with  respect  to  Member  States  which 
have not properly transposed Directive 90/219/EEC.  

the  main  priority 

to  ensure  correct 

is 

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As  regards  pesticides,  the  adoption  of  the  new  Framework  Directive  is  a  priority  for  the 
Commission. It is expected that the Framework Directive on the sustainable use of pesticides 
will be adopted in the first half of 2009. Member States will have two years to transpose it.  

The Commission will carefully monitor that the obligations of the Member States under the 
biocides review programme, including the delivery of competent authority reports, are being 
adequately resourced and met, and will take action where this is not the case. 

The  first  applications  for  authorisations  in  accordance  with  the  Biocides  Directive  are 
expected in 2009. In order to realise the environmental and human health benefits under the 
Directive,  it  will  be  necessary  to  ensure  a  uniform  interpretation  and  implementation  of  the 
requirements  concerning  product  authorisation  and  mutual  recognition.  In  view  of  this,  the 
Commission  established  an  informal  expert  group  on  product  authorisation  and  mutual 
recognition  which  aims  to  facilitate  the  implementation  of  the  legal  requirements  and  to 
provide for an exchange of views. 

In  2008,  the  Commission  carried  out  an  impact  assessment  which  concluded  that  certain 
changes  should  be  made  to  the  Directive  to  make  it  more  effective  and  efficient,  reducing 
unnecessary  burdens  for  Member  States  and  industry  whilst  maintaining  a  high  level  of 
protection of human health and environment. The Commission intends to present its proposal 
for a revision of the Biocides Directive in the course of the year 2009. The proposal will take 
form  of  a  Biocides  Regulation  repealing  and  replacing  the  Biocides  Directive.  The  main 
changes proposed by the Commission will include an extension of the scope to materials and 
articles  treated  with  biocidal  products,  a  possibility  to  have  certain  categories  of  products 
authorised  at  Community  level,  measures  aimed  at  strengthening  the  mutual  recognition, 
obligatory  rules  on  data  sharing  of  tests  involving  vertebrate  animals  and  a  partially 
harmonised fee structure. 

7.8.3.2.  Planned action (2009 and beyond) 

Chemicals 

The  Commission  will  continue  to  work  to  enhance  good  cooperation,  coordination  and 
exchange  of  information  with  the  Member  States  and  the  European  Chemicals  Agency 
regarding enforcement so that the system established by the REACH Regulation can operate 
effectively. The Commission will work closely with the Forum for Exchange of Information 
on Enforcement in this regard. 

The  Commission  has  already  launched  legal  enforcement  action  against  8  MS  to  ensure 
compliance  with  REACH  on  the  obligation  to  put  in  place  provisions  on  effective, 
proportionate and dissuasive penalties for breaches of REACH; during 2009 this enforcement 
action will be continued. Later in 2009 the Commission aims to finalise a study assessing the 
abovementioned  national  provisions  on  penalties  for  non-compliance  with  REACH.  This 
study  should  provide  Member  States  and  the  Commission  with  an  overview  of  national 
regimes for penalties and identify discrepancies between them. It will be made available to the 
Member  States  with  the  aim  to  strengthen  cooperation  between  them  in  the  area  of 
enforcement.  

With regard to POPs Regulation the Commission will continue to stress to the Member States 
the  importance  of  the  continuity  of  the  information  provided  by  them.  Furthermore  the 
Commission  intends  to  improve  the  reporting  format  with  the  aim  to  make  it  more  user-
friendly  and  less  time  consuming.  This  can  be  achieved  by  establishing  links  to  the  SEIS 

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(Shared Environmental Information System) initiative. A SEIS Regulation is currently under 
preparation.  The  Commission  will  also  address  reminders  to  Member  States  about  their 
reporting  obligations  on  the  application  of  the  POPs  Regulation,  followed  by  legal 
enforcement action where necessary. 

Pesticides, Biocides and Biotechnology  

In  biotechnology  sector,  the  Commission  will  continue  legal  enforcement  actions  already 
launched in 2007 and will take the necessary administrative and legal action to ensure correct 
transposition and implementation of Directive 90/219/EEC as amended in all Member States.  

As regards pesticides, it is expected that the new Framework Directive on the sustainable use 
of pesticides will be adopted in the first half of 2009. Member States will have two years to 
transpose it. The Commission will carefully monitor its transposition on the basis  of a risk-
based implementation action plan. This will involve forward planning of work to encourage 
correct and timely transposition. 

As  regards  the  biocides,  the  Commission  will  continue  to  pursue  infringement  procedures 
concerning  the  non-communication  of  the  national  implementing  measures  of  recently 
adopted directives that update the relevant Annexes. 

The  first  applications  for  authorisations  in  accordance  with  the  Biocides  Directive  are 
expected  in  2009.  The  Commission  will  use  the  informal  expert  group  on  product 
authorisation and mutual recognition to ensure a uniform interpretation and implementation of 
the requirements concerning product authorisation and mutual recognition. 

The Commission intends to present its proposal for a revision of the Biocides Directive in the 
course of 2009. The proposal will take form of a Biocides Regulation repealing and replacing 
the  Biocides  Directive.  The  main  changes  proposed  by  the  Commission  will  include  an 
extension of the scope to materials and articles treated with biocidal products, a possibility to 
have  certain  categories  of  products  authorised  at  Community  level,  measures  aimed  at 
strengthening  the  mutual  recognition,  obligatory  rules  on  data  sharing  of  tests  involving 
vertebrate animals and a partially harmonised fee structure. The choice of a legal instrument 
(i.e. regulation) will ensure the uniform application of the new instrument throughout the EU, 
in  particular  the  procedures  and  deadlines  for authorisation  of  biocidal  products  and  mutual 
recognition of those authorisations. It will also eliminate the need for a transitional period and 
will advance the implementation of urgently needed provisions by approximately two years. 

7.8.4. 

Sector summary 

Chemicals,  Pesticides,  Biocides  and  Biotechnology  sector  of  EC  environmental  law  is 
characterised  by  substantial  new  developments.  In  the  chemicals  sector,  as  REACH  main 
obligations started applying on June 2008 sufficient information on the implementation is not 
yet  available  and  still  full  compliance  has  not  been  achieved  concerning  introduction  of 
penalties.  Concerning 
regards 
implementation is seen as poor; therefore the main priority of the Commission is to achieve 
full  conformity  by  all  Member  States.  As  regards  pesticides  and  biocides,  a  review  of  the 
current  legislative  framework  showed  that  improvements  are  necessary;  therefore  a  new 
Framework  Directive  will  be  adopted  in  the  first  half  of  2009  and  the  Commission  aims  to 
present a proposal for a revision of the Biocides Directive. 

the  biotechnology  sector, 

the  overall  situation  as 

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7.9. 

Governance and Environmental Liability 

7.9.1.  Current position 

7.9.1.1.  General introduction 

Governance 

Public  access  to  environmental  information  has  always  been  considered  as  a  key  issue  to 
promote  greater  awareness  of  environmental  matters,  a  free  exchange  of  views  and  more 
effective  participation  by  the  public  in  environmental  decision-making.  The  EU  decided  as 
long  ago  as  1990  to  introduce  specific  legislation;  however,  new  impetus  was  given  by  the 
UN-ECE Aarhus Convention204. Directive 2003/4/EC205 was adopted to fully comply with the 
requirements of the Convention and constitutes a significant improvement compared with the 
previous legislation. The objectives of the Directive are: a) to guarantee the right of access to 
environmental information held by or for public authorities and to set out the basic terms and 
conditions  of  its  exercise;  and  b)  to  ensure  that,  as  a  matter  of  course,  environmental 
information  is  progressively  available  and  disseminated  to  the  public  using  in  particular 
computer  telecommunication  or  electronic  technology.  Both  'passive',  i.e.  upon  request,  and 
'active' dissemination of environmental information are covered by the Directive. Its scope is 
broad  due  to  the  fact  that  'environmental  information'  and  'public  authority'  are  both  given 
very  wide  definitions.  The  latter  covers  not  only  national,  regional  and  local  authorities, 
including public advisory bodies, but also private non-governmental bodies providing public 
services or performing public administrative functions in relation to the environment. 

Directive  2003/4/EC  had  to  be  transposed  by  14  February  2005.  Despite  some  delays,  all 
Member States have adopted the necessary legislation. It is, therefore, applied throughout the 
EU.  

Environmental Liability 

Directive  2004/35/EC  of  the  European  Parliament  and  of  the  Council  on  environmental 
liability  with  regard 
the  prevention  and  remedying  of  environmental  damage 
(Environmental  Liability  Directive)206  establishes  a  framework  for  environmental  liability 
based  on  the  "polluter  pays"  principle,  with  a  view  to  preventing  and  remedying 
environmental damage. 

to 

7.9.1.2.  Report of work done in 2008 

Governance 

All the Member States have transposed the Directive 2003/4/EC. The Commission contracted 
an  external  consultant  to  carry  out  studies  dealing  with  the  conformity  of  national 
implementing  legislation  with  the  requirements  of  the  Directive.  In  2008  these  studies  were 

204 

205 

206

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in 
Environmental  Matters,  done  at  Aarhus  on  25  June  1998.  The  European  Community  signed  this 
convention  the  same  date  of  the  adoption  and  has  became  party  since  17  May  2005,  following  the 
Council Decision of 17 February 2005 (2005/370/EC) in OJ L124, 17.05.2005, p.1-3. 
Directive 2003/4/EC of 28 January 2003 on public access to environmental information and repealing 
Council Directive 90/313/EEC, OJ L41 , 14.02.2003, p. 26. 
OJ L 143, 30.4.2004, p. 56. 

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finalised and examined by the competent services of the Commission with a view to asking 
Member  States  for  clarifications  and  comments  on  their  legislation,  where  necessary.  It  is 
expected that the relevant letters will be sent to most of the Member States in the first half of 
2009. 

While  the  Commission  services  have  received  a  certain  amount  of  requests  from  public 
authorities for interpretation concerning certain issues of the Directive 2003/4/EC, it appears 
that few petitions submitted to the European Parliament raised problems of its application in 
the  Member  States.  On  the  basis  of  information  available  or  supplementary  documents 
supplied  in  the  framework  of  the  petitions,  there  was  no  evidence  that  public  authorities 
applied the Directive incorrectly. 

Environmental Liability 

The  Environmental  Liability  Directive  was  to  be  transposed  by  30  April  2007  at  the  latest. 
However, only four Member States had notified complete transposition by this transposition 
deadline,  consequently  first  warning  letters  were  addressed  to  23  Member  States.  In  2008  a 
second warning letter was addressed to 16 Member States. On 26 June 2008 the Commission 
decided to refer to the European Court of Justice (ECJ) 9 Member States which still failed to 
transpose the Directive. By the end of 2008, still seven Member States failed to transpose or 
completely  transpose  the  Directive  (Austria,  Finland,  France,  Greece,  Luxemburg,  Slovenia 
and  the  United  Kingdom)  and  in  December  2008,  the  ECJ  rendered  its  first  judgments  for 
failure to transpose the ELD concerning Finland (C-328/08) and France (C-330/08).  

The Commission commissioned an exploratory study in view of the reporting obligation on 
the effectiveness of the ELD in terms of actual remediation of environmental damages and on 
the availability at reasonable costs and on conditions of insurance and other types of financial 
security  fort  the  activities  covered  by  the  scope  of  strict  liability  of  the  ELD.  Within  this 
study,  two  questionnaires  were  addressed  to  Member  States  and  the  insurance  sector, 
interviews  were  carried  out  with  a  large  number  of  companies  in  the  EU  and  a  verification 
workshop  was  held  with  all  stakeholders  in  June  2008.  The  study  was  finalised  in  August 
2008207. 

7.9.2.  Evaluation based on the current situation 

Governance 

It  appears  that,  in  general,  public  authorities  at  national  and  regional  level  have  applied  the 
Directive  correctly.  However,  given  the  Directive's  wide  scope,  it  is  less  clear  whether,  at 
local  level,  notably  in  small  municipalities  or  entities,  public  access  to  environmental 
information is always provided according to the relevant standards. 

In  addition,  petitions  to  the  European  Parliament  and  requests  for  clarification  to  the 
Commission services show that public authorities need to make greater efforts to inform the 
public adequately of their rights under the Directive. 

Moreover,  public  authorities  need  to  pay  specific  attention  to  the  active  dissemination  of 
environmental  information  to  the  public,  in  particular,  through  the  Internet.  Even  if  the 

207

European  Commission,  "Financial  security  in  Environmental  Liability  Directive,"  final  report  August  2008.  Available  on  the 
Internet at: <http://ec.europa.eu/environment/legal/liability/pdf/eld_report.pdf>. 

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Commission  services  do  not  have  a  systematic  overview  of  the  situation,  it  appears  that 
further progress is needed. 

Environmental Liability 

The Directive is relatively new and at present not even completely transposed by all Member 
States  (see  ongoing  infringement  cases  above).  However,  a  first  evaluation  of  important 
aspects  of  the  ELD  will  be  presented  in  the  above  mentioned  Commission  report  on  the 
effectiveness  of  the  ELD  and  availability  of  financial  security  which  is  due  by  April  2010. 
Another, broader application report of the Commission will be due by April 2014, based on 
Member States application reports. 

Apart  from  the  application  of  the  significance  criteria  (Annex  I  of  the  Directive)  and  the 
application  of  the  appropriate  measures  to  ensure  the  remedying  of  environmental  damage 
('primary',  'complementary'  and  'compensatory'  remediation  according  to  Annex  II  of  the 
Directive),  the  proper  functioning  of  financial  security  instruments  will  be  significant  for 
successful implementation of the ELD in the Member States. Therefore, the Commission has 
given  support  to  the  Member  States  through  interpretation  of  open  questions  in  expert 
meetings and in particular through a project developing a tool-kit on the remediation methods. 
The results of the research programme REMEDE were made available in 2008208. 

7.9.3.  Evaluation results 

7.9.3.1.  Priorities 

Governance 

The  priority  for  the  Commission  is  to  verify  the  conformity  of  national  legislation  with  the 
requirements of the Directive 2003/4/EC and ensure that the directive is applied correctly in 
practice by public authorities at all levels.  

Environmental Liability 

The  first  priority  is  to  ensure  that  all  Member  States  complete  transposition  of  the  ELD  as 
soon as possible. Therefore, the horizontal non-communication cases were rapidly processed 
in 2008 and will be continued in 2009 until the last Member States transposed the Directive. 
The next priority for the Commission is to ensure that the Environmental Liability Directive is 
correctly transposed in all Member States and in cooperation with Member States assess the 
national  transposition  measures  and  where  necessary  launch  legal  enforcement  actions. 
Another priority for 2009 results from the mentioned reporting obligation before April 2014. 

7.9.3.2.  Planned action (2009 and beyond) 

Governance 

As  mentioned  above,  in  2009  a  dialogue  will  be  set  up  with  Member  States  to  address 
transposition and interpretation of certain provisions of the Directive or concrete difficulties 
encountered by public authorities in enforcement. 

208

Available on the Internet at the official Website of Resource Equivalency Methods for Assessing Environmental Damage in the 
EU (REMEDE): <http://www.envliability.eu/>. 

EN 

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In addition, according to the Directive, no later than 14 August 2009 Member States have to 
communicate to the Commission their reports on the experience gained in its application. A 
Guidance Document for these reports was drawn up by the Commission, in co-operation with 
Member  State  experts,  in  2007.  These  reports  will  give  the  Commission  a  better 
understanding  of  the  current  situation.  Based  on  the  national  reports,  the  Commission  will 
report to the European Parliament and the Council. 

Additional  discussions,  where  appropriate,  will  be  held  with  Member  State  experts  in  the 
framework of an Expert Group, chaired by the Commission, dealing with issues related to the 
Aarhus Convention. 

Environmental Liability 

The  Commission's  efforts  need  to  continue  to  ensure  that  the  ELD  is  fully  and  correctly 
transposed. Apart from continuing the horizontal non communication action, the Commission 
will therefore in 2009 examine the conformity of the transposing legislation of the Member 
States  and  take  enforcement  action  as  necessary.  In  this  context,  the  Commission  will 
continue  to  discuss  questions  of  interpretation  and  application  of  the  ELD  with  government 
experts. 

The Commission will finalise the draft report on the effectiveness of the ELD and availability 
of  financial  security  by  the  end  of  2009  in  view  of  its  presentation  in  April  2010.  To  this 
purpose, another more comprehensive study is being carried out this year including broader 
stakeholder consultation and a workshop. The study will be complemented by meetings with 
government experts in order to collect and verify the gathered information. 

7.9.4. 

Sector summary 

Overall, Member States apply the Directive on access to environmental information correctly, 
but the existing practice indicates that public authorities of all levels, in particular lower ones, 
need to make greater efforts to inform and respect the right of the public under the Directive. 
Full transposition of the Directive in the Member States is a priority for the Commission and 
in 2009 a dialogue with Member States will be set up to address that. ELD is relatively new 
and not fully transposed by all Member States; therefore the Commission's priority is to firstly 
achieve  a  full  transposition  by  all  Member  States  and  consequently  carry  out  the  first 
evaluation of ELD that will be available in the first half of 2010. 

8. 

INFORMATION SOCIETY AND MEDIA 

8.1. 

General Overview 

In  Information  society  and  media  the  regulatory  framework  for  electronic  communications 
continued  to  face  a  sizeable  volume  of  incorrect  implementation  issues,  despite  genuine 
efforts  on  the  part  of  most  Member  States.  One  challenge  has  been  the  independence  of 
national  regulatory  authorities  in  certain  Member  States.  Member  States  must  ensure  the 
independence  and  effectiveness  of  regulators,  which  are  a  prerequisite  for  ensuring  fair  and 
effective  regulation  of  the  sector.  Ensuring  the  effective  implementation  of  consumer 
protection  rights,  such  as  the  ability  to  be  located  when  calling  the  European  emergency 
number  '112',  remains  a  key  challenge  for  several  Member  States  and  the  market  players 
concerned. The increasingly challenging economic environment makes it more necessary than 
ever to ensure the correct implementation of the internal market acquis. Amendments to the 

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existing 2002 framework, as well as Commission guidance on e.g. next generation networks 
and tariffs for termination of calls on mobile networks, are expected to enhance predictability 
and legal certainty, and to create a level playing field in the EU's single market for electronic 
communications.  In  the  audiovisual  sector,  while  commercial  communications  continued  to 
be  an  issue,  preventive  work  has  been  undertaken  with  Member  States  aiming  at  ensuring 
effective  implementation  of  the  Audiovisual  Media  Services  Directive  by  the  end  of  2009. 
Regarding  the  Public  Sector  Information  Directive,  main  challenges  include  licensing  and 
charging models that facilitate the availability and re-use of public information resources. 

8.2. 

Electronic communications 

8.2.1.  Current position 

8.2.1.1.  Existing measures in force 

The Commission's overarching initiative for information society and media policies, i2010209, 
confronts  the  challenge  of  rapid  convergence  and  technological  change  with  a  regulatory 
framework for electronic communications that promotes competition, investment, innovation, 
the single market, and consumer benefits. Enforcing full and effective implementation of the 
regulatory  framework  in  electronic  communications  is  therefore  essential  for  the  sector’s 
contribution to the overall Lisbon goals. 

The EU regulatory framework for electronic communications came into force in 2002. It 
consists  of  five  Directives210.  The  Framework  Directive  outlines  the  general  principles, 
objectives,  and  procedures.  The  Authorisation  Directive  creates  a  regime  of  general 
authorisations  for  providers  of  communications  services.  The  Access  and  Interconnection 
Directive  sets  out  rules  for  a  multi-carrier  marketplace,  ensuring,  in  particular,  access  to 
networks and services and interoperability. The Universal Service Directive guarantees basic 
rights  for  consumers  and  minimum  levels  of  availability  and  affordability.  The  e-Privacy 
Directive covers protection of privacy and personal data communicated over public networks. 
Transposition of the regulatory framework into the national law of the 27 Member States was 
completed in 2007 with the adoption of primary legislation by Bulgaria and Romania. 

The  Roaming  Regulation211,  which  entered  into  force  in  June  2007,  has  ensured  that 
consumers continue to benefit from  significant cost  savings  when making or receiving  calls 
while  in  another  Member  State.  The  Roaming  Regulation  introduced  maximum  ceilings 
(Eurotariff)212  on  retail  prices  for  making  and  receiving  calls  in  the  EU  and  improved 
transparency  for  consumers  by  ensuring  that  operators  send  pricing  information  to  their 
customers when they cross a border.  

209 
210 

211 

212 

COM(2005) 229 
Directive  2002/21/EC  (Framework  Directive),  Directive  2002/20/EC  (Authorisation  Directive), 
Directive  2002/19/EC  (Access  Directive),  Directive  2002/22/EC  (Universal  Service  Directive)  and 
Directive  2002/58/EC  on  privacy  and  electronic  communications  (further  referred  to  as  the  ePrivacy 
Directive). 
Regulation  (EC)  No  717/2007  of  the  European  Parliament  and  of  the  Council  of  27  June  2007  on 
roaming  on  public  mobile  telephone  networks  within  the  Community  and  amending  Directive 
2002/21/EC, OJ L 171, 29.6.2007, p. 32. 
It is estimated that over 400 million EU citizens could benefit from the ‘Eurotariff’ which makes it the 
standard default tariff in Europe. 

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The  European  Parliament  and 
the  Council  adopted  on  30  June  2008  Decision 
No 626/2008/EC  on  the  selection  and  authorisation  of  systems  providing  mobile  satellite 
services (MSS)213, setting out a transparent and legally binding framework for the coordinated 
selection  and  authorisation  of  pan-European  MSS  systems.  This  was  followed  by  a  call  for 
applications  for  pan-European  systems  providing  mobile  satellite  services  (MSS),  published 
by the Commission on 7 August 2008214. Effective implementation of the Selection Decision 
by Member States will be monitored closely by the Commission.  

The  2004  and  2005  Commission  radio  spectrum  harmonisation  decisions215
  have  been 
implemented  by  all  Member  States,  except  Bulgaria  which  has  yet  to  implement  Decision 
2005/928/EC. The 2006 decisions216 have been implemented in most Member States, except 
for Belgium regarding Decision 2006/771/EC and Latvia regarding both Decisions. As for the 
2007 decisions217, Latvia and Slovakia have not implemented Decision 2007/90/EC. A similar 
situation  could  be  observed  for  Decision  2007/98/EC  in  Hungary,  and  for  Decision 
2007/131/EC  in  Bulgaria  and  Romania.  Latvia  did  not  provide  information  on  the 
implementation  of  Decisions  2007/98/EC  and  2007/131/EC.  Decision  2007/344/EC  on 
harmonised availability of information regarding spectrum use within the Community had not 
been completely implemented in as many as 20 Member States. 

In  2008,  the  Commission  adopted  the  following  six  spectrum  harmonisation  decisions: 
Decision  2008/294/EC  of  7  April  2008  on  harmonised  conditions  of  spectrum  use  for  the 
operation  of  mobile  communication  services  on aircraft (MCA services) in the Community; 
Decision  2008/411/EC  of  21  May  2008  on  the  harmonisation  of  the  3400  -  3800  MHz 
frequency  band  for  terrestrial  systems  capable  of  providing  electronic  communications 
services  in  the  Community,  2008/432/EC  of  23  May  2008  amending  Commission  Decision 
2006/771/EC on harmonisation of the radio spectrum for use by short-range devices (SRD); 
Decision  2008/477/EC  of  13  June  2008  on  the  harmonisation  of  the  2500-2690  MHz 
frequency  band  for  terrestrial  systems  capable  of  providing  electronic  communications 
services in the Community; Decision 2008/671/EC of 5 August 2008 on the harmonised use 
of radio spectrum in the 5875 - 5905 MHz frequency band for safety related applications of 

213 
214 
215 

216 

217 

OJ L 172, 2.7.2008, p. 15. 
OJ C 201, 7.8.2008, p. 4. 
Commission Decision 2005/928/EC of 20 December 2005 on the harmonisation of the 169,4-169,8125 
MHz frequency band in the Community (frequency band originally designated for the ERMES paging 
system); Commission Decision 2005/513/EC of 11 July 2005 on the harmonised use of radio spectrum 
in  the  5  GHz  frequency  band  for  implementation  of  Wireless  Access  Systems  including  Radio  Local 
Area  Networks  (WAS/RLANs);  Commission  Decision  2005/50/EC  of  17  January  2005  on  the 
harmonisation of the 24 GHz range radio spectrum band for the time-limited use by automotive short-
range radar equipment in the Community; and Commission Decision 2004/545/EC of 26 July 2004 on 
the harmonisation of radio spectrum in the 79 GHz range for the use of automotive short-range radar 
equipment in the Community. 
Including Commission Decision 2006/771/EC of 9 November 2006 on the harmonisation of the radio 
spectrum  for  use  by  short-range  devices  (SRD)  and  Commission  Decision  2006/804/EC  of  23 
November  2006  on  harmonisation  of  the  radio  spectrum  for  radio  frequency  identification  (RFID) 
devices operating in the ultra high frequency (UHF) band. 
Commission Decision 2007/90/EC of 12 February 2007 amending EC Decision 2005/513/EC of 11 July 
2005  on  5  GHz  WAS/RLAN,  Commission  Decision  2007/98/EC  of  14  February  2007  on  the 
harmonised  use  of  radio  spectrum  in  the  2  GHz  frequency  bands  for  the  implementation  of  systems 
providing mobile satellite services (MSS), Commission Decision 2007/131/EC of 21 February 2007 on 
allowing the use of the radio spectrum for equipment using ultra-wideband technology in a harmonised 
manner  in  the  Community  (UWB)  and  Commission  Decision2007/344/EC  of  16  May  2007  on 
harmonised  availability  of  information  regarding  spectrum  use  within  the  Community.  Decision 
2007/344/EC entered into force on 1 January 2008. 

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Intelligent Transport Systems (ITS); and Decision 2008/673/EC of 13 August 2008 amending 
Decision 2005/928/EC on the harmonisation of the 169,4-169,8125 MHz frequency band in 
the Community. 

8.2.1.2.  Report of work done in 2008 

In  line  with  the  Commission  Communication  on  better  monitoring  of  the  application  of 
Community law218, the Commission services have continued to avoid the need for recourse to 
infringement proceedings by providing general guidance on implementation requirements via 
the Communications Committee (COCOM) and the Radio Spectrum Committee (RSC), and 
by  making  use  of  bilateral  contacts  with  the  relevant  national  authorities.  The  main  issues 
discussed at the 2008 COCOM meetings were the implementation of the European emergency 
number '112', the implementation of the number range '116', and the Community consultation 
procedure  involving  the  national  regulatory  authorities  and  the  Commission,  which  aims  at 
consolidating the internal market for electronic communications (Article 7 procedure).  

At  the  heart  of  the  2002  regulatory  framework  for  electronic  communications  lies  the 
principle that undertakings should not be subject to ex ante regulatory obligations unless they 
have  been  found  to  be  dominant  in  a  relevant  market,  on  the  basis  of  a  thorough  market 
review  by  their  national  regulatory  authority  (NRA).  Following  the  adoption  of  the  revised 
Commission Recommendation on relevant markets of 17 December 2007, NRAs were active 
in  carrying  out  market  reviews  in  2008,  leading  to  progress  on  the  second  round  of  market 
analysis. Following some recent notifications all Member States have now completed the first 
round of market analyses with the exception of  Bulgaria and Romania. 

An  increasing  need  for  consumer  protection  goes  hand  in  hand  with  the  growth  and 
diversification  of  electronic  communication  services  and  a  growing  number  of  service 
providers.  A  mechanism  to  settle  disputes  between  consumers  and  service  providers  that 
offers a more flexible, cheaper less expensive, and less formal alternative to court proceedings 
is therefore required under the Universal Service Directive. Although practical applications of 
the dispute resolution mechanism vary from one Member State to another, this has produced 
overall positive results, and a huge number of consumer complaints are dealt with at national 
level. 

Finally, the Commission services continued to monitor the general state of implementation of 
the  regulatory  framework,  in  close  contact  with  the  national  authorities  and  other 
stakeholders,  when  preparing  for  the  Commission’s  sector  specific  annual  Progress  Report 
addressed  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions219.  The  Commission  continued  to  monitor 
implementation  of  the  Roaming  Regulation  which  in  general  continued  to  run  smoothly.  In 
that context, the Commission worked closely with the European Regulators Group which, by 
means of its extensive six-monthly roaming data collection exercise, provided a key input to 
the  Commission's  monitoring  activities  as  well  as  the  preparations  for  its  review  of  the 
Regulation.  

Enforcing  effective 
for  electronic 
communications  continued  to  be  a  priority  in  2008.  The  Commission  monitors  the  correct 

implementation  of 

framework 

regulatory 

the 

218 
219 

COM(2002) 725, of 11 December 2002. 
“Towards  a  Single  European  Telecoms  Market  (14th  Progress  Report)”,  COM(2009) 140Final  of  24 
March 2009. 

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application of the provisions contained in the EU regulatory framework, also via contacts with 
stakeholders  and  complaints  received  from  EU  citizens.  In  the  area  of  Information  Society 
and  Media,  the  new  online  web  tool  (the  EU  Pilot),  set  up  to  provide  quicker  and  better 
solutions  to  problems  arising  in  the  application  of  EU  laws,  has  been  increasingly  used  to 
facilitate the contacts  with the 15 participating Member States on the implementation of the 
EU rules relating e-communications. Overall, during the first year since the launching of the 
project in April 2008, 11 cases have been opened in the EU Pilot. 

During 2008, the Commission opened six new proceedings, while seven pending cases were 
taken to the second phase with a reasoned opinion being sent to the Member States concerned. 
The Commission decided to refer six cases to the Court of Justice in 2008. At the same time, 
the  Commission  decided  to  close  13  proceedings  following  action  by  the  Member  States. 
Finally, although all 27 Member States had completed formal transposition of the regulatory 
framework in 2007, there were still 28 proceedings for incorrect implementation pending at 
the end of 2008.  

New  proceedings  opened  in  2008  focused  on  the  independence  and  effectiveness  of  the 
telecom regulators in Luxembourg (now closed), Latvia, Lithuania and Sweden. Furthermore, 
the Commission started to verify the compliance of restructuring measures taken in 2008 and 
which could have had an impact on the independence of the regulatory authorities in Romania 
and  Slovakia.  As  for  consumer  issues,  a  new  infringement  proceeding  was  launched  due  to 
the Commission's concerns related to the handling of the single European emergency number 
112 in Italy. 

Out of the six cases which the Commission decided to refer to the Court of Justice in 2008, 
two  concerned  the  non-availability  of  caller  location  information  for  calls  to  emergency 
number  112  (Bulgaria,  and  Romania),  and  one  concerned  the  independence  of  the  national 
regulatory  authority  (Poland).  Universal  service  issues  in  relation  to  the  designation  of  the 
universal service provider and the financing mechanism were also high on the Commission's 
agenda given its negative impact for consumers, and thus infringement proceedings continued 
against  several  Member  States.  Portugal  and  Spain  were  sent  reasoned  opinions,  whereas 
Belgium was referred to the Court of Justice. Finally, Poland and Cyprus were referred to the 
Court  for  persistent  deficiencies  relating  to,  respectively,  broadband  retail  regulation  and 
rights of way regime for mobile operators. 

The Commission welcomed the progress made by Member States and continued to apply its 
policy  of  closing  cases  as  soon  as  the  problems  were  resolved.  In  2008,  a  total  of  13  cases 
were  closed  following  progress  in  the  implementation  process.  Amongst  those,  two  cases 
were  closed  following  the  introduction  of  effective  caller  location  information  for  112  in 
Latvia  and  Poland.  Following  consistent  action  by  the  Commission,  the  single  European 
emergency number 112 is now available in all Member States, though there is still work to be 
done to ensure the proper functioning of the European Emergency number on issues such as 
the availability of caller location information. All but one case concerning the completion of 
the  first  round  of  market  reviews  could  be  closed.  A  case  against  Bulgaria  relating  to  the 
independence and functioning of the national regulator, and a case against Slovakia relating to 
the  separation  of  regulatory  functions  were  also  closed,  as  the  issues  raised  by  the 
Commission were resolved. 

Comprehensive  directory  inquiry  services  were  made  available  at  the  beginning  of  2008  in 
Poland,  and  the  relevant  case  was  subsequently  closed  by  the  Commission.  One  case 
concerning  must-carry  was  closed  (Finland).  Finally,  a  case  against  France  regarding  an 

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improper  universal  service  designation  mechanism  was  closed,  as  France  changed  its 
legislation, following the European Court of Justice ruling. The remaining closed cases dealt 
with non-conformity issues in several other Member States (Germany, Latvia, and Finland). 

However, not all Member States have complied with the regulatory framework in due course, 
and as of early 2009 the Court of Justice ruled on four 112 cases, finding breaches of the EU 
law since caller location information was only partially available in Slovakia, Lithuania, the 
Netherlands  and  Italy.  Whilst  the  Slovakian  case  has  been  solved  in  the  meantime,  the 
Commission  is  closely  following  the  other  cases,  in  order  to  ensure  full  respect  of  the 
judgments as required under Article 228 of the Treaty.  

By  the  end  of  the  reporting  year  the  Commission  has  opened  some  160  infringement 
proceedings  under  Article 226  of  the  Treaty  since  the  date  of  application  of  the  new 
regulatory  framework.  In  more  than  100  cases  this  was  due  to  failures  to  implement  the 
regulatory  framework  correctly.  While  all  EU  27  Member  States  have  been  concerned  by 
enforcement action, a significant number of issues have been settled since. 

The  relatively  high  number  of  non-conformity  cases  is  the  result  of  the  Commission's 
proactive monitoring policy which entails a systematic conformity assessment of the national 
transposition measures notified to the Commission. This approach has proven to be critical for 
electronic  communications,  being  a  highly  innovative  and  dynamic  sector  which  requires 
swift  action  to  ensure  regulatory  consistency.  The  conformity  assessment  for  each  Member 
State  is  carried  out  on  the  basis  of  correlation  tables  which  had  been  discussed  and 
communicated to the Member States via the Communications Committee already before the 
date of application of the current regulatory framework. 

In  addition  to  the  pending  infringement  proceedings,  there  were  nine  complaints  pending  at 
the  end  of  2008.  These  complaints  were  mainly  related  to  authorisation  issues,  including 
frequency management, and to obligations resulting from the Universal Service Directive. 

The Commission continues to frequently issue press releases at various stages of the opened 
proceedings.  These  press  releases  are  available  on  the  implementation  and  enforcement 
website  dedicated to  Information  Society and Media sector220 together with overview tables 
for all cases, which are updated regularly. 

In 2008, EIPA and the Commission organised a seminar for national judges and the NRAs on 
legal issues related to the implementation of the regulatory framework. The aim was to raise 
awareness  on  (i)  the  goals  of  the  regulatory framework  for  e-communications  and  Article  7 
procedures and (ii) on the role of national courts in furthering consistency and legal certainty 
on the telecommunications markets. 

Petitions 

In 2008, four petitions on the regulatory framework were registered. These petitions involved 
telecom  prices 
the  Czech  Republic, 
discrimination  by  telecom  companies  in  Sweden,  and  liability  of  telecom  companies  in 
several EU countries. All were answered without opening an infringement proceeding. 

international  roaming  charges 

in  Estonia, 

in 

European Court of Justice 

220 

http://ec.europa.eu./information_society/policy/ecomm/implementation_enforcement/index_en.htm 

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Finally, the European Court of Justice issued several important judgments on substance in the 
electronic  communication  area  in  2008,  in  particular  on  request  for  preliminary  ruling  by  a 
national court or tribunal under Article 234 of the Treaty. These covered amongst others the 
right of use of TV frequencies (C-380/05 - Centro EUROPA 7), the right of appeal (C426/05 
–  Tele2  Telecommunication),  licence  fees  (C-296/06  –  Telecom  ITALIA)  and  must-carry 
obligations (C-336/07 – Kabel Deutschland Vertrieb). 

8.2.2.  Changes underway 

In  order  to  realise  the  full  potential  of  the  internal  market,  more  consistency  of  application 
across  the  EU  and  a  strengthening  of  the  framework  in  areas  such  as  the  application  of 
remedies  in  termination  and  broadband  markets,  spectrum  management,  swift  number 
portability  and  privacy  over  electronic  communications  are  needed.  These  needs  were 
considered in the Review of the current regulatory framework. 

8.2.2.1.  New measures recently adopted 

In  accordance  with  Article  25  of  the  Framework  Directive,  the  Commission  proposed  a 
review of the regulatory framework in November 2007221. The proposals aim to consolidate a 
competitive internal market through more consistent national regulatory approaches, reinforce 
consumer protection and users' rights, and provide for more effective spectrum management 
and implementation. The European Parliament and the Council adopted these reforms on 25 
November 2009.  

During the year, the Commission carried out an extensive review of the Roaming Regulation 
including  a  public  consultation.  The  Commission  concluded  that  national  level  trends  in 
prices for data and SMS are not reflected in prices for SMS roaming and to some extent prices 
for data roaming services which also remain unjustifiably high across the EU. Therefore, the 
Commission  made  a  proposal  to  the  European  Parliament  and  Council  to  extend  the 
regulation  by  a  further  three  years  up  to  June  2013  and  to  include  SMS  and  data  roaming 
services  in  addition  to  voice.  The  European  Parliament  and  Council  adopted the Regulation 
on 18 June 2009222. 

8.2.2.2.  Volume of enquiries and priorities 

In  the  light  of  complaints  and  issues  raised  by  market  players  and  national  regulatory 
authorities,  the  priorities  will  most  likely  remain  the  same  as  in  the  reporting  year:  the 
functioning of the national regulatory  authorities  and consumer protection  rights.  Regarding 
the latter, the Commission is paying increasing attention to consumers' privacy, based on the 
ePrivacy Directive. Finally, compliance with judgments of the Court of Justice might become 
an issue as case law develops in the area. 

The number of cases of infringements, complaints, enquiries and petitions is expected to stay 
at  the  same  level  as  in  previous  years.  Priorities  may  have  to  evolve  depending  on  the 

221 

222 

EN 

Commission proposal for a directive of the European Parliament and of the Council, SEC(2007) 1472 
and  SEC(2007)  1473  and  Proposal  for  a  regulation  of  the  European  Parliament  and  of  the  Council 
establishing  the  European  Electronic  Communications  Market  Authority  COM(2007)699,  for  an 
Society: 
overview, 
http://www.ec.europa.eu/information_society/policy/ecomm/library/proposals/index_en.htm 
http://ec.europa.eu/information_society/activities/roaming/regulation/index_en.htm#new_rules. 

Information 

website 

DG 

see 

of 

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amendments  eventually  adopted  by  the  co-legislators  in  the  context  of  the  review  of  the 
regulatory framework. 

8.2.3.  Evaluation based on the current situation 

Overall, the implementation of the regulatory framework is working to bring competition to 
electronic  communications  markets,  with  resulting  benefits  to  consumers  in  terms  of  prices 
and  innovative  converged  services.  Examples  of  best  practice  are  available  from  every 
Member  State  across  the  range  of  regulatory  and  market  issues.  However,  there  is 
considerable scope for further benefits to flow from a reinforced single market, strengthened 
competition and a reduction in the regulatory burden. 

While all issues of late transposition and more than two-thirds of the implementation issues 
addressed by formal infringement proceedings have been settled, a significant number of non-
conformity  and  incorrect  application  issues  remains.  These  issues  require  attention  and 
appropriate  follow-up  with  a  continued  focus  on  the  functioning  of  the  national  regulatory 
authorities and consumer protection rights. The Commission's legislative proposals currently 
before  the  European  Parliament  and  Council  seek  to  address  identified  weaknesses  of  the 
2002 regulatory framework, while retaining its basic overall concept. 

8.2.4.  Evaluation: priorities and planned action (2009 and beyond) 

Priorities  for  2009  will  likely  remain  similar  to  those  of  the  reporting  year.  The  number  of 
cases is expected to remain about the same as in the reporting year. 

In electronic communications, monitoring is expected to focus again on structural issues, such 
as  the  functioning  and  the  independence  of  the  national  regulatory  authorities.  Greater 
attention  is  being  paid  to  the  full  application  of  the  Community  consultation  procedure 
involving national regulatory authorities and the Commission which aims to consolidate the 
internal market for electronic communications (Article 7 procedure).  

A second priority concerns the protection of consumer rights, with a special focus on the full 
functioning  of  the  European  emergency  number  '112'.  The  Commission  will  continue  to 
closely  monitor  the  implementation  of  the  Roaming  Regulation  which  has  ensured  that 
consumers  benefited  from  significant  cost  savings  when  making  or  receiving  calls  while  in 
another Member State. 

Priorities  may  evolve  depending  on  the  final  shape  of  the  amendments  to  the  regulatory 
framework. Preventive work, such as guidelines and technical meetings, is expected to start as 
soon as possible after the adoption of these amendments. 

8.3. 

The Audiovisual and Media 

8.3.1.  Current position 

8.3.1.1.  Existing measures in force 

The main instrument is the Television without Frontiers (TWF) Directive which was modified 
into the Audiovisual Media Services Directive223 in 2007 (hereafter the “AVMS Directive”). 

223 

Directive  89/552/EEC  of  the  European  Parliament  and  of  the  Council  of  3  October  1989  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 

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It  combines  the  country  of  origin  principle  with  a  minimum  harmonisation  of  the  laws 
applicable  to  all  audiovisual  media  services  (television  and  on-demand).  Non-binding 
measures include the Recommendation on Film Heritage224 and the Recommendation on the 
protection of minors and human dignity in audiovisual and information services225. 

8.3.1.2.  Report of completed work in 2008 

Three new cases were opened (two complaints and one identified infringement, all referring 
to TWF). One case was closed. It was decided to refer Spain to the Court of Justice according 
to  Article  226  of  the  Treaty  in  another  case  concerning  the  incorrect  application  of  the 
quantitative rules on TV advertising. After expiration of the framework contract, an invitation 
to  tender  for  studies  on  the  application  of  audiovisual  commercial  communication  rules  in 
Member  States  was  issued  and  finally  awarded  to  the  contractor  GfK  Audimetrie.  The 
monitoring  will  take  account  of  the  extended  scope  of  the  AVMS  Directive  (now  including 
on-demand audiovisual media services) as well as qualitative aspects of TV advertising such 
as the safeguards for product placement and the rules on protection of minors. 

In  a  judgment  adopted  on  13  March  2008,  the  European  Court  of  Justice  narrowed  the 
meaning of decision of ‘direct and individual’ concern to a natural or legal person. It clarified 
under  which  conditions  a  natural  or  legal  person  could  challenge  the  decisions  of  the 
Commission concerning the application of the provisions on the retransmission of events of 
major  importance  for  the  society  (Article  3a  TWF  Directive).  Two  of  these  decisions 
concerning the UK and the Belgian lists of events of major importance for society have been 
challenged before the Court of First Instance. 

On  22  July  2008,  the  Commission  adopted  the  Eighth  Report  relating  to  the  promotion  of 
European works and independent productions (Articles 4 and 5 of the TWF Directive) for the 
period 2005 – 2006. The first implementation report on the Recommendation on film heritage 
was published in August 2008. 

The amending Directive was adopted at the end of 2007 so that Member States have until the 
end of 2009 to transpose the AVMS Directive. Questions faced by all Member States in the 
transposition process were clarified at an early stage in meetings of the Contact Committee set 
up  under  Article  23a  of  the  Directive.  The  Contact  Committee  met  four  times  in  2008.  An 
unofficial consolidated version of the AVMS Directive was published at the end of 2008. 

The  AVMS  Directive  changed  the  number  and  order  of  subsidiary  jurisdiction  criteria  for 
satellite  retransmissions.  A  non-coordinated  approach  of  Member  States  implementing  the 
Directive during the transposition period could have led to  cases  of  double  jurisdiction  or  a 
situation  where  no  Member  State  claims  jurisdiction.  Therefore,  the  Contact  Committee 
agreed on a coordinated entry into force of national measures implementing this provision at 
the end of the transposition period set for 19 December 2009. 

224 

225 

States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) 
as last amended by Directive 2007/65/EC of 11 December 2007, OJ L 332 of 18 December 2007. 
Recommendation of the European Parliament and of the Council of 16 November 2005 on film heritage 
and the competitiveness of related industrial activities, OJ L 323 of 9 December 2005, p. 57. 
Recommendation  of  the  European  Parliament  and  of  the  Council  of  20  December  2006  on  the 
protection of minors and human dignity and on the right of reply in relation to the competitiveness of 
the European audiovisual and on-line information services industry, OJ L 378 of 27 December 2006, p. 
72. 

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8.3.2.  Changes Underway 

8.3.2.1.  Recently adopted measures 

8.3.2.2.  New measures due to be adopted 

The  Commission  is  working  on  the  adoption  of  a  proposal  for  a  codified  version  of  the 
AVMS  Directive.  It  is  expected  to  be  adopted  in  a  fast-track  co-decision  procedure  by  the 
Council and the European Parliament. 

After discussion in the Contact Committee it was decided to produce a document identifying 
the  media  services  that  need  special  attention  at  the  moment  of  entry  into  force  of  those 
national  implementing  measures  which  will  change  jurisdiction  for  satellite  retransmissions 
(Article 2(4) AVMS Directive). 

8.3.2.3.  Volume of enquiries and priorities 

In  the  light  of  complaints  and  parliamentary  questions  received  so  far,  attention  will  most 
likely be on the following areas: television advertising, protection of minors, non-incitement 
to  hatred,  promotion  of  European  and  independent  works,  and  jurisdiction.  The  issue  of 
events  of  major  importance  for  society,  with  the  cases  brought  before  the  Court  of  Justice 
against the UK and Belgian measures, will also be followed closely. In general, the number of 
cases of infringements and petitions is expected to stay at the same level as in previous years. 
There  was,  however,  an  increase  in  2008  of  complaints  on  alleged  hate  speech  as  well  as 
pornographic  content  transmitted  during  daytime  and  without  encryption  via  satellite 
broadcasts. The monitoring of audiovisual commercial communication rules will be extended 
(see above), possibly involving further infringement proceedings.  

8.3.3.  Evaluation based on the current situation 

The application of the provisions of the present regulatory framework in force (i.e. prior to the 
adoption of the amending Directive) has been satisfactory. However, it remains necessary to 
carry  out  a  close  monitoring  of  the  application  of  audiovisual  commercial  communication 
rules in the Member States. In addition, the economic crisis could impair the Member States' 
monitoring capacities. 

In the past, there were cases where satellite channels tried to hide their country of origin in 
order  to  escape  regulation.  With  the  change  of  subsidiary  jurisdiction  criteria  for  satellite 
retransmissions,  it  might  be  easier  for  those  channels  to  change  jurisdiction.  Therefore, 
cooperation  between  national  regulators  and  with  the  Commission  should  be  further 
improved. 

8.3.4.  Evaluation results: priorities and planned action (2009 and beyond) 

Priorities for 2009 will likely remain similar to those of the reporting year. The protection of 
consumer  rights  remains  a  key  issue.  Regarding  TV  advertising,  monitoring  will  not  only 
address  quantitative  restrictions  but  also  qualitative  rules  e.g.  the  rules  on  the  protection  of 
minors and/or restrictions on alcohol advertising. 

Building  on  the  dialogue  undertaken  with  Member  States,  preventive  work  will  continue 
concerning the transposition of the AVMS Directive, in particular the extension of its scope to 
cover on-demand services. 

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8.4. 

Public Sector Information 

8.4.1.  Current Position 

8.4.1.1.  General introduction 

Public  Sector  Information  (PSI)  is  the  single  largest  source  of  information  in  Europe  (e.g. 
maps  and  satellite  images,  legislation,  statistics  and  company  registers)  and  is  used  as  raw 
material for a variety of added-value products and services. Directive 2003/98 on the re-use 
of public sector information (PSI Directive) aims at enhancing an effective cross-border re-
use of PSI and to limit distortions of competition in the Community market.  

The  Directive  is  built  around  two  pillars  of  the  internal  market;  transparency  and  fair 
competition. It contains provisions on transparency of conditions and non-discrimination, on 
prohibition of cross-subsidies and exclusive arrangements, on procedures regarding handling 
of  re-use  requests,  on  upper  limits  for  charging,  as  well  as  on  practical  means  to  facilitate 
finding and using the material available for re-use. Ultimately, the Directive aims at a change 
of  culture  in  the  public  sector,  creating  a  favourable  environment  for  the  re-use  of  its 
information resources. 

The  Commission  applies  the  principles  of  the  PSI  Directive  also  to  its  own  documents 
through  a  Commission  re-use  policy.  Commission  Decision  2006/291/EC,  Euratom  goes 
beyond the Directive by applying charges based on (at most) marginal costs and by making all 
documents  re-usable.  Examples  are  EUROSTAT’s  statistical  data,  Commission  translation 
memories, the EC law database EUR-Lex and studies.  

8.4.1.2.  Report of work done in 2008 

The deadline for implementing the PSI Directive by the Member States was 1 July 2005. By 
May 2008, all Member States had notified full implementation of the Directive.  

Infringement  procedures  under  Article  226  EC  for  non-communication  of  national 
implementation measures were initially launched against 15 Member States and completed by 
the end of 2007 when the Court of Justice gave four judgments for failure to implement the 
Directive  (AT,  BE,  LU  and  ES).  Priority  then  shifted  in  2008  to  ensuring  full  and  correct 
implementation of the Directive. The Commission pursued infringement procedures in 2008 
for  incomplete  and  incorrect  implementation  regarding  Sweden  and  opened  a  new  case 
regarding  Poland.  The  evaluation  of  the  conformity  of  the  notified  national  transposition 
measures continued during 2008 in parallel with the management of complaints.  

In conformity with the Commission Communication on better monitoring of the application 
of  Community  law  (COM  (2002)725),  the  Commission  continued  to  pursue  various 
accompanying  measures  in  addition  to  formal  infringement  procedures  in  2008.  It  has  been 
closely monitoring the implementation process and providing technical assistance. 

In particular, the Commission pursued close bilateral contacts with Member States in view of 
ensuring correct implementation and application of the Directive. These have led to legislative 
changes in several Member States, which had originally notified insufficient implementation 
measures.  The  Commission  also  organised  and  chaired  the  PSI  Group  for  Member  State 
experts and stakeholders in order to provide assistance regarding implementation issues and to 
facilitate  the  exchange  of  good  practices.  In  addition,  the  Commission  contributed  to 
awareness-raising  and  stimulation  activities  by  participating  in  seminars  and  workshops 

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organised  in  the  Member  States,  networking  across  Europe  and  in  a  wider  international 
context (notably the OECD) and co-funding a project for promoting pan-European PSI re-use 
(ePSIplus, to be taken over in 2009 by the European PSI platform) to further stimulate action 
and monitor progress towards a stronger and more transparent environment for the growth of 
European  PSI  re-use  markets.  Finally,  the  Commission  undertook  studies  on  PSI  re-use. 
A study assessing PSI re-use in the geographical, meteorological and legal information sectors 
was delivered end of 2008 and a study assessing the economic and social value of the public 
domain,  which includes  a  chapter  on  cultural  content  with  regard  to  the  PSI  Directive,  was 
also conducted in 2008.  

The Commission also carried out preparatory work in view of reviewing the application of the 
PSI Directive, leading to a Commission Communication and Staff working document in 2009. 
In accordance with Article 13 of the Directive, the review addresses, in particular, the scope 
and impact of the Directive. This includes the extent of the increase in re-use of public sector 
documents, the effects of the principles applied to charging, and the re-use of official texts of 
a  legislative  and  administrative  nature.  The  Commission  also  consulted  the  Member  States 
and stakeholders in 2008 for the review.  

8.4.2.  Evaluation based on the current situation 

It  should  be  noted  that  the  PSI  Directive  was  implemented  by  many  Member  States  with 
considerable  delay,  requiring  infringement  procedures  launched  by  the  Commission  and 
leading eventually to four judgments of the Court of Justice. The situation is in the process of 
development  of  new  "acquis"  as  it  is  a  first  ever  Directive  in  this  area,  with  notification  of 
implementation  measures  recently  being  completed  in  all  Member  States.  The  number  of 
complaints is still scarce and there are no preliminary rulings based on the Directive.  

A  positive  evolution  and  progress  has  taken  place  since  the  adoption  of  the  Directive.  The 
respondents  to  the  public  consultation  considered  that  the  PSI  Directive  has  had  positive 
effects on PSI re-use, which has also been confirmed by studies. However, the full potential 
of  PSI  re-use  has  not  yet  been  realised,  implementation  of  the  Directive  and  measures  to 
facilitate re-use in the Member States are uneven, and barriers to re-use still exist. Problems 
and action by Member States to redress them need to be carefully monitored and assessed.  

Commission action carried out in 2008 through infringement procedures, bilateral cooperation 
with Member States, facilitating the exchange of good practices, and awareness-raising have 
led  to  positive  developments  in  some  Member  States,  notably  on  the  process  of  legislative 
changes in view of ensuring correct implementation of the Directive. 

8.4.3.  Evaluation results 

8.4.3.1.  Priorities 

Priority  has  shifted  now  from  the  first  stage  of  adopting  national  implementation  measures 
and  notifying  them  to  the  Commission,  to  ensuring  compliance  and  effective  application  of 
the Directive in all 27 Member States. In the light of the evaluation of the conformity of the 
notified national measures and complaints, the main substance issues remain the same and are 
related  notably  to  the  scope  and  definitions,  non-discrimination,  charging,  exclusive 
arrangements, and transparency. Efforts should now focus on full and correct implementation 
and application of the Directive, terminating exclusive arrangements, applying licensing and 
charging  models  that  facilitate  the  availability  and  re-use  of  PSI,  and  ensuring  equal 

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conditions for public bodies re-using their own documents and other re-users. Member States 
are encouraged to set up quick and inexpensive conflict resolution mechanisms.  

8.4.3.2.  Planned action (2009 and beyond) 

It  is  important  now  to  ensure  compliance  and  effective  application  of  the  Directive  in  the 
Member States. The completion of implementation of the Directive in the Member States may 
have  an  impact  on  the  number  of  complaints  received  by  the  Commission  in  the  future. 
Enforcement  action  through  the  launch  of  new  infringement  procedures  for  incorrect 
implementation and/or application of the Directive is likely in 2009 and beyond. One area that 
the Commission will monitor particularly closely concerns exclusive arrangements, for which 
the transitional period foreseen in Article 11 of the Directive expired at the end of 2008. An 
exercise investigating the extent of exclusive arrangements will be launched in summer 2009. 
The  Commission  will  continue  to  monitor  closely  implementation  issues,  to  facilitate  the 
exchange  of  good  practices  and  to  provide  technical  assistance  especially  through  close 
administrative cooperation with the Member States, the PSI expert group, as well as through 
other  accompanying  measures  such  as  the  European  PSI  platform.  In  addition,  a  thematic 
network on the legal aspects of PSI will be set up to identify and discuss legal barriers to re-
use PSI in the digital environment and to suggest ways to overcome them. A further review of 
the  PSI  Directive  is  envisaged  by  the  Commission  by  2012  when  more  evidence  on  the 
impact,  effects  and  application  of  the  Directive  should  be  available.  Possible  legislative 
amendments will be considered at that stage, taking into consideration progress made in the 
meantime.  

8.4.4. 

Sector summary 

A positive evolution and progress has taken place. However, the full potential of PSI re-use 
has not yet been realised and implementation of the Directive in the Member States is uneven. 
Problems  and  action  by  Member  States  to  redress  them  need  to  be  carefully  monitored  and 
assessed.  The  priority  has  shifted  now  from  the  first  stage  of  adopting  national 
implementation measures and notifying them to the Commission, to ensuring full compliance 
and  effective  application  of  the  Directive  in  the  Member  States.  The  Commission  will 
continue to closely monitor implementation issues, to launch infringement procedures where 
necessary, as well as to facilitate the exchange of good practices and awareness-raising. 

8.4.5.  Measures in force 

More information on the re-use of public sector information: 

http://ec.europa.eu/information_society/policy/psi/index_en.htm  

8.5. 

Electronic Signatures 

8.5.1.  Current Position 

8.5.1.1.  Existing measures in force 

The  principal  instrument  is  Directive  1999/93/EC  on  a  community  framework  for 
electronic  signatures226.  The  implementing  measures  include  the  Commission  Decision  on 

226 

OJ L 13, 19.01.200, p.12 

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the  minimum  criteria  for  the  designated  bodies227  and  the  Commission  Decision  on  the 
generally recognised standards for some electronic signatures products228. 

The general principles of the Directive were indeed transposed by all Member States. There is 
no open infringement procedure. However, in 2008 one complaint229 was filed by a consumer 
association regarding implementation issues of Directive 1999/93/EC in the Italian legislation 
which is still being investigated.  

Further, indirect aspects pertaining to eSignature were identified and are investigated in two 
additional  complaints  handled  by  Commission  services.  The  former  complaint  concerns  the 
legislation  on  the  registration  of  medical  device230  and  involves  Directives  90/385/EC  and 
93/45/EC.  The  latter  complaint  concerns  the  legislation  governing  the  refund  of  excise 
duties231 and pertains to Directive 2003/96/EC. 

8.5.1.2.  Report of work done in 2008 

In  December  2008  the  Commission  adopted  an  Action  Plan  on  e-signatures  and  e-
identification  to  facilitate  the  provision  of  cross-border  public  services  in  the  Single 
Market232..  The  main  objective  of  the  action  plan  is  to  promote  the  implementation  of 
mutually recognised and interoperable electronic signatures and e-authentication solutions in 
Europe. 

8.5.2.  Evaluation 

In 2006 the Commission acknowledged, based on a report233 on the operation of the Directive, 
problems  of  mutual  recognition  and  cross-border  interoperability  of  eSignature.  The 
Commission's  position  is  that  it  intends  to  address  the  legal,  technical,  and  standardisation 
causes of these issues.  

Regarding  legal  issues,  the  Commission  stated  that  a  formal  analysis  of  the  legislation 
transposing the Directive has not been completed. As national laws may have evolved since 
the time of the transposition of the Directive, the Commission is considering carrying out, in 
2009,  a  comprehensive  review  to  re-assess  the  compliance  of  Member  States'  national 
implementing measures. 

9. 

MARITIME AFFAIRS AND FISHERIES 

9.1. 

Current situation 

9.1.1.  General introduction 

By  virtue  of  the  provisions  of  Articles  3  and  32  of  the  EC  Treaty,  Member  States  have 
transferred competence to the Community with regard to the conservation and management of 

227 
228 
229 
230 
231 
232 
233 

OJ L 298, 16.11.2000, p.42 
OJ L 45, 15.07.2003, p.45 
2008/4516 
2007/4516 
2007/4715 
COM(2008)798 
Report on the operation of Directive 1999/93/EC on a Community framework for electronic signatures 
– COM(2006)120 of 15.3.06 

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fisheries  resources.  Hence,  in  this  field,  legislative  or  prescriptive  jurisdiction  rests  with  the 
Community such that it is for the Community to adopt relevant conservation and management 
measures while it remains for the Member States to implement and enforce those measures. 
Consequently,  the  Common  Fisheries  Policy  has  been  established  in  pursuance  of  the 
objectives laid down in Article 33 of the EC Treaty and, in its current version, it encompasses 
(1)  a  conservation  regime  together  with  a  concomitant  control  and  enforcement  framework, 
(2) a structural policy through the new European Fisheries Fund, (3) a common organisation 
of  the  markets  in  fishery  and  aquaculture  products  and  (4)  the  international  dimension 
covering  bilateral  Fisheries  Partnership  Agreements,  multilateral  Regional  Fisheries 
Management  Organisations  and  conclusion  of  global  international  treaties  such  as  the  1982 
United  Nations  Convention  on  the  Law  of  the  Sea234  and  the  1995  Agreement  on  the 
implementation  of  the  provisions  of  the  United  Nations  Convention  on  the  Law  of  the  Sea 
relating  to  the  conservation  and  management  of  straddling  fish  stocks  and  highly  migratory 
fish stocks235. The full set of rules adopted under the Common Fisheries Policy can be found 
on the following website: http://ec.europa.eu/fisheries/index_en.htm.  

The  conservation  regime  in  its  current  version  is  governed  by  the  basic  Council  Regulation 
(EC)  No  2371/2002  on  the  conservation  and  sustainable  exploitation  of  fisheries  resources 
under  the  Common  Fisheries  Policy236,  Article  2(1)  of  which  spells  out  that  the  Common 
Fisheries  Policy  shall  ensure  exploitation  of  living  resources  that  provides  sustainable 
economic,  environmental  and  social  conditions.  The  control  system  is  circumscribed  by  the 
provisions of Article 23 of Council Regulation (EC) No 2371/2002 and Article 1 of Council 
Regulation  (EEC)  No  2847/93  establishing  a  control  system  applicable  to  the  common 
fisheries  policy237,  all  of  which  place  a  general  obligation  on  Member  States  to  ensure 
effective control, inspection and enforcement of the rules of the Common Fisheries Policy. 

9.1.2.  Work done in 2008 

The  Commission  decided  on  a  far-reaching  re-organisation  of  the  Directorate  General 
responsible  for  maritime  affairs  and  fisheries  .  The  new  structure  became  effective  on  29 
March  2008  and  replaced  the  former  thematic  structure  by  three  geographical  Directorates 
and  one  External  Policy  Directorate,  all  of  which  are  complemented  by  a  Directorate 
responsible  for  Policy  Development  and  Co-ordination  and  supported  by  a  Resource 
Directorate.  The  Legal  Unit,  which  is  also  tasked  with  the  handling  of  State  aid  cases  and 
infringement proceedings, has now been incorporated into the Resource Directorate in order 
to secure appropriate segregation of tasks. One other specific feature of the new structure is 
that  it  has  brought  responsibilities  for  conservation  and  for  control  and  inspection  closer 
together within the respective geographical Directorates. 

Work  mainly  concentrated  on  the  conduct  of  an  unprecedented,  sustained  and,  in  the  end, 
successful control campaign to protect the sensitive bluefin tuna stocks, which resulted in the 
early  closure  of  the  purse  seine  fishery  by  way  of  Commission  Regulation  (EC)  No 
530/2008238. The closure was decided at the Commission's own initiative in order to forestall 
an  overrun  of  the  relevant  catch  quota  and  thus  a  serious  threat  to  the  conservation  of  the 

234 
235 
236 
237 
238 

OJ L 179, 23.06.1998, p. 1 
OJ L 189, 03.07.1998, p.14 
OJ L 358, 31.12.2002, p. 59 
OJ L 261, 20.10.1993, p. 1 
OJ L 155, 13.06.2008, p. 9 

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stocks  concerned  and  to  honour  the  Community's  international  obligations  vis-à-vis  the 
International Commission for the Conservation of Atlantic Tunas. 

In  the  process  leading  up  to  Council  Regulation  (EC)  No  338/2008  providing  for  the 
adaptation of the Polish cod quota on account of the overfishing in 2007239, Poland undertook 
to lay particular emphasis on control and agreed with the Commission inspectors on specific 
benchmarks  for  control and inspection activities in the Baltic Sea cod fisheries in 2008 and 
beyond. On 24 June 2008, Poland withdrew its application in Court Case T-379/07 where it 
had sought to obtain the annulment of the Commission decision to close the cod fishery for 
the remainder of 2007. Unlike 2007, Poland did close the cod fishery in good time in 2008. 

As yet another priority issue, the Commission prepared and presented a legislative proposal240 
for  a  radical  overhaul  of  the  existing  control  and  enforcement  framework  as  laid  down  on 
Council Regulation (EEC) No 2847/93. This aims at addressing the serious shortcomings of 
the Common Fisheries Policy in this field as identified by the Court of Auditors in its Special 
Report No 7/2007241 and discussed at the Audit Progress Committee in 2008. The proposed 
new  rules  are  designed  to  strengthen  the  existing  regulatory  framework,  to  ensure  a  level 
playing field and to bring about a true compliance culture all across the European Union. 

Furthermore,  the  Commission  initiated  a  full  review  of  the  entire  policy in  order  to  prepare 
the ground for a root-and-branch reform. A first discussion took place at the Fisheries Council 
in  September  2008.  A  Green  Paper  has  been  issued  on  22  April  2009  for  the  purposes  of 
launching a broad public consultation on the reform of the Common Fisheries Policy. 

The  Council  adopted  Regulation  (EC)  No  1005/2008  establishing  a  Community  system  to 
prevent,  deter  and  eliminate  illegal,  unreported  and  unregulated  fishing242.  This  instrument 
will enter into force on 1 January 2010 and it will bring with it tough and innovative measures 
designed to bring under control fishing practices that have become a scourge in international 
fisheries. 

Furthermore, the Council adopted Regulation (EC) No 1006/2008 concerning authorisations 
for fishing activities of Community fishing vessels outside Community waters and access of 
third country vessels to Community waters243. 

Infringement proceedings instituted against Italy on grounds of failure to ensure compliance 
with the driftnet ban under applicable Community rules was referred to the Court of Justice 
and now forms the subject-matter of Case C-249/08. 

The  Commission  decided  to  close  infringement  proceedings  against  Cyprus,  Malta  and 
Portugal  relating  to  non-communication  of  catch  data  during  the  bluefin  tuna  fishing 
campaign in 2007. 

In proceedings instituted on grounds of insufficient controls of landings of and trade in fishery 
products,  the  Court  of  Justice  rendered  a  judgment  on  22  December  2008244  declaring  that 
Spain has failed to fulfil its obligations under Regulation (EC) No 2847/93 by not carrying out 

239 
240 
241 
242 
243 
244 

OJ L 107, 17.04.2008, p. 1 
COM(2008) 721 final of 14.11.2008 
OJ C 317, 28.12.2007, p. 1 
OJ L 286, 29.10.2008; p. 1 
OJ L 286, 29.10.2008, p. 33 
Case C-189/07, Commission v. Spain 

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sufficient  controls  over  landings  and  marketing  of  undersized  fish  and  by  not  imposing 
dissuasive sanctions upon perpetrators who acted in breach of relevant Community rules. This 
judgment  is  also  interesting  inasmuch  as  the  Court  confirmed  that  the  subject-matter  of  a 
dispute may be extended to facts that occurred after the delivery of the reasoned opinion in so 
far  as  they  are  of  the  same  kind  and  constitute  the  same  conduct  as  the  facts  to  which  the 
opinion referred. It therefore held that, in this case, the Commission was entitled also to rely 
on inspection results obtained after the delivery of the reasoned opinion in order to illustrate a 
general failure on the side of the Member State concerned. 

Pursuant to Council Regulation (EC) No 1447/1999 establishing a list of types of behaviour 
which  seriously  infringe  the  rules  of  the  common  fisheries  policy245,  the  Commission 
addressed  a  Communication  to  the  Council  and  the  European  Parliament  on  the  Member 
States' annual reports on such behaviour in 2006246. 

9.2. 

Evaluation 

The  success  of  the  policy  on  the  sustainable  management  of  fisheries  depends  on  effective 
implementation of the applicable Community rules in this area and, more particularly, on the 
implementation  of  effective  control,  inspection  and  enforcement  system  by  the  Member 
States. Yet, Member States' compliance record somewhat move in cycles. 

When  France  was  sentenced  to  pay  a  financial  penalty247  in  2005,  all  Member  States,  and 
certainly  those,  against  which  infringement  proceedings  had  been  instituted,  adjusted  their 
discharge  of  their  obligations  in  the  fields  of  control  and  enforcement.  This  coincided  with 
infringement  proceedings  targeting  all  deficiencies  in  the  Member  States'  control  systems. 
That  approach  did  yield  certain  positive  results.  In  the  meantime,  there  are  signs  of  much 
more indulgence on the side of Member States. 

There  is  also  a  link  with  the  status  of  fish  stocks  and  the  endemic  overcapacity  of  the 
Community fishing fleet. Where fishing opportunities decrease, Member States should step up 
their  control  and  enforcement  efforts.  Yet,  control  and  enforcement  become  politically 
unpopular in such situations and certainly so when dire fish stock situations become coupled 
with an economic crisis. 

It is against this background that the Commission proposed a complete overhaul of the control 
and  enforcement  framework.  That  proposal  is  also  for  the  introduction  of  novel  counter-
measures  (e.g.  financial  measures,  preventive  measures  deduction  of  overfished  quantities). 
The new control system, once adopted by the Council, will facilitate a coordinated recourse 
either  to  infringement  proceedings  or  to  other  instruments,  or  both,  depending  on  the 
particularities of each case. That will secure a genuine compliance culture in the area of the 
Common  Fisheries  Policy,  i.e.  something  which  at  best  only  exists  in  part  in  the  currently 
prevailing circumstances. 

One particular challenge in fishery-related infringement cases is that non-compliance mainly 
consists  of  an  administrative  malpractice  on  the  side  of  the  Member  State  concerned.  This 
requires  a  continuous  deployment  of  inspection  means  and  effort  on  the  side  of  the 
Commission to assemble the necessary means of proof for the purposes of demonstrating that 

245 
246 
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OJ L 167, 02.07.1999, p. 5 
COM(2008) 670 final of 04.11.2008 
Judgment of 12.07.2005 in case C-304/02, Commission v. France 

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the compliance failure is both general and ongoing. One other challenge resides in often very 
rapid developments on account of biological and environmental sustainability factors.  

9.3. 

Evaluation results 

9.3.1.  Priorities 

Next  to  the  completion  of  the  legislative  process  concerning  the  intended  new  Community 
control system and to the forthcoming reform of the Common Fisheries Policy, and based on 
the  experience  gained  with  infringement  cases  so  far,  a  new  more  focussed  and  systematic 
approach to infringement proceedings shall be put into operation. That new approach is also 
designed  to  build  upon  the  synergies  derived  from  the  re-organisation  of  the  Directorate 
General for Maritime Affairs and Fisheries and mainly rests on two basic ideas, namely (1) to 
link  infringement  proceedings  to  the  relevant  policy  priorities  and  (2)  to  make  anticipatory 
planning the core of case-handling. The new approach will consist of the following building 
blocks: 

1. 
A systematic, generalised and immediate formal follow-up to all discovered instances 
of  non-compliance  with  applicable  rules  by  Member  States  at  the  pre-contentious  stage. 
Priority, in this context, shall be given to conservation, compliance and control issues as well 
as to issues pertaining to the Community exclusive competence in the field of fisheries. 

2. 
A  prioritised  passage  to  formal  infringement  proceedings  and  a  coordinated  use  of 
other instruments. It is at this stage that priority-setting will take place by drawing upon the 
"critical mass" gathered by way of pre-contentious correspondence and contacts with Member 
States  and  in  line  with  the  2007  Commission  Communication  "A  Europe  of  results  – 
Applying Community Law248; and 

3. 
Clear  anticipatory  planning  and  allocation  of  resources  at  the  formal  stage  of 
infringement proceedings so that there be a full overview of the features of the case and the 
corresponding  inspection  needs  at  the  time  of  the  initiation  of  infringement  proceedings  in 
each case. 

9.3.2.  Planned action (for 2009 and beyond) 

The Commission will put into operation a new approach to infringement proceedings, which 
is  capable  of  securing  a  strengthened  infringement  policy,  in  effective  handling  of 
infringement cases in a resource-efficient manner and ultimately a genuine compliance culture 
in  the  Common  Fisheries  Policy.  Priority  will  be  given  to  recurrent  problems  putting  the 
Common  Fisheries  Policy  particularly  at  risk  (e.g.  illegal  driftnetting,  infringements  in 
connection with fish stocks which are subject to recovery plans). 

The  Commission  will  accompany  the  already  ongoing  legislative  process  concerning  the 
intended  new  Community  control  system  and,  to  the  extent  possible,  see  to  it  that  it  can  be 
concluded in 2009. 

After  the  close  of  the  already  launched  public  consultation  on  the  reform  of  the  Common 
Fisheries Policy by 31 December 2009, the Commission will summarise its results in the first 
semester of 2010 and develop a proposal for a new basic regulation in 2010. 

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9.4.  Measures in force 

The Common Fisheries Policy is based on the provisions of Article 3, 32 and 33 of the EC 
Treaty.  The  full  set  of  rules  adopted  under  the  Common  Fisheries  Policy  as  well  as  new 
measures 
following  website: 
http://ec.europa.eu/fisheries/index_en.htm. 

proposed 

already 

found 

can 

the 

on 

be 

10. 

INTERNAL MARKET AND SERVICES 

10.1.  General overview  

10.1.1.  Efficient and effective enforcement of Community law – achievements in 2008  

1.  The prioritisation of infringements 

The  objective  of  an  infringement  procedure  is  to  find  appropriate  solutions  for  breaches  of 
Community law. The prioritisation of infringements is a means to determine which problems 
have  particularly  detrimental  effects  on  the  good  functioning  of  the  Internal  Market  and  to 
ensure that these problems are solved as quickly as possible. 

In  line  with  the  Commission's  Communication  "A  Europe  of  results",  a  set  of  horizontal 
criteria  exists  to  determine  priorities  specific  to  the  Internal  Market  and  Services.  These 
criteria  complement  the  categories  of  priorities  identified  in  the  aforesaid  Commission 
Communication  (i.e.  non-communication  of  transposition  measures  and  proper  execution  of 
judgments of the European Court of Justice): 

a) Policy priorities in the field of Internal Market and Services: one example of such priorities 
is serious breaches of the Remedies' Directive and the related case law of the European Court 
of Justice in the public procurement sector. An effective national remedies system is essential 
for  the  efficient  and  effective  enforcement  of  public  procurement  rules  as  confirmed  by  the 
recent  adoption  of  a  new  Remedies  Directive.  Another  example  is  cases  where  national 
measures highlight an overall incorrect transposition of a recently adopted Directive)  

b) Cases having a significant legal dimension: This covers a range of issues, inter alia cases 
where  fundamental  freedoms  are  violated  with  a  significant  impact  on  citizens'  rights, 
breaches  threatening  the  good  functioning  of  sectoral  legislation  or  cases  giving  rise  to 
important legal questions where a clarification by the Court of Justice is deemed important. 
One  example  is  the  nationality  requirement  established  in  several  Member  States  for  the 
exercise  of  a  profession  or  cases  where  the  national  measures  prevent  the  EU  insurance 
legislation or occupational pension funds system to work properly in a given member State 

c) Cases having a significant economic impact: In the area of public procurement cases with 
substantial  contract  value,  often  including  substantial  EU  co-financing,  are  treated  with 
priority. National measures precluding, making extremely difficult or discouraging mergers or 
acquisition  of  shares  in  big  companies  and/or  strategic  sectors  (e.g.  energy  or  the  financial 
sector) are considered priority cases as well.  

Priority cases require a significant investment in terms of efforts and resources. They are often 
legally or technically complex and must be treated fast so as to limit the negative effects of 
the national measure in question. These efforts have produced good results.  

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Some priority cases closed in 2008 illustrate the successfulness of the approach.  

Following  the  "Alcatel"  case  law  (effectiveness  of  the  national  review  systems  in  public 
procurement  area)  the  Commission  asked  the  United  Kingdom  to  align  its  rules  to  the  said 
ECJ  case  law.  The  Commission  moved  quite  fast  until  the  Reasoned  Opinion.  Negotiations 
were  intensified  after  this  stage  and  the  UK  adapted  national  measures  before  the  case  was 
brought to ECJ.  

A vigorous use of the infringement procedure as a leverage to move forward in constructive 
negotiations solved two difficult and sensitive cases in the respective countries related to the 
freedom of establishment: IT accelerated and finalised its amendments to the law concerning 
the petrol stations after referral decision; FR adopted appropriate modifications to the law on 
hydroelectric concessions after referral to Court. 

2.  Preventive  action:  risk-based  approach,  pro-active  guidance  to  MS  and 

partnership 

Infringement  cases  are  sometimes  a  reflection  of  a  problem  elsewhere.  Resolving  the  case 
may  not  remove  the  source  of  the  problem,  e.g.  late  transposition  is  often  due  to  lack  of 
priority given to this legal obligation by national administrations. For example, a risk-based 
transposition  plan  is  now  established  for  all  new  directives.  Such  plans  identify  the  major 
risks related to late or incorrect transposition and outline the actions planned to address those 
risks  during  the  transposition  period.  In  2008  substantial  work  has  been  devoted  to 
accompany  the  transposition  of  the  new  Postal  Services  Directive,  the  new  Remedies 
Directive, in addition to ongoing activities related to the Services Directive and the Payment 
Services  Directive.  A  plan  is  being  prepared  to  support  the  Solvency  II  directive  and  the 
Defence procurement directive which should be adopted at the end of the current legislature 
(Spring 2009).  

Throughout  the  transposition  period  (and  after)  the  Commission  services  provide  technical 
support  and  guidance  to  national  authorities.  To  prevent  or  detect  incorrect  transposition, 
advisory or regulatory committees, sectoral working groups and transposition workshops are 
used to clarify national legislation249 and achieve a substantial convergence of the practices. 
Detailed  questionnaires  are  regularly  sent  to  Member  States  in  order  to  follow  the 
transposition  process250  and  bilateral  technical  assistance  is  offered  to  national  authorities. 
Web-pages  with  "Most  Frequently  Asked  Questions  and  Answers"  have  been  used 
extensively  in  some  areas;  dedicated  transposition  scoreboards  are  published  on  Internal 
Market website and regularly updated. 

Transposition package meetings have been organised in Member States with particularly high 
transposition deficits. In 2008, such meetings took place in Poland, Sweden and Greece. They 
serve  two  different  purposes:  they  address  problems  before  the  deadline  for  transposition 
expires and keep up pressure on Member States to transpose Directives on time. Experience 
shows that such meetings are useful to improve Member States track record and maintain a 
genuine cooperation spirit between Member States and the Commission. 

249 

250 

E.g. Directive 2007/44/EC249, amending some directives in the financial sector (banking, insurance and 
securities) by introducing new rules and evaluation criteria for the prudential assessment of acquisitions 
and  mergers.  This  Directive  has  to  be  implemented  by  21  March  2009;  directive  2006/43/EC  and 
2006/46/EC in accounting and auditing areas. 
E.g. in the case of the UCITS Directive or for the audit Directive.  

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The on-going work with Member States on a Commission Recommendation on Partnership in 
Implementing the Single  Market illustrates the priority given to prevention.  The partnership 
approach  is  based  on  the  idea  that  if  we  want  the  Internal  Market  to  work  in  practice  for 
citizens  and  businesses,  then  we  need  a  close  cooperation  between  the  Member  States  and 
with  the  Commission.  The  infringement  procedure  and  other  problem-solving  mechanisms 
play an essential  role for the good application  of EU  law but cannot by  themselves  achieve 
this objective. 

3.  Petitions  

The Commission services replied to about 165 questions in 2008 (including joint replies) 70 
new petitions have been received and professional qualifications recognition remains the most 
important  field  (40%,  followed  by  services  (25%)  public  procurement  (10%)  and  financial 
services  10%).  Petitions  linked  to  infringements  concern  one  third  of  ongoing  petitions  and 
1/5 of new ones. 3 areas were particularly affected: public procurements (more than 45% of 
replies), professional qualifications (25%), services (20%) and financial services (10%). 

In  the  area  of  services,  several  petitions  have  been  lodged  on  the  Spanish  case  concerning 
pharmacists'  activity.  The  closure  of  the  case  at  the  end  of  2008  on  the  German  law  for 
chimney sweepers should also produce its effects on the petitions related to this file. There are 
still  some  open  petitions  concerning  gambling.  Questions  on  postal  services  are  regularly 
answered by referring the petitioners to national authorities.  

As for financial services, petitions relate mainly to insurance, company law, securities, capital 
movement and payments. They are often complex and pertaining to individual situations or of 
general  nature  but  outside  Community  law.  Pension  funds  remain  an  important  topic.  The 
report  of  the  UK  Ombudsman  who  intervened  in  the  petition  Committee  on  the  "Equitable 
life" affair could allow finding a satisfactory solution. 

Less than 10 cases have been sent to SOLVIT. Only one case highlighted a misapplication of 
Community law; 2 have been introduced in the EU-Pilot system (insurance and professional 
qualifications).  

4.  Complementary problem solving mechanisms (SOLVIT and EU-Pilot) 

Problems  with  the  application  of  EU  law  which  are  not  considered  a  priority  are  either 
handled via the formal infringement procedure albeit with a lesser degree of intensity, in EU 
Pilot or in SOLVIT. 

The number of SOLVIT cases is increasing: in 2008 it increased by 22% and reached 1,000 
cases.  However,  the  number  of  problems  submitted  by  businesses  has  remained  stable  over 
the  past  years  and  as  a  result  their  relative  share  in  SOLVIT  case  flow  has  decreased  from 
32%  in  2004  to  14%  in  2008.  The resolution  rate  remained  high  at  83%  of  all  cases.  As  in 
2007, in 2008 the number of SOLVIT cases exceeds the number of opened infringement cases 
on the basis of complaints in the same area.  

SOLVIT has become a very potent and efficient complementary instrument. In particular, it 
offers  assistance  and  resolves  many  of  the  problems  experienced  by  individual  citizens  and 
businesses and helps to identify structural issues which may still need to be resolved in order 
to improve the operation of the Internal Market. 

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In 2008 both SOLVIT and Citizens SignPost Service received a high number of requests in 
the  areas  of  social  security,  professional  qualifications  and  free  movement  of  persons. It  is 
noticeable  that  late  transposition  or  ineffective  application  of  certain  Internal  Market  rules 
tends to increase the number of cases submitted to these services. 

The  EU-Pilot  is  still  in  a  test  phase,  but  the  Commission  has  already  been  able  to  handle  a 
certain number of cases in the area of Internal Market and Services (about 50 at the end of 
2008).  

5.  The  Internal  Market  Scoreboard: 

transposition  deficit  and 

infringements 

reduction 

The  IM  Scoreboard  has  proved  a  major  success  in  terms  of  reducing  Member  States 
transposition deficit. The average deficit for Internal Market directives is down to 1% in 2008. 
While the objective must be to reduce this deficit even further there would be good reason to 
focus more on the application of EU law in Member States. The fact remains that in this area 
the situation has not improved in recent years. In 2008, the IM Scoreboard turned its attention 
to  infringements  of  Community  law  other  than  late  transposition  of  Directives.  This  will 
continue  in  2009,  inter  alia  by  taking  a  closer  look  at  specific  sectors  where  Member  States 
appear  to  face  particular  difficulties  in  complying  with  the  law,  the  nature  of  the  problems 
identified and the efforts by Member States to comply with their legal obligations. 

10.1.2.  Key challenges for 2009-2010 

1.  Enforcement and the economic and financial crisis 

The current economic and financial crisis may pose particular challenges for the enforcement 
of Internal Market rules, notably in the area of public procurement but also in the area of free 
movement of capital and financial services. .  

There  have  been  some  examples  already  in  2008:  to  counter  the  negative  effects  of  the 
financial  crisis  certain  Member  States  have  introduced  flexibility  measures  in  the  national 
regulations  for  UCITS  which  may  raise  doubts  as  to  the  compliance  with  the  relevant 
directive.  Problems  may  also  occur  in  the  field  of  public  procurement.  Alongside  useful 
measures to cut red tape, Member States may be tempted to introduce possibilities for local 
awards of public contracts without European-wide competition, as they see this as a way to 
boost  local  businesses.  The  free  movement  of  capital  may  also  be  affected:  Member  State 
interventions must be notified to the Commission under state aid rules, but measures that do 
not  have  an  aid  component  and  affect  capital  movements  may  go  unnoticed  by  the 
Commission.  In  this  context,  the  necessary  and  continued  monitoring  activities  related  to 
strategic  foreign  investment  control  by  MS  as  well  as  to  specific  measures  in  the  financial 
sector will be important.  

The  Commission  response  to  the  recent  financial  crisis  represents  a  major  priority  in  the 
financial services area. This will trigger substantial legislative and quasi-legislative measures 
in  2009  and  beyond.  In  2010  and  beyond  the  transposition  and  effective  application  of  this 
legislative package will be a key priority. At the same time, a close monitoring of measures 
taken  by  Member  States  in  the  context  of  the  crisis  is  needed  in  order  to  avoid  that  they 
jeopardise the Treaty principles and existing legislation.  

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The  financial  crisis  may  finally  be  a  factor  of  risk  which  could  delay  the  successful 
transposition  of  directives:  it  may  modify  priorities  at  national  level  and  the  allocation  of 
resources in accordance with these new priorities.  

2.  Ensuring the proper functioning of the Internal Market for services both for the 

benefit of business and citizens 

Services represent around 70% of GDP and employment and have been the essential source of 
job  creation  in  recent  years.  Despite  this  exceptional  economic  performance,  the  significant 
growth  potential  of  the  internal  market  for  services  largely  remains  untapped  due  to  the 
existence  of  numerous  legal  and  administrative  barriers.  These  barriers  involve  substantial 
delays  and  costs  for  companies  who  want  to  set  up  an  establishment  or  provide  services 
abroad. The absence of a well-functioning internal market for services also harms recipients, 
as existing barriers limit choice and lack of competition keeps prices unnecessarily high.  

The Services Directive aims at knocking down these obstacles and releasing the unexploited 
potential of services. Thus, its effective application will be a key priority in 2010 and beyond. 
Moreover, the process of mutual evaluation of legislation affecting the services sector which 
the Directive requires the Commission and Member States to carry out in 2010 will constitute 
a  fundamental  tool  to  gauge  the  state  of  the  Internal  Market  for  services  following 
implementation of the Directive and to identify sectors or aspects where further Community 
initiatives  may  be  required.  A  key  priority  for  the  Commission  will  therefore  be  to  take  all 
necessary measures to make sure that this process is carried out in an effective way so that it 
may bring real added value to the development of the Internal Market. 

3.  Empowering citizens  

A staff working document has been adopted in May 2008 and contains an action plan for the 
streamlining  of  a  whole  range  of  existing  information  and  assistance  services  including 
SOLVIT, to help citizens and businesses to better understand and make full use of their rights 
and  benefits  in  the  EU. The  objectives  of  the  plan  are  to  make  it  easier  for  users  to  access 
these services. A single point of access which will increase cooperation between the services 
is to be created and this will provide users with a better and faster service. The plan is also 
expected to have a positive effect on the functioning of SOLVIT since it will address one of 
the  main  obstacles  reported  by  the  SOLVIT  centres,  namely  the  very  large  volume  of  non-
SOLVIT cases that they are receiving. Better filtering of cases at the point of entry and more 
efficient  signposting  of  citizens  and  businesses  to  the  most  appropriate  service  will  help  to 
reduce the percentage of cases that cannot be handled within SOLVIT. 

The  action  plan  also  provides  for  better  integration  of  the  single  market  assistance  services 
with  the  Commission’s  complaint  handling  tasks.  While  the  Commission  is  responsible  for 
addressing  complaints  about  infringements  of  EU  law  by  EU  Member  States,  much  of  the 
incoming  correspondence  it  receives  is  about  requests  for  information  and  assistance  that 
could  be  provided  more  efficiently  by  the  single  market  assistance  services.  For  instance, 
many  complaints  about  incorrect  application  of  EU  law  can  be  resolved  quickly  and 
successfully through SOLVIT and many queries about EU rights and how to enforce them can 
be  addressed  by  the  Citizens  Signpost  Service.  While  some  Commission  services  already 
make  good  use  of  the  single  market  assistance  services  by  referring  to  them  on  their  web 
pages, a more systematic approach across the board is needed to develop the full potential of 
these synergies. 

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A  clear  need  for  measures  helping  citizens  to  enforce  their  rights  and  fully  benefit  from 
Internal Market opportunities has been also identified in financial services area. The current 
financial  crisis  has  highlighted  the  crucial  importance  of  an  effective  legal  framework  for 
retail financial services, both in ensuring a sustainable balance in the credit markets, and in 
restoring mutual confidence between consumers and financial institutions. In this context, the 
Commission intends to reflect on how to ensure responsible lending and borrowing, including 
a reliable framework on credit intermediation; find ways to ensure that the voice of European 
investors  is  much  more  strongly  heard  on  all  financial  issues;  examine  ways  to  ensure  that 
foreclosure  procedures  are  avoided  wherever  possible,  to  prevent  citizens  from  losing  their 
homes.  

4.  Speeding up the delivery of solutions 

Through  a  formal  infringement  procedure  the  Commission  aims  at  finding  a  solution  to  the 
identified violation within the shortest time possible. This is particularly important for priority 
cases,  where  the  consequences  of  the  violation  are  more  significant  from  the  legal  or 
economic  point  of  view  and  there  is  a  more  urgent  need  to  introduce  the  necessary 
corrections. In the Internal Market and services area experience has shown that the treatment 
of such cases is often rather complex and lengthy despite the additional efforts put in place to 
ensure closer follow-up.  

The duration of priority cases can be tackled under different angles: on the one hand progress 
can be improved through a more developed strategy to manage the infringement caseload. On 
the other hand, parallel negotiations with Member States must be pursued only if the national 
authorities  have  clearly  understood  that  the  purpose  of  the  negotiation  is  to  assist  them  in 
finding solutions, and not to suspend the procedure. Hence, the identified solution has to be 
put in place as quickly as possible. Unjustified delays may immediately let to the following 
step of the infringement procedure.  

Furthermore,  cases  which  are  not  identified  as  priorities  according  to  the  criteria  are 
particularly  appropriate  to  be  treated  first  by  means  other  than  the  formal  infringement 
procedure. The potential of alternative problem-solving means such as EU Pilot and SOLVIT 
is not yet fully exploited. They should be used to the maximum in particular to deal with non-
priority  cases  and  cases  related  to  non-structural  issues,  where  the  solution  can  be  rapidly 
found at national level without the need for legislative measures. The evaluation of EU Pilot 
in  2009  should  be  therefore  used  to  achieve  the  necessary  improvements  and  find  ways  to 
maximise the benefits of this supplementary mechanism. 

Finally, cases should be dealt with by the authority which is the best placed to examine facts 
and respective positions. Many of the complaints brought to the attention of the Commission 
could be more efficiently tackled by national bodies or courts, which have better knowledge 
of the context where Community and national legislation linked to the case must be applied. 
Complainants  can  be  therefore  encouraged  to  lean  on  national  remedies  before  having 
recourse to the Commission services.  

This  general  approach  encourages  and  obliges  Member  States  to  assume  their  part  of 
responsibility and is in full line with the partnership approach promoted by the Commission in 
the Single market review, as well as in the Communication "A Europe of Results".  

5.  Timely and correct transposition, conformity checks 

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Transposition  deficit  rate  in  the  area  of  Internal  market  and  Services  is  at  the  end  of  2008 
3.1% against a 1% target for overall Internal market. This is a cause of serious concern.  

Focus will be on Member States with the highest deficit: transposition package meetings will 
be organised in these Member States and when appropriate political pressure will be exerted 
to  improve  the  situation.  Some  sectors  seem  more  affected  than  others  (e.g.  anti-money 
laundering, cross border mergers and regulated professions), depending on the sensitivity of 
the  legislation  to  be  transposed  and  on  the  number  /  breadth  of  measures  to  be  adopted  at 
national level to complete the process.  

Alongside  the  work  on  reducing  the  transposition  deficit,  the  conformity  checks  represent  a 
major task for 2009-2010: there is a substantial volume of national transposition measures to 
analyse, in particular in the area of company law but also in the area of mutual recognition of 
professional  qualifications.  To  manage  this  workload  will  require  a  risk-based  approach,  in 
order to check first those measures which correspond to key provisions or provisions likely to 
trigger  interpretation  problems,  incorrect  transposition  or  gold  plating.  Transposition  tables 
are often absent: Many member States are reluctant to provide them on a voluntary basis and 
are often late. When tables are provided it is at a late stage or the information included in the 
table  is  of  limited  help.  Furthermore,  translation  needs  necessarily  delay  the  process.  The 
outsourcing  of  certain  tasks  related  to  this  work  is  under  consideration,  in  particular 
translations, the drawing up of transpositions tables and first conformity checks. This will be 
taken forward in 2009/2010.  

The test case: services directive 

The implementation of the Services Directive was in 2008 and remains for 2009 a particularly 
complex and demanding exercise for Member States as well as for the Commission. Member 
States  are  required  to  carry  out  several  large  scale  projects,  such  as  the  implementation  of 
"points of single contact", an extensive review of national legislation and the setting up of an 
electronic  system  for  administrative  cooperation  between  Member  States'  administrations. 
Implementation therefore involves intensive coordination and organisational efforts.  

Any delay or deficiency will have important consequences on the level playing field for services 
providers  all  over  Europe  and  on  the  effective  functioning  of  the  points  of  single  contact.  It 
seems clear that without the approach taken by the Commission to work in close partnership 
with  Member  States  (and  to  devote  the  required  resources  and  efforts  to  do  this)  the 
implementation of the Services Directive would have been an even more challenging exercise. 

A detailed and ambitious transposition plan served as the basis for almost daily cooperation 
between  Member  states  competent  authorities  and  the  Commission.  Key  provisions,  risks 
connected to misinterpretations, specific needs of each Member States were identified through 
working groups and bilateral technical meetings. Political support at the highest level has also 
been  part  of  the  flanking  actions.  The  efforts  to  accompany  Member  States  in  this  difficult 
and  challenging  process  have  been  massive  and  hopefully  will  be  rewarded  by  minimum 
delay  in  transposition.  The  quality  of  the  transposition  at  national  level  and  the  concrete 
functioning of the mechanisms put in place by the Directive will represent a major challenge 
for 2010. 

6.  Partnership with Member States 

Member States share with the Commission the responsibility for a single market working well 
and delivering all its benefits to citizens and businesses. A more coordinated and cooperative 

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approach  amongst  Member  States  and  between  Member  States  and  the  Commission  can 
enhance  the  functioning  of  the  internal  market,  by  helping  to  better  implement  and  enforce 
single market rules.  

The  Commission  adopted,  in  June  2009,  a  Recommendation  addressed  to  Member  States 
which  identify  the  main  components  of  this  closer  partnership251.  The  Recommendation  is 
likely  to  address  issues  concerning  the  transposition,  application  and  enforcement  of  single 
market rules and means to encourage Member States to prevent problems early on, to promote 
problem-solving  tools,  better  to  inform  citizens  and  businesses  about  their  rights  and 
opportunities,  and  to  monitor  market  developments  to  identify  remaining  obstacles  to  the 
single market. 

The  Recommendation  is  part  of  a  cooperative  process.  It  has  been  prepared  in  close 
cooperation  with  all  Member  States  and  its  effects  will  be  monitored  jointly  with  Member 
States.  Involvement  and  cooperation  of  national  authorities  is  a  prerequisite  for  achieving 
results. It is hoped that this joint work will stimulate ownership of national authorities as well 
as a "European reflex". 

10.2.  Analysis by sector 

10.2.1.  Freedom to provide services and freedom of establishment (other than Financial 

Services) 

10.2.1.1. Current position 

(1) 

General introduction 

The  relevant  legal  framework  consists  of  Article  43  of  the  EC  Treaty  on  the  freedom  of 
establishment as well as of Article 49 of the Treaty on the freedom to provide services.  

This framework is complemented by a number of Internal Market Directives which develop 
these freedoms as regards specific service activities or specific legal aspect (Postal Services 
Directive252, the Directive on the legal protection of conditional access services253 and the E-
commerce Directive254). 

Besides these specific instruments we find Directive 2006/123/CE on services in the Internal 
Market255 adopted in December 2006. This is an important horizontal instrument which will 
apply alongside other existing Directive and complement them. It has to be implemented by 
Member States before the end of 2009. 

(2) 

Report of work done in 2008 

251 

252 

253 

254 

255 

COMMISSION RECOMMENDATION of 29 June 2009 on measures to improve the functioning of the 
single market (2009/524/EC), OJ L176 of 7.7.2009." 
Directive  2008/6/EC  of  the  European  Parliament  and  of  the  Council  of  20  February  2008  amending 
Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal 
services, OJ L 52, 27.2.2008 
Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal 
protection of services based on, or consisting of, conditional access - OJ L 320, 28.11.1998, p. 54–57. 
Directive 2003/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal 
aspects  of  information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market 
(Directive on electronic commerce), OJ L 178 of 17.7.2000, p. 1. 
O.J. L 376/36 of 27.12.2006 

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a. Management of legislation, including in committees and working groups 

The Services Directive is more than just a piece of legislation to be implemented into national 
law. It sets out a comprehensive modernisation programme for national administrations.  

In response to a request formulated by the Council, the Commission had already in 2007 taken 
the  commitment  to  provide  guidance  and  assistance  to  Member  States  throughout  the 
implementation  process.  Thus,  following  the  final  adoption  of  the  Services  Directive,  an 
implementation  strategy  has  been  put  in  place  to  support  and  guide  Member  States' 
implementation efforts. Concrete actions in 2008 include:  

•  More than 30 bilateral meetings with Member States. 

•  13  meetings  of  the  “Expert  Group  on  the  implementation  of  the  Services  Directive”  on 
specific  implementation  aspects  allowing  not  only  to  exchange  best  practice  but,  most 
importantly,  to  ensure  a  similar  level  of  understanding  by  all  Member  States  of  the  work 
required and the priorities for action. 

•  Agreement with Member States on an on-line tool to be used by them to comply with the 
comprehensive reporting obligation they have under the Directive (reporting of legislation 
affecting service providers). 

•  As regards the Points of Single Contact, work focussed on providing practical guidance in 
the  Expert  Group  by  defining  benchmarking  criteria  and  facilitating  exchange  of  best 
practices  between  Member  States.  Work  was  also  undertaken  on  "branding"  of  the  PSCs 
and a high-visibility single "European Webgate" to the national PSCs.  

•  Work to facilitate the cross border use of electronic procedures advanced considerably and 
very  concrete  options  are  being  discussed  in  2009  for  implementation  via  a  Comitology 
decision. 

•  A  very  important  effort  was  deployed  to  prepare  the  use  of  IMI,  the  "Internal  Market 
Information  System",  an  electronic  network  which  allows  for  direct  communication  and 
exchange of information between competent authorities in different Member States and thus 
facilitates the administrative cooperation required by the Services Directive, including the 
preparation  of  a  Comitology  decision  with  the  related  practical  arrangements  and  the 
preparations for the launching of a pilot in 2009. 

A  second  implementation  report  on  the  conditional  access  services  was  adopted  in  2008256. 
The  report  details  its  usefulness  to  protect  pay-TV  services  as  well  as  new  audiovisual 
information  society  services  against  piracy  in  the  current  world.  Simultaneously,  an  expert 
group was created in order to discuss a number of issues linked to a better implementation of 
the  Directive.  Moreover,  the  Commission  will  propose  to  the  Council  in  2009  to  ratify  the 
Convention on the Legal Protection of Services based on, or consisting of, Conditional Access 
adopted by the Council of Europe on 24 January 2001257. 

256 
257

COM(2008) 593 final 

http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=178&CM=8&DF=8/12/2

008&CL=ENG. 

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Concerning  the  e-commerce  Directive,  the  interest  of  citizens  and  operators  focused  on 
questions regarding liability of the e-commerce service providers. Thanks to differing national 
interpretations  of  the  relevant  provisions  of  the  e-commerce  directive  uncertainty  has  arisen 
within the on-line market as to the extent of the limited liability of internet service providers. 
In order to redress these misunderstandings, the Commission's services discussed this in detail 
with  the  Expert  group  of  e-commerce  made  up  of  representatives  from  the  Member  States' 
authorities. Moreover, negotiations with third countries (e.g. USA, India, Ukraine) continued 
in order to strengthen e-commerce services. 

b. management of Infringements 

The  Commission  also  carried  out  its  control  of  the  application  of  articles  43  and  49  of  the 
Treaty by means of infringement proceedings concerning restrictions in various areas of the 
Internal  Market.  A  number  of  procedures  concerned  the  reimbursement  of  medical  costs 
incurred in another Member State (the so-called mobility of patients).  

Spain  was  referred  to  the  Court  of  Justice258,  because  of  the  refusal  to  grant  additional 
reimbursement  of  the  costs  incurred  for  hospital  care  required  during  a  temporary  stay  in 
another Member State. This refusal deprives European citizens of a right granted to them by 
the  Court  under  Article  49  of  the  Treaty  as  interpreted  in  the  Vanbraeckel  case259.  The 
Commission  also  decided  to  take  France  to  the  Court  for  the  continued  existence  of  prior 
authorisation  for  the  reimbursement  of  certain  types  of  non  hospital  treatment  which  was 
considered  contrary  to  Article  49  of  the  EC  Treaty  as  recognised  by  the  Court.  In  addition, 
patients treated in a hospital in another Member State cannot be reimbursed at levels at least 
equivalent to what they would have received had they received treatment in a French hospital. 
This is again a breach of Article 49 of the treaty as interpreted on the Vanbraeckel case.260  

Since  prior  authorisation  continues  to  be  required  for  the  reimbursement  of  non  hospital 
treatment in Spain, the Commission has decided to also send a reasoned opinion to Spain. At 
the  same  time,  Spain  is  criticised  for  requiring  prior  authorisation  for  the  reimbursement  of 
the  cost  of  hospital  treatment,  despite  not  having  a  system  for  the  issuing  of  such 
authorisations that is in line with legal certainty and transparency criteria.  

A  reasoned  opinion  was  issued  to  Luxembourg  for  failure  to  reimburse  the  cost  of  medical 
tests  carried  out  in  another  Member  State.  The  Commission  considers  that  the  systematic 
refusal  to  reimburse  patients  in  respect  of  these  costs  is  incompatible  with  article  49  of  the 
Treaty.  

And  finally,  the  Commission  has  sent  a  reasoned  opinion  to  Estonia  in  view  of  its  rules 
prohibiting  the  recognition  of  medical  prescriptions  made  out  by  medical  practitioners  who 
are qualified to act in their Member State of establishment but are not registered in Estonia.  

In  other  areas,  the  Commission  has  sent  a  supplementary  reasoned  opinion  to  Belgium  on 
disproportionate  requirements  for  temporary  employment  agencies  which  are  established  in 
other Member States and wish to provide their services in Belgium on a temporary basis.261 

258 
259 
260 
261 

C-211/2008. 
C-368/98. 
C-512/2008. 
The requirement to have a representative resident or domiciled in Belgium or, if such a representative is 
no  longer  required,  to  have  an  address  in  the  region  concerned  is  equally  disproportionate  as  the 

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The Commission has referred Portugal to the Court262 and issued a reasoned opinion to this 
Member  State  for  not  making  a  distinction  between  requirements  applying  to  a  service 
provider who wants to provide temporary services in Portugal and a service provider wanting 
to establish in Portugal263.  

Austria  and  the  United  Kingdom  have  received  reasoned  opinions  for  requiring  service 
providers  to  have  an  address  in  the  respective  country,  in  Austria  for  actions  relating  to 
insolvency proceedings, in the United Kingdom for actions relating to trademarks and patents.  

Italy has been referred to the Court of Justice for its regulations on the schedule of maximum 
fees for lawyers' services.264.  

In  the  field  of  establishment,  the  Commission  has  decided  to  refer  Spain  to  the  Court  of 
Justice265  for  its  national  legislation  and  the  legislation  of  Catalonia  relating  to  the 
establishment of retail outlets266. The Commission has sent at the same time to Spain a letter 
of formal notice targeting specifically the legislation of Andalusia267.  

In addition, the European Commission decided to close the infringement proceedings against 
Italy  relating  to  the  national  and  regional  legislation  on  the  establishment  of  petrol 
stations268 following the removal of all disputed restrictions (i.e. compulsory minimum size 
and  additional  “non-oil”  commercial  activities;  minimum  distances  between  installations; 
constraints regarding opening hours, etc).  

Following the implementation in 2008 by Italy of the judgment of the Court of Justice of 18 
July  2007269,  which  confirmed  that  certain  national  restrictions  on  extrajudicial  debt 
recovery  agencies,  were  incompatible  with  the  freedom  of  establishment  (Article  43  EC 
Treaty) and the freedom to provide services (Article 49 EC Treaty), the Commission decided 
to close the infringement proceedings270.  

In  the  field  of  establishment  of  pharmacies,  formal  requests  to  amend  their  legislation 
relating  to  ownership  of  pharmacies  were  sent  to  Germany,  Portugal271  and  Italy272.  The 
reasoned opinions generally concern the  reserve of the pharmacy ownership to pharmacists, 
restrictions  on  the  number  of  outlets  owned,  prohibitions  for  medicines  wholesaling 
companies  on  owning  pharmacies,  and  restrictions  relating  to  the  localisation  of  the 
pharmacies. In parallel to the infringement proceedings the Commission held in October 2008 

limitation  of  the  activities  of  the  service  provider  to  those  relating  to  human  resources  or  the 
requirement to have a specific legal company form. 
C-458/2008. 
On the one hand it concerned the rules on the provision of construction services, on the other hand the 
rules  on  estate  agent  services  and  real  estate  brokerage  firms.  The  failure  to  make  such  a  distinction 
infringes Article 49 of the EC Treaty 
C-565/2008. The Commission questions the need for such provisions, the result of which is to restrict 
the  access  of  service  providers  from  other  Member  States  to  the  Italian  market,  while  not  however 
guaranteeing access to justice and its proper administration or protecting those receiving the services in 
a way which is proportionate with the general interest objectives sought 
Case C-400/2008. 
IP/08/507. 
IP/08/861. 
IP/08/1792. 
Case C-134/05, Commission v Italy. 
IP/08/1360. 
IP/08/1352. 
IP/08/1785. 

262 
263 

264 

265 
266 
267 
268 
269 
270 
271 
272 

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a workshop on access to high quality pharmacy services aimed at continuing the constructive 
dialogue  with  Member  States  and  the  main  stakeholders  in  the  pharmacy  sector.  The 
Commission's services intend to continue the fruitful dialogue with stakeholders and Member 
States by organising a second workshop on pharmacies in 2009. The Commission dealt also 
with several petitions (most of them related to the infringement proceedings 2001/5261 Spain) 
and  written  questions  relating  to  restrictions  on  the  establishment  of  pharmacies.  The 
upcoming judgment of the Court of Justice in Case C-531/06, Commission v Italy, relating to 
restrictions  on  the  ownership  of  pharmacies  by  non-pharmacists,  will  be  taken  into  account 
when dealing with such restrictions273. 

In the area of gaming services, a formal request to amend national rules was sent to Sweden 
in  relation  to  restrictions  on  the  freedom  to  provide  on-line  poker  services  and  to  promote 
both on-line  and  off-line poker games  and  tournaments. The Commission inquired  also into 
restrictions  on  gaming  services  in  Germany  focusing  on  a  number  of  provisions  of  the  new 
German gaming legislation which entered into force on 1.1.2008, notably  the  prohibition  of 
games  of  chance  on  the  Internet274.  In  addition,  the  Commission  sent  reasoned  opinions  to 
Greece  and  the  Netherlands  requesting  them  to  amend  their  gambling  legislation275.  The 
reasoned opinions concern the fact that providers lawfully licensed in another Member State 
are not allowed to provide or to promote gaming services.  

The  Commission  notes  with  satisfaction  that  some  Member  States  (France,  Italy,  Hungary) 
have already announced amendments of their gaming legislation in 2009 in order to comply 
with the requirements of EC law. The Commission will examine the new draft legislation and 
will continue the dialogue with Member States with a view to ensuring the full application of 
the Treaty in the gaming sector.  

In  the  summer  of  2008  under  the  French  Presidency  of  the  Council  a  Working  Party  was 
created  in  order  to  discuss  the  problems  relating  to  gambling,  including  on-line  gambling. 
This work continues under the Czech and the Swedish Presidency of the Council. In parallel, 
the  European  Parliament  prepared  an  own-initiative  report  on  integrity  of  on-line  gambling 
which has been adopted by the plenary in March 2009. 

It should be recalled that by the end of 2008, many preliminary questions relating to gaming 
services were submitted or are still pending for a preliminary ruling of the Court of Justice276. 
The Court is expected to rule in the preliminary case C-42/07, Liga Portuguesa de Futebol, in 
2009. 

Following  the  implementation  by  Member  States  of  Court  judgments,  a  number  of 
infringement cases could be closed in 2008: 

273 

274 
275 
276 

Also  in  preliminary  Joined  Cases  C-171/07  and  C-171/07,  Apothekerkamer  Saarlandes.  See  also 
requests for preliminary ruling by the Tribunal Superior de Justicia de Asturias, Joined Cases C-570/07 
and C-571/07, Blanco Pérez. 
IP/08/119 of 31.1.2008. 
IP/08/330 of 28.2.2008. 
AT:  Engelmann  (C-64/08)  Langer  (C-235/08)  on  casinos;  DE:  Winner  Wetten  (C-409/06),  Carmen 
Media  Group  (C-46/08),  Markus  Stoss  (Joined  cases  C-316/07,  C-358/07,  C-360/07,  C-409/07  &  C-
410/07);  FR:  Zeturf  (C-212/08);  NL:  Sporting  Exchange/Betfair  (C-203/08),  Ladbrokes  (C-258/08); 
PT: Liga Portuguesa de Futebol (C-42/07), opinion of Advocate General Bot delivered on 14.10.2008, 
and SE: Gerdin & Sjöberg (Joined cases C-447/08 C-448/08). 

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concerning 

-  Austria, 
tanks 
services 
(‘Kesselprüfstelle’)277  ,  and  private  inspection  bodies  of  organically  farmed  products278- 
Germany, on private inspection bodies of organically-farmed products279 and establishment of 
vehicles inspection centres280. 

for  boilers  and  pressure 

inspection 

The  Commission  decided  to  refer  Portugal  to  the  Court  of  Justice281  for  restrictions  on  the 
establishment of vehicles inspection centres, notably the granting of licenses depending on 
the public interest, the limitation of the company's purpose, the obligation of a share capital of 
100,000 EUR and the incompatibilities for partners, managers and administrators.  

Germany repealed its restrictions on freedom of establishment and free movement of services 
of  artificial  insemination  of  bovine  animals  and  the  Commission  decided  to  close  the 
infringement proceedings282. The Court of Justice in its Judgment of 17 July 2008283 declared 
that  by  allowing  only  authorised  artificial  insemination  centres,  with  exclusive  rights  over 
determined  geographical  areas,  and  persons  holding  an  inseminator’s  licence,  the  issue  of 
which is subject to the conclusion of an agreement with one of those centres, to provide the 
service of artificial insemination of bovine animals, the French Republic has failed to fulfil its 
obligations under Articles 43 EC and 49 EC. 

In the field of hydroelectric concessions, the Commission decided to close the infringement 
proceedings against Spain and France, following removal of the preference for the outgoing 
concession  holder284.  The  Commission  also  decided  to  close  the  infringement  proceedings 
against  France  regarding 
the  ban  on  cross-promotion  of  commercial  television 
programmes in France, following compliance of the national legislation. 

A  letter  of  formal  notice  was  sent  to  Cyprus  on  restrictions  to  estate  agents'  activity285, 
regarding  the  qualification  and  the  obligation  to  collaborate  with  a  local  agent  for  the 
provision of services. 

The  Commission  decided  to  send  reasoned  opinions  to  the  Czech  Republic  and  Hungary 
regarding obstacles to the freedom of establishment and the freedom to provide services for 
the activity of collecting management of rights286. 

277 

278 

279 

280 

281 
282 
283 
284 
285 
286 

Judgment of the Court of 14 December 2006277, which ruled incompatible with Article 49 EC Treaty 
the obligation of establishment within the national territory in order to be able to provide 
Case  C-393/05,  Commission  v  Austria,  Judgment  of  the  Court  of  29  November  2007278,  which  ruled 
that the requirement of establishment in Austria for private inspection bodies of organically farmed 
products was incompatible with Article 49 EC Treaty; IP/08/1793. 
Case  C-404/05,  Commission  v  Germany.  the  Court  of  Justice  on  29  November  2007  declared  that 
Germany  was  in  breach  of  Article  49  EC  Treaty,  by  requiring  that  private  inspection  bodies  of 
organically-farmed  products  approved  in  another  Member  State  maintain  an  establishment  in 
Germany in order to be able to provide inspection services there. 
The Commission decided to withdraw from Case C-369/08, Commission v Germany, and to close the 
infringement  proceedings  against  Germany  relating  to  restrictions  on  the  establishment  of  vehicles 
inspection centres in Germany, notably the compulsory and exclusive affiliation on a full-time basis of 
at  least  60  independent  experts  and  the  employment  of  at  most  30  experts  as  inspection  engineers, 
following the amendment of the German legislation in September 2008 which repealed the restrictions. 
Case C-438/08, Commission v Portugal. 
IP/08/1793. 
Case C-389/05, Commission v France. 
IP/08/1793. 
IP/08/689. 
IP/08/1786. 

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The  Commission  sent  a  reasoned  opinion  to  France  in  September  2008287  relating  to 
restrictions  on  opticians  (obligation  of  registration  in  one  department  only)  and  distance 
selling of lenses via the Internet, which are considered incompatible with Articles 43 and 49 
EC, as well as Article 3(2) of the e-commerce Directive. France replied in December 2008. 

In the area of postal services, 2008 was a very important year for the accomplishment of the 
Internal Market for postal services, as the 3rd Postal Directive was adopted288. The Directive is 
the  decisive  step  towards  the  realisation  of  an  Internal  Market  for  postal  services  which 
represent in excess of one percent of EU GDP and contribute to the attainment of the broad 
reform objectives of the Lisbon Agenda. 

A  Transposition  Plan  which  was  prepared  upon  the  adoption  of  the  3rd  Postal  Directive, 
assesses  in  detail  the  risks  of  incomplete,  deficient  or  late  implementation  of  Directive 
2008/06/EC by Member States and envisages a series of specific actions to ensure real market 
opening, fair competition and a level playing field. To ensure timely and correct transposition 
of  the  Directive,  the  Commission  has  been  heavily  engaged  throughout  2008  in  proactive 
assistance with Member States, including bilateral meetings, while continuing its active role 
in  monitoring  and  reporting  on  market  developments.  These  activities  included  letters  from 
Commissioner McCreevy to all Member States thanking them for their constructive spirit and 
addressing existing and/or emerging barriers to entry in postal sectors in Member States; and 
a High level Kick-off Conference, which was hosted by Commissioners McCreevy.  

Work on a wide range of transposition issues was taken forward in the framework of Working 
Groups  convened  under  the  auspices  of  the  Postal  Directive  Committee  and  chaired  by  the 
Commission.  

A 4th Application Report on the application of the postal acquis and the functioning of the EU 
postal  market  was  adopted  on  23  December  2008289.290  The  Report  provides  detailed 
economic  data  and  background  information  and  identifies  some  shortcomings  in  the 
implementation of the current postal acquis, which need to be addressed further. 

10.2.1.2. Evaluation based on the current position 

The implementation of the Services Directive is a particularly complex and demanding exercise 
for Member States as well as for the Commission. It is not just a list of legal provisions which 
simply need to be reflected, in an appropriate manner, by Member States in national legislation. 
Indeed,  Member  States  are  required  to  carry  out  several  large  scale  projects,  such  as  the 
implementation of "points of single contact", an extensive review of national legislation and the 
setting  up  of  an  electronic  system  for  administrative  cooperation  between  Member  States' 

287 
288

289 

290 

IP/08/1354. 
Directive  2008/6/EC  of  the  European  Parliament  and  of  the  Council  of  20  February  2008  amending 
Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal 
services, OJ L 52, 27.2.2008, p. 3–20. 
Report  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the  application  of  the 
Postal  Directive  (Directive  97/67/EC  as  amended  by  Directive  2002/39/EC),  COM(2008)  884  final 
[available online at: http://ec.europa.eu/internal_market/post/doc/reports/report_en.pdf].  
Commission Staff Working Document accompanying document to the Report from the Commission to 
the Council and the European Parliament on the application of the Postal Directive (Directive 97/67/EC 
as  amended  by  Directive  2002/39/EC),  COM(2008)  884  final,  SEC(2008)  3076  [available  online  at: 
http://ec.europa.eu/internal_market/post/doc/reports/annex_en.pdf].  

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administrations.  Implementation  therefore  involves  intensive  coordination  and  organisational 
efforts.  

Any  delay  or  deficiency  will  have  important  consequences.  The  timely  review  of  national 
legislation and the necessary modifications to be made to national law are important in order to 
assure  a  level  playing  field  for  services  providers  all  over  Europe.  The  setting  up  and  the 
practical functioning of the points of single contact will be one of the important and most visible 
results  of  the  Directive  for  businesses  and  any  malfunctioning  will  be  immediately  detected. 
Finally,  the  effects  of  the  Directive  will  also  suffer  if  the  required  level  of  administrative 
cooperation between Member States is not achieved.  

It seems clear that without the approach taken by the Commission to work in close partnership 
with  Member  States  (and  to  devote  the  required  resources  and  efforts  to  do  this)  the 
implementation of the Services Directive would have been an even more challenging exercise. 
This approach has proven to be essential to ensure a common understanding amongst Member 
States and to put pressure and help those where the process accumulates delays. In an EU with 
27 Member States (plus the three EEA) emphasis on this type of work should increase if we 
want to ensure the effective application of Internal Market rules on the ground and hence the 
functioning of the Internal Market in practice. 

In  the  area  of  postal  services  transposition  assistance,  conformity  assessment  and  market 
monitoring work will provide the main focus for the coming years. It is essential, for a proper 
functioning  of  the  Internal  Market  for  postal  services  that  there  is  no  delay  in  the 
implementation and that Member States establish sound and efficient regulatory frameworks 
that  will  provide  incentives  for  the  provision  of  postal  services  and  will  not  constitute  a 
market entry barrier.  

To ensure that the objectives of EU postal reform and the accurate implementation of the 3rd 
Postal Directive (in a manner which is faithful to its content and spirit), are achieved, and the 
Postal  Internal  Market  is  accomplished,  further  measures  will  be  taken  as  appropriate  to 
address  barriers  to  entry  or  other  protectionist  measures  which  may  undermine  the 
achievement  of  these  objectives,  including  the  pursuit  of  infringement  proceedings  against 
Member States for violation of Articles 43 and 49 in this sector.  

10.2.1.3. Evaluation results 

(1) 

Priorities 

A  considerable  amount  of  work  has  been  undertaken  by  both  the  Member  States  and  the 
Commission  on  the  implementation  of  the  Services  Directive,  but  a  lot  still  remains  to  be 
done. While Member States will have to translate the result of the technical work of the past 
two years into practice, the Commission has to start preparing for work to be done after the 
end of the implementation period (28 December 2009). Therefore, the main priority remains 
the  timely  and  correct  implementation  of  the  Services  Directive.  This  implies  a  continuing 
and  efficient  cooperation  with  Member  States  in  order  to  be  able  to  monitor  the 
implementation process throughout 2009. 

At  the  same  time  work  is  being  undertaken  for  all  actions  the  Directive  requires  the 
Commission  to  take  (e.g.  functioning  of  administrative  cooperation  and  preparation  of  the 
system  for  reporting  by  Member  States  of  the  results  of  their  screening  of  national 
legislation). Work has also started to prepare the "mutual evaluation process" foreseen by the 
Services  Directive  in  2010.  This  process,  which  is  one  of  the  novelties  of  the  Services 

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Directive, can be compared to a peer review and will allow for a structured dialogue between 
both  the  Member  States  and  the  Commission.  Ultimately  this  process  will  also  involve  the 
European  Parliament  and  stakeholders  as  the  Commission  will  have  to  present  a  summary 
report  to  the  European  Parliament  and  to  the  Council  accompanied  where  appropriate  by 
proposals for additional initiatives.  

Enforcement  of  the  Treaty  rules  on  the  freedom  to  provide  services  and  the  freedom  of 
establishment  will  focus  in  particular  on  those  areas  which  are  not  covered  by  the  Services 
Directive,  such  as  health  services,  as  well  on  all  restrictions  caused  by  the  failure  to 
distinguish  between  those  two  fundamental  freedoms.  Clear  discrimination  or  cases 
concerning entire categories of service providers will also continue to be treated as priority.  

A  considerable  amount  of  work  and  a  variety  of  activities  have  also  been  undertaken 
regarding  the  implementation  of  the  3rd  Postal  Directive  by  the  Commission  and  Member 
States.  

In  order  for  the  Internal  Postal  Market  to  become  a  reality,  it  is  essential  that  initiatives 
directed  towards  full  market  opening  are  continued,  and  where  necessary  further  developed 
and strengthen. In relation to the application of the postal acquis, two main challenges have 
been identified: (i) ensuring coherent implementation of the 3rd Postal Directive coupled with 
the  establishment  of  a  sound  and  efficient  regulatory  framework  and  (ii)  ensuring  that  any 
remaining barriers to entry are tackled and removed.  

(2) 

Planned actions (2009 and beyond) 

The well established cooperation with Member States on the implementation of the Services 
Directive  will  continue.  Efforts  to  communicate  with  stakeholders  as  to  the  benefits  and 
opportunities  created  by  the  Services  Directive,  now  that  the  implementation  deadline 
approaches,  will  be  stepped  up.  Several  actions  to  start  for  the  preparations  of  the  mutual 
evaluation  exercise  in  2010  will  be  taken  (both  internally  in  the  Commission  and  vis  à  vis 
Member States and stake-holders).  

Infringement proceedings and enquiries  will  be managed according to set priorities, making 
use of alternative problem solutions mechanisms such as SOLVIT or EU-PILOT. Given the 
vast variety of possible restrictions concerning the Internal Market, resources will have to be 
deployed efficiently.  

There is a full commitment to pursuing and safeguarding the objectives of EU postal reform 
in  a  proactive  manner.  The  Commission  services  will  continue  to  deliver  its  broad  and 
comprehensive assistance activities to Member States.  

A broad range of regulatory issues will be tackled in the framework of Working Groups of the 
Postal Directive Committee and bilateral and/or multilateral meetings with stakeholders. 

In addition, the Commission services plan to organize a high level Postal "Mid-term Review 
Conference"  which  is  planned  for  24-25  September  2009  with  Member  States,  national 
regulatory authorities, key stakeholders and consumer representatives. 

The Commission services will also continue to commission further sector studies (as in 2009, 
on the role of national regulatory authorities in a liberalised postal market and on the effects 
of  the  EU  postal  reform  in  the  period  1997-2008),  assist  work  on  the  studies  in  a  series  of 
interactive Workshops and eventually publish the results.  

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In  parallel  to  the  implementation  assistance  which  will  be  provided  to  Member  States,  the 
services will continue with active and comprehensive market monitoring, which will enable 
the  Commission  to  act  against  any  protectionism  in  the  postal  sector  and  to  assess  whether 
there is a need for further initiatives to strengthen the regulatory framework.  

10.2.2.  Financial Services 

10.2.2.1. Current position 

(1) 

General introduction 

The financial services sector includes three major areas for which similar European policies 
apply: banking291, insurance292 and securities293. The objective of the Community secondary 
legislation  is  to  facilitate  the  establishment  and  the  cross  border  provision  of  services  for 
financial institutions on the basis of the home country control principle. In addition to these 
main  areas,  financial  services  legislation  covers  occupational  pensions294  and  payment 
services295. 

(2) 

Report of work done in 2008 

In  the  banking  sector,  the  Commission  mainly  dealt  with  non-communication  cases.  As 
regards  the  transposition  of  banking  Directives  2006/48/EC  and  2006/49/EC  (the  so  called 
'Capital  Requirement  Directive',  CRD)296,  4  infringement  cases  against  Hungary  and  Spain 
due  to  non-communication  of  the  national  transposition  measures  before  the  deadline  of  31 
December  2006  were  still  pending  at  the  beginning  of  2008.  In  the  course  of  2008,  it  was 
possible to close one of these cases, while three cases had to be referred to the ECJ. Out of the 
cases  referred  to  the  Court,  the  case  against  Spain  for  non-transposition  of  Directive 
2006/48/EC  was  settled  further  to  the  complete  implementation  of  the  Directive;  the  case 
against  Spain  for  non-transposition  of  Directive  2006/49/EC  resulted  in  a  Court's  judgment 
establishing  Spain's  failure  to  transpose  this  Directive  in  December  2008.  The  case  against 
Hungary for non-transposition of Directive 2006/48/EC was still pending before the Court at 
the end of 2008.  

Infringement proceedings were pending against 8 Member States for non-communication of 
the implementing measures of Directive 2007/18/EC which amended technical provisions of 
the CRD297. All of these proceedings were terminated in 2008, following to the notification of 
the implementing measures by the Member States concerned.  

291 
292 
293 
294 
295 
296 

297 

http://ec.europa.eu/internal_market/bank/legislation/index_en.htm 
http://ec.europa.eu/internal_market/insurance/legis-inforce_en.htm 
http://ec.europa.eu/internal_market/securities/index_en.htm 
http://ec.europa.eu/internal_market/pensions/directive_en.htm 
http://ec.europa.eu/internal_market/payments/legislation_en.htm 
Directive 2006/48/EC relating to the taking up and pursuit of the business of credit institutions (OJ L 
177, 30.6.2006, p. 1) and Directive 2006/49/EC on the capital adequacy of investment firms and credit 
institutions (OJ L 177, 30.6.2006, p. 201).  
OJ L 87, 28.3.2007, p. 9 

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232 

   EN 

                                                 
A  pending  infringement  case  against  France  concerning  the  follow-up  of  the  Court's 
preliminary  ruling  on  the  prohibition  to  pay  interest  on  current  accounts  was  closed  in 
2008298. 

In  2008,  the  working  group  set  up  by  the  Commission  in  order  to  ensure  a  consistent 
implementation of the CRD (CRDTG - Capital Requirements Directive Transposition Group), 
continued its work of interpretation and clarification of the CRD provisions299. The CRDTG 
found that certain provisions were unclear or did not achieve their objective in practice. This 
prompted  the  Commission  to  propose  some  technical  amendments  to  the  CRD  through  two 
comitology directives300. The adoption of these directives is envisaged in 2009.  

In addition, a more extensive revision of the CRD was proposed in 2008301 in order to refine 
and update certain provisions. Also this revision is expected to be adopted in 2009.  

Good  progress  has  been  made  in  2008  in  the  report  on  the  conformity  of  the  national 
measures implementing the CRD.  

As  far  as  the  insurance  sector  in  2008  is  concerned,  the  Court  of  Justice  ruled  on  a  case 
referred  in  2007  with  regard  to  Irish  legislation  on  compensation  for  victims  of  an  accident 
caused  by  an  uninsured  motor  vehicle  302.  The  Court  of  Justice  followed  the  Commission’s 
line  of  reasoning  entirely  and  found  Ireland  to  be  in  breach  of  Article  1(4)  of  Directive 
84/5/EEC (the 2nd Motor Insurance Directive, OJ L 8/1984, p. 17). Ireland took the necessary 
measures to comply with this ruling by the end of 2008. 

Furthermore,  a  case  against  the  Czech  Republic  for  wrong  transposition  of  Directive 
2003/41/EC of 3.6.2003 on pension funds (OJ L 235 of 23.9.2003) was referred to the Court 
of Justice during 2008 (case C-343/2008). 

As  regards  the  transposition  of  Directives  by  the  Member  States,  non-communication  cases 
had to be launched in the insurance sector against several Member States with regard to the 
failure  to  transpose  Directive  2005/68/EC  (the  reinsurance  Directive303)  by  10  December 
2007.  By  the  end  of  2008  Belgium,  Czech  Republic,  Greece,  Poland  and  Portugal  were 
referred to the Court of Justice. Some infringements were also launched concerning Directive 
2002/92/EC (the insurance mediation Directive304), namely against Austria (case filed in late 
2008),  Greece  and  Italy,  and  as  concerns  Directive  87/344/EEC  of  22.6.1987  on  legal 
expenses insurance (OJ L 185, 4.7.1987), against France. 

In total 40 complaints and infringement cases were handled in 2008, a high number of them 
transposition  measures  concerning  Directive 
being  for  non-communication  of 
2005/68/EC. 5 cases were referred to the new EU Pilot tool and no cases were referred to the 

the 

298 

299 
300 

301 
302 
303 

304 

Judgment  of  5  October  2004,  Case  C-442/02,  Caixa-Bank  France  v  Ministère  de  l'Économie,  des 
Finances et de l'Industrie 
http://ec.europa.eu/internal_market/bank/regcapital/transposition_en.htm 
http://ec.europa.eu/internal_market/bank/docs/regcapital/comitology_crd%202006-48_en.pdf 
http://ec.europa.eu/internal_market/bank/docs/regcapital/comitology_crd%202006-49_en.pdf 
http://ec.europa.eu/internal_market/bank/docs/regcapital/crd_proposal_en.pdf 
Judgment of 21 February 2008, Commission versus Ireland, Case C-2007/211 
Directive  2005/68/EC  of  the  European  Parliament  and  of  the  Council  of  16  November  2005  on 
reinsurance  and  amending  Council  Directives  73/239/EEC,  92/49/EEC,  88/357/EEC  as  well  as 
Directives 98/78/EC and 2002/83/EC (OJ L 323, 09.12.2005, p. 1) 
Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance 
mediation (OJ L 9, 15.1.2003, p. 3) 

and 

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SOLVIT tool. 14 cases were closed (around 35% of the total of cases handled) and only 1 was 
referred  to  the  ECJ  (2.5%  of  the  total  approximately).  Bilateral contacts  were  held  with  the 
Member  either  through  package  meetings  or  in  the  relevant  sector  committees.  Package 
meetings sometimes led to the closing of the infringement case within 6 to 9 months of being 
held. 

As  regards  petitions  a  total  of  16  petitions  were  handled  on  insurance  and  pensions.  They 
dealt  inter  alia  with  motor  insurance,  life  assurance  (the  Equitable  Life  case  and 
similar/parallel ones) and  pension  funds.  Of  course, petitions that show a breach of EU law 
have their facts "converted" in to infringements. About 160 queries of other nature concerned 
the insurance sector. 

The  key  change  and  challenge  ahead  is  the  proposal  for  a  directive  called  "Solvency  II" 
Directive  which  was  tabled  in  2007  and  re-tabled  (amended  proposal)  in  2008305.  The 
proposal is currently under discussion in Council and Parliament. Formal adoption is expected 
in 2009 and transposition by late 2012. The Directive will provide for a transposition period 
of  about  3  and  a  half  years  so  that  implementing  measures  needed  to  make  the  new 
framework  completely  operational  are  adopted  beforehand.  Intensive  work  intended  to 
prepare its transposition and proper application will start in 2009. . It is intended to modernise 
the  evaluation  and  calculation  of  risks  and  therefore  will  provide  for  a  new,  prospective, 
economic and risk based approach putting much greater emphasis on sound risk management 
and  robust  internal  controls  by  insurance  undertakings.  In  addition  it  will  also  profoundly 
influence  the  way  in  which  supervision  is  carried  out  by  the  competent  supervisory 
authorities. It also contains a new approach as regards insurance groups. It is far too early to 
anticipate what will be the effects and consequences of the new Directive.  

In addition to this work, conformity check of Directives transposed remains a key challenge. 
In the insurance sector, the non-communication phase affords the opportunity to press home 
the  need  for  a  comprehensive  and  updated  concordance  table  and  then  to  check  the 
substantive  conformity  of  the  transposition.  This  has  been  the  approach  followed  for  all 
Directives adopted since 2000 and also the initial/1st stage approach as regards the conformity 
assessment of Directive 2005/68/EC on reinsurance. 

The implementation of the Directive on Reinsurance (2005/68/EEC) was due by 10.12.2007, 
but not all Member States had completed their transposition process by that date. In 2009 and 
2010  work  will  have  to  continue  the  focus  on  pursuing  infringements  for  those  countries 
which  have  not  yet  transposed  at  all  (Belgium  being  now  the  sole  case  in  this  instance)  or 
which have transposed in an incorrect way the Directive in question. 

In the area of securities markets, the Commission services finalised in 2008 the completeness 
check for the transposition of the Markets in Financial Instruments Directive (MiFID)306 and 
its implementing Directive307 whose transposition had been delayed in most Member States. 

305 
306 

307 

Reference: COM (2007) 361 of 10.7.07, and COM (2008) 119 of 26.2.2008. 
Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in 
financial  instruments  amending  Council  Directives  85/611/EEC  and  93/6/EEC  and  Directive 
2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC 
(OJ L 145, 30.4.2004, p. 1) 
Commission  Directive  2006/73/EC  of  10  August  2006  implementing  Directive  2004/39/EC  of  the 
European  Parliament  and  of  the  Council  as  regards  organisational  requirements  and  operating 
conditions  for  investment  firms  and  defined  terms  for  the  purposes  of  that  Directive  (OJ  L  241, 
2.9.2006, p. 26) 

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   EN 

                                                 
Out  of  47  non-communication  infringement  cases  opened  in  2007,  37  were  closed  between 
2007 and 2008. 5 cases were referred to the ECJ in 2008, but 4 were closed in 2008 following 
notification  to  the  Commission  of  transposition  measures  by  relevant  Member  States.  One 
case (PL implementing Directive) is still pending in front of the ECJ.  

The quality check for the transposition of MiFID started in 2008 on a risk-based assessment. 
The  Commission  services  organised  in  November  2008  a  conference  in  order  to  gather 
evidence  from  the  market  on  the  functioning  of  MiFID  one  year  after  its  implementation. 
Furthermore,  the  Commission  services  launched  in  2008  two  calls  for  evidence  on  the 
transposition  of  MiFID,  one  for  Member  States,  the  other  for  industry.  Problematic  issues 
raised in the contributions to the calls for evidence were addressed by Commission services in 
bilateral contacts with the respective Member States. For some Member States, the analysis is 
still underway in order to determine whether MiFID is correctly transposed and applied.  

Furthermore,  the  questions  and  answers  database  on  MiFID,  launched  by  the  Commission 
services in 2007, continued to be operated in 2008 to help provide all stakeholders with the 
possibility  to  clarify  interpretational  issues  concerning  MiFID.  The  quality  check  of 
transposition  for  MAD  continued.  The  check  of  7  Member  States  was  finalised  in  2008.  A 
conference  was  organised  in  November  2008  on  the  review  of  the  Market  Abuse  Directive 
(MAD). The outcomes of this conference allowed to finalise a draft call for evidence, which is 
the first step concerning the review of the MAD directives. 

The  Commission  services  have  received  many  complaints  in  2008  on  the  application  of  the 
Investor  Compensation  Scheme  Directive.  Work  continued  in  2008  on  a  petition  on  the 
transposition  of  ICSD  in  Austria  that  had  been  addressed  to  the  EP  in  2007.  As  a  result  of 
these numerous complaints, and in the light of the changes to the Deposit Guarantee Schemes 
Directive, the Commission services have prepared a call for evidence on ICSD to be launched 
in 2009; its results will allow to determine the scope of the review of the directive.  

An  amendment  to  the  Prospectus  Regulation  was  approved  on  12  December  2008  through 
Commission Regulation 1289/2008308.  

As one of the measures to address the financial crisis, the Commission adopted a proposal for 
a Regulation on Credit Rating Agencies on 12 November 2008, which is now under the co-
decision legislative procedure in the Council and the EP. The proposal lays down conditions 
for the issuance of credit ratings which are needed to restore market confidence and increase 
investor protection. It introduces a registration procedure for credit rating agencies to enable 
European  supervisors  to  supervise  the  activities  of  rating  agencies  whose  ratings  are  used 
within the Community.  

In  the  area  of  asset  management  the  Commission  continued  the  verification  of  the 
transposition  of  the  Directive  2007/16/EC309  (Eligible  Assets  Directive)  by  Member  States 
(MS). Despite the fact that responses from Member States to the questionnaire sent in 2007 

308 

309 

Commission Regulation (EC) No 1289/2008 of 12 December 2008 amending Commission Regulation 
(EC) No 809/2004 implementing Directive 2003/71/EC of the European Parliament and of the Council 
as regards elements related to prospectuses and advertisements (OJ L 340, 19.12.2008, p. 17–19) 
Commission Directive 2007/16/EC of 19 March 2007 implementing Council Directive 85/611/EEC on 
the  coordination  of  laws,  regulations  and  administrative  provisions  relating  to  undertakings  for 
collective investment in transferable securities (UCITS) as regards the clarification of certain definitions 
(OJ L 79, 20.03.2007, p. 11) 

EN 

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did not indicate major problems that its transposition may cause only 12 MS implemented the 
Directive by the foreseen deadline (23 March 2008).  

On  23  May  2008  the  Commission  sent  letters  of  formal  notice  to  15  MS  which  failed  to 
communicate  their  transposition  measures.  Vast  majority  of  them  subsequently  notified  the 
relevant  legislative  acts  implementing  the  provisions  of  the  Eligible  Assets  Directive.  In  4 
cases (the Czech Republic, Italy, Greece and Portugal) where either there was no reply to the 
letter of formal notice or the reply was too vague and did not give sufficient assurances that 
the  measure  would  be  adopted  in  the  foreseeable  future  the  Commission  sent  reasoned 
opinions.  

The  desire  to  counter  the  negative  effects  of  the  financial  crisis  prompted  certain  MS  to 
develop  techniques  or  to  introduce  certain  flexibility  into  the  UCITS'  national  regulations 
which may raise doubts as to the compliance of these measures with the UCITS Directive.310 
The Commission services initiated considerations, in cooperation with CESR, on these issues 
in  the  late  2008.  They  will  continue  analysing  them  in  the  course  of  2009  in  a  view  of 
devising the effective response to any practices resulting from the improper interpretation of 
the Directive. 

2008 was marked by the launching of the recast of the UCITS Directive as the proposal was 
put forward on 16 July 2008. It had two objectives: one was to codify the successive changes 
introduced to the UCITS Directive since 1985. The other aimed at enhancing the working of 
existing provisions and introducing new Single Market freedoms by creating a framework for 
fund mergers and asset pooling.  

Ahead  of  the  transposition  deadline  for  the  Payment  Services  Directive  (PSD)311  set  on 
1 November  2009,  a  Payment  Services  Directive  Transposition  Group  (PSDTG)  was  set  up 
end  2007  to  discuss  and  prepare  the  transposition  of  the  Payment  Services  Directive 
2007/64/EC  (hereby  referred  to  as  "the  PSD").  The  main  action  identified  consisted  in 
organising transposition workshops with Member States to discuss and solve all transposition 
issues, comparing approaches and choices made by Member States in order to ensure a better 
and consistent understanding of the PSD provisions. The Group met seven times during 2008 
and  national  representatives  discussed  various  interpretation  issues.  The  Group  collected 
around  300  questions  from  Member  States  concerning  the  96  Articles  of  the  PSD  and 
provided written observations which served as a basis for reaching a common understanding. 
15  bilateral  meetings  with  Member  States  were  hold  in  2008  in  order  to  support  their 
legislative efforts, to closely monitor the implementation process and to spread best practice 
among Member States. 

Furthermore,  the  Interactive  Web-Page312,  operated  through  a  question  and  answers 
approach  and  open  to  everyone  interested  in  the  transposition  process  of  the  PSD,  has 
received and answered 174 questions in 2008. This web-page also contains the full text of the 
Directive  and  information  on  transposition-related  issues  including  up-dated  information  on 

310 

311 

312 

Council  Directive  85/611/EEC  of  20  December  1985  on  the  coordination  of  laws,  regulations  and 
administrative  provisions  relating  to  undertakings  for  collective  investment  in  transferable  securities 
(UCITS) (OJ L 375, 31.12.1985, P. 3), as amended 
Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment 
services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC 
and repealing Directive 97/5/EC (OJ L319, 5.12.2007, p. 1) 
http://ec.europa.eu/internal_market/payments/framework/transposition_en.htm 

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Member  States'  transposition  plans  with  references  to  the  forecasts  for  adoption  of  national 
measures implementing the PSD and the expected dates for entry into force of such measures. 

When  necessary,  political  pressure  was  increased  by  preventive  measures  such  as  informal 
talks in the margins of the PSDTG meetings or sending letters to Member States pointing out 
particular  aspects  of  the  draft  legislations  which  were  considered  not  to  be  in  line  with  the 
provisions of the PSD. 

In the field of payments, the number of petitions, questions and complaints remained constant 
in  comparison  with  previous  years.  Most  of  the  enquiries  (around  120)  concerned 
cross-border payment services and the application of the Regulation 2560/2001, probably due 
to the fact that knowledge of this Regulation and of its scope is often limited, incomplete or 
inaccurate. Only in a very low number of cases the Commission services decided to raise the 
issue with the Member State concerned. However, no infringement proceeding was launched 
during this period. 

In  parallel,  the  review  process  of  two  other  main  pieces  of  legislation  in  this  area  (the 
Regulation  (EC) No 2560/2001  on  cross-border  payments  and  the  E-Money  Directive 
2000/46/EC) led to the adoption in October 2008 of two Commission proposals313. 

10.2.2.2. Evaluation based on the current position 

In the banking sector, the complete implementation of the CRD by practically all Member 
States  was  achieved  in  2008.  The  CRDGT  has  proved  to  be  a  successful  form  for  ensuring 
consistent  implementation  through  cooperation  with  Member  States.  The  GRDTG  has  also 
facilitated  the  preparation  of  an  appropriate  legislative  response  (through  comitology 
measures) where it was considered necessary to clarify or complete technical provisions.  

The  finalization  of  the  report  on  the  implementation  of  the  CRD  was  slightly  delayed.  This 
delay is due partially to the volume and complexity of the legislation to be examined (several 
thousands  of  pages)  and  partially  to  the  belated  transposition  of  the  Directives  in  certain 
Member  States.  In  addition,  certain  Member  States  were  late  in  providing  the  necessary 
information  to  the  contractor  performing  the  study.  The  report  will  be  finalized  in  the  first 
quarter of 2009.  

The  impact  of  insurance  cases  is  in  general  considerable  in  economic  terms  or  in  terms  of 
functioning  of  the  relevant  market.  The  already  mentioned  ECJ  case  against  the  Czech 
Republic on occupational pension funds prevents such funds from being (internally) set-up in 
the Czech Republic and in Poland. In other countries the legislation has a significant impact 
on the level playing field because it either limits the possibilities of competitors to stay on the 
market  or  allows  national  companies  to  offer  services  without  fulfilling  the  obligations 
imposed by EC legislation. 

Workload on complaints and infringements is likely to increase in 2009-2010. This does not 
derive,  however,  from  any  persistent  or  structural  problem  but  rather  from  the  ever  greater 
awareness of citizens of their rights, the increase in legislation and in the number of Member 
States.  This  implies  a  likely  increase  in  flow  of  work  and  the  corresponding  need  to  define 

313 

COM(2008)627  of  9 October 2008,  with  regard  to  the  revision  of  the  E-Money  Directive  and 
COM(2008)640 of 14 October 2008 concerning the review of the Regulation on cross-border payments 
in the Community.. 

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237 

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and  establish  priorities.  The  current  economic/financial  crisis  is  also  likely  to  have 
repercussions  on  the  work  load  which  should  not  be  underestimated.  Priority  will  be  given 
infringements  for  non-communication  of  transposition  measures,  non-respect  of  an  ECJ 
judgment  and  cases  that  show  a  breach  of  a  fundamental  freedom  or  principle  of  the  EC 
Treaty or a breach of a Directive which is blatant.  

The  main  structural  problems  (apart  from  the  accession  of  new  MS  or  political/economic 
crisis)  are  given  by  the  complexity  of  the  legislation  adopted  sometimes  in  several  steps 
according  to  the  Lamfalussy  process.  To  tackle  this  problem  seminars  explaining  the 
legislation have already been organised and regular contact with Member States is maintained 
via the relevant Committees (mainly the European Insurance and Occupational Pensions one) 
and  their  working  groups  and  also  by  using  the  package  meetings.  For  the  Solvency  II 
proposed Directive a longer transposition period (of around 3 years) is planned (with the so 
called "level 2" measures under the Lamfalussy process adopted around 1 year before the final 
implementation date). The same complexity creates problems in transposition which may also 
be  of  substance  (problems  of  interpretation,  for  instance,  or  of  misapplication,  either  in 
general or in specific individual cases).  

As already mentioned, the first phase of the checking of the implementation of recently to be 
transposed  Directives  (2005/14/EC  and  2005/68/EC),  which  is  the  completeness  of  the 
communication of transposition measures, is nearing its completion and the situation can be 
deemed  to  be  globally  satisfactory.  In  overall  terms  the  same  can  be  said  on  the 
implementation of the acquis by the Member States.  

As  for  securities'  legislation,  MiFID  transposition  took  place  very  late  in  most  Member 
States. Twenty-five Member States had not transposed by the deadline for transposition -31 
January 2007-, eleven had not transposed the Directive by the deferred date of application -1st 
November 2007- and thirteen had not transposed the implementing Directive by 13 November 
2007.  

One  Member  State  (PL)  has  still  not  completely  implemented  MiFID  and  an  infringement 
case for non communication of the implementing Directive is currently pending in front of the 
ECJ. The Committee of European Securities Regulators helped to find a practical transitional 
solution in 2007 to ensure business continuity for firms from Member States that were late in 
transposing MiFID. However, late transposition could potentially cause problems for PL firms 
to  adapt  to  the  new  provisions  and  to  operate  in  other  Member  States  on  the  basis  of  the 
mechanisms  of  free  provision  of  services  and  establishment  of  branches  provided  for  under 
MiFID. In any case, firms passporting into PL cannot be refused passports on the grounds that 
PL has not transposed MiFID. The Commission services are closely monitoring the situation 
in  PL.  There  is  also  a  possible  economic  impact  of  late  transposition,  mainly  related  to  the 
postponement of the long term benefits of the Directive, such as competition among various 
firms from different Member States and investor protection.  

CESR  is  constantly  working  in  the  perspective  of  improving  coordination  among  securities 
regulators and promoting supervisory convergence in the day-to-day application of MiFID in 
the Member States. 

While the answers received from stakeholders on the call for evidence may indicate that the 
quality  of  transposition  of  MiFID  is  in  general  good,  the  Commission  services  are  further 
analysing  the  quality  of  transposition  and  of  application  for  MiFID  and  will  address  any 
issues  coming  up  through  the  proper  tools.  Areas  subject  to  in-depth  analysis  relate,  among 

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others, to specific aspects of outsourcing and clearing and settlement. Particular attention has 
been  and  continues  to  be  devoted  to  the  observation  and  analysis  of  MiFID  on  securities 
markets, with the aim of assessing, in the perspective of the forthcoming review, aspects such 
as  availability  of  data,  fragmentation,  and  regulatory  framework  applicable  to  different 
venues. 

Globally  satisfactory  is  the  situation  concerning  other  secondary  legislation;  a  call  for 
evidence was launched to help determine possible loopholes in the directive leading in some 
Member  States  to  problems  in  the  functioning  of  their  compensation  mechanisms.  On  the 
Prospectus  Directive,  no  big  problems  were  identified  in  the  transposition  check.  However, 
some  concerns  were  raised  by  plaintiffs  regarding  the  way  in  which  certain  Member  States 
implement  additional  requirements  outside  the  PD.  The  transposition  of  MAD  proved 
globally  satisfactory;  however,  it  is  still  subject  to  further  evaluation  in  about  one  third  of 
Member States. Contacts with Member States have already been made on those issues where 
the Commission services considered that there was a problem of compatibility with the MAD 
and its implementing measures.  

In  terms  of  the  application  of  asset  management  Community  law  the  priorities  set  out  for 
2008 were broadly reached. The infringement procedure concerning non-transposition of the 
2007/16/EC  Directive  was  initiated  against  all  Member  States  who  did  not  transpose  the 
Directive  on  time.  Only  4  reasoned  opinions  were  send  out  of  15  letters  of  formal  notice 
which  is  rather  a  positive  result  reflecting  also  good  bilateral  cooperation  between  the 
Commission  services  and  concerned  Member  States.  The  end  of  2008  brought  few  open 
questions  with  regard  to  the  possible  scope  of  interpretation  of  the  UCITS  Directive  by 
Member  States  in  the  context  of  the  financial  crisis,  e.g.  introduction  of  side  pockets,  the 
liability of depositaries, waivers of certain UCITS obligations. The complexity of these issues 
necessitates careful and comprehensive analysis also in cooperation with CESR. 

The  current  financial  crisis  has  highlighted  the  crucial  importance  of  an  effective  legal 
framework for retail financial services, both in ensuring a sustainable balance in the credit 
markets, and in restoring mutual confidence between consumers and financial institutions.  

In  the  coming  years,  citizens  and  small  businesses  will  have  to  be  reassured  that  financial 
institutions and intermediaries are adequately capitalised, properly supervised and will be fair 
in  their  treatment  of  their  customers.  Equally,  the  sound  and  proper  functioning  of  the 
economy  will  require  lenders  to  regain  confidence  in  the  creditworthiness  of  their  retail 
clients.  

The actions covered by the PSD Transposition Plan have been praised by most of the Member 
States as being very helpful for ensuring a quick and consistent implementation. At this stage, 
the majority of Member States (26 of 27) have indicated they expect to transpose the directive 
on time. Furthermore, all Member States have agreed on the 1st November 2009 as a common 
date  for  the  entry  into  force  of  their  respective  domestic  laws  implementing  the  PSD.  This 
common  date  addresses  concerns  with  regard  to  asymmetric  transposition  and  should  allow 
the payments industry to have sufficient time to adapt to the new legal rules.With regard to 
the  25  options  contained  in  the  PSD,  Member  States  were  generally  willing  to  share  the 
information available on the use of options with the members of the group, in some few cases, 
Member States have refused to provide any indication about the use of the options until a final 
bill is submitted before the national parliament 

One  of  the  external  risks  which  could  delay  a  successful  transposition  is  the  impact  of  the 
current  financial  crisis  on  the  setting-up  of  priorities  at  national  level  and  allocation  of 

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resources  in  accordance  with  these  new  priorities.  It  is  not  yet  clear  whether  this  risk  could 
lead to a delay for submitting draft legislation to the national Parliament in accordance with 
the  announced  timetable.  Late  transposition  of  the  PSD  would  be  particularly  problematic 
since it may jeopardize the timely launch of SEPA products and, in particular, SEPA Direct 
Debit.  Moreover,  delayed  implementation  might  create  further  difficulties  for  the  banking 
sector in terms of costs related to different rules in force in Member States. Last but not least, 
while most of the provisions on disclosure requirements and right and obligations of payment 
service  providers  and  payment  service  users  could  be  invoked  directly  by  citizens  before 
national courts, it is not the same for the provisions regarding a positive action from Member 
States (e.g., setting of registers, designation of competent authorities, etc.) so being late in the 
transposition  of  those  provisions  would  expose  Member  States  to  the  risk  of  actions  for 
compensation  of  loses  related  to  the  Member  State's  failure  to  implement  the  Directive  in 
time. 

10.2.2.3. Evaluation results 

(1) 

Priorities 

The  Commission  response  to  the  recent  financial  crisis  represents  a  major  priority  in  the 
financial services area.  

Work has already started, also under the framework of the Commission Communication of 4 
March 2009 on "Driving European Recovery", on the review of the Market Abuse Directive, 
the review of the Prospectus Directive and of the Investor-Compensation Schemes Directive.  

Solvency  II,  which  will  revolutionise  the  way  the  insurance  and  reinsurance  business  is 
conducted  in  the  EU,  will  also  provide  for  a  much  more  effective  and  ex-ante  response  to 
financial  crisis,  thus  being  an  important  instrument  in  the  context  of  the  current  financial 
crisis. 

The Commission services will also continue the examination of national measures enacted or 
administrative  practice  executed  as  an  aftermath  of  the  financial  crisis  and  which  may  have 
impact on existing legislation. 

In  the  banking  area  some  legislative  proposals  are  under  preparation.  In  addition  focus  is 
maintained on co-operation with Member States to ensure a coherent implementation of the 
law,  through  Committee  and  working  groups  discussions,  including  further  work  of  the 
CRDTG, Committee guidelines, and, if necessary, transposition workshops. 

In the insurance area to efficient co-operation with the Member states is added to the need 
for an efficient management of infringement procedures so as to ensure timely and effective 
problem  solving.  As  for  specific  points,  apart  from  piloting  the  approval/adoption  of  the 
solvency  II  proposed  directive  as  well  as  the  ongoing  work  on  the  "level  2"  measures  as 
regards the same Solvency II the main priority will be to keep assessing the conformity of the 
transposition of the Reinsurance Directive (item already mentioned previously). 

In  the  area  of  securities,  priority  will  be  given  to  a  thorough,  risk-based  assessment  of  the 
quality of transposition of relevant directives (for MiFID and MAD).  

The  MiFID  report  is  due  in  2010.  It  will  cover  a  broad  range  of  issues  coming  from  the 
application of transparency provisions to non-equity markets to, as mentioned in the previous 
sections, the functioning of MiFID provisions in the dynamic evolution of regulated markets 

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and  multilateral  trading  facilities.  Further  work  will  cover  aspects  such  as  the  telephone 
recording  option,  the  application  of  the  gold-plating  rule  (Article  4  of  the  Implementing 
Directive) and other issues. In its work the Commission will involve CESR, ESC and ESME 
but will also consider stakeholders views coming from various sources.  

The Commission services will furthermore intensify enforcement action in 2009 with respect 
to  the  Prospectus  Directive;  notably  in  those  cases  where  host  Member  States  impose 
additional requirements.  

Priorities  in  the  field  of  payment  services  will  not  change  substantially  in  2009.  The 
Commission  services  will  endeavour  to  keep  their  efforts  to  follow-up  the  transposition 
process  and  support  Member  States'  work  with  the  aim  to  ensure  quick  and  consistent 
implementation.  As  from  1st  November  2009,  if  need  be,  they  will  closely  follow  up 
non-communication cases and start conformity assessment of national transposition measures. 

(2) 

Planned actions (2009 and beyond) 

If the final report on the transposition of the CRD shows failures, the Commission will take 
the  necessary  actions.  Priority  will  be  given  to  areas  in  which  a  coherent  implementation  is 
critical to maintain a level-playing field between credit institutions across the EU.  

In addition, substantial legislative work is envisaged in 2009 in the banking area as a response 
to the current financial crisis. This work, which is part of the wider reform of the European 
financial system outlined in the Commission communication of 4 March 2009314, will focus 
on improving the protection  of  bank  depositors, getting the incentives right in securitisation 
markets and reinforcing the solidity and supervision of banks. 

As  for  insurance  legislation,  a  substantial  and  detailed  checking  of  the  substance  of  the 
transposition  of  Directive  2005/68/EC  by  the  Member  States  will  be  carried  out  by  the 
Commission services. 

The  package  meetings  with  Member  States,  as  well  as  the  referral  of  cases  to  the  EU  Pilot 
tool, will be continued. This is of the utmost importance even more so in the framework of the 
current financial crisis. 

Guidance  on  the  transposition  of  Solvency  II  will  be  started  in  close  co-operation  with  the 
Member States. Failure to implement the reinsurance Directive prevents the creation of a level 
playing  field  and  could  conceivably  affect  reinsurance  undertakings  and  the  reinsurance 
market in a negative way, as was already previously stated.  

For  securities  the  Commission  services  are  also  working  intensively  on  reports  on  the 
different  directives  already  in  place.  The  revision  of  the  MAD  will  probably  be  finalised  in 
2009. It will focus on simplification and on increasing efficiency of the existing provisions. 
The MiFID report is due in 2010. Work has already started, also under the framework of the 
Commission  Communication  of  4  March  2009  on  "Driving  European  Recovery",  on  the 
review  of  the  Market  Abuse  Directive,  the  review  of  the  Prospectus  Directive  and  of  the 
Investor-Compensation Schemes Directive.  

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The Commission services will furthermore intensify enforcement action in 2009 with respect 
to  the  Prospectus  Directive;  notably  in  those  cases  where  host  Member  States  impose 
additional requirements. A series of infringements will be launched in 2009 for the Prospectus 
Directive on issues that have emerged from the quality check. 

The  EU-wide  transposition  of  the  2007/16/EC  Directive  will  be  the  priority  for  2009  in  the 
asset  management  area.  It  means  that  the  Commission  will  continue  exerting  pressure  on 
those  Member  States  which  failed  to  fully  transpose  the  Directive  by  the  end  of  2008 
including the referral to the European Court of Justice, if considered necessary.  

The  recast  of  the  UCITS  Directive  contains  delegations  for  over  20  level  2  measures.  It  is 
expected that most of them if not all will be adopted in 2010. This will have to be translated 
into very intensive legislative work for the Commission services in 2009 and 2010.  

Most  of  the  preventive  actions  included  in  the  Transposition  Plan  of  the  PSD  have  proved 
effective. Therefore, they will continue to be applied. Information on state of play will also be 
systematically  asked  also  in  written  procedure  and  before  the  expiration  of  transposition 
deadline.  Concerning  the  publicity  of  Member  States'  plans  for  transposition,  the  graphic  in 
the web-page will be improved so the information is presented by month and not by quarter. If 
need be, non-communication cases will have to be launched. Bilateral meetings, press releases 
and political pressure via letters addressed to Member States will be used as well.  

To restore confidence of payment services beneficiaries, the Commission will reflect on how 
to  ensure  responsible  lending  and  borrowing,  including  a  reliable  framework  on  credit 
intermediation. A public hearing on  responsible lending and borrowing will  be organised in 
July  2009.  Follow-up  measures  will  be  presented  by  autumn  2009.  It  will  also  envisage  a 
proposal  on  providing  direct  funding  to  facilitate  the  capacity-building  of  investor 
stakeholders  to  represent  their  interests  in  financial  services  policies  at  EU  level,  through 
training,  research  and  information.  Thorough  analysis  will  finally  concern  foreclosure 
procedures, to prevent citizens from losing their homes. A report setting out best practices in 
this area will be published by the end of 2009. 

10.2.2.4. Summary by sector 

Secondary  legislation  is  in  permanent  development  in  the  financial  services  area,  although 
the main pillars have been already established following the Financial Services Action Plan 
launched in 1999.  

The  new  acquis  requires  a  continuous  and  close  monitoring  of  national  measures  to  ensure 
timely and proper transposition. Further, some directives require the Commission to report on 
a  number  of  key  provisions  that  will  allow  to  better  evaluate  their  impact  and  to  determine 
possible problems that  need  to  be  addressed. In this area the permanent  dialogue within the 
various sectoral committees – including the committees of the supervisors 315– contributes to 
avoid  significant  deviations  in  the  application  of  relevant  EC  law.  Convergence  in  the 
supervisory practices is also one of the key objectives in this area.  

The  Commission  response  to  the  recent  financial  crisis  represents  a  major  priority  in  the 
financial services area. This will trigger substantial legislative and quasi legislative measures. 
Work has already started, also under the framework of the Commission Communication of 4 

315 

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March 2009 on "Driving European Recovery", on the review of some directives. At the same 
time,  a  close  monitoring  of  measures  taken  by  member  States  in the  context  of  the  crisis  is 
needed  in  order  to  avoid  that  they  jeopardise  the  objectives  of  Treaty  principles  and  of  the 
existing legislation.  

10.2.3.  Free movement of capital (Articles 56 et seq. EC) 

10.2.3.1. Current position 

1.  General Introduction 

The relevant Treaty provisions governing the freedom of capital movements are enshrined in 
Articles  56  EC  to  60  EC.  In  particular,  Article  56  EC  provides  that  'all  restrictions  on  the 
movement  of  capital between Member States shall be  prohibited'. A list of transactions that 
are  to  be  considered  as  capital  movements  can  be  found  in  Annex  I  of  Directive 
88/361/EEC.316  The  legal  framework  governing  this  Treaty  freedom  can  be  found  on  the 
Internet.317 

2.  Report of work done in 2008 

Work done in 2008 was fully based on the priorities set in 2007, namely a pro-active approach 
by  way  of  reinforced  and  systematic  monitoring  permitting  to  concentrate  on  the  most 
important  infringement  cases,  to  diversify  the  range  of  restrictions  to  the  free  movement  of 
capital which are being dealt with and to address these restrictions at an early stage. Strategic 
foreign investment control required further attention in 2008. The ECJ delivered two rulings 
against Spain318 on the issue of screening investment in the energy sector and confirmed that 
the system of prior authorisation as established by Spain is incompatible with the EC Treaty. 
A  reasoned  opinion  has  been  sent  to  Greece  related  to  legal  restrictions  on  investment  in 
companies of strategic importance.  

The  majority  of  the  other  infringement  cases  related  to  different  kinds  of  special  rights  that 
governments  maintain  in  private  or  privatised  companies  on  the  basis  of  framework  laws 
governing privatisation or other laws applicable to particular companies or sectors. As regards 
the  electricity  sector:  Portugal  has  been  referred  to  Court  for  its  special  rights  in  the  main 
electricity  company;  and  several  new  cases  have  been  opened.  Not  related  to  the  energy 
sector,  a  228-reasoned  opinion  has  been  sent  to  Germany  for  not  taking  all  necessary 
measures to implement the Volkswagen-ruling. 319  

As regards the financial services sector, reasoned opinions were sent to Poland and Slovakia 
concerning  their  legislation  that  restricts  foreign  investment  by  pension  funds.  A  first 
complaint has been registered regarding measures taken by governments as a response to the 
financial crisis. Two of the registered cases concern restrictions on acquisition of agricultural 
real estate.  

Following amendment or clarification by the MS of the incriminating provisions, closure has 
been  possible  for  the  Italian  cases  related  to  the  right  of  direct  appointment  to  the  board  of 
privatised companies and to the renewal of motorway concessions, as well as for the Austrian 

316 
317 
318 
319 

OJ No L178, 8.7.1988 
http://ec.europa.eu/internal_market/capital/framework/index_en.htm  
In cases C-274/06 and C-207/07, both Commission v Spain. 
In case C-112/05, Commission v Germany 

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case  related  to  provisions  in  foreign  exchange  law  and  the  requirement  that  certain  credit 
institutions maintain liquidity reserves with a central body. 

In 2008, replies have been prepared for two petitions related to the acquisition of immovable 
property-permit required for EU citizens prior to buying a secondary residence in Malta and 
to  the  prohibition  for  EU  citizens  who  own  holiday  houses  in  Malta  to  rent  their  properties 
out. 

10.2.3.2. Evaluation based on the current position 

Enforcement  of  EU  rules  on  the  free  movement  of  capital  takes  on  a  new  dimension  in  the 
context of the current crisis. Unilateral reactions and policies resulting in repeated breaches of 
Internal Market rules and disruptions in the functioning of the Internal Market could have a 
devastating  impact  on  the  EU.  In  this  context,  the  necessary  and  continued  monitoring 
activities related to strategic foreign investment control by MS as well as to specific measures 
in the financial sector have taken a more political dimension. Recent experience with cases, or 
potential cases related to restrictions on foreign direct investment learn that, in general, they 
require a more intensive dialogue with the Member State. Moreover, when solutions are found 
or modifications are proposed, they take often a lot of time to be enacted in national law and 
close  follow  up  of  the  communicated  agenda  is  needed.  On  specific  measures  taken  in  the 
financial sector, a forum for exchange of information and dialogue could facilitate the task.  

As  part  of  the  enforcement  action  in  the  energy  sector,  the  Commission  has  found  that 
Member States introduce measures in order to protect the security of supply, measures which 
are often contrary to the free movement of capital. The handling of these cases revealed that 
some Member States are rather reluctant to make a shift towards solutions which could secure 
their  legitimate  interest  and  that  are  compatible  with  the  Treaty.  Or  that  such  possible  shift 
takes place only after delivery of an ECJ-judgment or additional steps made in the Art. 228 
proceedings. 

10.2.3.3. Evaluation results 

1.  Priorities 

The pro-active approach by way of reinforced and systematic monitoring will be continued as 
it permits to concentrate on the more important cases, to diversify the range of restrictions to 
the free movement of capital which are being dealt with and to address these restrictions at an 
early  stage.  Priorities  for  2009-2010  are:  close  follow  up  of  possible  restrictions  in  the 
financial  sector,  including  those  related  to  crisis  measures;  follow  up  of  measures  taken  by 
Member  States  on  the  basis  of  national  security  and  involving  restrictions  on  foreign  direct 
investment; follow up on enlargement and privatisation processes in EU-12; follow up on the 
significant  restrictions  in  the  energy  sector.  Finally,  activity  related  to  the  3rd  country 
dimension of the free movement of capital is expected to increase following a ruling by the 
ECJ (2009) on three cases related to MS' bilateral investment treaties. 

2.  Planned action (2009 and beyond) 

As regards foreign investment, the Commission will cooperate actively with Member States 
that  have  updated  or  are  in  the  process  of  updating  their  legislation  to  cater  for  perfectly 
legitimate objectives as foreseen in EU law.  

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Further follow up will be done on investment restrictions in sensitive sectors (energy, critical 
infrastructure,  financial  services)  on  the  basis  of  national  security  issues  and  on  investment 
restrictions in pension funds which appear not to enter into the scope of secondary legislation.  

For the two newest Member States, investment questionnaires were sent and several potential 
issues will be followed up actively, especially in the energy sector. In the area of investment 
in agricultural real estate, a study will be carried out to prepare the report to the Council on a 
possible review of the transition periods for Bulgaria and Romania. 

To  improve  understanding  of  market  trends  and  developments,  a  study  will  be  carried  out 
focussing on the impact of the economic crisis on capital flows. 

10.2.3.4. Summary by sector 

In  the  area  of  free  movement  of  capital  the  priorities  will  remain  enforcement  action  in  the 
energy sector, as well as close and permanent monitoring activities related to strategic foreign 
investment control by MS and to the specific measures taken in the financial sector. Increased 
activity related to MS' bilateral investment treaties is also expected to be required. 

10.2.4.  Public procurement 

10.2.4.1. Current position 

(1)  General introduction 

European public procurement provisions are based on the fundamental principles of the EC-
Treaty, particularly the right of establishment and the freedom to provide services stemming 
from Articles 43 and 49 EC-Treaty. The secondary legislation in this field is twofold:  

First,  there  are  two  Directives  on  the  coordination  of  procedures  for  the  award  of  public 
works, supply and service contracts, Directives 2004/17/EC and 2004/18/EC adopted in April 
2004  replacing  the  previous  Directives  92/50/EEC,  93/36/EEC,  93/37/EEC  and  93/38/EEC. 
Directive  2004/18/EC  concerns  most  major  award  procedures  carried  out  by  public 
contracting authorities. Directive 2004/17/EC covers contract awards by entities operating in 
specific sectors (water, energy, transport, postal services). 

Secondly, there are two Directives concerning the legal protection of bidders participating in 
public  procurement  procedures,  Directives  89/665/EEC  and  92/13/EEC.  These  Directives 
have been recently modified by Directive 2007/66/EC which has been adopted in December 
2007 and is currently in the process of transposition until December 2009. 

Recently, the legislative process for the adoption of a new special Directive for Defence and 
Sensitive Security procurement was carried out following the Commission proposal for such a 
Directive  adopted  in  December  2007.  The  adoption  and  entry  into  force  of  this  Directive  is 
scheduled for the first half of 2009. 

(2) 

Report on the work done in 2008 

(a)  Management of the acquis through committees and expert groups 

Exchange  with  the  Member  States  on  the  public  procurement  legal  framework  is  well 
established.  The  Commission  regularly  convenes  two  Committees.  First,  the  Advisory 
Committee  on  Public  Contracts  (ACPC),  which  consists  of  representatives  from  the 
Governments of the Member States, met 3 times in 2008. Specialised working groups of the 

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ACPC  also  met  in  2008,  i.e.  2  meetings  of  the  Working  Groups  on  E-Procurement  and  2 
meetings  of  the  Economic  and  Statistical  Working  Group.  Second,  the  Commission  also 
organises  meetings  of  the  Advisory  Committee  on  the  opening  up  of  Public  Procurement 
(CCO), a technical expert Committee which consists of public procurement experts and other 
technical experts. The CCO met once in 2008.  

In  the  context  of  the  described  Committees,  the  following  topics  were  subject  of  specific 
discussions: 

-  Transposition  of  the  new  'Remedies'  Directive  2007/66/EC  (i.e.  national  time-schedules, 
problems met) and actions of the Commission in the transposition context (i.e. preparation of 
the standard forms, bilateral meetings with Member States, etc). 

-  Experiences  and  practices  in  the  Member  States  intended  to  make  the  access  by  SMEs  to 
public works contracts easier, and, implementation of the European Code of best practices in 
this area; 

- Implementation of Article 45 of Directive 2004/18/EC concerning the exclusion of bidders; 

- Public procurement and antitrust legislation. 

-  National  recovery  plans  to  overcome  the  economic  crisis,  following  the  demand  of  a 
Member State. The Commission subsequently published a press release recognising that the 
exceptional  nature  of  the  current  economic  situation  can  justify  the  use  of  the  accelerated 
procedure throughout 2009 and 2010 for all major public projects. 

Bilaterally,  package  meetings  are  regularly  held  with  Member  States  to  discuss  the  most 
pertinent  issues  of  the  application  of  procurement  law  in  the  respective  Member  State.  In 
2008, 73% could be solved. 

(b) 

Enquiries, problems and complaints management 

Enquiries  and  complaints  in  the  field  of  public  procurement  have  been  increasingly  treated 
within  the  new  EU-Pilot  system  since  its  introduction  in  April  2008.  In  the  public 
procurement sector, this new system has already been used in its first year of existence in a 
very proactive way. So far, as we can measure at present, there is a significantly higher use of 
EU Pilot in the field of procurement than in other areas. Public procurement EU-Pilot cases 
accounted for more than 50% of all the EU-Pilot cases in Internal market and services area. 
Commission-wide, a quarter of all EU-Pilot cases in five Member States (Austria, Germany, 
Italy,  Netherlands  and  Lithuania)  concerned  public  procurement,  for  one  Member  State 
(Slovenia)  even  50%  of  all  Commission  EU-Pilot  cases  occurred  in  the  field  of  public 
procurement. 

(c)  Management of infringements 

In  2008,  333  public  procurement  infringement  files  have  been  handled  in  2008  (-3% 
compared to 2007). Of these, 163 cases (49%) could be closed (+15% compared to the 142 
cases in 2007); only 8 (approx. 2.4%) had to be referred to the ECJ (-33% compared to the 12 
cases in 2007). Around 190 of those 333 files were infringement cases (-5% compared to the 
200 cases in 2007). 

(d) 

Petitions 

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In 2008 the sector of public procurement accounted for around 45% of all the Commission's 
replies to petitions in the field of "Internal Market and Services" as a whole. Again, most of 
them were about town planning issues in Spain. In particular, some of the questions raised by 
the petitioners are the subject of infringement proceedings in respect of the legislation of the 
Valencia  region  (Spain)  that  the  Commission  regards  as  being  in  breach  of  the  Community 
rules on public procurement (45 answers provided; see also C- 306/08 Commission vs Spain).  

(e) 

New legislation 

Following the presentation of the so-called "defence package", a proposal for a sector specific 
procurement  Directive  for  defence  and  security,  by  the  Commission  in  December  2007,  the 
legislative procedure for this Directive was going on throughout the year 2008. The informal 
trilogue between the two legislative bodies and the Commission took place end of November 
and  early  December  2008  and  achieved  a  compromise  which  was  then  approved  by 
COREPER end of December 2008. 

(f) 

Preventive measures in relation to recently adopted new legislation 

Following the entry into force of Directive 2007/66/EC in December 2007, considerable time 
was  dedicated  to  the  transposition  of  this  Directive  in  2008.  The  Commission  devised  a 
transposition  plan  and  held  transposition  workshops  with  individual  Member  States.  Issues 
related  to  this  transposition  have  been  discussed  at  the  ACPC  throughout  the  year  2008. 
Despite the fact that the transposition period only started in 2008 and will run until the end of 
2009, it was possible to address several important issues stemming from this new Directive, in 
particular: the introduction of a mandatory standstill period between the award decision and 
the conclusion of a public contract; the combating of illegal direct awards of public contracts; 
the ineffectiveness sanction and the imposition of alternative penalties. 

10.2.4.2. Evaluation based on the current position 

In  2008,  the  caseload  of  public  procurement  infringement  cases  could  be  reduced  for  two 
reasons.  First,  due  to  an  effective  system  of  prioritisation  of  cases  and  of  speeding  up  the 
infringement  procedures  particularly  for  priority  cases,  such  cases  have  been  treated  faster 
than in the past and thus have been solved quicker than in previous years. Secondly, due to the 
shift  of  new  cases  to  the  EU-Pilot  rather  than  registering  them  as  infringement  cases,  the 
number of registered cases has also been reduced. 

As  already  announced  in  the  last  report,  the  new  EU-Pilot  has  been  used  in  cases  where 
clarification  was  needed  or  where  it  was  considered  possible  to  close  the  case  before 
launching  an  infringement  procedure.  So  far  as  we  can  measure  at  present,  there  is  a 
significantly higher use of EU Pilot in the field of procurement than in other areas.  

Political  agreement  on  the  text  of  the  Directive  for  Defence  and  Sensitive  Security 
procurement was achieved in December 2008. This will allow the smooth adoption and entry 
into force of the Directive and the start of its transposition in the first half of 2009. 

Useful  assistance  and  guidance  has  been  offered  to  Member  States  in  the  context  of  the 
transposition of the new remedies directive for which the first half of its transposition phase 
occurred in 2008. 

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10.2.4.3. Evaluation results 

1.  Priorities 

•  The transition of an increasing part of the caseload to the EU-Pilot will remain a priority in 
2009. In this context it will be necessary to ensure cooperation of the Member States and to 
improve  the  technical  and  administrative  support  side  of  the  EU-Pilot.  The  services  are 
ready  to  share  their  experience  with  the  EU-Pilot  in  order  to  contribute  to  such  vital 
improvement of this new system. 

•  Ensuring  smooth  transposition  of  Directive  2007/66/EC  in  all  Member  States  until 

transposition deadline (December 2009). 

•  Ensuring adoption of Defence Directive in early 2009. Draw up transposition plan and start 

assisting Member States with the transposition of that Directive. 

•  Assistance to Member States seeking to overcome the economic crisis in their economies 
by  measures  simplifying  their  public  procurement  legal  systems.  Such  assistance  will 
depend on the length of this crisis but is likely to continue throughout 2009.  

2.  Planned actions (2009 and beyond) 

•  Further  prioritisation  of  cases  and  continued  reference  of  a  considerable  share  of 
complaints  to  the  EU-Pilot.  This  action  depends  on  the  level  of  cooperation  of  Member 
States and on the technical and administrative improvements of the EU-Pilot following its 
revision throughout the year 2009. Thus, no specific estimations can currently be made. 

•  Continued execution of the transposition plan for the remedies directive: bilateral meetings 
with  Member  States,  discussion  at  the  level  of  ACPC,  informal  contacts  with  relevant 
business  associations,  national  judges  and  members  of  independent  review  bodies, 
assessment reports, etc. 

•  Establishing  and  start  of  execution  of  a  transposition  plan  for  the  defence  directive: 
identify liaison contacts, provide Member States with a "concordance table" template, send 
questionnaires  to  Member  States  about  their  planning  and  time  frame  for  transposition, 
start  organising  bilateral  meetings  and  make  use  of  ACPC  meetings  to  discuss 
transposition matters, etc. 

10.2.4.4. Summary by sector 

The two main areas of operation in the field of control of application of public procurement 
law are the adaptation of enforcement and the transposition of new Directives. In the field of 
enforcement, the shift of part of the caseload to the EU-Pilot will continue in 2009 but largely 
depends  on  the  central  Commission  support  measures  and  the  Member  State  commitment. 
Transposition  activities  as  regards  the  remedies  Directive  should  be  finished  by  the  end  of 
2009  whereas  the  transposition  activities  related  to  the  Directive  for  Defence  and  Sensitive 
Security procurement will continue until early 2011.  

10.2.4.5. List of acts 

http://ec.europa.eu/internal_market/publicprocurement/legislation_en.htm 

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10.2.5.  Regulated professions (qualifications) 

10.2.5.1. Current position 

(1) 

General introduction 

This sector deals with Member States' requirements for professional qualifications which lead 
to barriers to the free movement of qualified professionals in the Single market. To alleviate 
these  barriers,  Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  on  the 
recognition  of  professional  qualifications320  implements  Articles  39,  43  and  49  of  the  EC 
Treaty  for  all  regulated  professions.  Beneficiaries  are  all  EU  citizens  holding  a  professional 
qualification.  For  lawyers,  additional  specific  rules  have  been  laid  down  at  EU  level 
(Directive 77/249/EC on the free provision of services of lawyers321 and Directive 98/5/EC on 
the freedom of establishment of lawyers322). 

(2) 

Report of work done in 2008 

The  work  carried  out  in  2008  concentrated  on  the  transposition,  implementation  and 
accompanying  measures  to  Directive  2005/36/EC  with  a  view  to  enabling  citizens  to  make 
use of the new rights offered by the legislation (in particular the free provision of services and 
the  mutual  recognition  under  the  so-called  general  system  for  cases  which  were  previously 
only covered by the Treaty). The Commission also dealt with all kind of difficulties reported 
by  citizens  when  applying  for  recognition,  such  as  undue  delays  for  decision  taking, 
compensatory measures required by the host Member State, negative decisions and requests 
for supplementary documentation, using all available means and in particular the network of 
national coordinators for Directive 2005/36/EC, the EU PILOT and SOLVIT according to the 
nature of the problem, to find appropriate and EU law compliant solutions. 

(a) Management of the acquis through committees and expert groups 

The Commission held 7 meetings of its expert group composed of the national coordinators 
for  the  application  of  Directive  2005/36/EC.  Its  main  tasks  have  been  on  the  one  hand  to 
develop  and  to  agree  on  best  administrative  practices  that  national  competent  authorities 
would then apply when processing applications. The other main task has been to examine the 
compliance with Directive 2005/36/EC of new diplomas in architecture notified by Member 
States  with  a  view  to  their  insertion  in  the  annex  to  the  Directive,  granting  the  right  to 
automatic recognition to the holders of these diplomas. In total, 28 diplomas were examined. 
This  work  has  allowed  the  achievement  of  a  good  level  of  mutual  trust  between  Member 
States avoiding subsequent problems of bad application. 

In  addition  the  regulatory  committee  of  Directive  2005/36/EC  met  3  times  and  voted  on  a 
Commission  regulation  amending  Annex  II  to  the  Directive  which  was  adopted  by  the 
Commission  on  31  July  2008.  This  is  the  second  time  an  amendment  to  the  Directive  is 
introduced  by  a  regulation  avoiding  transposition  delays.  These  meetings  also  allowed  for 
peer  pressure  to  accelerate  the  transposition  of  Directive  2005/36/EC  for  which  a  large 
number of MS were late. 

320 
321 
322 

OJ L 255, 30.9.2005, p. 22 
OJ L 78, 26.3.1977, p. 17 
OJ L 77, 14.3.1998, p. 36 

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In both instances questions of interpretation and application were discussed and explanatory 
papers circulated by the Commission also available on the Commission's website in the form 
of frequently asked questions. This has been in particular the case for the new rights offered 
by directive 2005/36/EC (see supra). 

(b) Enquiries, problems and complaints management: 

Due to the large number of beneficiaries (all EU citizens holding a professional qualification 
and  who  wish  to  work  in  another  MS  even  temporarily),  a  large  number  of  enquiries  is 
received which do not necessarily reveal a problem of application of EU law. In those cases 
the Commission refers citizens who wish to enquire about the situation in MS to the national 
contact  points  under  Directive  2005/36/EC  whose  task  it  is  to  give  all  information  about 
regulated professions in their territory but also about procedural steps to be taken. In addition 
the  Commission  has  set  up  a  network  of  national  contact  points  to  improve  the  flow  of 
information to the benefit of citizens. 

When enquiries reveal a potential problem of application of EU law the Commission mostly 
refer  citizens  to  the  SOLVIT  network  and/or  insert  their  cases  into  the  system  with  the 
citizen's  agreement.  As  a  result  the  number  of  cases  in  SOLVIT  has  increased  by  43%  to 
reach a total of 206 cases. Out of these 206 cases, 173 were solved (84%) (see SOLVIT 2008 
report).  A  large  number  of  SOLVIT  cases  are  found  in  Spain,  but  fortunately  the  Spanish 
SOLVIT Center managed to solve 85% of them. It remains that there is a particular problem 
with  implementing  EU  law  in  this  sector  in  particular  undue  delays  for  processing 
applications.  64  new  complaints  were  registered  in  2008  which  represents  a  decrease 
compared  to  previous  year  (74  new  cases  in  2007).  This  is  mainly  to  be  attributed  to  the 
increased use of SOLVIT. 

In  addition  the  new  rights  conferred  on  citizens  by  directive  2005/36/EC  raised  difficulties 
either because the directive was still not transposed (cases in Spain and Greece when migrants 
wish  to  provide  services  temporarily  and  are  being  denied  any  right  due  to  the  lack  of 
transposition  measure),  or  because  the  transposition  measures  went  beyond  what  was 
provided for in the Directive (cases in Italy).  

(c) Management of infringements 

The volume of complaints and infringements concerning restrictions in breach of Articles 39, 
43  and  49  of  the  EC  Treaty  and  the  directives  on  the  mutual  recognition  of  professional 
qualifications  which  were  dealt  with,  remained  broadly  stable  in  2008.  Approximately  100 
decisions (to proceed or to close a case) were taken. 

Concerning 
infringement  proceedings  opened  against  Member  States 
communication of national implementing measures, the situation is the following:  

the 

for  non-

–  For  Directive  2006/100/EC  providing  for  technical  adaptations  to  the  Directives 
on professional qualifications further to the accession of Bulgaria and Romania to 
the  European  Union323,  the  Commission  decided  to  refer  9  Member  States 
(Belgium, Cyprus, Greece, Spain, France, Ireland, Luxembourg, Portugal and the 
United  Kingdom)  to  the  Court  of  Justice.  The  Court  of  Justice  already  held  that 

323 

OJ L 363, 20.12.2006, p. 141 

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Belgium324  and  Luxembourg325  had  failed  to  fulfil  their  obligations  under  this 
directive. The proceedings opened against 13 Member States (the Czech Republic, 
Germany,  Denmark,  Estonia,  Hungary,  Italy,  Latvia,  Malta,  Austria,  Poland, 
Romania, Slovakia and Sweden) have been closed. 

–  For Directive 2005/36/EC on the recognition of professional qualifications326, the 
Commission  decided  to  refer  17  Member  States  (Belgium,  Cyprus,  Germany, 
Greece, Estonia, Spain, France, Hungary, Ireland, Latvia, Lithuania, Luxembourg, 
the Netherlands, Austria, Poland, Portugal, Sweden and the United Kingdom) to 
the  Court  and  to  send  a  reasoned  opinion  to  Denmark.  The  proceedings  opened 
against  8  Member  States  (Bulgaria,  the  Czech  Republic,  Malta,  Romania,  Italy, 
Slovakia, Slovenia and Finland) could be closed as they completed transposition. . 

The Commission decided to send to Germany a letter of formal notice under Article 228 of 
the  EC  Treaty,  concerning  the  measures  envisaged  to  comply  with  the  Court  of  Justice's 
judgment327  in  case  C-456/05  regarding  transitional  provisions  allowing  psychotherapists 
who fulfilled certain conditions to obtain authorisation to practise under the German statutory 
sickness insurance schemes.  

The Commission decided to send to Spain a letter of formal notice under Article 228 of the 
EC  Treaty,  requesting  information  on  the  measures  taken  to  comply  with  the  Court  of 
Justice's  judgment328  in  case  C-39/07  regarding  recognition  of  professional  qualifications  of 
hospital pharmacists329. 

The  infringements  cases  opened  against  Bulgaria,  the  Czech  Republic,  Hungary,  Latvia, 
Lithuania,  Malta,  Poland,  Romania,  Slovakia  and  Slovenia  because  of  the  nationality 
condition  for  notaries  did  not  progress  in  2008.  This  is  due  to  the  fact  that  almost  all  the 
Member States concerned decided to support the Member States already referred to the Court 
of  Justice  (Germany,  Austria,  Belgium,  France,  Greece  and  Luxembourg).  In  these 
circumstances,  it  was  considered  necessary  to  examine  and  take  into  account  all  new 
arguments  which  might  be  brought  forward  by  these  Member  States  before  moving  to  the 
next step in the concerned infringement proceedings. Estonia has abolished the condition of 
nationality and the Netherlands are still in the process of abolishing it. The Commission also 
decided  to  send  Portugal  a  letter  of  formal  notice  on  the  same  issue,  because  even  though 
Portugal  formally  abolished  the  nationality  condition  previously  in  force  for  notaries,  this 
condition thereafter appeared to still be applied. 

324 
325 
326 
327 

328 
329 

Judgment of 11.12.2008, Case C-239/08 Commission v. Belgium 
Judgment of 4.12.2008, Case C-224/08 Commission v. Luxembourg 
OJ L 255, 30.9.2005, p. 22 
Judgment  of  6.12.2007,  Case  C-456/05  Commission  v.  Germany;  The  Court  confirmed  the 
Commission's  position by  holding  that  the  transitional  provisions  in question  are  not  compatible  with 
EU  law,  inasmuch  as  they  take  no  account  of  immigrant  psychotherapists’  similar  professional 
experience with the social security systems of other Member States. 
Judgment of 8 May 2008, Case C-39/07 Commission v. Spain 
The  Court  confirmed  that,  even  though  the  basic  diploma  of  pharmacist  benefits  from  automatic 
recognition under Directive 85/433/EEC on the mutual recognition of diplomas in pharmacy, OJ L 253, 
24.9.1985,  p.  37,  the  recognition  of  a  pharmacist's  specialist  title  falls  under  the  general  system  of 
recognition of diplomas laid down by Directive 89/48/EEC329, which then needs to be transposed for the 
speciality  concerned.  It  has  to  be  noted  that,  in  the  meantime,  this  Directive  has  been  replaced  by 
Directive 2005/36/EC, which entered into force on 20 October 2007 and which confirms and takes over 
the legal framework appropriate to this issue under Directive 89/48/EEC) 

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Finally,  the  Commission  decided  to  refer  France  to  the  Court  of  Justice  for  its  breach  of 
Articles 39, 43 and 49 of the EC Treaty and Directive 92/51/EEC on the general system for 
the recognition of diplomas by refusing to allow snowboard instructors from other Member 
States  to  pursue  their  specific  professional  activities  in  France  on  the  grounds  that  these 
activities can only be practised by other professionals in France (i.e. ski instructors)330.  

(d) Petitions 

In 2008, 24 petitions have been dealt with. These petitions did not reveal any new horizontal 
issue;  they  reflected  the  issues  raised  in  enquiries  and  complaints  which  the  Commission 
receives.  Most  cases  concern  complex  individual  situations  for  which  the  petitioners  cannot 
benefit from the recognition. 

(e)  Preventive  measures  being  taken  in  relation  to  recently  adopted  new  legislation-
conformity  assessment  of  national 
transposition  package  meetings, 
development of guidelines, initiation of networking systems to manage the new legislation, etc 

transposition, 

In order to monitor the appropriate and smooth application of this Directive, the work on the 
Code of Good Conduct which specifies the good national administrative practices competent 
authorities should follow when processing applications, was started and progressed well with 
the Group of Coordinators of Directive 2005/36/EC. 

In  addition,  the  database  on  regulated  professions331  which  provides  useful  information  on 
each  regulated  profession  (contact  points,  competent  authorities,  statistics,  etc.)  was  totally 
reviewed  and  reorganized  in  order  to  take  into  account  Directive  2005/36/EC  and  to  better 
guide competent authorities as well as citizens seeking information. 

To  ensure  legal  certainty  for  professions  benefiting  from  automatic  recognition,  whose 
corresponding national titles are listed in Annex V to Directive 2005/36/EC, the Commission 
published twice332 the new titles and changes to existing titles notified by Member States on 
the  basis  of  Article  21  (7)  of  Directive  2005/36/EC.  These  publications  facilitate  free 
movement as they give the right to the holders of the qualifications concerned to benefit from 
automatic recognition.  

10.2.5.2. Evaluation based on the current position 

Contrary  to  the  legal  obligations  which  Member  States  had  to  transpose  by  20.10.2007, 
Directive  2005/36/EC  had  not  been  transposed  by  a  majority  of  Member  States  (only  9 
Member  States  had completed transposition on 31.12.2008). For Directive 2006/100/EC, by 
end 2008 it was implemented by the majority of Member States (all except 9). However, due 
to  the  fact  that  Directive  2005/36/EC  replaced  15  directives  while  maintaining  their  basic 
mechanisms  of  recognition,  the  non-transposition  in  due  time  by  all  Member  States  did  not 

330 

331 
332 

On the basis of the judgment of the Court of Justice in case C-330/03 Judgment of 19 January 2006, 
Colegio  de  Ingenieros  de  Caminos,  Canales  y  Purtos  v.  Administraciòn  del  Estado  and  taking  into 
account  the  fact  that  the  differences  between  the  fields  of  activity  are  so  great  that  in  reality  the 
compensatory  measures  required  from  the  migrant  amount  to  a  full  programme  of  education  and 
training,  the  Commission  considers  that  France  has  to  allow  partial  taking-up  of  the  professions 
concerned. 
http://ec.europa.eu/internal_market/qualifications/regprof/index 
Communication of 4 June 2008, OJ C 137 of 4.6.2008, p. 8 and Communication of 17 December 2008, 
OJ C 322 of 17.12.2008, p.3 

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have a major negative impact on free movement and free establishment. In the large majority 
of  cases,  recognition  of  qualifications  still  took  place  on  the  basis  of  the  national 
implementing measures adopted on the basis of the now repealed directives. 

The non-implementation of Directive 2005/36/EC has however revealed problems for citizens 
concerning precisely its new aspects, i.e. the free provision of services for professions which 
do not benefit from automatic recognition (such as engineers) and the subsidiary application 
of  the  general  system  of  recognition  of  diplomas  (mainly  health  professions  such  as  nurses 
responsible  for  general  care).  The  situation  tends  to  improve  as  soon  as  transposition 
measures come into force. 

Due to the non-communication proceedings, the analysis of the national measures transposing 
Directive 2005/36/EC in order to assess their conformity with Community law has not been 
started yet. As stressed in the previous report, the main challenge related to this directive is 
represented by the enormous number of national measures needed to transpose it (hundreds of 
texts). By the end of 2008, around 700 measures had already been notified. 

The absence of concordance tables for many Member States, despite repeated requests, will 
make the examination even more difficult. 

Issues raised by citizens differ according to the regime of recognition their professions enjoy. 
When  the  profession  is  under  the  automatic  recognition  regime  (for  7  professions  out  of 
which  5  health  professions)  the  difficulties  encountered  mostly  relate  to  the  situation  of 
applicants  from  new  member  States  (in  particular  RO  and  BG)  who  were  trained  before 
Accession and do not necessarily enjoy so called acquired rights to automatic recognition or 
cannot demonstrate that they meet the necessary number of years of professional experience. 
Host MS (mostly UK, DE, IE, FR) do not always apply the mutual recognition scheme when 
automatic recognition cannot be granted.  

For  professions  under  the  mutual  recognition  regime  (so  called  "general  system")  such  as 
engineers,  teachers,  physiotherapists,  accountants,  sport  instructors…  the  main  difficulties 
relate to the compensatory measures required by the host MS. As it is particularly difficult for 
the  Commission  to  judge  whether  there  are  effectively  substantial  differences  between  the 
migrants  qualifications  and  the  host  MS  requirements  these  cases  are  best  dealt  with,  when 
home  and  host  MS  can  discuss  the  issue  through  the  SOLVIT  network.  Engineers  have 
particular difficulties to be recognised in Greece, Cyprus and Spain, tourist guides in Italy and 
Spain, sport instructors in France. 

A  key  role  for  a  smooth  implementation  is  the  IMI  System;  it  allows  competent  authorities 
from  the  host  and  home  MS  to  exchange  information  linked  with  an  application  for 
recognition  where  doubts  are  raised  in  relation  to  the  professional.  The  pilot  phase  of  the 
system for four professions (doctors, pharmacists, physiotherapists, and accountants) revealed 
to  be  a  success  and  hence  it  was  extended  by  the  end  of  2008  to  seven  other  professions 
including  the  main  health  professions.  In  2008,  the  system  allowed  375  exchanges  of 
information. 

10.2.5.3. Evaluation results 

(1) 

Priorities  

As long as not all MS have achieved transposition there still will be the need to put pressure 
on them to complete their work. For some Member States, due to their structure, around 100 

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texts need to be adopted. However, in parallel, the priority is shifted to the conformity check 
based on a risk based approach identifying key issues to be checked, as well as on individual 
cases lodged by plaintiffs.  

For  the  time  being,  the  following  are  being  identified  as  key  issues:  the  new  regime  for 
providing  services  for  professions  falling  under  the  general  system  of  recognition  because 
there was no specific regime for the provision services for all the professions falling under the 
previous  Directives  89/48/EEC  and  92/51/EEC  on  the  general  system;  the  subsidiary 
application of the general regime, which did not exist either (recognition then fell under the 
Treaty)  as  well  as  principle  questions  under  the  Treaty  such  as  partial  access  to  a  given 
profession. 

(2) 

Planned action (2009 and beyond) 

Directive  2005/36/EC  is  expected  to  be  transposed  by  a  majority  of  Member  States  by  mid 
2009. 

The  main  priority  in  this  area  remains,  after  the  closure  of  all  non-communication 
infringement  proceedings,  the  analysis  of  the  national  measures  transposing  Directive 
2005/36/EC in order to assess their conformity with Community law. A complete translation 
of  the  notified  texts  is  the  first  step,  which  may  take  some  time  in  view  of  the  enormous 
number  of  national  measures  needed  to  transpose  (see  above).  A  first  evaluation  of  the 
transposition should be available by end 2009. 

The  following  issues  will  be  targeted  for  priority  action  in  2009-2010:  the  new  regime  for 
providing  services  and  the  subsidiary  application  of  the  general  regime  as  well  as  principle 
questions  under  the  Treaty  such  as  partial  access,  and  significant  issues  such  as  a  same 
profession affected in several Member States such as tourist guides, or several professions in 
one Member State (in Spain and Greece in particular). 

After the adoption of the Code of Conduct (early 2009), a "user's guide" will be established in 
order  to  allow  a  better  understanding  by  the  citizens  of  their  rights  under  Directive 
2005/36/EC. The IMI system will be extended to all regulated professions. 

In addition the emphasis will be put on making the regime on provision of services working, 
in  particular  with  regard  to  the  documentation  which  may  be  requested.  The  group  of 
coordinators for Directive 2005/36/EC will be the forum for such an agreement. This will be 
of  particular  help  to  professions  such  as  tourists'  guides  who  do  encounter  difficulties  to 
provide services due to the fact that the documents they currently provide are not accepted in 
certain Member States.  

Work  will  also  be  continued  in  order  to  overcome  difficulties  encountered  by  a  significant 
number of nurses from Bulgaria and Romania in particular, who should be recognised under 
the  general  system  as  they  do  not  fulfil  the  conditions  to  enjoy  automatic  recognition  (see 
above, "subsidiary application of the general system"). However these nurses cannot undergo 
the  compensatory  measures  (i.e.  adaptation  period)  which  are  being  required,  as  no  posts  is 
offered  in  the  host  Member  State,  who  should  organize  for  it.  This  seems  to  be  the  case  in 
Spain and the United Kingdom. 

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10.2.5.4. Summary by sector 

The  transposition  of  Directive  2005/36/EC  has  progressed,  in  particular  further  to  several 
infringement  proceedings  for  non-communication.  This  allows  for  starting  the  control  of 
conformity.  Implementation  was  enhanced  by  the  cooperation  with  Member  States  in  the 
coordinators group and by the IMI system of electronic cooperation between Member States. 

10.2.6.  The business environment 

10.2.6.1. Current position 

(1) 

General introduction 

The rules governing the four freedoms of movement – for goods, services, people and capital 
– are not, by themselves, sufficient to create a favourable climate for business to grow across 
borders.  Firms  need  to  be  confident  that  they  can  compete  on  a  level  playing  field  and  that 
appropriate  legal  structures  exist  to  allow  all  businesses,  whatever  their  size,  to  operate 
effectively across the EU. 

Harmonisation of the rules relating to company law and corporate governance, as well as to 
accounting and auditing, is a key element of this policy. This harmonisation aims at reducing 
red  tape  by  helping  companies  to  operate  throughout  the  EU  on  the  basis  of  a  single  set  of 
rules  and  a  unified  management  and  reporting  system.  This  system,  in  its  turn,  aims  to 
increase  transparency  and  confidence  in  corporate  governance,  enhancing  the  protection  of 
investors, employees and the public against corporate cheating, fraud and mismanagement. 

(2) 

Report of work done in 2008 

In the field of company law and anti-money laundering the transposition deadline has passed 
in case of seven Directives in 2007-2008: Directives 2004/109/EC, 2005/56/EC, 2005/60/EC, 
2006/70/EC, 2007/14/EC, 2006/68/EC and 2007/63/EC.  

In the absence of national transposition measures more than 110333 infringement procedures 
were handled in 2008, but monitoring the transposition measures requires particular efforts as 
well. A high volume of national transposition measures will have to be checked in 2009 and 
2010, which will have significant implications in terms of resources as many times complex 
legal 
instruments  (for  example  Commercial  Codes)  are  communicated  as  national 
transposition  measures.  The  absence  of  concordance  tables  is  another  issue  as  regards 
conformity checks as they are essential to facilitate the check of completeness, but Member 
States are often reluctant to communicate concordance tables.  

In  order  to  overcome  difficulties  related  to  the  high  number  of  non-communication  cases, 
conformity checks and the need for translation of thousands of pages of national transposition 
measures an Action Plan has been established in 2008. A wide range of preventive measures 
has been put in place: The Commission kept up pressure on Member States through experts' 
meetings334  by  asking  details  on  transposition  from  Member  States  not  having  transposed 
directives,  bilateral  discussion  in  the  margins  of  these  meetings,  strengthening  cooperation 

333 

334 

in  the  field  of  company  law  and  anti-money  laundering  only  0.7%  of  the  cases  were  non-conformity 
cases 
(Company  Law  Expert  Group  and  Committee  on  the  Prevention  of  Money  Laundering  and  Terrorist 
Financing) 

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with  national  authorities  and  efficient  management  of  infringement  cases.  Scoreboards  on 
state  of  play  of  transposition  are  published  every  month  since  January  2008.  Package 
meetings were used to raise the issue of transposition, and, when necessary, political pressure 
was increased by sending letters to Member States urging transposition. Without prejudice to 
the assessments driven by specific complaints, at a first stage, the conformity checks are done 
on the basis of a risk-based approach. The risk is assessed taking into account both the nature 
of the directives, and, within each directive, of the provisions concerned. Also in the context 
of  anti-money  laundering,  the  implementation  of  Regulation  1781/2006  leaves  to  Member 
States  the  introduction  of  an  appropriate  regime  of  sanctions.  In  the  absence  of  notified 
measures, 15 infringements procedures were opened at the beginning of 2008 out of which 13 
have already been closed.  

As  regards  external  enquiries  in  the  filed  of  company  law  and  anti-money  laundering  there 
was  a  relatively  low  number  of  petitions,  questions,  complaints,  the  majority  of  which  fell 
outside of the scope of Community law or did not constitute an infringement.  

The transposition deadline in case of directive 2007/36/EC will expire on 3 August 2009. The 
Commission has already organised a transposition workshop and is ready to provide further 
assistance  in  case  it  is  necessary  in  relation  to  Directive  2007/36/EC.  Member  States  are 
always reminded to the importance of timely transposition at the relevant committee meetings 
and systematically asked to provide information on state of play. 

The proposal for the Statute of European Private Company was adopted on 25 June 2008335, 
and Simplification of existing Company Law Directives (Third –Sixth, First-Eleventh) will be 
continued in 2009. 

In  the  field  of  auditing,  the  Commission  worked  on  preparing  a  correct  and  timely 
implementation  of  the  Directive  2006/43/EC336  on  statutory  audits  of  annual  accounts  and 
consolidated  accounts,  whose  transposition  deadline  was  29  June  2008.  Potential  problems 
have been discussed at the meetings of the Audit Regulatory Committee and, on an individual 
basis,  during  bilateral  meetings  organized  with  Member  States.  Nineteen  bilateral  meetings 
were  held  with  Member  States  in  order  to  discuss  specific  individual  issues  faced  by  the 
Member States and to provide them with the information needed to avoid bad transposition of 
the  Directive  2006/43/EC.  Moreover,  one  transposition  workshop  was  organized  in  2008  to 
assist Member States. A transposition scoreboard was drafted and has been updated regularly 
and published on the Commission's website since 1 July 2008. 

Reasoned  opinions  were  sent  to  Austria,  Belgium,  Cyprus,  Czech  Republic,  Germany, 
Estonia,  France,  Ireland,  Italy,  Latvia,  Luxemburg,  Malta,  Poland,  Spain,  Sweden  and  the 
United Kingdom (regarding the territory of Gibraltar) for non-communication of their national 
transposition  measures.  Since  then,  it  was  proposed  to  close  the  infringement  cases  against 
Belgium and France which have communicated their national transposition measures.  

To  facilitate  the  establishment  of  auditor  public  oversight  bodies  in  Member  States,  as 
required by the Statutory Audit Directive and to help the existing ones  become  operational, 

335 

336 

Currently  discussed  in  the  Council  and  the  Parliament.  Simplification  of  existing  Company  Law 
Directives (Third –Sixth, First-Eleventh) 
OJ L 157, 9.6.2006, p.87. 

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the  expert  group  "European  Group  of  Auditors'  Oversight  Bodies"  (EGAOB)  continued  its 
work on exchanging good practice concerning the establishment of those systems337.  

In the area of statutory audit, several legislative instruments were adopted in 2008 to allow a 
good implementation of the provisions of the Directive 2006/43/EC. 

The  comitology  powers  of  the  Commission  under  Directive  2006/43/EC  have  changed 
following the adoption by the European Parliament and the Council of Directive 2008/30/EC 
of 11 March 2008 amending Directive 2006/43/EC on statutory audits of annual accounts and 
consolidated accounts, as regards the implementing powers conferred on the Commission338. 
New powers might be used by the Commission in 2009/2010 to adopt international auditing 
standards  and  common  standards  for  audit  reports  for  annual  or  consolidated  accounts.  The 
regulatory procedure with scrutiny will apply to the cases in which the Commission will make 
use of these powers. 

The Commission adopted the Decision 2008/627/EC concerning a transitional period for audit 
activities of certain third country auditors and audit firms339 on 29 July 2008. On 6 May 2008, 
the Commission adopted the Recommendation 2008/362/EC on external quality assurance for 
statutory auditors and audit firms auditing public interest entities340. The Member States were 
invited  to  implement  the  provisions  of  the Recommendation  and  to  inform  the  Commission 
about  the  measures  taken  on  its  basis  by  6  May  2009.  On  5  June  2008,  the  Commission 
adopted the Recommendation 2008/473/EC concerning the limitation of the civil liability of 
statutory auditors and audit firms341 pursuant to Article 31 of Directive 2006/43/EC.  

In  the  field  of  accounting,  the  transposition  deadline  of Directive  2006/46/EC  amending  in 
particular  some  provisions  of  the  4th  and  the  7th  Company  Law  Directives  expired  on  5 
September  2008.  The  Commission  services  controlled  the  application  of  the  relevant 
Community  law  by  the  means  of  infringement  procedures  and  discussions  in  meetings  with 
the Member States.  

The  majority  of  infringement  cases  stems  from  the  non-communication  of  national 
transposing measures. In December 2008, the Commission sent Letters of Formal  Notice to 
15  Member  States  on  the  basis  of  not  having  communicated  the  transposition  of  Directive 
2006/46/EC. The Commission services keep the pressure on Member States for encouraging 
the  swift  transposition  mainly  via  the  Accounting  Regulatory  Committee.  As  a  result,  by 
March 2009, 3 cases could be closed. Thus, it is expected that the transposition deficit will be 
considerably reduced by the end of 2009. 

337 

338 
339 

340 
341 

Four meetings were organized in 2008. A sub-group held five meetings in 2008 at which it discussed 
issues  related  to  the  transposition  of  Articles  45,  46  and  47  of  the  Directive  2006/43/EC  in  Member 
States 
OJ L 81, 20.3.2008, p.53. 
OJ L 202, 31.7.2009, p. 70. The transitory period allows to certain third country auditors and audit firms 
to continue their audit activities in the EU without being registered, provided that certain conditions are 
met.  To  implement  the  provisions  of  Article  46  (2)  of  the  Directive  2006/43/EC  which  requires  the 
Commission  to  assess  the  equivalence  of  third  country  auditor  oversight,  quality  assurance  and 
investigation and penalties systems in cooperation with Member States and make a determination on it. 
OJ L 120, 7.5.2008, p. 20. 
OJ  L  162,  21.6.2008,  p.  39.  The  goal  of  this  Recommendation  is  to  ensure  a  good  functioning  of  a 
competitive  market  for  audit  services  in  which  there  is  a  sufficient  choice  of  audit  firms  capable  of 
conducting and willing to conduct statutory audits of companies the securities of which are admitted to 
trading on a regulated market of a Member State. The implementation is foreseen in 2010. 

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In  April  2008  the  Commission  adopted  a  fast-track  proposal  to  amend  the  4th  and  7th 
Company Law Directives in order to simplify financial reporting for small and medium-sized 
companies;  in  February  2009  the  Commission  adopted  another  simplification  proposal  to 
amend  the  4th  Company  Law  Directive  establishing  a  Member  State  option  to  relieve  so-
called  micro  entities  from  the  obligation  to  prepare  annual  accounts.  Currently,  the 
Commission  services  are  working  on  a  larger  simplification  and  modernisation  proposal  to 
amend the 4th and 7th Company Law Directives. 

10.2.6.2. Evaluation based on the current position 

In the field of company law and anti-money laundering the deadlines for transposition of 
Directives  2004/109/EC,  2005/56/EC,  2005/60/EC,  2006/70/EC,  2007/14/EC,  2006/68/EC 
and  2007/63/EC  have  recently  passed.  The  deadline  for  the  transposition  of  Directives 
2007/36/EC will expire on 3 August 2009. 

Although transposition was late in several member states and for many of these directives, the 
complementary initiatives covered by the Action Plan had very positive results: by February 
2009,  82  cases  (75%)  were  closed  due  to  notifications  of  complete  transposition  from 
Member  States  and  25  cases  (22%)  were  referred  to  the  Court.  The  situation  has  clearly 
improved but given the importance of the different directives in the fields of company law and 
anti-money laundering, pressure should be kept up on Member States until full transposition 
is ensured.  

There seems to  be  a more systematic  problem in some Member States who are consistently 
late  with  implementation.  It  is  not  clear  whether  this  is  due  primary  to  difficulties  with 
Parliamentary  procedures  or  that  draft  legislation  is  not  submitted  in  a  timely  manner.  This 
needs to be explored further with those Member States who have the greatest problems. Better 
involvement  of  national  Parliaments  during  the  negotiations  of  directives  may  possibly 
accelerate the process of transposition.  

The highest transposition deficit can be identified in case of anti-money laundering directives 
(7  Member  States  are  late)  and  the  directive  on  cross-border  mergers  (6  Member  States  are 
late).  It  should,  however,  be  noted  that  thanks  to  the  efforts  of  the  Commission  the 
transposition  deficit  has  been  reduced  by  more  than  50%  in  case  of  anti-money  laundering 
and by more than 40% as regards the cross-border mergers directive in 2008.  

Late  transposition  of  anti-money  laundering  directives  is  particularly  problematic  since  it 
may jeopardize fight against money laundering and terrorist financing as well as stability and 
reputation  of  the  financial  sector  and  the  single  market.  Moreover,  delayed  implementation 
might create difficulties for the banking sector in terms of costs related to different rules in 
force in Member States.  

In the field of company law the cross-border mergers directive aims at facilitating mergers of 
limited-liability  companies  on  a  cross-border  basis,  without  winding  up  of  the  acquired 
company.  However,  late  transposition  might  have  direct  effect  on  companies  of  Member 
States which transposed the directive on time, but wish to merge with companies of a Member 
State  in  delay.  In  the  absence  of  national  rules  providing  for  compliance  with  the  directive, 
cross-border  mergers might have significant cost implications and administrative burden for 
companies  concerned.  Delay  in  transposition  in  relation  to  transparency  directives  could 
jeopardize investor protection, weaken investor confidence and create barriers to cross-border 
investment.  Similarly,  inconsistency  between  national  legislation  as  regards  transposition  of 

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simplification directives could result in additional costs for companies operating in Member 
States  not  having  reduced  administrative  burdens.  Moreover,  in  the  context  of  the  financial 
crisis full transposition of the second company law directive is crucial in term of facilitating 
the  raising  of  capital,  the  restructuring  of  capital  ownership  in  public  limited  liability 
companies,  but  it  also  provides  for  harmonised  safeguards  for  protection  of  creditors  and 
minority shareholders. 

There  have  been  serious  concerns  in  2008  for  6  Member  States  in  particular.  Spain342  has 
been late with the transposition of 5 directives the transposition deadline of which has already 
expired,  but  also  Belgium343  was  due  to  transpose  4,  France344,  Luxembourg345,  Portugal346 
and Sweden347 3 directives each in 2008. The situation can be potentially problematic in case 
of the Czech Republic348, Greece349,  Ireland350 and Italy351 which Member States have been 
each late with the transposition of 2 directives. Cyprus352, Hungary353 and Poland354 have not 
transposed  1  directive.  By  April  2009,  Spain  has  notified  national  transposition  measures 
implementing  3  Directives  and  the  Czech  Republic  and  Portugal  also  have  transposed  a 
Directive. 

Concerning  auditing,  the  obligation  for  Member  States  to  establish  independent  competent 
authorities  to  ensure  a  public  oversight,  external  quality  assurance,  investigations  and 
penalties of statutory auditors and audit firms raised a high number of issues in many Member 
States and slowed down the transposition process. 

In  the  field  of  accounting,  the  Commission  Services  were  able  to  close  the  majority  of  the 
non-communication cases regarding the Directive 2006/46/EC, but still have to pursue some 
cases, including the non-transposition of the measures in the UK - territory of Gibraltar. 

Furthermore,  the  fast-track  proposal  to  amend  the  4th  and  7th  Company  Law  Directives  in 
order  to  simplify  financial  reporting  for  small  and  medium-sized  companies  adopted  by  the 
Commission in April 2008 was successfully adopted by the EP and the Council in 2009 and 
published in the Official Journal (Directive 2009/49/EC). The Member States shall transpose 
the provisions of this directive before 1 January 2011. 

In  the  auditing  sector,  the  work  carried  out  by  the  Commission  to  prepare  a  timely  and 
correct  transposition  of  the  Directive  gave  results,  as  more  than  half  of  the  Member  States 

342 

343 

344 

345 

346 

347 
348 
349 
350 
351 
352 
353 
354 

laundering  (Directives  2007/14/EC,  2005/60/EC  and 

Cross-border  merger,  anti-money  laundering  and  simplification  directives  (Directives  2005/56/EC, 
2005/60/EC, 2006/70/EC, 2006/68/EC and 2007/63/EC 
Cross-border  merger,  anti-money  laundering  and  simplification  directive  (Directives  2005/56/EC, 
2005/60/EC, 2006/70/EC and 2007/63/EC) 
Transparency  directive  and  anti-money 
2006/70/EC) 
Cross-border  merger  and  simplification  directives  (Directives  2005/56/EC,  2006/68/EC  and 
2007/63/EC) 
Cross-border  merger  and  simplification  directives  (Directives  2005/56/EC,  2006/68/EC  and 
2007/63/EC) 
Cross-border merger and anti-money laundering (Directives 2005/56/EC, 2005/60/EC and 2006/70/EC) 
Transparency directives (Directives 2004/109/EC and 2007/14/EC) 
Cross-border merger and simplification directives (Directives 2005/56/EC and 2007/63/EC 
Anti-money laundering Directives 2005/60/EC and 2006/70/EC 
Transparency and simplification directive (Directives 2007/14/EC and 2007/63/EC) 
Simplification Directive 2007/63/EC 
Simplification Directive 2007/63/EC 
Anti-money laundering Directive 2005/60/EC 

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which  did  not  transpose  the  Directive  in  2008  committed  to  do  so  in  2009.  It  is  therefore 
expected that more Member States will have established public oversight bodies and that the 
public oversight bodies that were already established will become operational in 2009. 

10.2.6.3. Evaluation results 

(1) 

Priorities 

Priorities in the field of company law and money laundering will not change substantially 
in  2009.  The  commission  will  endeavour  to  reduce  further  transposition  deficit,  follow  up 
closely  non-communication  cases  and  complete  conformity  assessment  of  national 
transposition measures. 

Timely  transposition  and  efficient  cooperation  with  member  States  in  the  transposition 
process as well as in the implementation and application phase are also the key objectives in 
auditing  and  accounting  areas.  Another  priority  for  the  audit  sector  is  to  ensure  that  auditor 
public oversight bodies pursuant to the Directive 2006/43/EC are set up and are operational in 
the Member States.  

(2) 

Planned actions 

In the field of company law and anti-money laundering risk based conformity checks will 
be continued and first phase conformity assessment will most probably be outsourced under a 
framework contract in order to overcome problems of resources related to conformity checks.  

As  complementary  instruments  included  in  the  Action  Plan  resulted  to  be  effective  in 
reducing  transposition  deficit  in  the  fields  of  company  law  and  anti-money  laundering  they 
will  continue  to  be  applied.  Concerning  non-communication  cases  Member  States  will  be 
requested  to  provide  detailed  information  on  state  of  play  of  transposition  at  relevant 
committee  meetings.  A  scoreboard  in  the  field  of  company  law  and  anti-money  laundering 
will be published in each month and in case of the need package meetings, press releases and 
political pressure via letters addressed to Member States will be used as well.  

Non  communication  and  eventual  partial  communication  cases  will  be  followed  up  closely 
and in the absence of national transposition measures will be referred to the Court as soon as 
possible.  The  Commission  has  already  organised  a  transposition  workshop  and  is  ready  to 
provide further assistance in case it is necessary in relation to Directive 2007/36/EC. 

In  auditing  area  the  Commission  will  examine  measures  transposing  directive  2006/43/EC. 
Where  necessary,  package  and  bilateral  meetings  will  continue  with  the  Member  States 
concerned  to  discuss  the  transposition  process  and  the  quality  of  the  transposition.  Also,  it 
will be examined whether Member States had set up auditor public oversight bodies according 
to  the  Directive  and  that  these  bodies  are  operational.  The  transposition  scoreboard  will 
continue to be updated regularly and to be published on the Commission website. 

The expert group "European Group of Auditors' Oversight Bodies" (EGAOB) and the existing 
subgroups will also continue their work on facilitating co-operation between public oversight 
bodies established by the Member States pursuant to Directive 2006/43/EC.  

Finally, it is intended to launch a study on the evaluation of the functioning of the Directive 
by the end of 2009.  

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In the case of the accounting, the Commission Services will vigorously pursue infringement 
cases  regarding  Directive  2006/46/EC  whose  transposition  deadline  expired.  In  the  case  of 
newly  adopted  Directives,  the  Commission  services  will  increasingly  use  complementary 
measures such as possible transposition workshops, bilateral meetings and discussions within 
the Accounting Regulatory Committee. 

As regards the planned overhaul of the 4th and 7th Company Law Directives, the Commission 
services are pursuing public consultation, meetings with stakeholders, study on administrative 
costs  stemming  from  the  requirements  of  the  4th  and  7th  Company  Law  Directives  and 
targeted questionnaires in order to be able to present the amending proposal accompanied by a 
corresponding Impact Assessment. 

10.2.6.4. Summary by sector 

In  the  field  of  company  law  and  anti-money  laundering  due  to  the  high  number  of 
Directives  the  transposition  deadline  of  which  has  passed  recently  the  main  issues  remains 
unchanged  in  2009:  reducing  further  transposition  deficit  and  complete  conformity  checks. 
Due  to  the  Action  Plan  established  in  2008,  97  %  of  the  infringements  were  either  closed 
(75%) or referred to the Court (22%). Consequently, actions and instruments identified in the 
Action  Plan  will  be  applied  in  2009  as  well  and  the  Commission  expects  to  reduce  further 
transposition deficit. In order to overcome difficulties related to conformity checks, risk-based 
assessments  will  be  continued  and  first  phase  conformity  checks  will  most  probably  be 
outsourced. Infringements will be followed up strictly and political pressure will be kept up 
on Member States which are late with transposition. 

10.2.7.  Protection of rights 

10.2.7.1. General introduction 

Intellectual  property  encompasses  two  specific  areas  where  Community  legislation  provides 
for  common  rules:  industrial  property,  which  includes  inventions,  trademarks,  industrial 
design,  and  geographical  indications  of  source;  and  copyright,  which  includes  literary  and 
artistic works such as novels, films, musical works, paintings, photographs, and architectural 
designs. Rights related to copyright include those of performing artists in their performances, 
producers  of  phonograms  in  their  recordings,  and  those  of  broadcasters  in  their  radio  and 
television programs. Community law in this area also contributes to fight against piracy and 
counterfeiting. 

10.2.7.2. Report of work done in 2008 

In  the  area  of  industrial  property,  further  monitoring  on  Member  States'  obligation  to 
designate  Community  design  courts  pursuant  to  Art.  80  of  the  Regulation  (EC)  6/2002  on 
Community designs was carried out. Following the referral to the European Court of Justice 
under Art. 226 EC over failure to do so, France brought its legislation in compliance with the 
court judgment. 

In  the  trade  mark  area,  further  work  on  alleged  infringments  by  Member  States  was  done 
based  on  private  complaints.  Moreover,  the  Commission  started  evaluating  the  overall 
functioning of the EU trade mark system as a whole, by carrying out an EPTB survey on trade 
marks. 

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The Communication "An Industrial Property Rights Strategy for Europe" was adopted in July 
2008. It reflects the need expressed by European right holders to obtain an effective industrial 
property  protection  through  a  cross-cutting  policy  for  industrial  property  rights.  This 
Communication  represents  a  useful  tool  for  developing  in  the  upcoming  years  a  clear  legal 
framework  in  this  field  in  order  to  further  improve  the  level  of  protection.  It  sets  out  to 
support  inventors  in  making  informed  choices  on  the  protection  of  their  industrial  property 
rights and calls for robust enforcement against counterfeiting and piracy.. 

In relation to compulsory licensing of patents relating to pharmaceutical products (Regulation 
816/2006 of 17 May 2006) Member States notified the Commission the designated competent 
authority.  

In  the  field  of  design  protection  of  spare  parts,  no  agreement  has  been  yet  reached  by 
Member States on the Proposal for a Directive of the European Parliament and of the Council 
amending  Directive  98/71/EC  on  the  legal  protection  of  designs.  The  Parliament  already 
adopted  the  proposal  with  compromise  amendments  end  of  2008.  Further  work  needs  to  be 
done  at  Council  level  in  order  to  overcome  the  problems  that  lead  to  fragmentation  of  the 
internal market for design protection of spare parts.  

End  of  2008  the  Commission  worked  to  amend  Regulation  (EC)  No  2869/95  on  the  fees 
payable  to  the  Office  for  Harmonization  in  the  Internal  Market  (Trade  Marks  and  Designs) 
and  Regulation  (EC)  No  2868/95  implementing  Council  Regulation  (EC)  No  40/94  on  the 
Community  trademark.  The  proposal  also  aims  at  reducing  fees  and  administrative  burdens 
on  both  the  OHIM  and  its  users  by  simplifying  the  existing  fee  structure.  The  Commission 
will  adopt  on  31  March  2009  the  draft  Regulation.  Publication  will  take  place  on  30  April 
2009 to have the new fees applicable as from 1 May 2009.  

Following  requests  from  some  EU  Member  States  to  better  substantiate  the  compelling 
reasons  for  the  creation  of  the  Community  patent  and  a  Unified  Patent  Litigation  System 
(UPLS), Commission contracted in 2008 two studies on the economic cost-benefits of (i) the 
Community  patent  and  (ii)  the  Unified  Patent  Litigation  System.  For  the  first  time,  all 
available  sources  and  data  on  these  topics  have  been  brought  together  and  analysed  in  a 
systematic way, and Member States and stakeholders now have a much better picture not only 
of  the  shortcomings  of  the  present  patent  system  but  also  of  the  expected  benefits  from  a 
Community patent and a unified court system.  

In  the  area  of  the  enforcement,  the  Commission  monitored  the  transposition  of  Directive 
2004/48/EC355.  The  Directive  had  to  be  implemented  by  Member  States  by  29  April  2006. 
The  ECJ  took  three  decisions  against  Germany,  Luxembourg  and  Sweden  for  failure  of 
transposition  of  the  Directive  according  to  Art.  226  EC.  Germany  notified  its  national 
measures  in  July.  At  the  end  of  2008,  infringement  procedures  against  2  Member  States 
(Sweden and Luxembourg) were still open.  

The  Commission  in  July  2008  adopted  a  Communication  on  an  Industrial  Property  Rights 
Strategy for Europe where a specific chapter was dedicated to the enforcement of intellectual 
property  rights.  Subsequently  the  Council  in  September  adopted  a  Resolution  on  a 
comprehensive European anti-counterfeiting and anti-piracy plan. 

355 

Add reference 

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10.2.7.3. Evaluation based on the current position 

Within the framework of assessing the trade mark system and further to the EBTP survey the 
Commission intends to further study the overall functioning of the Community and national 
trademark systems. The aim of this assessment is to identify potential areas for improvement, 
strengthening  and  future  development  of  this  overall  system  to  the  benefit  of  users.  The 
results shall serve as a basis for the future review of the Community trade mark system and 
enhanced cooperation between the OHIM and national offices. On their basis, a proposal for a 
review of the Community Trademark Regulation is planned right away. 

In  the  patents  area,  the  absence  of  a  protection  at  Community  level  has  an  impact  on  the 
single  market  and  hampers  the  free  movement  of  knowledge  to  be  a  reality.  This  issue  has 
been raised several times by the users and recent developments in the area are revitalising the 
debate on the patent system in Europe and set out a way forward to a Community patent and 
improved  patent  jurisdiction  system  for  the  EU.  Moreover,  the  fragmentation  of  the  patent 
system  within  the  EU  has  also  an  impact  on  the  application  of  the  regulation  on 
Supplementary Protection Certificates (SPCs).  

In  the  field  of  geographical  indications,  EU  right  holders  stressed  the  lack  of  protection  at 
Community  level  for  non-agricultural  products.  This  issue  has  been  raised  as  well  in  the 
context of multilateral negotiations within the World Trade organisation (WTO) and bilateral 
negotiations  with  third  countries  (Free  Trade  Agreements:  FTAs).  For  this  reason,  the 
Commission  is  reflecting  on,  so  as  to  bring  benefits  to  European  and  third  countries' 
procedure. In this framework, the Commission will carry out an assessment on the feasibility 
of geographical indication protection to non-agricultural products. 

In  the  context  of  a  highly  political  area  and  due  to  the  complex  nature  of  the  Directive 
2004/48/EC, the main problem encountered by the Commission was the late transposition in 
by  some  Member  States.  The  monitoring  was  done  through  a  constant  dialogue  with  the 
Member  States  not  having  transposed  the  Directive  yet.  Two  Member  States  adopted  the 
transposition  measures  during  this  year.  Subsequent  proceedings  according  to  Art.  228  EC 
continued against the two last Member States. 

10.2.7.4. Evaluation results 

Planned actions 

In  2009,  Member  States  shall  submit  to  the  Commission  a  report  on  the  implementation  of 
Intellectual  property  rights  Directive  2004/48/EC.  On  the  basis  of  national  reports,  the 
Commission  will  prepare  a  report  on  the  conformity  of  the  national  measures  with  the 
provisions of the Directive. It is also expected that the last two member States (LU and SE) 
will notify their national measures during 2009. 

Following the Council Resolution of September 2008, the Commission will create a European 
Counterfeiting and Piracy Observatory. Its launch is expected to be announced on 02/04/2009 
during  the  High  Level  Conference  on  Counterfeiting  and  Piracy  organised  by  the 
Commission.  

In addition the Commission is planning to promote administrative cooperation, including the 
exchange  of  information  on  the  enforcement  of  intellectual  property  rights,  among  Member 
States  and  between  Member  States  and  the  Commission  through  an  Expert  Group  made  of 
national correspondents. The Commission will also study how to set up an information system 

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for the rapid exchange of information on counterfeiting and piracy. Those and other measures 
will be presented by the Commission in a Communication that will be adopted during the first 
half of 2009. 

11.  REGIONAL POLICY 

11.1.  Current situation 

11.1.1.  General introduction 

Based  on  Article  158  of  the  Treaty,  European  regional  policy  aims  to  reduce  disparities 
between the levels of development of the various regions and the backwardness of the least 
favoured  regions  by  actions  supported  by  the  Structural  Funds356  (the  European  Regional 
Development  Fund357,  ERDF,  and  the  European  Social  Fund358,  ESF)  and  the  Cohesion 
Fund359  (CF).  ERDF  and  CF  are  under  the  responsibility  of  the  Commission  services  in 
charge  of  "Regional  Policy",  ESF  is  under  the responsibility  of  the  Commission  services  in 
charge of "Employment, Social Affairs and Equal Opportunities". These Funds are managed 
by means of operational programmes (ERDF and ESF) or projects (CF) by the Commission 
and  the  Member  States  under  shared  management  arrangements,  as  are  similar  programmes 
under  the  European  Agricultural  Fund  for  Rural  Development360  and  the  fisheries  sector361. 
New rules covering the programming period 2007 to 2013 were adopted in 2006; most of the 
316  operational  programmes  financed  by  the  ERDF  and  CF  were  negotiated  in  partnership 
and (with few exceptions) adopted by the Commission in 2007. The new programmes overlap 
with those of the period 2000-2006 for which the final date for expenditures was the end of 
2008 (in February 2009, 385 of the 555 Cohesion Policy programmes were extended in order 
to  add  another  six  months  to  cope  with  delays  due  to  the  international  financial  crisis).  In 
addition, certain programmes under the 1994 to 1999 programming period still required final 
closure or the settlement of post-closure audits. 

In accordance with Community law362, assistance under the Funds is provided according to an 
approach  of  complementarity  and  partnership  between  the  Commission  and  the  Member 
States,  with  due  regard  to  their  respective  powers.  In  this  context,  implementation  on  the 
ground is the responsibility of the Member States, meaning in particular that the Commission 
is  normally  not  responsible  for  the  selection  of  individual  projects  (exceptions  being  the 
approval of CF projects and of major projects within ERDF programmes), as this comes under 
the competence of the national authorities. 

356 

357 

358 

359 

360 

361 

362 

Council  Regulation  (EC)  No  1083/2006  of  11  July  2006  laying  down  general  provisions  on  the 
European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing 
Regulation (EC) No 1260/1999 (OJ L 210, 31.7.2006, p. 25). 
Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 laying on 
the  European  Regional  Development  Fund  and  repealing  Regulation  (EC)  No  1783/1999  (OJ  L  210, 
31.7.2006, p. 1). 
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 laying on 
the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ L 210, 31.7.2006, p. 12). 
Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 laying on 
the Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJ L 210, 31.7.2006, p. 79). 
Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the 
European Agricultural Fund for Rural Development (OJ L 277, 21.10.2005, p. 1). 
Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund; (OJ L 223, 
15.8.2006, p. 1). 
Article 9 of Regulation (EC) No 1083/2006. 

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To  be  eligible  for  co-financing  from  the  EU  budget  projects  must  be  selected  and 
implemented  in  accordance  with  the  principles  laid  down  in  the  programming  documents 
adopted  by  the  Commission,  and  must  comply  with  the  specific  legislation  governing 
Cohesion Policy expenditure and generally applicable rules on public procurement, state aid, 
the environment, etc, and also with relevant national rules. The control system put in place by 
the  Member  States  seeks  to  ensure  the  regularity  of  all  expenditure  and  the  Commission 
supervises its effective functioning. When the rules are found to have been breached making 
expenditure  ineligible,  the  irregular  expenditure  has  to  be  excluded  by  means  of  "financial 
corrections".  If  the  Member  States  fail  to  correct  irregular  expenditure  or  to  remedy 
deficiencies  in  the  management  and  control  system,  the  Commission  itself  may  impose 
financial  corrections  or  require  improvements  in  the  control  system.  In  the  event  of  serious 
deficiencies,  the  Commission  can  suspend  its  interim  payments  to  a  programme  until  the 
weaknesses are corrected. 

Most  complaints  tend  to  arise  when  an  operator  or  member  of  the  public  considers  that 
individual  projects  do  not  (fully)  respect  relevant  Community  and/or  national  rules  and 
prefers to address the complaint to the Commission rather than to his/her national authorities. 
Such complaints can only be resolved with considerable support from the national authorities. 
From one year to another, the number of complaints dealt with by the Commission services in 
this  area  is  relatively  stable  (below  50)  and  does  not  normally  lead  to  infringement 
procedures, but the complaints are resolved by application of the normal control and financial 
correction  provisions  proper  to  Cohesion  Policy  by  the  national  authorities  or  by  the 
Commission. 

11.1.2.  Report of work done in 2008 

11.1.2.1. Complaints and infringements 

In 2008, one infringement procedure was opened against Germany363 for failure to respect its 
obligation  to  submit  to  the  Commission  the  annual  summary  due  under  the  Financial 
Regulation364(letter of formal notice sent on 23 September 2008). 

Two  complaints  were  officially  opened  during  2008  in  the  NIF  system,  whereas  two  cases 
could be closed after the parallel financial correction procedure had been closed. Adding two 
other complaints already opened before 2008, as of 31 December 2008, five complaints in the 
NIF system concern the Regional Policy area. 

Seven  complaints  were  introduced  into  the  EU  PILOT  system.  The  great  majority  of 
complaints concerning Regional Policy do not lead to an infringement procedure. 

A first category of complaints concerns the selection process of individual projects under the 
different  programmes.  The  principal  motivation  for  complaints  was  the  rejection  of  the 
complainant's application for financial support. As indicated above, under shared management 
such complaints are examined by the competent national administrative or judicial authorities. 
A second category of complaints concerns alleged non-compliance of individual projects with 
Community law, mostly relating to environment or public procurement policies and rules. A 
third  category  of  complaints  concerns  the  alleged  defects  in  selected  projects  (examples 

363 
364 

NIF 2008/2127. 
Article 53b(3) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial 
Regulation applicable to the general budget of the European Communities (OJ L 248, 16.9.2002, p. 1). 

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include allegations that a particular infrastructure project is not in the right place (e.g. roads), 
does  not  work  properly  (water  sewage  treatment  plants)  or  constitutes  poor  value  for  the 
European  tax-payer's  money).  In  such  cases,  there  is  generally  no  specific  allegation  of  a 
breach of Community law. 

For  all  categories,  the  Commission  services  in  the  sector  of  Regional  Policy  use  the  EU-
PILOT  System,  as  the  Commission  in  most  cases  can  only  react  in  substance  after  having 
consulted  the  national  authorities  primarily  responsible  for  the  programme  implementation. 
Where  the  examination  of  the  allegations  leads  to  the  conclusion  that  Community  law  has 
been breached, this may lead to the opening of a financial correction procedure. 

As  indicated  in  the  2007  report365,  concerning  the  new  Council  Regulation  on  a  European 
Grouping of Territorial Cooperation (EGTC)366, which entered into force on 1 August 2006, 
Member States have been required to make provisions to ensure the effective application of 
the Regulation and to inform the Commission of these provisions. By the beginning of 2008, 
only six Member States had adopted national rules, against a regulatory deadline of 1 August 
2007. By the end of 2008 the Commission was officially informed of national rules adopted in 
another nine Member States. By the end of 2008, national rules and rules in all or most of the 
federal  entities  were  adopted  in  Germany  and  Belgium,  leaving  nine  Member  States  still  to 
adopt them. These results were achieved through political dialogue and cooperation with the 
national authorities without recourse to infringement procedures. 

11.1.2.2. Financial corrections 

Financial  corrections  by  the  Member  States  themselves367  and  by  the  Commission368  are 
applied where expenditure for a project is irregular or where there are serious deficiencies in 
the management and control system of the operational programme (under the Member States' 
responsibility)  which  has  put  at  risk  the  Community  contribution  paid  to  the  programme  at 
stake. In 2008 total financial corrections (ERDF and CF; periods 1994-1999 and 2000-2006) 
amounted  to  EUR  1  billion  (plus  EUR 518  million  for  the  ESF).  This  amount  is  a  marked 
increase on the EUR 288 million corrected in 2007369 due to the completion of the follow-up 
of  previous  audit  work  and  an  acceleration  of  financial  correction  procedures  under  the 
"Action  plan  to  strengthen  the  Commission's  supervisory  role  under  shared  management  of 
structural actions"370 (hereinafter referred to as "Action Plan"). 

11.1.2.3. Compliance assessment 

In order to improve the management and control of the 316 programmes  for  the 2007-2013 
period, the Member State authorities have to undertake an assessment of the description of the 

365 

366 

367 

368 

369 
370 

Section  10.2.2  on  p.  191  of  the  Commission  Staff  Working  Document  (SEC(2008)2854  of 
18 November 2008). 
Regulation (EC) No 1082/2006 of the European Parliament and of the Council on a European Grouping 
of territorial cooperation (OJ L 210, 31.7.2006, p. 19). 
Article 23 of Regulation (EEC) No 4253/88 for the 1994-1999 period; Article 39(1) of Regulation (EC) 
No  1260/1999  for  the  2000-2006  period;  Article  98  of  Regulation  (EC)  No  1083/2006  for  the  2007-
2013 period. 
Article 24 of Regulation (EEC) No 4253/88 for the 1994-1999 period; Article 39(3) of Regulation (EC) 
No 1260/1999 for the 2000-2006 period; Articles 99 to 100 of Regulation (EC) No 1083/2006 for the 
2007-2013 period. 
See Report on the implementation of the action plan; COM(2009)42 of 3 February 2009. 
COM(2008)97 of 19 February 2008. 

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national  management  and  control  system  per  programme  accompanied  by  an  independent 
report  giving  an  opinion  on  their  compliance  with  the  regulatory  requirements,  submitted 
before  the  first  intermediate  payment  can  be  made.  This  compliance  assessment  is  a  new 
element371  seeking  to  ensure  that  the  set  up  of  management  and  control  systems  is  in 
conformity  with  applicable  rules.  By  end  of  2008,  210  compliance  assessment  reports 
regarding national systems had been received (66% of the total due) by the Commission, of 
which 77 (37% of those received) were judged acceptable as of 31 December 2008. 

11.1.2.4. Audits 

In  2008  the  Commission  carried  out  64  on-the-spot  audits  concerning  ERDF  and  Cohesion 
Fund in 24 Member States focusing on management authorities not yet audited and the review 
of bodies responsible for the closure of the 2000-2006 programmes. Deficiencies uncovered 
typically concerned organisational problems in the systems themselves or breaches in public 
procurement  or  eligibility  rules.  The  outcome  of  these  audits  may  take  the  form  of  action 
plans  to  improve  performance,  and  possibly  also  suspension  of  payments  or  the  launch  of 
financial corrections procedures. 

11.1.2.5. Simplification 

Simplification of existing legislation is in itself an additional means to promote a reduction in 
errors and irregularities while reducing administrative burdens. In 2008, a simplification was 
introduced for certain revenue-generating projects372 waiving, on grounds of de minimis, the 
obligation to apply the detailed provisions to all ESF projects and to those ERDF projects the 
total cost of which stays below EUR 1 million. 

11.1.2.6. Comitology and cooperation with Member States 

In  2008,  twelve  documents  providing  technical  guidance  in  order  to  facilitate  the 
implementation of operational programmes and to encourage good practice(s) were prepared 
by the Commission and then presented, discussed and finalised during the monthly meetings 
of  the  Committee  for  the  Coordination  of  the  Funds  (COCOF)373,  although  this  Committee 
was formally only informed about these documents. 

In  addition,  the  Commission  took  the  initiative  to  organise  a  seminar  entitled  "Control  of 
structural  actions  –  meeting  the  challenge"  in  Brussels  in  June  2008374,  where  500  experts 
from the Member States participated. 

11.2.  Evaluation based on the current situation 

11.2.1.  Satisfactory or problematic nature of the current situation 

In  January  2005,  the  Commission  made  it  a  strategic  objective  to  strive  for  a  positive 
statement  of  assurance  (DAS)  from  the  European  Court  of  Auditors375.  To  make  progress 

371 
372 

373 
374 

Articles 71 and 72 of Regulation (EC) No 1083/2006. 
Council  Regulation  (EC)  No  1341/2008  of  18  December  2008  amending  Regulation  (EC)  No 
1083/2006 (…), in respect of certain revenue-generating projects (OJ L 348, 24.12.2008, p. 19). 
Article 103 of Regulation (EC) No 1083/2006. 
Organised together with Directorate General Employment, Social Affairs and Equal Opportunities; see 
section  5.1  of  the  "Report  on  the  implementation  of  the  action  plan"  (COM(2009)42  of  3  February 
2009). 

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towards  this  goal  it  introduced  an  Action  Plan  towards  an  Integrated  Internal  Control 
Framework376 and in 2008 adopted a specific Action Plan to strengthen its supervision in the 
structural  actions  area.  The  structural  actions  Action  Plan  addresses  both  the  causes  and 
effects of the high rate of error found by the European Court of Auditors in structural actions 
expenditure.  The  Commission's  focus  is  on  increasing  the  effectiveness  of  the  controls 
undertaken by the Member States and the audits of the Commission, in order to ensure that by 
the time the 2000 to 2006 programmes and projects are closed, the residual risk of error is as 
low  as  possible.  For  the  2007  to  2013  period,  the  preventive  actions  will  ensure  that  the 
Member  States'  systems  function  effectively  from  the  beginning  of  the  programme 
implementation or, failing this, that deficiencies are detected as early as possible. 

Against the background of a budget of EUR 38 billion p.a. for the period 2000 to 2006 (ca. 
33%  of  the  EU  budget)  and  currently  EUR 50  billion  p.a.  (ca.  36%  of  the  EU  budget),  the 
amount of financial corrections that have had to be made is relatively limited. 

On the other hand, concerning the EGTC Regulation, the fact that national rules were still not 
adopted in nine Member States at 31 December 2008, is regarded as unsatisfactory. 

11.2.2.  Importance of the impact of the identified problems on the objectives of the acquis 

Achieving the aims of cohesion policy in reducing geographical disparities of the programmes 
depends on effective implementation and requires that projects are selected and implemented 
correctly.  Moreover,  the  image  of  this  policy  is  negatively  affected  by  high  error  rates, 
especially  when  the  public's  attention  is  drawn  to  such  errors  when  the  yearly  DAS  is 
published and discussed in the media. Reduction of error rates is paramount and the planned 
actions set out below contribute to this overall priority. 

11.2.3.  Responsibility for the problems and their correction 

Under  shared  management,  the  Commission  is  responsible  for  the  execution  of  the 
Community  budget,  but  the  Member  States  are  responsible  for  the  implementation  of  the 
individual  projects.  Errors  and  irregularities  (which  in  practice  contain  very  few  cases  of 
fraudulent  behaviour)  concerning  the  projects  are  matters  outside  the  direct  control  of  the 
Commission. Member States are responsible at first instance to correct these errors (mainly by 
financial corrections on project level). The Commission makes sure, through its supervisory 
role, that the systems set up by the Member States function correctly and, in cases where the 
systems  are  dysfunctional  or  where  the  corrections  undertaken  by  Member  States  are  not 
sufficient, applies financial corrections on programme or - in the case of CF – project level. 

11.2.4.  Nature, urgency and scale of the corrective action required 

From the different actions realised in 2008, it is evident that the respect of the regional policy 
acquis  requires  actions  of  different  nature:  corrective  (financial  corrections,  action  plans, 
infringement  and  complaints  procedures),  preventive  (simplification  of 
the  acquis, 
compliance assessment, audits and controls, guidance notes, seminars) and informal/political 
(comitology, direct dialogue). 

375 
376 

See section 1 of the "Action Plan" (COM(2008)97 of 19 February 2008). 
COM(2006) 9 and SEC(2006) 49. 

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The implementation of the Action Plan focussing on measures to strengthen the supervision of 
the  correct  implementation  of  the  programmes  and  projects,  further  simplification  and  the 
finalizing  of  the  compliance  assessment  are  the  key  elements  in  order  to  reduce  as  far  as 
possible errors linked to the closure of the 2000 to 2006 programmes and to avoid as far as 
possible errors under the new programming exercise. 

Key actors linked to the Action Plan are the some 90 staff (out of a total of 800) in the service 
for  Audit  which  is  part  of  Commission  services  for  Regional  Policy  (i.e  more  than  10%). 
Financial  corrections  and  infringement/complaints  proceedings  involve  of  course  a  lot  of 
other  staff  in  the  Resources  Directorate,  the  "Legal  advice,  procedures"  unit  and  in  the 
operational units. Consequently, an important part of Regional Policy's staff is involved in the 
respect of the Regional Policy acquis in a broad sense compared to the few number of staff 
dealing with infringement and complaints procedures strictu senso. 

11.3.  Evaluation results 

11.3.1.  Priorities 

The  first  two  priorities  identified377  is  to  ensure  that  the  Community  cohesion  policy  is 
efficiently and effectively implemented on the ground and to provide support for the Member 
States in their efforts to deal with the impact of the financial and economic crisis. To this end, 
the Commission in the area of Regional Policy will seek to ensure through regular monitoring 
that Member States  and regions have established  the  appropriate  structures  for  management 
and control and will advise on measures to tackle weaknesses in administrative capacity for 
delivery, as well as provide appropriate support for setting up a sufficient stock of projects. 

11.3.2.  Planned action (2009 and beyond) 

11.3.2.1. Complaints and infringements 

The Commission services in the area of Regional Policy will continue to apply the EU PILOT 
system  and  to  follow  similar  procedures  with  those  Member  States  not  participating  in  EU 
PILOT. Involving national authorities in a very early stage of a complaint is important in this 
respect in a system of shared management of Community Funds. 

11.3.2.2. Financial corrections 

The  current  estimate  of  potential  financial  corrections  likely  to  result  from  the  financial 
correction procedures underway at the end of 2008 is approximately EUR 2.2 billion. 

11.3.2.3. Compliance assessment 

Concerning the 2007-2013 period, the compliance assessment exercise will be completed as 
fast  as  possible,  provided  the  Member  States  submit  the  first  documents  and  revised 
documents in due time. 

11.3.2.4. Audits 

In  terms  of  audit  and  control  activities,  the  Commission  services  will  ensure  the  full 
implementation  of  the  actions  carried  over  from  the  Action  Plan  to  strengthen  the 

377 

See section 3.2. 

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Commission's  supervisory  role  under  shared  management  of  structural  actions,  adopted  in 
February  2008,  including  any  updated  actions  decided  in  January  2009.  Overall,  it  will 
continue  to  seek  to  make  progress  towards  a  positive  declaration  of  assurance  (DAS)  on 
expenditure  under  Cohesion  policy  through  preventive  and  corrective  measures  focused  on 
the  closure  of  the  programmes  for  2000-2006,  and  the  start  up  of  the  programmes  for  the 
2007-2013  period.  Concerning  the  2000-2006  period,  the  follow-up  of  action  plans  and 
financial  corrections  as  well  as  the  completion  of  the  review  of  bodies  responsible  for  the 
closure  of  the  2000-2006  programmes  will  be  the  priorities  of  the  audit  Directorate. 
Concerning the 2007-2013 period, audits will be focused on the work of the audit authorities 
to  obtain  assurance  on  the  reliability  of  their  work,  and  a  representative  sample  of  projects 
will be audited to verify the functioning of the systems. 

11.3.2.5. Simplification 

The Commission services in the area of Regional Policy will also follow-up and contribute to 
the  "European  Action  Programme  on  the  reduction  of  administrative  burdens"  adopted  in 
January 2007 as part of the Better Regulation programme. The global target is to cut red tape 
for businesses by 25% by 2012 in the different policy areas. The Commission intends to make 
a  number  of  concrete  proposals  before  the  summer  of  2009.  Further  possibilities  for 
simplification  were  examined  with  Member  States  during  the  second  semester  of  2008 
introducing further simplification concerning the financial management of the Funds378, in the 
context of efforts to provide more support in face of the international financial crisis and to 
improve  the  effectiveness  of  the  delivery  system  of  cohesion  policy.  One  example  is  the 
simplification  of  eligibility  rules  to  allow  flat-rate  reimbursements  for  overheads,  an  area 
where  in  the  past  there  have  been  an  important  number  of  errors.  Further  simplification  is 
planned later on in 2009. 

11.3.2.6. Comitology and cooperation with Member States 

In  order  to  help  the  national  and  regional  authorities  with  implementation  a  number  of 
guidance  notes  were  presented  in  2007  and  2008.  A  small  number,  less  than  ten,  will  be 
presented to the Committee for the Coordination of the Funds (COCOF) in 2009. Due to the 
amendments to the legislation adopted in 2008 and early 2009, four guidance notes will have 
to be revised accordingly. 

Concerning  the  national  rules  on  the  EGTC  Regulation,  political  dialogue  and  cooperation 
with the national authorities will be continued as this approach has lead up to now to positive 
results. 

378 

Council Regulation (EC) No 284/2009 of 7 April 2009 amending Regulation (EC) No 1083/2006 (…) 
concerning certain provisions relating to financial management (OJ L 94, 8.4.2009, p. 10). 

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12. 

TAXATION AND CUSTOMS SERVICES 

12.1. 

Situation in the sector of CUSTOMS 

12.1.1.  Current position  

12.1.1.1. General introduction 

In  the  area  of  customs,  in  line  with  the  Communication379  on  a  strategic  review  of  better 
regulation in the European Union, and obviously of Communication380 on a better monitoring 
of the application of Community law, the attention is devoted to a better and simplified legal 
environment.  As  the  Commission  of  the  European  Communities  is  responsible  for  ensuring 
that Community law is correctly applied, measures have been taken aiming at enhancing the 
correct and uniform application of the customs community legislation.  

Considering that a clear commitment from Member States to apply Community rules in this 
way, as well as a closer cooperation between the Commission and the Member States are key 
elements of the process, the priority has been put on a preventive approach in order make all 
parties concerned working together. The result consisted in the set up of a new tool enabling a 
better monitoring of a  correct  and uniform  application of  Community Customs law, namely 
the multi-annual programme of monitoring the compliance of Customs legislation in different 
Member States. 

Existing measures in force: see Annex I 

12.1.1.2. Report of work done in 2008 

In 2008 the Court of Justice delivered 13 judgments related to customs, which represents a 
small increase from 2007 (9).  

Most of the Court's judgments in this area concerned references for preliminary rulings.  

The following cases were of particular relevance: 

In Case Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV 381 
the Court ruled that where an application for remission of import duties has been submitted to 
the Commission and the Commission has already adopted a decision containing assessments 
of fact and law in a particular case concerning import transactions, such assessments bind all 
the authorities of the Member State to which that decision was addressed, in accordance with 
Article 249 EC, including the courts which have to assess that case under Article 220 of the 
Code. The Court also held that, if the importer has, within the period prescribed in the fifth 
paragraph  of  Article  230  EC,  brought  an  action  for  annulment  of  a  decision  of  the 
Commission  in  respect  of  an  application  for  remission  of  import  duties  pursuant  to  Article 
239 of the Code, it is for the national court to decide whether to stay the proceedings until a 
definitive decision has been given in the action for annulment or to refer itself a question to 
the Court for a preliminary ruling as to validity. 

379 
380 
381 

COM(2006)689 of 14.11.2006 
COM(2002)725 of 16.05.2003 
Judgment of 20.11.2008, case C-375/07 

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In Case Militzer & Münch GmbH v Ministero delle Finanze382 the Court ruled that it is not 
contrary to the principle of proportionality to hold a customs clearance agent, in his capacity 
as principal, liable for a customs debt. 

In the case KIP383 on tariff classification of multifunction apparatus combining the functions 
of laser printer and a  digital electronic scanner module, with a copier function. This case is 
relevant because of the possible impact of the judgment by the European Court of Justice on 
the EC's defence before the WTO in the context of the Dispute Settlement case launched by 
the US, Japan and Taiwan against the European Communities. 

Volume of enquiries, complaints, infringements work and petitions, and prioritization among 
them 

Regarding the petitions treated in the customs area, none has been registered. 

As  regards  customs,  the  Commission  services  opened  its  own  investigations  regarding 
presumed  infringements.  This  resulted  in  a  number  of  8  presumed  infringements  and  9 
identified  ones.  Two  reasoned  opinion  (art  226)  have  been  sent.  Thus,  the  total  number  of 
infringement cases (17) is a little bit less than in 2007 and is less for reasoned opinions (11 in 
2007). 

During  2008,  12  opened  infringement  cases  were  filed  after  the  Member  States  concerned 
modified their legislation or administrative practice to comply with Community Law. 

Most of enquiries and complaints in this area relate to the application of Customs legislation 
in general. Priority has been given to those cases which reveal clear and serious infringements 
of Community legislation. In particular, emphasis was put on cases in which Member States 
had  allegedly  created  taxes  having  equivalent  effect  to  Customs  duties,  such  taxes  being 
prohibited by Article 23 of the EC Treaty. 

12.1.2.  Evaluation based on the current situation 

•  The Modernised Community Customs Code (MCCC) was adopted on 23 April 2008.  

Regulation  (EC)  No  450/2008  of  23  April  2008  laying  down  the  Community  Customs 
Code (Modernised Customs Code) and entered into force on 24 June 2008. 

However, it should be noticed that its application is linked to the adoption of the related 
Implementing provisions, foreseen to be enacted no later than 24 June 2013.  

Implementing the MCCC constitutes a comprehensive exercise, going beyond the drafting 
and  adoption  of  implementing  provisions,  and  includes  in  particular  the  development  of 
the necessary IT applications within the framework of the e-Customs Decision. 

•  Decision No 70/2008/EEC of 15 January 2008 on a paperless environment for customs and 
trade (the so-called 'e-Customs Decision'). The e–Customs Decision entered into force on 
15 February 2008. It  covers electronic customs systems to be set up and operated by the 
Commission and the Member States, in particular but not only with a view to supporting 

382 
383 

Judgment of 03.04.2008, cases C-230/06 
Judgment of 11.12.2008, cases C-362/07 and C-363/07 

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the  implementation  of  both  the  current  Community  Customs  Code  and  the  Modernised 
Customs Code. 

•  Commission Regulation (EC) No 1192/2008 of 17 November 2008 amending Regulation 
(EEC) No 2454/93 laying down provisions for the implementation of Council Regulation 
(EEC) No 2913/92 establishing the Community Customs Code.  

This  regulation  reinforces  the  harmonization  of  Simplified  procedures  in  setting  up  a 
system of single authorisations for the simplified procedures. 

12.1.3.  Evaluation results 

12.1.3.1. Priorities 

As  far  as  Customs  are  concerned,  the  situation  has  not  significantly  changed  regarding 
infringements and references to the Court, therefore, priorities set for 2008 remain unchanged 
for  2009.  Considering  that  the  global  volume  of  infringements  and  complaints  remains 
relatively  stable  with  previous  years,  and  that  this  trend  is  likely  to  be  stable  in  2009,  no 
specific action regarding prioritization should be envisaged.  

12.1.3.2. Planned action (2009 and beyond) 

Given the evaluation of the current situation, a specific planning is not required. Nevertheless, 
it should be considered that the fact that volume has not increased does not necessarily mean 
that the situation is satisfactory and that legislation is evenly correctly applied. For instance, 
Economic operators or citizens might face problems when measures are implemented at the 
last moment, but, for various reasons, they do not report to our services. In this view, a pro-
active and horizontal approach has been adopted. 

In  order  to  be  in  line  with  the  Commission's  Communication.  A  strategic  review  of  Better 
Regulation  in  the  European  Union384,  the  focus  is  put  on  ensuring  that  Member  States 
orientate  their  efforts  towards  a  correct  and  uniform  application  of  Community  customs 
legislation. The adopted strategy is based on a closer cooperation with Member States and the 
outlook  is  oriented  towards  the  set  up  of  new  tools  enabling  a  better  monitoring  of  the 
application of Community Customs law. With this end in view, a multi-annual programme of 
monitoring the compliance of Customs legislations in the whole community territory has been 
set up and developed in 2008. 

Another way of improving the correct application of the customs legislation is the increased 
use  of  IT.  Thus,  in  the  recent  years,  customs  have  developed  electronic  tools  referred  to 
usually  as 
'e-Customs'.  The  impact  of  the  computerisation  requires  indeed  both  a 
harmonisation and a standardisation of procedures that could ultimately contribute to a better 
application.  

384 

COM(2006) 689 of 14.11.2006 

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12.2. 

Situation in the sector of INDIRECT TAXATION 

12.2.1.  Current position 

12.2.1.1. General introduction 

Establishing  an  internal  market  supposes  the  application  in  Member  States  of  legislation  on 
indirect  taxation  that  does  not  distort  competition  neither  free  movement  of  goods  and 
services. 

Therefore  it  is necessary to achieve harmonisation  of  legislation in  line  with the changes in 
our  economy  by  means  of  proposals  for  new  directives  although  that  achievement  is  often 
compromised by the rule of unanimity.  

Main  existing  measures  in  force  (situation  on  31/12/2008)  :  see  Annex  I  for  a  complete 
overview 

12.2.1.2. Report of the work done in 2008  

Management of the acquis through committees and expert groups 

-  The  VAT  Committee,  an  advisory  committee  set  up  by  Article  398  of  the  VAT  Directive 
2006/112/EC  of  28  November  2006,  has  competence  to  examine  questions  raised  by  the 
Commission  or  the  representatives  of  the  Member  States,  which  concern  the  application  of 
Community  provisions  on  VAT.  At  least  twice  a  year,  the  VAT  Committee  examines 
questions raised on the interpretation of the existing VAT legislation. When an agreement can 
be reached on a common interpretation of a provision concerning VAT, the Council can adopt 
unanimously,  on  a  proposal  from  the  Commission,  the  necessary  implementing  measures 
which are required. 

- In the field of administrative cooperation in the field of VAT, several expert groups, funded 
through  the  Fiscalis  2013  budget,  discussed  specific  problems  that  are  either  related  to 
specific  fraud  problems  or  targeted  at  exchanging  best  practises  or  enhancing  cross  border 
administrative cooperation. These groups dealt with multilateral controls, e-auditing, second 
hand cars, importation fraud, risk management, etc. 

-  In  addition,  the  anti  tax  fraud  strategy  (ATFS)  expert  group,  created  in  2007,  discussed 
possible solutions to fight VAT fraud more efficiently. These discussions have paved the way 
for legislative initiatives from the Commission presented in 2008 as well as for those planned 
for 2009. 

Enquiries, problems and complaints management, management of infringements, petitions  

- Within the area of indirect taxation, the criteria of prioritisation were fixed in line with the 
Communication  of  the  Commission  of  2002  on  the  improvement  of  the  control  of  the 
application of the Community legislation. The Commission has increased its efforts to ensure 
alignment  of  Member  States'  indirect  tax  legislation  with  the  requirements  of  primary  and 
secondary Community law, by intensifying its infringement action following the adoption of 
new Directives and by pursuing a more targeted infringement approach in support of ongoing 
policy initiatives such as the Commission's initiative on tax policy coordination. Infringement 
procedures  affecting  the  Community  own  resources  and  specific  infringement  procedures 
related to VAT on postal services, travel agents and reduced VAT rates were launched in this 
context. 

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   EN 

In  the  Commission  Communication  'A  Europe  of  results-Applying  Community  law'385,  the 
Commission  decided  on  the  introduction  of  a  arrangement  for  monthly  decision-taking  to 
allow  for  the  quicker  progress  of  infringement  cases.  The  results  of  this  new  decisional 
method were particularly significant within this domain where considerable efforts were made 
in order to carry out the objective laid down by the Commission. 
Another important element of the Commission Communication was the starting up of a pilot 
project  to  test  and  improve  working  methods  between  Commission  services  and  Member 
States on information exchange and problem solving. 
Although  the  management  of  cases  within  this  area  might  not  be  as  representative  and 
relevant  for  the  overall  functioning  of  the  EUPILOT,  we  already  noticed  that  so  far  some 
Member States seemed to be complying/ responding quickly, others needed to be stimulated 
several  times  before  undertaking  any  action,  although  it  has  to  be  stressed  that  (factual) 
indirect taxation issues are often very complex and in many factual cases we have to refer the 
applicant to the national Court.  

Factual cross-frontier disputes on the other hand were in most cases successfully referred to 
the SOLVIT system as value added network for problem solving. 

Within  the  area  of  indirect  taxation,  2008  was  another  successive  year  with  an  increasing 
number  of  infringement  cases,  closed  after  bringing  their  legislation  into  conformity  with 
Community Law by the Member States during the different steps of the 226-procedure, and a 
considerable input related to new Court cases. The following cases merit extra attention : 

In  the  judgments  in  the  cases  Commission  v.  Italy386,  the  Court  censures  as  unlawful  the 
general  and  indiscriminate  waiver  of  verification  of  transactions  taxable  for  VAT  purposes 
effected in a series of tax years, by which the Italian Republic has failed its obligations under 
the Sixth VAT Directive and the general principle of cooperation in good faith.  

In  the  case  Commission  v.  Portugal387,  the  Court  considered  that  in  the  context  of 
infringement proceedings against a Member State, that State cannot validly plead 'res judicata' 
in the light of an earlier judgment where the subject-matter of case in question and that of the 
earlier  case  are  different.  In  this  particular  case  it  cannot  be  authorised  to  reintroduce  a 
reduced rate of value added tax applicable to road tolls for a crossing. 

In the case Isle of Wight Council a.o.388, the Court declared that regarding the harmonisation 
of  the  laws  of  the  Member  States  relating  to  turnover  taxes  (VAT),  the  uniform  basis  of 
assessment is to be interpreted as meaning that the significant distorsions of competition, to 
which  treatment  as  non-taxable  persons  of  bodies  governed  by  private  law  acting  as  public 
authorities  would  lead,  must  be  evaluated  by  reference  to  the  activity  in  question,  as  such, 
without such evaluation relating to any local market in particular. 

Finally some cases Koninklijke Ahold NV and Royal Bank of Scotland Group plc 389 regard the 
rules and methods of rounding amounts of value added tax, to be in line with the principles of 
fiscal neutality and proportionality .  

385 
386 
387 
388 
389 

COM(2007)502 
Judgments of 17.07.2008 and 11.12.2008, cases C-132/06 and C-174/07 
Judgment of 12.06.2008, case C-462/05 
Judgment of 16.09.2008, case C-288/07 
Judgments of 10.07.2008 and 18.12.2008, cases C-484/06 and C-488/07 

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-  Regarding  the  petitions  treated  in  the  area  of  indirect  taxation,  the  most  recurrent  issues 
concerned various aspects of taxation of cars. 

New  legislation  in  preparation  or  already  proposed  and  in  the  course  of  being  adopted, 
impact  assessments  and  implementation  plans  being  developed  in  connection  with  new 
proposals, etc. 

Value added tax (VAT) 

The Commission adopted in 2008 a proposal for a directive amending Directive 2006/112/EC 
as  regards  reduced  rates  of  value  added  tax,  so  as  to  provide  Member  States  with  the 
flexibility to apply reduced VAT rates for some specific services on a permanent basis. The 
Commission proposal covers areas where there is sufficient evidence that reduced rates do not 
create problems for the proper functioning of the Internal Market. The sectors concerned are 
mainly so called labour-intensive services and locally supplied services, including restaurant 
services. A political agreement was reached in the Council on 10 March 2009 and the final 
text of the directive will soon enter into force. 

A  new  Council  Directive  2008/117/EC  amending  Directive  2006/112/EC  on  the  common 
system  of  value  added  tax  to  combat  tax  evasion  connected  with  intra-Community 
transactions  and  Council  and  a  Council  Regulation  37/2009  amending  Regulation  (EC)  No 
1798/2003 on administrative cooperation in the field of value added tax, in order to combat 
tax  evasion  connected  with  intra-Community  transactions  were  adopted  on  16  December 
2008.  As  a  consequence  both  the  reporting  period  for  the  recapitulative  statement  and  the 
period  for  the  exchange  of  the  information  between  Member  States  are  shortened  from  3 
months to 1 month. 

On  1  December  2008  the  Commission  also  adopted  a  proposal  for  a  Council  Directive 
amending  Directive  2006/112/EC  on  the  common  system  of  value  added  tax  as  regards  tax 
evasion linked to import and other cross-border transactions, proposing to introduce new rules 
on cross border joint and several liability (COM(2008)805 final).  

Excise duties  

In the area of excise duties, Council Directive 2008/118/EC of 16 December 2008 concerning 
the general arrangements for excise duty and repealing Directive 92/12/EEC was adopted. Its 
Article 48 provides that Member States shall adopt and publish, not later than 1 January 2010, 
the  laws,  regulations  and  administrative  provisions  necessary  to  comply  with  this  Directive 
with  effect  from  1  April  2010.  As  a  consequence,  the  control  of  the  transposition  of  the 
Directive into national legislation will have to take place in 2010. 

The Commission has presented on 16 July 2008 a report and a proposal for a new Council's 
Directive amending Council directive 95/59/EC, 92/79/EEC and 92/80/EEC on the structure 
and  the  rates  of  excise  duty  applied  to  manufactured  tobacco  (COM(2008)  459  final  - 
2008/0150  (CNS)).  The  objectives  of  the  proposal  are  to  improve  the  functioning  of  the 
Internal  Market,  contribute  to  a  high  level  of  health  protection  and  modernise  the  current 
arrangements.  

Energy taxation 

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   EN 

In line with its 2008 Legislative and Work Programme390 and with the invitation by the 2008 
Spring  European  Council391,  the  Commission  has  been  preparing  a  revision  of  Directive 
2003/96/EC  ("the  Energy  Taxation  Directive")  to  better  combine  fiscal  and  environmental 
goals.  The  Commission  will  present  the  proposal  in  2009.  In  the  course  of  2008,  the 
negotiations continued on the 2007 proposal revising certain elements of Article 7 of Council 
Directive  2003/96/EC  (the  so  called  "commercial  diesel  proposal")392,  both  in  the  Council 
working group393 and in the European Parliament.  

The European Parliament delivered positive opinion on the Proposal on 13 March 2008394. 

Tax exemption to permanent introduction of the personal property of individuals 

A  proposal  for  a  Council  Directive  on  tax  exemption  applicable  to  permanent  introduction 
from  a  Member  State  of  the  personal  property of  individuals  (Codified  version  of  Directive 
83/183/EEC) has been adopted by the Commission (COM(2008) 376), and has been discussed 
in  the  Council  's  Working  Party  on  codification  of  legislation.  The  text  was  finalised  in 
October  2008  and  was  sent  to  all  Member  State  Delegations  for  final  approval.  After  its 
approval by Member  States  the  text  needed to be finalised by lawyer-linguists and this was 
not possible to be completed by end of 2008. Therefore, the codified version of the Directive 
is to be adopted by COREPER and the Council in the course of 2009. 

Recovery of taxes 

In  2008,  the  Commission  prepared  a  proposal  for  a  new  Directive  concerning  mutual 
assistance  for  the  recovery  of  taxes  and  other  duties.  (The  proposal  was  not  yet  adopted  in 
2008). 

Preventive measures being taken in relation to recently adopted new legislation – conformity 
assessment  of  national  transposition,  transposition  package  meetings,  development  of 
guidelines, initiation of networking systems to manage the new legislation, etc. 

Value added tax (VAT) 

-  Directive  2008/8/EC  amending  Directive  2006/112/EC  as  regards  the  place  of  supply  of 
services, adopted on 12 February 2008, has been discussed in the VAT Committee which is 
chaired  by  the  Commission.  The  Commission  also  organised  a  seminar  under  the  Fiscalis 
Programme to examine together with participants from all Member States certain aspects of 
the new rules.  

- Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund 
of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established 
in  the  Member  State  of  refund  but  established  in  another  Member  State  has  also  been 
discussed  in  the  VAT  Committee.  Furthermore,  a  Fiscalis  seminar  was  organised  in 
Stockholm to prepare the implementation of the Directive from a legal, organisational and IT 

390 
391 
392 
393 
394 

COM (2007) 640 of 23 October 2007 
European Council 13/14 March 2008, Presidency conclusions (7652/08) 
COM (2007) 52 
The last meeting of the Council working group was during the French Presidency on 16 June 2008 
The rapporteur was Mr. Schmidt (ALDE-SE) 

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point of view. The functional and technical specifications of this, entirely electronic, system 
have been discussed and agreed via the organisation of several Fiscalis workshops. 

Traveller allowances 
Council Directive 2007/74/EC of 20 December 2007 on the exemption from value added tax 
and  excise  duty  of  goods  imported  by  persons  travelling  from  third  countries  entered  into 
force  on  29  December  2007.  Member  States  brought  into  force  the  laws,  regulations  and 
administrative  provisions  necessary  to  comply  with  Articles  1  to  15  of  this  Directive  with 
effect from 1 December 2008.  

Excise duties  

In  the  area  of  excise  duties,  it  is  foreseen  to  present  the  main  changes  brought  about  by 
Council  Directive  2008/118/EC  of  16  December  2008  concerning  the  general  arrangements 
for excise duty and repealing Directive 92/12/EEC to the Committee on Excise Duties at its 
next  meeting  in  May  2009.  Furthermore,  Member  States  will  be  asked  at  that  meeting  to 
inform the Commission of the use they intend to make of optional provisions relating to the 
EMCS  (Excise  Movement  and  Control  System),  for  which  the  Directive  provides  a  legal 
basis. Further discussions in the Committee or in a Working Group on the transposition of the 
Directive can be envisaged, prior to the entry into application of the Directive, if required by 
the Member States. 

12.2.2.  Evaluation based on the current situation 

It is important to recall that unanimity is and will remain the rule for the adoption (and thus 
the  adjustment)  of  the  texts  towards  harmonization  in  the  field  of  taxation.  This  situation 
undeniable makes harmonization by the legislative way more complex and often leads to the 
granting of options to Member States that are badly defined. 

In  this  respect,  the  proposal  for  a  Directive  of  5  July  2005395  which,  inter  alia,  includes  the 
abolition of registration taxes and would consequently bring to an end the current obligation, 
for the European citizens, to pay again a registration tax for their vehicle when they change 
residence, could not be adopted. 

Hence,  the  infringement  policy  constitutes  a  major  instrument  to  contribute  in  a  non-
negligible  way  to  uniform  application  and  thus  towards  harmonization  simplifying  the 
situation for taxpayers. 

The overall situation in the area of indirect taxation is changing as infringement action and 
references to the Court have steadily increased in recent years – partly due to the enlargement 
of the EU - and this trend is still likely to continue. The key challenges will be to manage this 
increase  in  activity  with  the  available  resources  and  to  achieve  correct  application  of 
Community law in this area within acceptable deadlines. The position needs to be monitored 
continuously. 

A  number  of  measures  have  already  been  taken  to  improve  the  situation  and  to  rationalize 
action. This includes a more strategic approach to infringement action by focusing on specific 
priorities  and  adopting  a  more  horizontal  approach  to  similar  infringements  in  different 
Member States. In addition, a lot of emphasis is put on prevention by better co-ordinating the 
preparation of national legislation translating Community legislation into national law. 

395 

COM (2005) 2641 final 

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Finally, it is welcomed that during 2008, 51 infringement cases have been closed because the 
Member States concerned decided to bring their legislation into conformity with Community 
Law  without  any  referral  to  the  Court  of  Justice.  These  figures  reveal  clearly  that  the 
alignment of Member States' legislation with Community law is being achieved through the 
work done by the Commission and Member States in the context of infringement proceedings 
following  the  adoption  of  new  directives.  As  stated  in  its  2007  Communication,  the 
Commission has started to work with Member States to try to ensure quicker results without 
recourse to infringement proceedings always being necessary. 

12.2.3.  Evaluation results 

12.2.3.1. Priorities  

Although  the  good  figures  for  notification  regarding  the  transposition  of  the  existing 
secondary Community Law, our existing pro-active infringement policy and prioritisation of 
specific issues should be maintained and further developed as a strategy in order to persuade 
Member  States  to  approve  ongoing  legislative  proposals  and  mostly  to  try  to  push  back  the 
increasing number of complaints year after year. 

On the control of the implementation of Directives, the implementing national provisions have 
been checked routinely by the officials responsible for the follow-up of national legislation. 
However, the introduction of an obligation for the Member States to provide systematically, 
for each directive, correlation tables to the Commission services would increase transparency 
and  user-friendliness  of  national  legislation,  would  facilitate  the  dialogue  with  the 
Commission on transposition of single market directives and could represent a useful tool for 
both administrations and stakeholders.  

A second priority concerns the Community own resources. Those resources within the area of 
indirect  taxation  are  to  include  those  acruing  from  VAT  and  are  obtained  through  the 
application of a uniform rate of tax to bases of assessment determined in a uniform manner 
and  in  accordance  with  Community  rules.  Infringements  with  a  possible  impact  on  own 
resources are mostly initiated by cases detected through own investigation. Their purpose is to 
take  care  of  the  equal  treatment  of  the  Member  States  vis-a-vis  their  contribution  to  the 
Community own resources.  

A third pillar regarding the prioritisation policy within the domain of indirect taxation, is that 
the Commission has increased its efforts to ensure alignment of Member States' indirect tax 
legislation with the requirements of primary and secondary Community law, by intensifying 
its  infringement  action  following  the  adoption  of  new  Directives  and  by  pursuing  a  more 
targeted infringement approach in support of ongoing policy initiatives. 

Lastly, in the field of car taxation, object of many complaints and petitions, the Commission 
uses article 90 of the EC Treaty as interpreted by the Jurisprudence of the Court of justice, to 
take  care  that  the  Member  States  do  not  tax  in  a  discriminatory  way,  at  the  time  of 
registration, the second-hand vehicles bought in the other Member States. 

For  indirect  taxation  issues,  the  Commission  opened  211  new  infringement  cases  134  of 
which  related  to  VAT,  35  related  to  excise  duties  and  42  regarding  car,  energy  and 
environmental taxation. 

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During 2008, 51 opened infringement cases were closed after Member States modified their 
legislation and therefore complied with Community Law; most of the time we had to refer the 
case to the Court of Justice before compliance was achieved. 

Both the enlargement and the strategic objectives adopted by the Commission for the period 
2005-2009, were thus for another successive year reflected both in a considerable number of 
infringement cases and a considerable input related to new Court cases. During the year 2008, 
the Court of justice has delivered 29 judgments related to indirect taxation (26 in the domain 
of  VAT  and  3  regarding  other  indirect  tax  issues),  mostly  judgments  in  consequence  of  a 
preliminary question in pursuance of which the Commission has given its advice. 

The  volume  of  petitions  in  the  different  sectors  falling  within  the  competences  of  the 
Commission  services  in  this  area  is  relatively  moderate  and  stable  (28  new  petitions  have 
been introduced in 2008). 

12.2.3.2. Planned action (2009 and beyond)  

One of the specific objectives planned for the mid-term is to create a simpler and transparent 
tax  environment  for  individuals,  SME's  and  other  businesses  in  cross-border  transactions 
through the control of the application of Community law, modernisation, better coordination 
and harmonisation of tax systems in the Internal Market. 

Since VAT has been identified as causing a high level of administrative burden for business, 
the  Commission  is  seeking  to  book  results  in  simplifying  and  rationalising  the  VAT 
legislation.  The  'production'  of  legislative  proposals  are  likely  to  reduce  the  administrative 
burden. 

In  order  to  ensure  Member  States'  compliance  with  EU  law,  and  as  a  result  of  targeted 
monitoring,  the  number  of  infringement  procedures  that  could  be  closed  in  2008,  should  be 
kept  as  a  reference  for  the  year  2009  and  beyond.  If  the  number  of  infringements  remains 
stable, an increase in the number of closed cases is envisaged. 

12.3. 

Situation in the sector of DIRECT TAXATION 

12.3.1.  Current position  

12.3.1.1. Existing measures in force 

See Annex I 

12.3.1.2. Report of work done in 2008 

Volume of enquiries, complaints, infringements work and petitions, and prioritization among 
them 

In the area of direct taxation, the objectives adopted by the Commission for the period 2005 - 
2009,  were  yet  again  reflected  in  an  increasing  number  of  infringement  cases  (almost  35% 
more than in 2007) and increased input into new Court cases. As in previous years, the main 
focus  in  2008  was  on  breaches  of  Community  law,  in  particular  those  concerning  the 
application of the Treaty freedoms in respect of differential treatment of domestic and cross-
border  situations.  In  addition,  infringement  action  was  targeted  at  those  areas  where  the 
Commission sees scope for co-ordination of Member States' direct tax systems, as highlighted 
in  the  2006  Communication  on  Co-ordinating  Member  States'  direct  tax  systems  in  the 

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Internal  Market.  In  this  respect,  priority  was  in  particular  given  to  infringement  cases  in 
respect  of  exit  tax  rules  on  individuals  and  companies  (7  new  cases  opened  in  2008)  and 
discriminatory tax treatment of foreign charities (12 new cases in 2008). 

In  2008  the  Court  of  Justice  delivered  25  judgments  related  to  direct  taxation.  Most  of  the 
Court's  judgments  in  this  area  (21)  concerned  references  for  preliminary  rulings.  The 
following cases were of particular relevance: 

In  Lidl  Belgium  GmbH  &Co  KG396,  the  Court  held  that  the  non-deductibility  of  losses 
incurred  by  a  permanent  establishment  in  another  Member  State  constitutes  a  restriction  on 
the  freedom  of  establishment,  but  that  such  a  restriction  may  be  justified  by  the  need  to 
prevent a double deduction of losses. With reference to its judgment in Marks & Spencer (C-
446/03), the Court stressed that a measure which restricts the freedom of establishment goes 
beyond what is necessary to attain the objectives pursued where a non-resident subsidiary has 
exhausted  all  possibilities  to  offset,  carry  forward  or  carry  back  the  losses  incurred  in  the 
Member State where it is situated. 

In  Krankenheim  Ruhesitz  am  Wannsee-Seniorenheimstatt397  the  Court  ruled  that  a  Member 
State which grants relief for losses incurred by a permanent establishment in another Member 
State  may  provide  for  a  rule  to  recapture  such  relief  when  that  permanent  establishment 
generates  profits  in  subsequent  years.  The  Court  held  that  the  German  rule  in  issue  was 
justified  by  the  need  to  ensure  the  coherence  of  the  German  tax  system,  since  there  was  a 
direct and personal link between the deduction of the losses and the recapture in subsequent 
tax years.  

In Eckelkamp398 and Arens-Sikken399 the Court held that inheritance tax rules which provided 
for a less favourable treatment of cross-border inheritances, as a result of the non-deductibility 
of related debts for the purpose of determining the assessment base for taxation, constituted a 
restriction on the free movement of capital.  

In Société Papillon400 the Court held that the French rules, under which a resident company 
could  not  consolidate  with  its  French  lower-tier  subsidiaries  held  through  a  non-resident 
intermediary company, resulted in a different treatment of cross-border and purely domestic 
situations. The Court held that this constituted a restriction on the freedom of establishment 
which could not justified by the need to ensure a balanced allocation of taxing powers, as the 
case concerned the taking into account of losses within a single Member State, or by the need 
to safeguard the coherence of the French tax system . 

Regarding the petitions in the direct tax area, most petitions relate to possible infringements 
of  Treaty  freedoms  and  instances  of  double  taxation  due  to  the  simultaneous  application  of 
different Member State tax laws.  

As regards direct taxation, 143 new infringement cases have been opened in 2008, a marked 
increase from 2007 (almost 35%). 

396 
397 
398 
399 
400 

Judgment of 15.05.2008, case C-414/06 
Judgment of 23.10.2008, case C-157/07 
Judgment of 11.09.2008, case C-11/07 
Judgment of 11.09.2008, case C-43/07 
Judgment of 27.11.2008, case C-418/07 

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During 2008, 34 opened infringement cases were closed after the Member States concerned 
modified their legislation to comply with Community Law. 

• 

In view of the lack of secondary Community legislation in the direct tax area, the majority 
of  enquiries  and  complaints  in  this  area  (a  total  volume  of  303  in  2008)  relate  to  the 
application  of  the  fundamental  Treaty  freedoms  in  respect  of  differential  treatment  of 
domestic and  cross-border  situations. They therefore fall mainly  into the second priority 
category  of  the  Communication  COM(2007)  502  concerning  'breaches  of  Community 
law,  raising  issues  of  principle  or  having  particularly  far-reaching  negative  impact  for 
citizens, such as those concerning the application of Treaty principles (..)'.  

•  Judging  from  the  ever  increasing  number  of  enquiries,  complaints  and  references  for 
preliminary rulings in the direct tax area, the external interest in this area is substantial and 
growing.  Given  the  lack  of  progress  toward  positive  integration,  which  is  at  least  partly 
due  to  the  unanimity  requirement  in  tax  matters,  this  trend  is  likely  to  continue  and 
intensify over the coming years. 

•  Priority  is  given  to  those  cases  which  reveal  clear  and  serious  infringements  of 
Community law that prevent EU citizens and enterprises from making use of their rights 
to establish themselves or invest in other Member States. Moreover, particular attention is 
paid to those areas where the Commission sees scope for co-ordination of MS' direct tax 
systems,  as  highlighted  in  the  2006  Communication  on  Co-ordinating  Member  States' 
direct  tax  systems  in  the  Internal  Market  (COM(2006)823  of  19.12.2006)  and  the 
subsequent  specific  communications  on  cross-border  losses,  exit  taxes  and  anti-abuse 
rules.  In  addition,  work  on  the  current  priority  areas  (including  taxation  of  cross-border 
dividend payments and cross-border pensions) will continue.  

The volume of petitions in the direct tax area is relatively moderate and stable (19 petitions in 
2008).  

Recently adopted measures requiring additional work 

There are no recently adopted measures in the direct tax area which require additional work. 

New measures requiring transposition work 

Regarding direct taxation, no new measures are envisaged for 2009. 

12.3.2.  Evaluation based on current situation 

The situation in the direct tax area is changing as the infringement action and the number of 
references to the Court has increased in recent years and this trend is likely to continue. The 
key  challenges  are  to  manage  this  increase  in  activity  and  to  achieve  correct  application  of 
Community law in this largely unharmonised area. 

A number of measures have already been taken to try and improve the situation. This includes 
a more strategic approach to infringement action in this area by focusing on specific priorities 
and adopting a more horizontal approach to similar infringements in different Member States. 

Moreover, the Commission is encouraging Member States to take a more pro-active approach 
to removing existing tax obstacles by examining the scope for co-ordination of MS' direct tax 
systems. As outlined in the 2006 Communication on Co-ordinating Member States' direct tax 
systems in the Internal Market (COM(2006)823 of 19.12.2006), the aim of this initiative is to 
ensure  that  national  tax  systems  comply  with  Community  law  and  interact  coherently  with 
each other. The initiative seeks to remove discrimination and double taxation for the benefit 

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of  individuals  and  business  while  preventing  tax  abuse  and  erosion  of  the  tax  base. 
Coordinated  solutions  could  help  to  remove  discrimination  and  eliminate  remaining  tax 
obstacles to cross-border activity and thus help to reverse the trend of increased litigation by 
taxpayers in national courts and the ECJ.  

12.3.3.  Evaluation results 

12.3.3.1. Priorities 

As far as direct taxation is concerned, the priorities set for 2008 remain unchanged for 2009. 

12.3.3.2. Planned action (2009 and beyond) 

Given the evaluation of the current situation, continued and intensified infringement action is 
envisaged in the direct tax area. 

Common Consolidated Corporate Tax Base (CCCTB) 

In  the  medium  term,  adoption  by  the  Council  of  the  planned  legislative  proposal  for  a 
Common  Consolidated  Corporate  Tax  Base 
require  substantial 
implementation/  transposition  by  Member  States  and  conformity  assessment  by  the 
Commission  possibly  combined  with  expert  group/  committee  meetings  to  manage  the 
application of the measure. Once adopted and implemented, CCCTB would reduce the scope 
for cross-border restrictions and thus result in a decrease in infringements in the corporate tax 
area.  

(CCCTB)  would 

Amendment Savings Directive401 

The  European  Commission  on  13  November  2008  adopted  an  amending  proposal  to  the 
Savings Taxation Directive,  with  a  view to closing  existing  loopholes and better preventing 
tax evasion. The Commission proposal seeks to improve the Directive, so as to better ensure 
the  taxation  of  interest  payments  which  are  channelled  through  intermediate  tax-exempted 
structures.  It  is  also  proposed  to  extend  the  scope  of  the  Directive  to  income  equivalent  to 
interest  obtained  through  investments  in  some  innovative  financial  products  as  well  as  in 
certain  life  insurance  products.  Adoption  by  the  Council  would  require  substantial 
implementation  by  Member  States  and  conformity  assessment  by  the  Commission  possibly 
combined with committee meetings to manage the application of the measure. 

13. 

EDUCATION AND CULTURE 

13.1.  Current position 

13.1.1.  General introduction 

13.1.1.1. Education and vocational training 

The  main  legal  provision  applicable  is  article 12  of  the  Treaty,  establishing  the  principle  of 
prohibition of any discrimination on grounds of nationality within the scope of application of 

401 

Directive 2003/48/EC on taxation of income from savings (OJ L 157 p 38 of 26.06.2003) 

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the Treaty402. Taken together, the Court’s case law, based on Articles 12, 17, 18, 149 and 150 
EC  can  be  considered  to  underpin  the  free  movement  of  students  as  a  self-standing  area  of 
Community  law.  On  that  basis,  a  student  who  moves  from  his  Member  State  of  origin  to 
another to carry out all or part of his/her studies, is protected not only against discrimination 
on grounds of nationality in the second Member State, but also against prejudicial treatment in 
his/her Member State of origin on grounds (directly or indirectly) related to the fact that s/he 
has studied abroad. This new standard finds its application, e.g., when a student asks his/her 
own Member State for the portability of a grant or scholarship in order to continue studying in 
another Member State403. 

In  secondary  legislation,  there  are  no  specific  binding  Community  acts  in  the  field  of 
education, in the light of Article 149, paragraph 4, of the Treaty: 

«In  order  to  contribute  to  the  achievement  of  the  objectives  referred  to  in  this  Article,  the 
Council, acting in accordance with the procedure referred to in Article 251, after consulting 
the Economic and Social Committee and the Committee of the Regions, shall adopt incentive 
measures, excluding any harmonisation of the laws and regulations of the Member States.» 

Article  150,  paragraph  4,  of  the  Treaty,  related  to  vocational  training  contains  a  similar 
provision. 

Nevertheless,  secondary  legislation  adopted  on  the  basis  of  other  articles  of  the  Treaty 
includes  provisions  concerning  students.  An  important  example  is  Directive  2004/38/EC  of 
the  European  Parliament  and  of  the  Council  on  the  right  of  citizens  of  the  Union  and  their 
family members to move and reside freely within the territory of the Member States. Students 
are  an  important  category  of  citizens  moving  between  Member  States  and  the  Directive 
contains  key  provisions  related  to  students  on,  for  example,  rights  of  residence  for  students 
legally  enrolled  for  education  or  vocational  training,  and  on  equal  treatment  of  EU  citizens 
with specific rules on social assistance and maintenance grants. Directive 2005/36/EC of the 
European  Parliament  and  of  the  Council  on  the  recognition  of  professional  qualifications  is 
also  important  for  the  recognition  of  academic  qualifications,  given  that  academic 
qualifications are very often used directly for professional purposes. 

13.1.1.2. Sport 

In the area of amateur sport, the Commission considers amateur sport to be a social advantage 
in  the  context  of  the  free  movement  of  workers.  According  to  Article  7(2)  of  Regulation 
(EEC)  1612/68404,  migrant  workers  have  to  be  treated  equally  with  nationals  of  the  host 
country  concerning  access  to  employment,  as  well  as  working  conditions  and  social 
advantages. The Court has held that these cover non financial advantages, in particular those 
which would facilitate their integration into the host Member State. 

402 

403 
404 

The  Court  of  Justice  has  held  that  the  field  of  education  is  among  those  included  in  the  scope  of  the 
Treaty  under  Article  12.  Inter  alia,  see  the  judgment  of  11  July  2002  in  the  case  C-224/98,  D'Hoop, 
grounds 29 to 32; judgment of 15 March 2005 in the case C-209/03, Bidar, operative part. Article 12 
must be read in conjunction with the provisions of the Treaty on citizenship of the Union, i.e. articles 17 
and 18. 
Judgment of the Court of 23 October 2007 in the joint cases C-11/06 and C-12/06, Morgan and Bucher. 
Regulation  (EEC)  1612/68  of  the  Council  of  15  October  1968  on  freedom  of  movement  for  workers 
within the Community. 

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Additionally, the Commission takes into account the recent ECJ case law405 which considers 
that  Union  citizenship  is  destined  to  be  the  fundamental  status  of  nationals  of  the  Member 
States.  In  that  regard,  the  Commission  considers  that  the  exercise  of  the  right  to  move  and 
reside  freely  in  another  Member  State  is  enhanced  if  the  citizens  of  the  Union  are  able  to 
practice sport as amateurs in principle on the same footing as its nationals. Consequently, in 
exercising  that  right  in  another  Member  State,  persons  are  in  principle  entitled,  pursuant  to 
Article 12 of the Treaty, to treatment no less favourable than that accorded to nationals of the 
host State. 

The  exceptions  to  this  principle  of  equal  treatment  may  only  be  accepted  in  duly  justified 
cases, in particular where they result from the specific characteristics of sport, as explained in 
the White Paper on sport406. 

13.2.  Report of work done in 2008 

The Commission based its work for the application of Community law in 2008 on the above 
legal provisions and case law. 

In the area of education and training, activities can be divided into four specific categories:  

Access to educational institutions in a Member State for students from other Member States. 
The  principle  of  non  discrimination  (12  CE)  is  the  main  rule  there.  Among  seven  cases 
handled by Commission services in this sector in 2008, the cases against Austria and Belgium 
concerning  access  to  their  universities,  principally  for  medical  and  related  studies,  by 
candidates  from  Germany  and  France  respectively,  remain  suspended  for  five  years.  The 
Commission  is  closely  monitoring  the  impact  of  the  conditions  imposed  by  those  Member 
States,  requiring  them  to  submit  to  the  Commission  statistical  data407  which  will  enable  a 
judgment  to  be  drawn  on  whether  the  measures  are  necessary  and  proportionate.  Moreover, 
the preliminary case C-73/08, Bressol, submitted to the Court of Justice in 2008, deals with 
the same issues and may impact on the handling of these cases.  

The conditions  for  awarding grants, either to cover tuition and registration fees, or to cover 
living expenses. This issue is examined both in connection with the host country, concerning 
students from other Member States, and in relation to the country of departure, which, under 
certain conditions (Case C-11-06, Morgan), is obliged to award grants to students who decide 
to go to another country for all or part of their studies.  

Other rights of students in the host country during their studies, in order to ensure an equal 
treatment  with  domestic  students.  To  this  category  belongs  the  issue  of  reductions  on 
transport  tariffs,  for  all  regular  students  in  a  Member  State,  to  the  same  extent  as  for  the 
national  students.  This  issue,  with  four  cases  in  2008,  has  been  taken  up  with  the  three 
Member States concerned.  

The academic recognition of diplomas. The Commission receives a lot of correspondence on 
this  issue,  relating  particularly  to  excessive  delays  in  recognising  diplomas  or  periods  of 
study,  exceeding  a  reasonable  cost  for  such  recognition,  not  permitting  appeals  against 
negative decisions or not presenting justifications for such decisions.  

405 

406 
407 

See Cases C-184/99 Grzelczyk, paragraphs 31 to 33; C-85/96, Martinez Sala, paragraph 63; C-158/07 
Förster, paragraphs 37 to 43. 
White paper on sport, 11 July 2007, COM (2007) 391 final. 
The first set of statistics was provided by Austria on December 2008. Belgium is expected to provide its 
first statistics by spring 2009. 

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In dealing with this issue, the role of "soft law", consisting principally of Recommendations 
of  the  European  Parliament  and  of  the  Council,  is  particularly  important  in  providing  a 
framework in which the difficulties encountered by citizens can be resolved408. In this context, 
the European Qualifications Framework will have a significant impact. Valuable services are 
also offered in this area by the NARIC network (National Academic Recognition Information 
Centre)409.  The  Commission  has  contributed  to  the  establishment  of  this  network  and  our 
services often advice the interested persons to address their demands to NARIC.  

As regards the tools for the application of Community law, the Commission has also started 
using the EUPilot scheme with those Member States that participate and has the intention to 
use it more systematically. 

As  for  Member  States  which  have  not  joined  the  EUPilot  system,  the  Commission  uses  the 
traditional  means  of  correspondence  with  national  authorities  through  the  Permanent 
Representation.  The  results  of  such  communications  are  satisfactory.  To  cite  one  example, 
after contacts with the French authorities in a matter of conditions of access to further medical 
studies  for  French  nationals  who  had  completed  their  initial  studies  abroad,  the  authorities 
have indicated their intention to amend their legislation accordingly. 

In  the  area  of  sport,  the  Commission  received  in  2008  an  increasing  number  of  complaints 
concerning cases of discrimination on grounds of nationality. These cases mainly concerned 
access  to  both  individual  and  collective  competitions  in  various  sports  such  as  football, 
baseball,  volleyball,  squash  and  shooting.  At  the  same  time,  the  Commission  continued  to 
monitor  infringement  procedure  n°  2007/4126  related  to  access  to  individual  judo 
competitions for non nationals in Belgium. The Commission also continued its dialogue with 
sport associations as foreseen in the White Paper on sport. In this framework, the Commission 
analysed the UEFA "Home-grown players" rule and its compliance with Community law and 
disapproved  the  FIFA  "6+5"  rule  which  constitutes  direct  discrimination  on  grounds  of 
nationality forbidden by article 39 of the Treaty. 

13.3.  Evaluation results 

13.3.1.  Priorities 

An area requiring attention is the mobility of students within the European Union. We wish to 
strengthen the confidence of students in the European Union, with faster and more dynamic 
handling of cases involving their mobility, in order to ensure that the positive results obtained 
by mobility will not be contradicted by negative treatment either by the host Member State or 
Member State of origin. 

408 

409 

We  mention  some  recent  and  important  recommendations:  Recommendation  of  the  European 
Parliament and of the Council of 10 July 2001 on mobility within the Community for students, persons 
undergoing  training,  volunteers,  teachers  and  trainers  (Official  Journal  L  215  ,  09/08/2001  P.  0030  – 
0037);  Recommendation  of  the  European  Parliament  and  of  the  Council  on  the  establishment  of  the 
European  Qualifications  Framework  (EQF)  for 
the 
establishment  of  the  European  Credit  system  for  Vocational  Education  and  Training  (ECVET); 
European  Quality  Assurance  Register  (EQAR);  European  Quality  Assurance  Reference  Framework 
(EQARF). The list is not exhaustive. 
Website http://www.enic-naric.net/ 

learning;  Recommendation  on 

lifelong 

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13.3.2.  Planned action 

Noting  that  the  area  of  education  is  a  separate  chapter  of  the  acquis  communautaire,  it  is 
intended to support its implementation by:  

•  Opening formal proceedings in cases which, in the Commission’s view, represent 
clear infringements of Community law particularly where other potentially more 
efficient methods of resolving the issues do not seem feasible; 

•  Participation  in  significant  preliminary  references  to  the  Court,  when  matters 

relating to education and sport are involved. 

•  Increasing  use  of  the  EUPilot  tool  in  cases  which  appear  to  involve  one-off 
misapplications of principles which are otherwise accepted by the Member State 
concerned;  

•  The provision of guidance, in a form to be determined, to support Member State 
administrations,  students  and  other  stakeholders,  with  a  clear  description  of  the 
implications  of  the  state  of  the  law,  jurisprudence  and  practice  in  the  field  of 
education and amateur sport. 

14. 

HEALTH AND CONSUMERS 

14.1. 

Introduction 

The  activity  of  the  Commission  in  this  area  concern  three  main  sector  -  consumer  affairs, 
public health, and food and feed safety including veterinary and phytosanitory matters. This 
sector  has  one  of  the  largest  volumes  of  legislation.  That  requires  considerable  effort  to 
monitor, manage and up-date given its inherent technical complexity (see Annex I paragraph 
VI for a comprehensive listing of the legislative acquis for each policy area). The Commission 
services pay considerable attention to enforcing the application of Community acquis in this 
area. The policies and laws for which the Commission is responsible in this sector affect the 
daily lives of most European citizens. This acquis must be applied and enforced in a way that 
benefits  citizens,  empowers  consumers  and  renders  the  advantages  of  the  internal  market  a 
reality.  

This  part  describes  how  the  Commission  has  evaluated  its  acquis  in  this  area  to  ensure 
coherence  and  stability  in  achieving  the  policy  goals.  While  much  work  has  been  done  to 
ensure that citizens fully benefit from the safety requirements of our legislation, we continue 
to  explore  how  to  strengthen  remedies  and  enforcement  measures  to  achieve  effective 
implementation.  We  address 
launching 
infringement proceedings against Member States that have failed to transpose.We do so at a 
more rapid speed (12 months) than the average processing speed in other departments of the 
Commission  (14  months).  In  circumstances  of  inadequate  application  of  legislation,  the 
Commission exploits a combination of methods through its "tool-box" to achieve compliance.  

transposition  of  Directives  by  swiftly 

late 

We  know  that  despite  efforts  to  accelerate  processing,  infringements  continue  to  achieve 
results  in  a  gradual  way.  Prevention  of  infringements  through  strong  partnerships  with 
Member  States  may  often  resolve  an  enforcement  issue  more  effectively.  Often  Member 
States  are  not  fully  aware  of  the  scope  and  nature  of  their  legal  obligations.  Guidance 
documents  on  complex  pieces  of  legislation  have  been  particularly  conducive  to  enhancing 

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better application of the acquis on the ground. Other times, Member States fail to put in place 
adequate  human  and  institutional  capacity  (e.g.  Greece's  veterinary  control  system)  to 
properly apply legislation in key food safety sectors. 

As regards in particular the food safety acquis (including animal health and plant health), in 
addition  to  the  efforts  made  on  the  legislative  front,  2008  was  also  characterised  by  an 
increased  attention  to  improving  the  efficiency  of  the  Commission  services'  enforcement 
action in relation to the existing acquis. The Commission services have re-focused their work 
to ensure sustained and coordinated attention to all issues related to the implementation of the 
Community acquis in those areas. There is a particular focus on ensuring that the legislative 
framework established by Regulation (EC) No 882/2004 of the European Parliament and of 
the Council on official controls performed to ensure the verification of compliance with feed 
and food law, animal health and animal welfare rules is correctly enforced. Official controls 
(e.g.  inspection  activities,  audits,  sampling  and  analysis)  are  a  key  tool  to  ensure  correct 
enforcement of Community legislation in the areas in question. 

14.1.1.  Prevention 

Laws cannot be properly applied unless they are fully understood by those that enforce them 
or apply them to specific circumstancesit in order to comply with its provisions. 

The Commission has issued implementation guidelines on the correct application of their food 
safety  legislation.  In  this  context,  a  guidance  document  on  the  implementation  of  specific 
provisions of the General Food Law under Regulation (EC) No 178/2002 was published. In 
addition, in the interest of transparency, the Commission has encouraged all parties concerned 
to  openly  discuss  the  implementation  and  application  of  the  Regulation  in  forums  where 
Member  States  can  be  consulted  and  where  different  socio-economic  interests  can  be 
adequately expressed. 

Another example of proactive prevention by the Commission is the publication of a guidance 
document in relation to Regulation (EC) No 882/2004  concerning microbiological sampling 
and testing of foodstuffs. This document, which is directed at competent authorities carrying 
out official controls, aims to advise on how to engage in official sampling, the requirements of 
official  laboratories,  analysis  methods  to  be  used  for  official  samples  and  microbiological 
criteria applied to official samples. 

Moreover, since the adoption of the new rules on the hygiene of foodstuffs (Regulations (EC) 
Nos  852/2004,  853/2004  and  854/2004)  and  of  the  rules  on  officials  controls  (Regulation 
(EC) No 882/2004), the Commission held a series of meetings with experts from the Member 
States  in  order  to  examine  and  reach  a  consensus  on  a  number  of  implementation  issues 
concerning the new Regulations. As a result a guidance document was issued for the benefit 
of competent authorities and food businesses in the Member States and in third countries on 
certain  key  questions  with  regard  to  the  implementation  of  the  new  food  hygiene  import 
requirements and on related subjects. 

Also for the implementation and consistent application of Directive 91/414/EEC concerning 
the  placing  of  plant  protection  products  on  the  market,  the  Commission  has  adopted  38 
guidelines. Three additional guidelines were adopted in 2007 and one existing guideline was 
revised. 

The  Commission  launched  in  2006  a  training  programme  "Better  Training  for  Safer  Food" 
aimed at organising a Community training strategy in the areas of food law, feed law, animal 

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health and animal welfare rules, as well as plant health rules. Training is designed for all staff 
of competent authorities of Member States involved in official control activities so as to keep 
them up-to-date with all aspects of Community law in the areas specified above and to ensure 
that controls are carried out in a more uniform, objective and adequate manner in all Member 
States. 

The  initiative  comprises  training  programmes  on  subjects  where  needs  for  improved 
application  of  Community  law  have  been  identified.  The  number  of  programmes  and  the 
number of people trained have increased each year since the initiative's launch. Programmes 
in areas such as food hygiene and controls, plant health and prevention of TSE ran for the first 
time in 2008 and programmes covering subjects including feed law are to begin in 2009. 

Around 4,000 people have been trained in the programmes starting in 2008. The number of 
participants should in time reach an annual average of 6,000. This should further contribute to 
increased  awareness  and  application  of  Community  norms  and  standards  on  the  part  of 
national authorities. 

To  prevent  non-compliance  to  EU  standards  of  products  originating  from  Africa,  the  Better 
Training  for  Safer  Food  in  Africa  programme  is  planned  to  begin  during  2009-2010.  This 
activity is aimed at better enabling African countries to ensure that their food and agricultural 
products comply with EU and international SPS standards. 

Another type of prevention is provided for in Directive 98/34/EC laying down a procedure for 
the provision of information in the field of technical standards and regulations. This Directive 
obliges  Member  States  to  notify  to  the  Commission,  before  they  are  adopted,  draft  acts 
containing  technical  standards  and  regulations.  During  2008  the  Commission  services 
responsible for health and consumers examined 180 notifications of draft legislations in order 
to avoid that Member States adopt legislation which would be incompatible with Community 
law. 

Furthermore,  the  rapid  alert  system  for  food  and  feed  (RASFF)  is  an  effective  tool  to 
exchange  information  about  national  measures  taken  responding  to  serious  risks  detected  in 
relation  to  food  or  feed410.  This  is  a  concrete  and  visible  result  of  a  successful  European 
integrated approach to ensure food safety. It helps Member States to act more rapidly and in a 
coordinated manner in response to a health threat caused by food or feed. Its effectiveness is 
ensured  by  keeping  its  structure  simple:  it  consists  essentially  of  clearly  identified  contact 
points in the Commission and at national level in member countries, exchanging information 
in a clear and structured way by means of templates. 

The Commission together with Member States continues to work hard in further shaping this 
essential  tool  that  is  contributing  to  high  food  safety  standards  in  the  EU,  preventing 
dangerous food or feed from reaching the consumer and allowing swift action to be taken to 
remove  such  products  from  the  market.  In  2008,  a  total  of  3099  original  notifications  were 
transmitted  through  the  RASFF;  1710  market  notifications  and  1389  border  rejections.  549 
market notifications were classified as alerts, and 1161 as information notifications. 

410 

The legal basis of RASFF is Article 50 of Regulation (EC) No 178/2002 of the European Parliament 
and of the Council laying down the general principles and requirements of food law, establishing the 
European  Food  Safety  Authority  and  laying  down  procedures  in  matters  of  food  safety,  OJ  L  31, 
1.2.2002,  p.  1.  Regulation  as  last  amended  by  Commission  Regulation  (EC)  No  202/2008,  OJ  L  60, 
5.3.2008, p. 17. 

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Discussions  with  Member  States  either  bi-laterally  or  multilaterally  often  identify  areas  of 
difficulty in fully appreciating the nature of specific legislative instruments. The Commission 
services often provide detailed interpretations of specific provisions in order to achieve broad 
but uniform understanding of specific provisions. 

14.1.2.  Audits and Inspections 

Another aspect of prevention is the ability of the Commission services to see for themselves 
the realities of enforcement on the ground. Enforcement of the food safety legislation would 
be weak if the FVO was not able to examine whether Member States properly apply food and 
feed safety controls. 

Each year the FVO develops an audit and inspection programme identifying priority areas and 
countries. It carries out around 250 audits and inspections, including both general and specific 
audits, annually. Following each, a report is issued which sets the actions needed to improve 
compliance. The large majority of weaknesses in control systems identified by the FVO are 
normally addressed through specific action plans drawn up by national authorities in response 
to its recommendations. 

In recent years, the FVO has developed overall country profiles for each Member State and 
for the EU's main trading partners. These profiles bring together and summarise the results of 
general and specific audits and inspections over time and across all relevant sectors. They can 
thus  help  to  identify  systemic  weaknesses  in  the  overall  design  and  application  of  national 
control systems. As these results are progressively refined and validated, remedial action can 
be proposed that addresses the underlying cause of weaknesses that are common to a number 
of specific sectors, for example, the absence of a system of documentary records of controls 
or the absence of an effective system of sanctions for non-compliance. 

14.1.3.  Prioritisation of Infringements 

In the field of Health and Consumer the Commission launched 298 new cases (including the 
243  cases  for  non  communication;  50  new  complaints,  5  cases  on  our  own  initiative).  350 
letters of formal notice were sent (333 for non communication, 17 for substantive cases). In 
total the Commission closed 377 cases (311 for non communication, 66 for substantive cases). 

2008 saw the development of a decision tree for purposes of using infringement resources to 
resolve  a  problem.  This  decision  tree  now  helps  staff  members  increase  efficiency  and 
accelerate  the  rate  of  processing  of  infringements.  The  Commission  services  in  the  field  of 
Health  and  Consumer  continues  to  deliver  one  of  the  highest  numbers  of  proposals  for 
Commission decisions on infringements. 

This can mainly be attributed to the fact that the Commission services in this field have been 
taking  internal  measures  to  improve  its  processing  speed,  without  recourse  to  additional 
resources, through prevention, problem-solving (e.g. EU Pilot project) and prioritisation (e.g. 
strategy paper and implementation planning). 

Although  SANCO  infringement  cases  are  invariably  technical  and  complex  in  nature 
requiring considerable efforts in satisfying the burden of proof on non-compliance, we have 
referred Member States to the Court of Justice on 13 occasions. 

The processing speed for infringements in this domain will always be challenging given that  
the Commission bears the burden of proof to show systematic and persistent non-compliance 

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to our acquis by Member States. Delays caused by the necessity to gather the necessary body 
of  evidence  to  achieve  successful  results  before  the  Court  of  Justice  have  been  steadily 
addressed  so  that  by  the  end  of  2008  the  number  of  cases  in  SANCO's  portfolio  has  been 
reduced significantly. 

The  Commission  services  continue  to  treat  non-communication  of  national  measures 
transposing Directives or other notification requirements as a top priority. Late notifications in 
the field of food and feed safety, especially by Portugal and Italy, account for the bulk of the 
shortfall. 

Compliance of transpositions by Member States is facilitated by insisting on the obligation to 
have a concordance tables to facilitate such verification. The programme of positive action to 
facilitate the exchange of experience between Member States between the adoption of the new 
legislation and its transposition will be extended beyond consumer and health policies, to the 
food safety sector. 

Special attention will be given to verifying the transposition of provisions which are crucial to 
the effectiveness of food safety, animal health and animal welfare, which are in the remit of 
Member  States.  Infringements  will  be  launched  where  appropriate  and  according  to 
prioritisation. 

Finally,  for  low  priority  cases,  attempts  will  be  made  in  the  first  instance  to  find  solutions 
with the Member State concerned through partnership channels (e.g. increased use of the EU 
Pilot project). 

14.1.4.  Future Challenges 

The Commission is at the forefront of evolving challenges inherent in this sector that is prone 
to changes in technology and innovation in production methods. One challenge is to use the 
array of our tool-box for better application of EC law in a more results-orientated way so that 
EU citizens see the real benefits in our efforts to better apply our acquis. 

Another  challenge  is  to  simultaneously  reduce  the  body  of  Directives  through  using 
Regulations and carefully plan to escort Member States through the transposition process of 
any new Directives. 

As indicated above, one of the difficult challenges for the application of EU law is to keep up 
with  developments  in  innovation  and  new  technology.  Current  dossiers  in  the  fields  of  the 
genetic  modification,  cloning,  nanotechnologies,  novel  foods  and  emerging  issues  of  the 
consumer's right to privacy in a digital market place considerable pressure on us as regulators 
to strike the balance between evidence and science and public concerns and perceptions. 

14.2. 

Public Health 

14.2.1.  General Introduction 

Health is an important priority for Europeans who expect to be protected against illness and 
disease. Most competence for action in the field of health is held by Member States, but the 
EU  has  the  responsibility,  set  out  in  the  Treaty,  to  undertake  certain  actions  which 
complement the work done by Member States (for example in relation to cross border health 
threats,  patient  mobility,  the  reduction  of  health  inequalities)  and  to  develop  harmonised 
legislation in the areas of blood, tissues and cells, and organs. 

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Article 152(4) constitutes the legal basis for the adoption of legislation in the area of public 
health. However, some health-related legislation has also been adopted using other legal bases 
such as Article 95. 

The main pieces of legislation in the area of public health concern tobacco control (Directive 
2001/37/EC  concerning  the  manufacture,  presentation  and  sale  of  tobacco  products  and 
Directive 2003/33/EC relating to the advertising and sponsorship of tobacco products), blood 
(Directive  2002/98/EC  setting  standards  of  quality  and  safety  for  the  collection,  testing, 
processing, storage and distribution of human blood and blood components), tissues and cells 
(Directive  2004/23/EC  on  setting  standards  of  quality  and  safety  for  the  donation, 
procurement, testing, processing, preservation, storage and distribution of human tissues and 
cells),  the  communicable  diseases  (Decision  2119/98/EC  setting  up  a  network  for  the 
epidemiological  surveillance  and  control  of  communicable  diseases  in  the  Community,  and 
Regulation  (EC)  No  851/2004  establishing  a  European  Centre  for  Disease  Prevention  and 
Control). 

With  regards  to  tissues  and  cells,  two  implementing  Directives  complete  the  legislative 
framework:  Directive  2006/17/EC  as  regards  technical  requirements  for  the  donation, 
procurement  and  testing  of  human  tissues  and  cells,  and  Directive  2006/86/EC  as  regards 
traceability requirements for the coding, processing, preservation, storage and distribution of 
human tissues and cells. 

14.2.2.  Report of Work Done in 2008 

2008  saw  significant  developments  in  relation  to  the  transposition  of  the  EU  health  acquis. 
The transposition of the Community legal framework for blood safety was completed by all 
Member  States  and  thus  all  cases  for  non-communication  of  transposition  measures  in  this 
sector  could  be  closed.  Following  contacts  between  the  Commission  and  Member  States 
Health Attachés, the rate of transposition of the Directives in the tissues and cells sector was 
significantly advanced. However, by the end of 2008, a few Member States were still lacking 
transposition  measures 
for  Directives  2004/23/EC,  2006/17/EC  and  2006/86/EC. 
Consequently,  towards  the  end  of  2008,  the  Commission  decided  to  take  to  the  European 
Court of Justice Belgium for failure to transpose Directive 2004/23/EC; Belgium, Italy, and 
Portugal  for  failure  to  transpose  Directive  2006/17/EC;  as  well  as  Belgium;  Italy,  Portugal 
and Sweden for failure to transpose Directive 2006/86/EC. In December 2008, Sweden took 
the necessary measures to comply with its obligation to transpose Directive 2006/86/EC. 

Regarding the implementation in the blood, tissues and cells sectors (Directives 2002/98/EC 
and 2004/23/EC), the Commission regularly collects information through questionnaires and 
follow-up meetings with competent authorities of Member States. The main implementation 
challenges  are  linked  to  the  vigilance,  traceability  and  inspections  systems.  A  common 
approach concerning inspections and on traceability systems for tissues and cells is currently 
being  developed.  Moreover,  in  both  sectors  inconsistencies  have  been  detected  concerning 
how  Member  States  apply  the  principle  of  voluntary  unpaid  donation.  These  issues  will  be 
further addressed in the upcoming reports on the implementation of the two Directives. 

Finally,  following  the  completion  of  transposition,  a  concordance  table  addressing  the  most 
important aspects of the four Directives was sent to the Member States for completion. The 
returned tables will allow the Commission to adequately monitor the transposition process. 

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In the tobacco sector the two existing Directives (Directives 2001/37/EC and 2003/33/EC) are 
well  implemented  in  Member  States.  The  report  on  the  implementation  of  the  Tobacco 
Advertising  Directive  2003/33/EC,  adopted  on  28  May  2008  COM  (2008)  330  final, 
concludes  that  the  laws  to  transpose  the  Directive  are  in  place  and  are  well  implemented. 
Following  the  judgment  of  the  European  Court  of  Justice  in  case  C-343/05,  condemning 
Finland for allowing the Åland Islands not to transpose the obligation to prohibit the placing 
on the market of oral tobacco as provided for in Article 8 of Directive 2001/37/EC, Finland 
took  the  necessary  measures  to  comply  with  the  judgment  and  the  case  was  subsequently 
closed by the Commission in 2008. 

Following  the  introduction  of  the  EU-wide  ban,  traditional  tobacco  brand  advertising  and 
direct  sponsorship  of  a  cross-border  nature  has  ceased  within  the  European  Union.  Virtual 
environment, corporate promotion and the lack of cross-border enforcement co-operation are 
the biggest challenges. In the above-mentioned report, the Commission invited Member States 
to designate liaison offices, exchange information, take all necessary enforcement measures to 
bring  about  the  cessation  of  any  infringement  and  respond  without  delay  to  enforcement 
requests of other Member States. 

Regarding the communicable diseases area, the implementing measures lay down the list of 
diseases  and  special  health  issues  together  with  the  criteria  for  their  selection  (Commission 
Decision  2000/96/EC),  case  definitions  (Commission  Decision  2002/253/EC),  events  to  be 
reported  within  the  early  warning  and  response  system  (EWRS),  as  well  as  procedures  for 
information,  consultation  and  cooperation  under  this  system  (Commission  Decision 
2000/57/EC).  Substantial  revisions  which  occurred  recently  (Commission  Decisions 
2007/875/EC, 2008/351/EC and 2008/426/EC) aimed to up-date the existing EU legislation to 
scientific  developments  (in  clinical,  laboratory  and  epidemiological  investigations),  new 
international commitments (entry into force of the International Health Regulations), and the 
current  epidemiological  situation  (SARS,  Avian  Influenza  in  humans,  West  Nile  virus 
infection).  New  categories  of  communicable  diseases  have  been  also  added  to  the  basic  act 
(Decision 2119/98/EC), namely vector born diseases, zoonotic diseases, other communicable 
diseases  of  public  health  importance,  including  diseases  caused  by  deliberate  release  and 
communicable diseases which may lead to potential emergencies of international concern. 

14.2.3.  Evaluation, Priorities & Perspectives 

The  framework  of  public  health  legislation  put  in  place  in  this  decade  has  shown  that 
meticulous planning and proactive prevention initiatives are necessary to avoid significantly 
late transposition of the adopted Directives. This part of the acquis can achieve enforcement 
through infringement proceedings, if used strategically, to obtain Member State compliance to 
key public health sectors. 

The Commission will continue its priority efforts to avoid implementation problems through 
collaborative  partnerships  with  Member  States  in  order  to  ensure  that  policy  objectives  are 
fully  achieved.  The  volume  of  issues  brought  to  the  attention  of  the  Commission  for 
inadequate  application  of  the  public  health  legislation  is,  however,  very  small.  The 
Commission's  work  in  partnership  with  Member  States  will  seek  to  provide  a  clear  and 
efficient basis for application of the public health legislation. 

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14.2.4.  Summary of Sector 

The challenge in this sector in the near future is to achieve effective transposition of public 
health  legislation  through  closer  partnerships  with  Member  States  and  to  guarantee  that 
harmonised rules are uniformly enforced by competent national authorities. 

14.3.  Consumer Affairs 

14.3.1.  General Introduction 

There are now more than 490 million consumers in Europe and their expenditure represents 
over  half  of  the  EU’s  gross  domestic  product  (GDP).  Consumers  are  essential  to  economic 
growth and job creation in a large market of products and services. 

The Commission's Consumer Policy supports the aims laid out in Articles 153 and 95 of the 
Treaty establishing the European Community, which promote the interests, health and safety 
of  European  consumers.  It  is  designed  to  ensure  that  the  internal  market  is  open,  fair  and 
transparent, allowing consumers to exercise real choice, excluding rogue traders and helping 
consumers and businesses take full advantage of the market’s potential. 

With  so  many  new  products  and  brands  and  increasingly  sophisticated  financial  services, 
European consumers are having a hard time getting their bearings. They are not comfortable 
with the idea of buying something in another country of the European Union: only one out of 
five people have done so over the past twelve months. Yet, the EU single market offers many 
possibilities for competition and for buying at a lower price. 

14.3.2.  Report of Work Done in 2008 

Several  important  steps  were  made  with  regard  to  the  further  development  of  the  consumer 
acquis. The year of 2008 saw, in particular, the adoption by the legislator of two Directives 
which replace the existing rules in relation to timeshare and consumer credit. As a result of 
the review of the consumer acquis, ongoing since 2004, the Commission adopted in October 
2008 a proposal for a new Directive on consumer rights, which would replace four existing 
Directives related to consumer contract law. 

The  Commission's  proposal  for  a  new  Directive  on  consumer  rights  brings  together  and 
updates  the  Distance  Selling  Directive  97/7/EC,  the  Doorstep  Selling  Directive  85/577/EC, 
the  Consumer  Sale  of  Goods  Directive  99/44/EC  and  the  Unfair  Contract  Terms  Directive 
93/13/EC.  The  impact  assessment  preceding  this  proposal  evaluated  the  existing  consumer 
rights Directives and identified the fragmentation of national consumer protection laws as a 
significant  regulatory  barrier  preventing  consumers  and  businesses  from  reaping  the  full 
benefits  of  the  internal  market.  The  main  cause  of  the  fragmentation  is  the  minimum 
harmonisation  clauses  contained  in  the  Directives.  Businesses  are  therefore  reluctant  to  sell 
cross-border  or  pass  the  additional  costs  incurred  to  consumers.  By  harmonising  the  most 
important  aspects  of  consumer  rights  legislation  consumers  and  businesses  will  be  able  to 
benefit  from  the  same  rules  all  over  the  EU.  As  a  consequence  consumers  will  have  more 
opportunities to buy from traders who were previously reluctant to sell cross-border. The new 
Directive will upgrade existing consumer protection in key areas where there have been large 
numbers of complaints in recent years, such as doorstep selling. It also adapts the legislation 
to new technology and sales methods, for example m-commerce (purchase by mobile phone). 

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Furthermore, the Council and Parliament reached agreement on the new Timeshare Directive, 
(Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on 
the  protection  of  consumers  in  respect  of  certain  aspects  of  timeshare,  long-term  holiday 
product, resale and exchange contracts), which will have to be transposed by February 2011. 
The purpose of the revision of this Directive is to boost consumer confidence in industry and 
to  eliminate  the  rogue  traders  who  cause  problems  for  consumers  and  bring  legitimate 
operators into disrepute. Many consumers had experienced problems with new products that 
had  emerged  on  the  market,  in  particular,  with  the  so-called  discount  holiday  clubs.  These 
products often require the consumer to pay initial membership fees of several thousand euros 
in  order  to  get  access  to  discounted  holidays.  Since  no  EU  legislation  applied  to  these 
products,  consumers  who  had  been  pressed  to  sign  up  for  membership  were  not  able  to 
change  their  mind  and  withdraw.  With  the  new  legislation,  consumers  purchasing  these 
products will benefit from extensive pre-contractual information, a right of withdrawal and a 
ban on advance payments during the withdrawal period. The consumer will also enjoy these 
rights  if  he  wants  resell  his  timeshare  through  a  resale  agent  or  if  he  wishes  to  join  an 
exchange system allowing him to benefit from other holiday destinations in exchange of his 
timeshare. 

In 2008 the Commission adopted a report on the impact of Directive 98/27/EC on injunctions 
for  the  protection  of  consumers'  interests.  The  report  describes  how  the  Directive  has  been 
transposed by the Member States into their national laws and points out the difficulties (such 
as  the  cost  and  complexity  of  court  proceedings)  faced  by  consumer  organisations  and 
consumer public authorities when seeking an injunction for breaches of consumer-protection 
laws,  in  particular  in  cross-border  cases.  The  report  concludes  that  the  new  consumer 
enforcement network set up by the Consumer Protection Regulation and the new EU rules on 
the laws applicable to non-contractual obligations should, at least partially, help to overcome 
these difficulties. Consequently, it was concluded that the Commission would not propose any 
changes to the Directive and would continue to monitor its application. 

The  new  Directive  2008/48/EC  on  consumer  credit  was  adopted  on  23  April  2008  and  will 
have to be transposed by June 2010. The Directive represents full harmonisation and has two 
main objectives: creating an internal market in consumer credit while ensuring a high level of 
consumer  protection.  The  Directive  concentrates  on  transparency  and  consumer  rights  and 
provides for a comprehensible set of pre-contractual information to be given to consumers in 
good time before the contract is concluded. In order to enhance the comparability of different 
offers  and  to  make  the  information  better  understandable,  this  pre-contractual  information 
needs  to  be  supplied  in  a  standardised  form  (Standard  European  Consumer  Credit 
Information). 

Moreover,  by  virtue  of  the  Directive,  consumers  will  also  receive  a  harmonised  set  of 
contractual information and an Annual Percentage Rate of Charge (APR) harmonised at EU 
level,  representing  the  cost  of  the  credit.  The  Directive  foresees  in  addition  two  essential 
rights  for  consumers:  the  right  to  withdraw  from  the  credit  agreement  without  giving  any 
reason within a period of 14 days after the conclusion of the contract and the right to repay the 
credit  early  at  any  time,  while  the  creditor  can  ask  for  a  fair  and  objectively  justified 
compensation. 

The Commission is actively supporting the Member States in the transposition process and a 
first transposition workshop was held in 2008. 

Transposition and application of Directive 2005/29/EC 

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2008 was the first year of enforcement of Directive 2005/29/EC of the European Parliament 
and  of  the  Council  concerning  unfair  business-to-consumer  commercial  practices  in  the 
internal market. While many Member States were late in transposing the Directive, which led 
to  infringement  proceedings  for  non-communication  initiated  by  the  Commission,  most 
Member States notified their transposition measures in 2008. By the end of that year only two 
Member  States,  Spain  and  Luxembourg,  had  not yet notified transposition measures and, in 
the case of Luxembourg, the Court of Justice confirmed the infringement on 5 February 2009. 

However,  it  seems  that  several  Member  States  have  either  transposed  the  Directive 
inadequately or maintained legal measures which deviate from the Directive. With regards to 
the latter problem, national courts submitted a number of references for preliminary rulings to 
the Court of Justice. In one of these cases, Case C-261/07 VTB-VAB v Total, the Advocate 
General delivered an opinion in which she considered the Belgian provisions which prohibit 
joint offers (i.e. tying the acquisition of one product or service to another, even if the latter is 
free)  to  be  incompatible  with  Directive  2005/65/EC.  Further  references  for  preliminary 
rulings  are  expected  in  2009.  In  addition  to  this,  the  Commission  will  launch  infringement 
proceedings against some Member States in 2009. 

In  2008  the  Commission  decided  that  in  order  to  ensure  a  high  level  of  convergence  in  the 
interpretation  of  the  Directive  it  would  be  appropriate  to  issue  guidelines  aimed  at  helping 
national  authorities  and  other  stakeholders.  These  guidelines,  which  will  be  updated 
periodically, will be published in the second half of 2009. In order to obtain information on 
the Directive's operation and implementation, the Commission sent out a questionnaire to all 
Member  States,  European  Consumer  Centres  and  other  stakeholders  asking  respondents  to 
identify  practices  which  they  have  encountered.  The  feedback  will  inform  the  Commission 
about  the  most  problematic  practices.  When  drafting  the  guidelines  the  Commission  will 
suggest a common approach to widespread, pan-European unfair commercial practices. 

On  24  February  2009,  the  Commission  organised  a  conference  entitled  "The  Unfair 
Commercial  Practices  Directive  -  One  Year  After",  which  brought  together  members  of 
national enforcement authorities, stakeholders and academics to discuss national experiences 
with  the  application  of  the  Directive.  The  conference  allowed  participants  to  exchange  best 
practices  in  relation  to  its  implementation  and  enforcement  and  to  discuss  interpretation 
problems, in particular in relation to emerging unfair practices. 

Transposition and application of other consumer protection Directives  

In 2008 the Commission stepped up its efforts in carrying out systematic checks on the quality 
of transposition in the Member States in relation to several consumer protection Directives. In 
addition,  a  number  of  complaints  which  identified  certain  potential  transposition  problems 
were dealt with. 

This led to the opening of infringement proceedings based on the inadequate transposition of 
Directive 93/13/EEC on Unfair Terms against a number of Member States. In a few instances 
Member States provided satisfactory responses and the cases were closed. In some cases the 
Member States concerned changed their legislation. In several cases infringement proceedings 
will be continued in 2009. 

Transposition  checks  carried  out  in  relation  to  Directive  99/44/EC  on  Sale  of  Consumer 
Goods  and  Guarantees  and  Directive  2002/65/EC  on  Distance  Marketing  of  Financial 
Services  can  be  expected  to  give  rise  to  the  opening  of  infringement  proceedings  against  a 

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number of Member States in 2009. In addition, several complaints were received in relation to 
Directive 99/44/EC. 

At  the  end  of  2008,  Germany  amended  its  transposition  of  Directive  99/44/EC  as  a 
consequence  of  the  Court's  judgment  in  Case  C-404/06  Quelle  and  parallel  infringement 
proceedings. According to the new German rules, sellers may no longer require consumers to 
pay compensation for the use of defective goods until their replacement with new goods. 

Transposition checks in relation to other Directives, including Directive 97/7/EC on Distance 
Contracts and Directive 98/27/EC on injunctions for the protection of consumers' interest will 
continue in 2009. 

In  relation  to  Directive  90/314/EEC  on  Package  Travel,  at  the  beginning  of  2008,  Italy 
submitted  a  draft  amendment  to  its  legislation  transposing  the  Directive.  The  amendment 
would  finally  remove  a  provision  under  which  consumers  lose  their  entitlement  to  receive 
refunds from the guarantee fund for the money paid over and for repatriation in the event of 
insolvency of the organiser if the request has not been made within three months after the end 
of the journey. However, since the Commission had not been notified of the adoption of the 
amendment before the end of 2008, it is likely that the matter will be referred to the Court of 
Justice in 2009. 

Finally, there were a number of new requests for preliminary rulings under Article 234 EC in 
relation to different consumer protection Directives, including Directive 93/13/EEC on Unfair 
Terms  and  Directive  85/577/EEC  on  Doorstep  Selling.  The  cases  on  93/13/EEC  relate,  in 
particular, to the power and possibly  the obligation of national courts to consider the unfair 
nature of relevant terms of their own motion411. One case relates to Directive 85/577/EEC and 
concerns the question of whether a national court may, of its motion, declare a contract void 
where the consumer was not informed of his right of withdrawal and did not invoke it before 
the court. 

Apart from Case C-404/06, which concerns Directive 99/44/EC mentioned above, it is worth 
mentioning  the  Court's  ruling  in  Case  C-205/07  Gysbrechts.  This  case  concerns  a  Belgian 
provision  which  prohibits  suppliers  engaging  in  distance  selling  from  requiring  advance 
payments  or  any  payment  from  consumers  before  expiry  of  the  withdrawal  period  and, 
thereby,  goes  beyond  the  minimum  protection  level  of  Directive  97/7/EC  on  Distance 
Contracts. The Court found that Article 29 EC does not preclude such a rule in cross-border 
distance  selling,  but  does  preclude  a  prohibition  on  requesting,  before  expiry  of  the 
withdrawal period, the number of the consumer’s payment card. 

Implementation of Decision 2006/502/EC on lighters 

On 17 October 2008 the Commission sent a letter of formal notice to Germany. This followed 
Germany's  failure  to  fulfil  its  obligations  under  Decision  2006/502/EC  as  amended  by 
Decision  2008/322/EC.  Decision  2006/502/EC  is  based  on  Article  13(4)  of  Directive 
2001/95/EC on general product safety and requires Member States to take measures to ensure 
that until 11 May 2009 only lighters which are child-resistant are placed on the market and to 
prohibit the placing on the market of novelty lighters. On 19 December 2008 the Commission 

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E.g.  Cases  C-40/08  Asturcom  Telecomunicaciones,  C-137/08  VB  Pénzügyi  Lízing,  C-243/08  Pannon 
GSM, all pending. 

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was  informed  that  Germany  had  adopted  legislation  complying  with  the  Commission 
Decisions on lighters, which will allow the Commission to close the case in 2009. 

EU-Sweeps 

In  2008  the  second  EU  "Sweep"  was  carried  out,  involving  systematic  and  simultaneous 
checks  in  different  Member  States  to  investigate  potential  breaches  of  consumer  protection 
rules  in  a  specific  sector.  This  second  EU-wide  investigation  looked  into  websites  offering 
mobile phone services such as ring-tones and wallpapers. The enquiry, which was carried out 
on more than 500 websites across the 27 Member States, Norway and Iceland, found that 80% 
of the sites checked needed to be further investigated for suspected breaches of EU consumer 
rules.  Many  of  the  websites  targeted  children  and  young  people.  Problems  found  included 
unclear price information, e.g. prices were incomplete or did not include taxes, or related to 
the  fact  that  customers  were  not  made  aware  that  they  were  signing  a  subscription.  Large 
numbers of websites did not provide some of the required contact information on the trader. 
Other problems related to misleading information where key information was hidden in very 
small print, was hard to find on a website, or the word "free" was used in a misleading manner 
so as to entice consumers into long-term contracts. 

An  intermediate  report  on  the  follow-up  of  the  2007  Sweep  related  to  websites  selling  air 
tickets  was  published  in  February  2008.  The  results  of  the  report  showed  that  40%  of  the 
websites with irregularities were corrected as a result of enforcement measures taken by the 
Member  States.  Enforcement  procedures  were  initiated  and  were  still  ongoing  for  the 
remaining cases. Member States will report on the final results of the enforcement phase in 
the spring of 2009. All ongoing cases are expected to have come to a conclusion by then. 

Consumer empowerment 

Through the European Consumer Consultative Group (ECCG), SANCO pursued its dialogue 
with consumer organisations and consulted them on initiatives having an effect on consumers. 
ECCG members also shared their views as well as their experiences with consumers regarding 
the application of EU legislation. We have started a process to improve the work and structure 
of the ECCG. 

In 2008 information campaigns raising awareness of EU-wide consumer rights were executed 
in  Malta,  Hungary  and  Cyprus,  launched  in  Estonia  and  were  under  development  in  Latvia 
and  Lithuania.  The  campaigns  contribute  to  the  better  enforcement  of  consumer  law  by 
informing consumers about specific rights they have at home and in other EU countries, and 
by increasing awareness of associations and institutions that provide further information and 
advice,  such  as  consumer  associations,  government  institutions  and  European  Consumer 
Centres. 

The  campaign  messages  reached  (according  to  data  from  the  Eurobarometer  Flash  surveys 
undertaken to verify campaign impact) at least three quarters of the Maltese citizens, 83 % of 
Hungarian  citizens  and  97%  of  the  Cypriot  population.  In  addition,  materials  from  equally 
successful  campaigns  conducted  in  previous  years  in  Slovenia,  the  Czech  Republic  and 
Poland were updated, reproduced and redistributed in 2008. 

Training 

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In  2008  the  Commission  services  carried  out  a  series  of  training  courses  designed  to  help 
build  the  capacity  of  European  consumer  organisations,  aiming  at  providing  a  better 
understanding of the consumer acquis and thereby preventing infringements. 

Consumer Protection Cooperation (CPC) 

The  Enforcement  Network,  also  referred  to  as  the  CPC  Network,  which  was  set  up  in 
December 2006 to stop intra-community infringements of EU consumer laws in cross-border 
situations, further developed its activities in 2008. 

265 new requests for mutual assistance were registered in the database (compared to 256 in 
2007)  in  2008,  a  third  of  which  were  closed  within  one  year.  Some  95  alerts  (71  in  2007) 
concerning suspected or confirmed intra-community infringements were circulated within the 
Network.  In  addition,  a  second  joint  market  surveillance  and  enforcement  exercise  was 
carried out in the form of a sweep on sites selling ring tones for mobile phones (see above) 
and the network engaged in a series of common activities co-funded by the Commission. 

Whilst the Network's development so far has been positive, the practical experience gathered 
in this second year of operations and, in particular in the context of the joint sweep exercises, 
also  revealed  that  the  Network  has  not  yet  reached  its  full  potential.  The  pressure  on  the 
Network is growing as the average time required to handle cases is increasing. Statistical data 
extracted  from  the  IT-tool  used  by  the  Network  also  shows  that  some  authorities  do  not 
connect to the tool as often as a smooth running of the system would require. 

In 2008 the Commission services therefore initiated discussion with the Member States on the 
above described issues with the objective to identify the underlying factors and elements. The 
issue was further raised in the Competitiveness Council of 2 December 2008. 

As a further step, in 2009, the Commission will carry out the first biennial assessment of the 
Network's  operation  as  provided  for  in  Regulation  (EC)  No  2006/2004  on  Consumer 
Protection  Cooperation,  building  on  reports  from  Member  States  and  its  own  experience.  A 
central element of this report will be to identify the shortcomings that need to be addressed so 
that  the  Network  reaches  its  full  potential.  Other  activities  planned  for  2009  include  a 
workshop with Member States dedicated to making the Network's operation more effective. 

Lastly,  in  the  broader  context  of  the  Consumer  Policy  Strategy,  which  emphasizes  the 
importance of enforcement as one of its pillars, the Commission will adopt a Communication 
on  the  Enforcement  of  the  Consumer  Acquis.  It  will  take  stock  on  what  actions  have  been 
taken in the field of consumer enforcement, aim to identify the main challenges that need to 
be overcome and, where appropriate, address any shortcomings through instruments already 
available to ensure a more effective enforcement of EU consumer law. 

RAPEX 

RAPEX  is  a  Community  rapid  alert  system  for  dangerous  non-food  consumer  products.  It 
ensures  that  information  about  dangerous  products  withdrawn  from  the  EU  market  and/or 
recalled  from  consumers  is  quickly  circulated  between  Member  States  and  the  European 
Commission,  with  the  aim  of  preventing  or  restricting  the  selling  of  these  products  on  the 
market.  The  system  was  established  by  and  operates  under  the  General  Product  Safety 
Directive (2001/95/EC, the "GPSD"). 

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The total number of notifications sent through the RAPEX system by Member States has risen 
gradually  since  2004  (when  the  GPSD  was  transposed  into  the  national  laws  by  Member 
States). In the fifth year the number of RAPEX notifications quadrupled from 468 (in 2004) to 
1866 (2008). In 2008 the number of notifications rose by 16% compared to 2007. The growth 
in the number of notifications can be ascribed to increasing awareness and attention given to 
product  safety  by  national  authorities  and  the  business  sector,  more  frequent  and  more 
effective  controls  of  consumer  products  on  the  market,  joint  market  surveillance  actions 
carried out by national authorities, the EU enlargements in 2004 and 2007 and, finally, several 
training  actions  and  seminars  provided  by  the  European  Commission  for  different 
stakeholders.  As  in  previous  years,  toys,  electrical  appliances  and  motor  vehicles  were  the 
most frequently notified products. 

Revision of the RAPEX guidelines 

In 2008, the Commission launched the revision of the “Guidelines for the management of the 
Community  Rapid  Information  System  (RAPEX)  and  for  notifications  presented  in 
accordance with Article 11 of Directive 2001/95/EC” (the “RAPEX Guidelines”), which were 
adopted in 2004 in the form of a Commission Decision (2004/418/EC). 

The decision to revise the RAPEX Guidelines resulted mainly from the need to (i) adjust the 
operation  of  the  system  to  best  practices  that  will  ensure  more  efficient  and  effective 
functioning of the system and (ii) to take into account the most important developments in the 
product safety area. The new RAPEX Guidelines will clarify the application of many existing 
provisions,  such  as  those  that  regulate  the  notification  criteria  and  the  scope  of  the  system. 
The new Guidelines will also introduce new provisions which over the years have proved to 
be necessary for the consistent application of RAPEX notification obligations by all Member 
States, for example, provisions on confidentiality, the permanent withdrawal of a notification 
from the system and the temporary removal of a notification from the RAPEX website. The 
new RAPEX Guidelines will also include the new improved Risk Assessment Method that is 
being  prepared  by  a  team  of  experts  from  the  Member  States.  The  Commission  Decision 
introducing the new RAPEX Guidelines is expected to be adopted in 2009. 

RAPEX seminars 

In  2008,  as  in  previous  years,  the  Commission  services  organised  RAPEX  seminars  in  the 
Member  States.  The  training  sessions  took  place  in  Bulgaria,  Malta  and  Portugal.  Since  the 
beginning  of  2006,  a  total  of  23  Member  States  hosted  RAPEX  seminars  and  over  1000 
inspectors have been trained. The seminars are organised for the benefit of the national market 
surveillance and customs authorities where they can discuss various aspects of product safety, 
such  as:  the  application  of  RAPEX,  the  European  legal  framework  for  consumer  products, 
obligations  for  national  authorities  and  businesses  under  the  product  safety  law,  risk 
assessment of consumer products and latest developments in the product safety area. Training 
activities will continue in 2009. 

Seminars on businesses' obligation to notify dangerous products 

In 2008, in addition to RAPEX seminars, the Commission hosted in Brussels training sessions 
on  businesses'  obligation  to  notify  dangerous  products.  Training  sessions  were  intended  for 
national  authorities  from  all  Member  States  and  EFTA/EEA  countries  that  are  in  charge  of 
receiving  and  treating  notifications  on  dangerous  products  sent  by  operators.  The  training 
sessions  lasted  for  4  days  and  in  total  50  experts  from  national  authorities  were  trained. 

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During  this  training  experts  discussed  the  relevant  aspects  of  the  businesses'  notification 
obligation,  such  as:  notification  criteria,  information  to  be  provided  and  required  follow-up 
actions, and tested the new on-line system called "Business Application" to be established by 
the Commission services in this area. 

Joint Actions on market surveillance activities 

To  support  the  Member  States  in  their  cross-border  activities,  in  2008  the  Commission 
awarded a financial contribution of EUR 2.6 million to four joint market surveillance actions. 
These  joint  actions  focused  on:  toys  for  children  under  three  years,  sun  beds  and  solarium 
services,  cords  and  drawstrings  in  children’s  clothing,  and  a  follow-up  of  the  successful 
EMARS project (Enhancing Market Surveillance through Best Practice). Joint actions proved 
to be very successful in delivering concrete results and, in particular, the three-year EMARS 
project  (concluded  at  the  end  of  2008)  produced  a  number  of  important  results  including  a 
best  practice  handbook  for  market  surveillance  and  a  Rapid  Advice  Forum  that  provides 
market surveillance officers with access to the expertise of their colleagues in other Member 
States in a fast and informal manner. To further strengthen cooperation between the Member 
States  on  consumer  product  safety,  the  Commission  will  continue  joint  actions  in  2009  and 
2010 and will financially contribute to the best proposals suggested by Member States. 

The European Consumer Centres Network (ECC-Net) 

In  2008,  the  European  Consumer  Centres  Network  (ECC-Net)  helped  more  than  60.000 
consumers with information and advice on cross-border shopping, both in person and online, 
ensuring that they are aware of their rights, and providing support in handling complaints. 

This is an increase of more than 5000 contacts compared to 2007. In 2008 most complaints 
dealt  with  by  the  ECCs  concerned  products  and  services  (26.8%),  selling  techniques/unfair 
commercial  practices  (23.8%)  and  delivery  (19.9%).  The  most  concerned  sectors  were  air 
transport and car rentals, accommodation services, fake lotteries and audiovisual equipments. 
Almost half of the complaints concerned on-line transactions (46%). 

Apart  from  informing  consumers  on  both  EU  and  national  rules,  as  well  as  advising 
consumers  facing  cross-border  problems,  the  ECCs  also  helped  consumers  to  reach 
agreements  on  complaints  with  traders  using  out-of-court  dispute  resolution  mechanisms. 
Contacts are increasing yearly, with a further increase of 30% in 2008. 

With  the  help  of  latest  technology  in  the  form  of  a  new  database,  which  was  launched  in 
January 2007 and  is continuously updated, co-operation between centres was more efficient 
and  will  be  further  improved  in  the  future.  The  ECCs  also  provided  valuable  input  for  the 
European Commission on significant consumer policy issues. 

Within the framework of their co-operation the ECCs were running joint projects, such as a 
review on complaints regarding air passenger rights (led by the UK ECC for 2008), "Howard" 
the on-line shopping assistant (already in operation on many ECC web sites), an information 
campaign with leaflets on tourism and a report on “e-commerce” published in May 2008. 

The  ECCs  were  key  organizers  of  other  awareness-raising  initiatives  such  as  the  Best 
Consumer  campaign,  the  campaigns  on  consumers’  rights  related  to  the  opening  of  energy 
markets on the UEFA-Euro2008 and other information activities. 

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14.3.3.  Evaluation, Priorities & Perspectives 

On 13 March 2007 the Commission adopted a Consumer Policy Strategy for 2007-2013. The 
strategy  sets  out  the  challenges,  role,  priorities  and  actions  of  EU  consumer  policy  for  this 
period.  The  overall  objectives  of  the  Strategy  are  to  empower  consumers,  to  enhance  their 
welfare  and  to  protect  them  effectively.  The  Commission's  vision  is  to  achieve  by  2013  a 
single, simple set of rules for the benefit of consumers and retailers alike. 

Given the progress achieved on the review and development of the consumer acquis, effective 
enforcement  will  play  an  important  role.  This  will  include,  from  the  Commission's  point  of 
view, continued efforts in accompanying the transposition process in the Member States and 
supervising the transposition and application of Directives by the Member States. 

As part of a larger exercise to monitor how well the internal market functions for consumers, 
SANCO will develop indicators to measure the effectiveness of enforcement at national level. 
National policies and institutions related to enforcement play a key role in making the internal 
market  function  for  consumers:  free  circulation  of  safe  products  and  the  protection  of 
consumers  from  rogue  traders  depend  on  the  effectiveness  of  enforcement  and  market 
surveillance  in  all  Member  States.  Following  a  pilot  project  with  members  of  the  CPC 
(Consumer  Protection  Cooperation)  and  GPSD  (General  Product  Safety  Directive) 
committees, an expert group will be set up in 2009 to identify the most appropriate indicators, 
taking account of differences between national enforcement systems. 

The Commission is planning to open a period of joint reflection with the Member States on 
the  future  role  of  ECC-Net.  In  parallel,  an  evaluation  of  the  Network  is  foreseen  five  years 
after  the  merger  of  the  two  previous  networks  into  ECC-Net.  This  evaluation  should  take 
place in 2010. 

14.3.4.  Summary of Sector 

The challenge in this sector in the near future is to increase EU-wide consumer confidence for 
cross  border  shopping  through  clearer,  simplified  and  harmonised  rules  that  are  uniformly 
enforced  by  national  authorities.  Through  enhanced  application  of  the  consumer  acquis 
consumers  should  be  as  confident  about  making  purchases  in  other  countries  as  they  are  at 
home. 

14.4. 

Food Safety 

14.4.1.  General Introduction 

The EU integrated approach to food safety aims to assure a high level of food safety, animal 
health, animal welfare and plant health within the European Union through coherent farm-to-
table  measures  and  adequate  monitoring,  while  ensuring  the  effective  functioning  of  the 
internal market. The implementation of this approach involves the development of legislative 
as well as other actions. 

Legislation applicable to the various components of the food chain includes, in addition to the 
food and feed law, rules applicable to animal and plant health and to the welfare of animals. 
The issues covered by that vast acquis are high on the EU's agenda. Europe's citizens expect 
their food to be safe, and safety concerns carry a high political and financial cost. The need to 
safeguard the EU against animal and plant diseases also remains a top priority. 

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14.4.2.  Work done in 2008 

Work is ongoing on the modernisation and simplification of the legislation applicable to food 
and  feed  safety,  animal  and  plant  health,  and  animal  welfare.  The  aim  is  to  achieve  better 
enforceability of existing rules, whilst providing for a state of the art legislative framework. 

Both  the  Animal  Health  Strategy412  and  the  recently  launched  work  towards  a  Plant  Health 
Strategy413  include  the  objective  of  providing  the  Community  with  a  more  rational  and 
directly enforceable set of rules in these areas in order to replace a vast amount of Directives 
adopted in the course of the last decades (the food safety area counts one of the largest acquis, 
numbering more than 500 Directives). 

A  recent  study  on  the  implementation  of  Regulation  (EC)  No  882/2004  on  official  controls 
also suggests the need to reflect on another important feature of the enforcement system in the 
food safety area – the inspection fees (below). 

Implementation of Regulation (EC) No 882/2004 

Regulation  (EC)  No  882/2004  establishes  the  general  principles  applicable  to  the  official 
controls carried out by Member States in the food and feed sectors and in the areas of animal 
health  and  animal  welfare.  A  report  on  the  experience  gained  from  the  application  of  the 
Regulation, on the basis of Article 65 thereof, has been prepared and will be transmitted to the 
European Parliament and the Council in the course of 2009. 

The Regulation contains in particular specific provisions on the financing of official controls. 
These provisions allow for a great degree of flexibility in the way they are implemented by 
Member States. An external evaluation of the system was commissioned in 2008 and aimed at 
providing a better understanding of the functioning of the provisions laid down in Articles 26 
to 29 of Regulation (EC) No 882/2004, as currently implemented by the Member States. 

The final result of the evaluation, delivered at the beginning of 2009, confirms the complexity 
of the situation, identifies some shortcomings in the current legislative framework applicable 
to  inspection  fees  and  in  its  implementation  by  Member  States,  and  discusses  the  possible 
need  to  review  some  of  the  features  of  that  framework.  The  Commission  services,  in 
consultation  with  the  relevant  stakeholders,  will  therefore  consider  whether  changes  to  the 
existing legal framework would be needed to make its application easier and its enforcement 
more efficient. 

From the same perspective, a similar review is ongoing with reference to the official controls 
provisions  contained  in  Council  Directive  96/23/EC  on  measures  to  monitor  certain 
substances  and  residues  thereof  and  in  Regulation  (EC)  No  396/2005  of  the  European 
Parliament and of the Council on maximum residue levels of pesticides in or on food and feed 
of plant and animal origin and amending Council Directive 91/414/EEC. 

412 

413 

Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic and social committee and the Committee of the Regions on a new Animal Health Strategy 
for the European Union (2007-2013) where “Prevention is better than cure”. COM(2007) 539 final. 
The  Council  called  on  the  Commission  to  evaluate  the  current  plant  health  acquis  and  to  consider 
possible modifications to it, and subsequently present a proposal for a Community plant health strategy. 
The Commission has launched the evaluation, and a study is expected to start by mid 2009. 

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All  official  controls  should  in  fact  be  conducted  according  to  the  principles  and  overall 
approach of Regulation (EC) No 882/2004. Therefore, with the objective of better regulation 
in  mind,  consideration  will  be  given  to  the  possibility  of  integrating  the  rules  currently 
applicable to official controls on pesticides, contaminants and residues of pharmacologically 
active  substances  in  food  into  the  framework  of  Regulation  (EC)  No  882/2004,  so  as  to 
rationalise and simplify the overall legislative framework and make its application easier. 

FVO inspections 

At  Community  level,  valuable  information  regarding  the  application  of  Community 
legislation along the food chain is provided by the inspection activities of the Commission's 
FVO. Information collected by the FVO during recent years was carefully screened in 2008 to 
provide  an  overview  of  potential  shortcomings  in  relation  to  the  transposition  of  the  many 
Directives which currently govern activities along the food chain. 

As  a  result  of  the  FVO  inspections,  a  relatively  small  number  of  problems  linked  to 
transposition have been identified. the Commission services are in contact with the Member 
States  concerned  to  address  these  issues  through  an  array  of  approaches  using  its  tool-box. 
The  FVO  continues  to  screen  Directives  with  the  purpose  of  identifying  any  significant 
transposition problems. In a similar vein, the Commission services are considering the most 
efficient and effective enforcement action with respect to issues other than transposition that 
have been identified by the FVO. 

In  three  cases  the  Commission  decided  to  pursue  infringement  proceedings  against  Greece 
because  that  Member  State  persistently  failed  to  comply  with  a  range  of  important 
components of Community food safety legislation. 

The  FVO  missions  have  highlighted  since  1998  fundamental  systemic  shortcomings  in  the 
performance  of  the  Greek  authorities’  official  controls  in  the  area  of  food  safety,  animal 
health and animal welfare. These shortcomings being partially attributable to the scarcity of 
human resources in the Greek veterinary services and after considering that the results of the 
efforts  made  by  the  Greek  authorities  to  solve  these  problems  were  unsatisfactory,  the  case 
was referred to the Court (C-331/07). 

In  September  2005  the  FVO  unravelled  further  evidence  of  systemic  deficiencies  in  the 
management  of  animal  by-products.  An  infringement  procedure  which  brought  together  a 
previous case with new elements was initiated and finally referred to the Court of Justice in 
2008. 

Also  following  inspections  of  the  FVO,  the  Community  referred  Greece  to  the  Court  of 
Justice  for  failure  to  apply  in  a  satisfactory  way  the  Community  legislation  relating  to  the 
protection of animals during transport and in slaughterhouses. 

Likewise,  the  Commission  decided  to  refer  an  infringement  procedure  against  Italy  to  the 
Court of Justice on the grounds that a Member State cannot prevail itself of safety issues to 
impose trade barriers where such issues have already been addressed by the Community in a 
uniform and evidence-based approach. In this specific case, the Commission was of the view 
that as Community legislation sufficiently addresses the problem of avian influenza, Italy is 
not entitled to impose additional measures by making it compulsory to indicate the origin of 
the product on the labelling of poultry. Therefore, the Commission referred Italy to the Court. 

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14.4.3.  Food Hygiene 

The  Community  Food  “Hygiene  Package”,  which  resulted  from  the  White  Paper  on  Food 
Safety414  and  entered  into  application  on  1  January  2006,  is  composed  of  three  Regulations 
consolidating, updating and simplifying the Community legislation on food hygiene: 

•  Regulation  (EC)  No  852/2004  of  the  European  Parliament  and  of  the  Council  on  the 

hygiene of foodstuffs; 

•  Regulation (EC) No 853/2004 of the European Parliament and of the Council laying down 

specific hygiene rules for food of animal origin, and 

•  Regulation (EC) No 854/2004 of the European Parliament and of the Council laying down 
specific rules for the organisation of official controls on products of animal origin intended 
for human consumption. 

The new rules are based on the principles of a risk-based approach to a comprehensive and 
integrated food chain – from farm to fork – and the separation of responsibilities of the food 
business operators and the competent authorities. 

The main objective of these Regulations is to place the primary responsibility for food safety 
at  the  level  of  the  food  business  operators.  Moreover,  the  new  rules  aim  at  preventing 
contamination  of  food  from  biological,  chemical  and  physical  hazards  by  enabling  food 
business  operators  to  identify  such  hazards  by  the  application  of  procedures  based  on  the 
Hazard  Analysis  Critical  Control  Point  (HACCP)  principles.  These  procedures  became 
compulsory for all non-primary food operators. The principle of flexibility incorporated in the 
new  rules  enables  the  continued  use  of  traditional  methods  at  any  stage  of  production, 
processing or distribution of food. 

General  provisions  are  laid  down  for  all  foodstuffs,  while  specific  provisions  are  laid  down 
for  foodstuffs  of  animal  origin.  Measures  providing  detailed  criteria  and  conditions  for  the 
implementation of the above mentioned Regulations have also been adopted. These include: 

•  Commission  Regulation  (EC)  No  2073/2005  on  microbiological  criteria  for  foodstuffs: 
This  Regulation  defines  two  categories  of  criteria:  i.e.  food  safety  criteria  which  are 
applicable  to  products  placed  on  the  market  during  their  entire  shelf-life,  and  process 
hygiene criteria to indicate the correct functioning of the production process. Currently, the 
focus is on the correct implementation of the criteria. The microbiological criteria are also 
used as references during discussions on food safety standards for global trade within the 
Codex Alimentarius Committee for Food Hygiene of the FAO and WHO. 

•  Commission  Regulation  (EC)  No  2074/2005  laying  down  implementing  measures  for 
certain  products  under  Regulation  (EC)  No  853/2004  of  the  European  Parliament  and  of 
the  Council  and  for  the  organisation  of  official  controls  under  Regulation  (EC)  No 
854/2004  of  the  European  Parliament  and  of  the  Council,  and  Regulation  (EC)  No 
882/2004 of the European Parliament and of the Council, derogating from Regulation (EC) 
No  852/2004  of  the  European  Parliament  and  of  the  Council  and  amending  Regulations 
(EC) No 853/2004 and (EC) No 854/2004. This Regulation contains a set of implementing 
measures  such  as  provisions  concerning  food  chain  information,  recognised  testing 

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methods  for  detecting  marine  biotoxins,  lists  of  establishments,  model  health  certificates 
for  certain  products  of  animal  origin  and  a  derogation  for  foods  with  traditional 
characteristics; 

•  Commission Regulation (EC) No 2075/2005 laying down specific rules on official controls 
for  Trichinella  in  meat.  This  Regulation  requires  the  examination  for  the  presence  of 
Trichinella  parasite  in  all  slaughtered  pigs,  wild  boar  and  horses,  except  for  pigs 
originating from Trichinella free farms or regions declared as having a negligible risk. The 
Trichinella parasite causes disease in humans when raw (or undercooked) meat from pigs, 
wild boar or horses is consumed; 

•  Commission Regulation (EC) No 2074/2005 laying down transitional arrangements for the 
implementation  of  Regulations  (EC)  No  853/2004,  (EC)  No  854/2004  and  (EC)  No 
882/2004 of the European Parliament and of the Council and amending Regulations (EC) 
No  853/2004  and  (EC)  No  854/2004.  The  latter  Regulation  ensures  a  smooth  transition 
from  the  old  to  the  new  regime  until  31  December  2009.  The  measures  include  in 
particular provisions concerning stocks of food of animal origin, placing of food of animal 
origin  on  national  markets,  materials  bearing  pre-printed  health  or  identification  marks, 
marking  equipment,  health  import  conditions,  food  chain  information,  training  of 
slaughterhouse staff, certification of establishments and the accreditation of laboratories. 

The  Commission  continued  to  seek  pro-active  solutions  outside  or  in  parallel  with 
infringement  procedures  under  Article  226  of  the  EC  Treaty  by  using  the  preventive 
mechanism  of  Directive  98/34/EC  (whereby  Member  States  are  obliged  to  notify  the 
Commission  of  new  national  technical  rules  at  the  draft  stage)  and  “package  meetings” 
organised with Members States to discuss pending complaints/infringements, notifications of 
draft legislation, as well as other various horizontal issues. 

14.4.3.1. Legislative Changes Underway 

Because of its innovative nature, the European Parliament and the Council had requested the 
Commission to prepare a report already after only three years of application, i.e. by 20 May 
2009.415 The report shall, in particular, review the experience gained from the application of 
the  Food  Hygiene  Package  and  consider  whether  it  would  be  desirable  and  practicable  to 
extend the implementation of hazard analysis and critical control point ("HACCP") principles 
to the level of primary production. A wide consultation with the Member States and the other 
stakeholders  launched  at  the  end  of  2007  was  continued  in  2008  to  identify  the  main 
difficulties  that  were  experienced  in  implementing  these  Regulations.  On  this  basis,  the 
Commission  is  preparing  the  report  which  will  present  factually  the  experience  gained, 
including the difficulties encountered, in 2006, 2007 and 2008 from the implementation of the 
hygiene package by all actors involved. 

The  Commission  intends  also  to  follow  closely  the  discussions  and  the  development  of  the 
microbiological  criteria  in  the  Codex  Alimentarius  Committee  for  Food  Hygiene  and  to 
consider  baseline  studies  on  certain  microbiological  criteria  to  evaluate  their  correct 
implementation.  Furthermore,  the  Commission  will  consider  new  criteria  or  update  the 
existing ones taking into account emerging risks and new risk assessments. 

415 

Article 16 of Regulation (EC) No 852/2004; Article 14 of Regulation (EC) No 853/2004; and, Article 
21 of Regulation (EC) No 854/2004. 

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14.4.3.2. Evaluation 

The impact of the new principles and requirements introduced by the Food Hygiene Package 
is positive. By and large, Member States have taken the necessary administrative and control 
steps  to  ensure  compliance  but  there  is  still  room  for  improvement  in  relation  to 
implementation. This assessment is further supported by the findings of audits and inspections 
carried by the Commission's FVO. 

The  main  difficulties  identified  are  in  relation  to  certain  exemptions  from  the  scope  of  the 
Food  Hygiene  Package,  some  definitions  laid  down  in  the  relevant  Regulations  and  the 
procedure  for  adapting  those  definitions  and  practical  aspects  concerning  the  approval  of 
establishments handling foods of animal origin and the marking of such foodstuffs, the import 
regime for certain foodstuffs, the implementation of HACCP-based procedures in certain food 
businesses and the implementation of official controls in certain sectors. 

14.4.4.  Food Labelling 

Directive 2000/13/EC of the European Parliament and of the Council on the approximation of 
the  laws  of  the  Member  States  relating  to  the  labelling,  presentation  and  advertising  of 
foodstuffs  sets  out  harmonised  rules  to  enable  European  consumers  to  get  comprehensive 
information on the contents and the composition of food products. 

14.4.4.1. Legislative Changes Underway 

The existing legislation is outdated. The general food labelling legislation has been in force 
since 1978, while the existing nutrition labelling rules were adopted in 1990. Since then, the 
number of products has increased considerably and the way marketing is done has evolved as 
well as consumer demands. 

The Commission accordingly adopted on 30 January 2008, a proposal for a Regulation of the 
European Parliament and of the Council on the provision of food information to consumers. 
This  proposal  combines  Directive  2000/13/EC  with  Council  Directive  90/496/EEC  on 
nutrition labelling for foodstuffs into one instrument. In addition, the proposal simplifies the 
structure of the horizontal food labelling legislation in Directive 2000/13/EC, by recasting and 
replacing provisions already in place under this Directive. 

According to the proposed Regulation, pre-packaged food will have to display key nutritional 
information on the front of the package. General requirements on how nutrition information 
should be displayed on food labels are also set out, although there is room for Member States 
to  promote  additional  national  schemes,  provided  that  they  do  not  undermine  the  EU  rules. 
For public health reasons, the draft Regulation extends the current requirements for allergen 
labelling to cover non pre-packed food, including food sold in restaurants and other catering 
establishments.  Industry  should  also  benefit  from  the  proposed  new  rules,  as  they  set  up  a 
clearer, more harmonised legislative framework for food labelling and create a level playing 
field  for  all  operators.  The  proposed  Regulation  was  drawn  up  following  extensive 
consultations with consumer organisations, industry and other stakeholders. 

14.4.4.2. Evaluation 

The  general  food  labelling  legislation  dates  back  to  1979.  The  evolution  of  both  the  foods 
market  and  consumers'  expectations  made  the  update  and  modernisation  of  this  legislation 
necessary. To better identify the important points on which to focus modernisation efforts, a 

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number of surveys and consultations took place and showed that the main concerns regarding 
the  existing  legislation  were  the  following:  the  volume  and  dispersal  of  texts  making  the 
legislation confusing; there was a significant part of foods that do not provide information that 
can  be  important  for  health  related  issues,  such  as  allergens;  there  was  misunderstanding 
among operators and consumers concerning the use of country of origin labelling; there was a 
legal limbo regarding the ingredients labelling of alcoholic beverages; and the poor legibility 
of the labels could make it difficult for consumers to use the information and limit their ability 
to make informed choices. 

The revision of the legislation will bring clarity to provisions that apply to all foods. It will 
ensure that consumers receive the information that can be important in making health related 
choices,  such  as  those  concerning  the  presence  of  allergens  or  the  nutrient  content  of  the 
product. Importantly, the mandatory  information must be legible, so that the consumers can 
easily read the label. The Commission's proposal is in line with the simplification process in 
the  context  of  Better  Regulation.  The  replacement  of  the  current  horizontal  labelling 
Directives  by  one  concise  legislative  act  in  the  form  of  a  Regulation  will  provide  for  better 
clarity and consistency of application and enforcement of the rules on food labelling across all 
Member States. 

14.4.5.  Nutrition labelling 

Nutrition labelling rules are laid down in Council Directive 90/496/EEC. This Directive was 
recently amended through Commission Directive 2008/100/EC to revise and update a number 
of  the  technical  rules  contained  therein,  such  as  the  list  of  vitamins  and  minerals  and  their 
recommended  daily  allowances  values,  the  definition  for  "fibre"  and  the  list  of  energy 
conversion factors. 

14.4.5.1. Legislative Changes Underway 

As stated above, the Commission adopted on 30 January 2008, a proposal for a Regulation of 
the  European  Parliament  and  of  the  Council  on  the  provision  of  food  information  to 
consumers,416  which  will  repeal  inter  alia  Council  Directive  90/496/EEC.  The  amending 
Commission  Directive  2008/100/EC  will  be  incorporated  in  the  Commission  proposal  for  a 
Regulation on the provision of food information to consumers during the discussions of this 
Regulation. 

14.4.5.2. Evaluation 

The  development  of  Community  legislation  relating  to  nutritional  aspects  of  foods  such  as 
food  supplements,  the  addition  of  vitamins  and  minerals  and  the  harmonisation  of  nutrition 
and health claims meant that there was a need to update the certain technical aspects of the 
existing  rules  on  nutrition  labelling.  The  adoption  of  Commission  Directive  2008/100/EC 
ensures  coherence  between  different  pieces  of  legislation.  The  inclusion  of  a  definition  of 
fibre  in  Community  legislation  meant  that  this  could  be  reflected  in  discussions  on  the 
revision of the definition of fibre at international level in Codex Alimentarius. 

With respect to the general review of the nutrition labelling, there is wide agreement that the 
effectiveness of that labelling can be strengthened as a channel for information to consumers 
to support their ability to choose a balanced diet. The Commission conducted consultations of 

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stakeholders  and  the  feedback  was  that  there  is  dissatisfaction  among  stakeholders  on  the 
current  legislation.  The  proposal  for  the  revision  of  the  legislation  aims  to  overcome  the 
problem  of  disparity  of  the  inclusion  of  nutrition  labelling  in  different  Member  States  or 
categories  of  food,  by  making  the  nutrition  labelling  of  a  limited  number  of  nutritional 
elements mandatory on the majority of processed food. The proposal to revise the legislation 
mentioned  under  the  food  labelling  section  will  help  to  ensure  that  consumers  across  the 
Community  have  access  to  relevant  nutrition  information  so  as  to  make  informed  choices, 
taking  into  account  the  nutrition-related  advice  provided  through  Member  States’  public 
health activities. 

14.4.6.  Nutrition and Health Claims 

Regulation (EC) No 1924/2006 of the European Parliament and of the Council, which entered 
into  force  on  1  July  2008,  lays  down  harmonised  rules  for  the  use  of  health  or  nutritional 
claims (such as “low fat”, “high fibre” and “helps lower cholesterol”) on foodstuffs based on 
nutrient profiles. The latter Regulation aims at ensuring that any claim made on a food label in 
the EU is clear, accurate and substantiated and will thus enable consumers to make informed 
and  meaningful  choices  when  it  comes  to  food  and  drinks.  This  should  also  contribute  to  a 
higher  level  of  human  health  protection,  as  it  ties  in  with  the  Commissions  campaign  for 
healthier lifestyle choices by allowing citizens to know exactly what they are consuming. The 
Regulation also strives to ensure fair competition and promote and protect innovation in the 
area of food. Only products offering genuine health or nutritional benefits will be allowed to 
refer to those on their labels. 

By means of Regulation (EC) No 353/2008, the Commission established implementing rules 
for applications for authorisation of health claims, as provided for in Article 15 of Regulation 
(EC)  No  1924/2006.  These  implementing  rules,  together  with  guidance  developed  with  the 
European  Food  Safety  Authority  (EFSA),  aim  at  assisting  applicants  in  elaborating  and 
lodging application dossiers containing, inter alia, scientific data for further assessment by the 
European Food Safety Authority. 

14.4.6.1. Legislative Changes Underway 

In addition, substantial preparatory work has been completed for the establishment of specific 
nutrient  profiles,  as  provided  for  in  Article  4  of  Regulation  (EC)  No  1924/2006.  Nutrient 
profiles will determine whether foods are eligible, on the basis of their nutrient composition, 
to  bear  claims.  Such  profiles  will  be  based  primarily  on  the  levels  of  nutrients  for  which 
excessive  intakes  in  the  overall  diet  are  not  recommended  (e.g.  fat,  saturated  fat,  salt  and 
sugars). 

The  establishment  of  nutrient  profiles  is  a  complex  exercise  that  needs  to  take  into  account 
dietary  recommendations,  public  health  considerations  and  generally  acceptable  scientific 
evidence regarding the relationship between diet, nutrition and health (for which the European 
Food  Safety  Authority  provided  advice  in  January  2008),  as  well  as  industrial/commercial 
considerations (including innovation) and cultural and dietary/culinary considerations. 

The Commission has conducted specific and extensive consultations with stakeholders on the 
establishment  of  nutrient  profiles.  Food  producers  and  retailers  anticipate  some  economic 
impact  due  to  the  restrictions  on  bearing  claims  for  some  products,  while  consumer  groups 
predict social benefits. This could reduce the obesity levels across Europe and help to prevent 

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cardiovascular  and  other  diet-related  diseases  through  the  support  and  promotion  of  a 
balanced and healthy diet. 

14.4.6.2. Evaluation 

While  the  main  elements  of  the  Regulation  are  still  in  the  implementation  phase,  the  new 
Regulation already prohibits some misleading marketing practices and benefits the European 
consumers. Claims like "99 % fat free" are prohibited and the permitted nutrition claims shall 
comply with composition criteria. Health claims referring to the rate or amount of weight loss 
are also prohibited, and claims on alcoholic beverages are limited to referring to the reduction 
or the absence of alcohol and energy. 

In  2008,  in  the  framework  of  the  preparatory  work  on  the  setting  of  nutrient  profiles,  the 
EFSA  developed  food  composition  databases.  The  Commission  tested  these  databases  to 
evaluate  the  impact  of  different  nutrient  profiles  systems  on  the  eligibility  of  foods  to  bear 
nutrition and health claims. These data, together with Member States and stakeholders data, 
will also be used as a baseline to evaluate the impact of the new rules on food composition 
and consumption, and to a larger extent on the food market and on dietary choices, as required 
by  Article  27  of  Regulation  (EC)  No  1924/2006  in  the  report  on  the  application  of  the 
Regulation. 

14.4.7.  Dietetic foodstuffs 

Council  Directive  89/398/EEC  on  the  approximation  of  the  laws  of  the  Member  States 
relating  to  foodstuffs  intended  for  particular  nutritional  uses  (dietetic  foods)  establishes 
requirements on product composition and appropriate consumer information for foods that are 
suitable to fulfil the particular nutritional requirements of certain groups of the population. 

The  application  of  Council  Directive  89/398/EEC  has  been  considered  in  two  recent 
Commission  reports.  The  first  report,  adopted  on  27  June  2008,  covers  the  “procedure” 
foreseen  in  Article  9  of  Council  Directive  89/398/EEC,  which  requires  the  manufacturer  or 
the importer of certain dietetic foodstuffs to notify the competent authorities of the Member 
State where the products in question are marketed417. The second report, adopted on 26 June 
2008,  summarises  the  dietary  recommendations  for  people  with  diabetes  and  considers  the 
desirability  of  special  provisions  for  foodstuffs  for  persons  suffering  from  carbohydrate-
metabolism disorders (diabetes)418. 

These  reports  point  to  the  need  to  review  Council  Directive  89/398/EEC.  In  particular, 
attention should be given to the relationship between the Directive's provisions and those of 
other  Community  legislation  (notably  on  nutrition  and  health  claims  and  on  food 
supplements), to foodstuffs intended for  diabetics and to the authorisation procedure for the 
inclusion of new ingredients in infant formulae. 

Article  4a  of  Directive  89/398/EEC  foresees  the  setting  of  rules  for  the  use  of  terms 
concerning  the  absence  of  gluten  in  foodstuffs.  The  issue  is  particularly  relevant  for  people 
with celiac disease, a group of the population suffering from a permanent intolerance to gluten 

417 

418 

Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  implementation  of 
Article  9  of  Council  Directive  89/398/EEC  on  the  approximation  of  the  laws  of  the  Member  States 
relating to foodstuffs intended for particular nutritional uses, COM(2008)393 final. 
Report from the Commission to the European Parliament and the Council on foods for persons suffering 
from carbohydrate metabolism disorders (Diabetes), COM(2008)392 final. 

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and for which appropriate rules for the labelling of suitable foodstuffs are very important. The 
setting  of  such  rules  at  Community  level  will  ensure  the  same  high  level  of  protection  for 
consumers  and  allow  for  the  free  movement  of  the  concerned  products.  The  Commission 
adopted Regulation (EC) No 41/2009 concerning the composition and labelling of foodstuffs 
suitable for people intolerant to gluten, which will be applicable as of 1 January 2012. 

14.4.7.1. Legislative Changes Underway 

Directive  89/398/EEC  is  now  nearly  20  years  old  and  a  number  of  issues  have  arisen  in 
relation  to  its  scope  and  implementation.  Many  relate  to  the  continued  evolution  of  the 
Community Food law, of particular importance in that respect being the adoption of Directive 
2002/46/EC  on  Food  Supplements,  Regulation  (EC)  No  1925/2006  on  the  addition  of 
vitamins and minerals and of certain other substances to foodstuffs, and Regulation (EC) No 
1924/2006 on Nutrition and Health Claims. 

14.4.7.2. Evaluation 

The enforceability of the acquis on dietetic food could be improved. The need to rationalise 
the existing legal framework to take into account of the legislative developments above and of 
the need to facilitate innovation is being considered. 

14.4.8.  Food Supplements 

Directive 2002/46/EC of the European Parliament and of the Council partially harmonises the 
rules applicable to the placing of food supplements on the market. 

The scope of the Directive covers all food supplements. However, only the rules applicable to 
the use of vitamins and minerals in the manufacture of food supplements are laid down in the 
Directive. The use of substances other than vitamins or minerals in the manufacture of food 
supplements  therefore  continues  to  be  subject  to  the  rules  in  force  in  national  legislation. 
Therefore,  Article  4(8)  of  the  Directive  provides  that  the  Commission  shall  submit  to  the 
European  Parliament  and  the  Council  a  report  on  the  advisability  of  establishing  specific 
rules, including, where appropriate, positive lists on categories of nutrients or of substances 
with a nutritional or physiological effect other than vitamins and minerals. 

14.4.8.1. Legislative Changes Underway 

Future  activities  in  the  field  of  food  supplements  relate  to  the  adoption  of  implementing 
measures,  which  include,  inter  alia,  the  setting  of  maximum  amounts  of  vitamins  and 
minerals and the updating of the positive list of substances in the Annexes to the Directive. 
An  impact  assessment  report  to  analyse  the  economic,  social  and  environmental  impacts  of 
the options for the setting of maximum amounts is currently being prepared. 

14.4.8.2. Evaluation 

According to Article 4(8) of the Directive, the Commission adopted on 5 December 2008 a 
Report419 on the use of substances other than vitamins and minerals in food supplements. It 
concludes  that  the  existing  Community  legal  instruments  already  constitute  a  sufficient 

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COM(2008)824. 

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legislative framework for regulating this area and does not consider it opportune to lay down 
specific rules for substances other than vitamins or minerals for use in foodstuffs. 

14.4.9.  Voluntary addition of vitamins and minerals and of certain other substances to 

foodstuffs 

There  is  a  wide  range  of  nutrients  and  other  ingredients  that  might  be  used  in  food 
manufacturing,  including  (but  not  limited  to)  vitamins,  minerals  including  trace  elements, 
amino  acids,  essential  fatty  acids,  fibre,  various  plants  and  herbal  extracts.  Regulation  (EC) 
No 1925/2006 of the European Parliament and of the Council, which is applicable as of 1 July 
2007,  harmonises  the  provisions  laid  down  in  Member  States  that  relate  to  the  addition  of 
vitamins  and  minerals  and  of  certain  other  substances  to  foodstuffs.  The  objective  of  this 
Regulation is to ensure the effective functioning of the internal market whilst providing a high 
level of consumer protection. 

14.4.9.1. Legislative Changes Underway 

Future  activities  in  the  field  of  fortified  foods  relate  to  the  adoption  of  implementing 
measures, which include inter alia the setting of maximum amounts of vitamins and minerals, 
the  updating  of  the  positive  list  of  substances  in  the  Annexes  to  the  Regulation,  and  the 
application of Article 8 on substances other than vitamins or minerals. 

14.4.9.2. Evaluation 

An  impact  assessment  report  to  analyse  the  economic,  social  and  environmental  impacts  of 
the options for the setting of maximum amounts is currently being prepared. 

14.4.10. GMO Food and Feed 

14.4.10.1.  Current Situation 

Regulation (EC) No 1829/2003 of the European Parliament and of the Council on genetically 
modified  (GM)  food  and  feed  sets  out  a  comprehensive  set  of  rules  governing  the 
authorisation  process  for  GM  food  and  feed,  while  ensuring  a  high  level  of  protection  of 
human and animal health, of the environment and of consumers' interests. 

The Regulation provides for a single Community procedure for the authorisation of all food 
and  feed  containing,  consisting  or  produced  from  a  genetically  modified  organism.  This 
authorisation, valid throughout the Community, is granted subject to a single risk assessment 
process under the responsibility of the EFSA and a single risk management process involving 
the Commission and the Member States through a regulatory committee procedure. 

In  line  with  its  obligations  deriving  from  Regulation  (EC)  No  1829/2003,  the  Commission 
strengthened the application of Community legislation on GM food and feed in the following 
three main areas: 

•  Authorisations were granted to those GM food and feed complying with all the conditions 

set out in the basic legislation: 

– 

On 28 March 2008 the Commission adopted Decision 2008/279/EC repealing 
Decision 2006/69/EC authorising the placing on the market of foods and food 
ingredients  produced  from  genetically  modified  Roundup  Ready  maize  line 

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GA21  as  novel  foods  or  novel  food  ingredients  under  Regulation  (EC) 
No 258/97 of the European Parliament and of the Council; 

– 

– 

– 

On  8  September  2008  the  Commission  adopted  Decision  2008/730/EC 
authorising the placing on the market of products containing, consisting of or 
produced  from  genetically  modified  soybean  A2704-12  (ACS-GMØØ5-3), 
pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of 
the Council; 

On  29  October  2008  the  Commission  adopted  Decision  2008/837/EC 
authorising the placing on the market of products containing, consisting of or 
produced  from  genetically  modified  LLCotton25  (ACS-GHØØ1-3),  pursuant 
to  Regulation  (EC)  No  1829/2003  of  the  European  Parliament  and  of  the 
Council, and 

On  4  December  2009  the  Commission  adopted  Decision  2008/933/EC 
authorising the placing on the market of products containing, consisting of, or 
produced  from  genetically  modified  soybean  MON89788  (MON-89788-1), 
pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of 
the Council. 

•  The Commission monitored the situation as regards the risk that non-authorised GM food 
and feed present in products imported from third countries are placed on the Community 
market.  In  April  2008,  emergency  measures  against  the  presence  of  the  unauthorised 
genetically modified organism Bt 63 in rice products coming from China were adopted by 
means  of  Commission  Decision  2008/289/EC.  In  addition,  the  Commission  updated 
Commission Decision 2006/601/EC on emergency measures regarding the non-authorised 
genetically modified organism LL RICE 601 in rice products originating from the United 
States, so as to take into account new developments of the situation by means of Decision 
2008/162/EC. 

•  Finally, in line with the requirements of Regulation (EC) No 1829/2003, the Commission 
ensured  the  follow  up  of  the  emergency  measures  taken  by  certain  Member  States,  i.e. 
France and Greece, against the marketing and cultivation in their territory of seed derived 
from GM maize MON 810. 

14.4.10.2.  Legislative Changes Underway 

An evaluation should take place in 2009 to review and assess the EU legislative framework in 
the  field  of  GM  food  and  feed.  The  evaluation  seeks  to  identify  existing  challenges  in  its 
implementation, and to ensure its relevance for the current needs focussing, in particular, on 
the  regulatory  approval  process  and  the  compulsory  labelling  of  GM  food  and  feed.  This 
evaluation  also  aims  at  obtaining  a  comprehensive  set  of  data  and  information  from  an 
impartial  source  as  well  as  to  gain  a  clearer  view  about  the  functioning  of  the  current 
regulatory  framework,  its  consequences  and  impact.  This  information  will  be  use  as  a  basis 
for possible future policy decisions to streamline this sector. 

14.4.11. Novel Foods 

Novel foods are foods and food ingredients that have not been used for human consumption to 
a significant degree within the Community before 15 May 1997. Regulation (EC) No 258/97 

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of the European Parliament and of the Council lays out detailed rules for the authorisation of 
novel foods and novel food ingredients. 

Companies  that  want  to  place  a  novel  food  on  the  Community  market  need  to  submit  their 
application in accordance with Commission Recommendation 97/618/EC which concerns the 
scientific information and the safety assessment report required. 

A  total  of  six  novel  foodstuffs  were  approved  to  be  commercialised  in  the  Community  for 
2008. 

14.4.11.1.  Legislative Changes Underway 

A revision of Regulation (EC) No 258/97 was deemed necessary in order to reflect the fact 
that genetically modified (GM) food no longer falls within the scope of novel food legislation. 
The revision is also motivated from the need to avoid stifling innovation by creating a more 
favourable legislative environment for food industry, and to better facilitate both internal and 
external  trade  in  foodstuffs.  The  consumer  would  also  benefit  from  a  wider  choice  of  safe 
novel foods. 

Accordingly, the Commission adopted on 14 January 2008 a proposal for a Regulation of the 
European  Parliament  and  of  the  Council  on  novel  foods420.  This  proposal  seeks  to  improve 
access  of  new  and  innovative  foods  to  the  EU  market,  while  maintaining  a  high  level  of 
consumer protection and ensuring food safety. Under the draft Regulation, novel foods would 
be subject to centralised authorisation procedure. 

In the future, the Commission will receive the application for authorisation and the EFSA will 
carry  out  the  scientific  assessment  on  the  product.  The  "one  door  –one  key"  approach  to 
approval of novel foods will align the process to that taken on food additives, food enzymes 
and food flavourings.  This means  that the applicant may make one application for  approval 
covering all these possible uses of the substance in question. 

The  proposal  also  sets  out  data  protection  rules,  which  aim  to  protect  newly  developed 
foodstuffs  once  authorised  and  encourage  companies  to  invest  in  developing  new  types  of 
foods  and  food  production  techniques.  Moreover,  a  notification  procedure  is  introduced  for 
foods which have not been traditionally sold in the EU but which have a safe history of use in 
third countries. 

14.4.11.2.  Evaluation 

The proposed changes to the rules which currently govern the approval of novel foods in the 
Community  will  rationalise  the  existing  legal  framework  and  increase  its  efficiency  and 
clarity. The new rules will also better respond to the developments of food technology and the 
needs of food industry and consumers. 

420 

COM(2007)872final. 

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14.4.12. Food additives 

14.4.12.1.  Current Situation 

Council  Directive  89/107/EEC  on  the  approximation  of  the  laws  of  the  Member  States 
concerning  food  additives  authorised  for  use  in  foodstuffs  intended  for  human  consumption 
lays  down  the  general  principles  for  authorisation  of  food  additives  in  the  European  Union. 
This  Directive  is  complemented  with  the  European  Parliament  and  the  Council  Directives 
94/35/EC on sweeteners for use in foodstuffs, 94/36/EC on colours for use in foodstuffs and 
95/2/EC  on  food  additives  other  than  colours  and  sweeteners  which  lay  down  the  list  of 
authorised food additives and their conditions of use to the exclusion of all others. 

A new Regulation (EC) No 1333/2008 on food additives was adopted on 16 December 2008, 
most provisions of which will apply from 20 January 2010. The Regulation: 

•  simplifies  the  food  additive  legislation  by  consolidating  the  provisions  of  Directives 

89/107/EEC, 94/35/EC, 94/36/EC and 95/2/EC; 

•  confers  implementing  powers  on  the  Commission  to  update  the  Community  lists  of 

authorised food additives; 

•  sets up a re-evaluation programme for all existing food additives; 

•  establishes  a  system  for  a  review  of  all  current  additives  authorisations  for  their 
compliance with the principles of the Regulation (EC) No 1333/2008 by 20 January 2011 
and  transfer  of  these  provisions  in  the  Annex  of  this  Regulation.  Until  this  transfer  is 
completed, the Annexes to Directives 94/35/EC, 94/36/EC and 95/2/EC continue to apply. 
In addition, powers to adopt implementing measures were conferred to the Commission to 
amend the annexes to Directives 94/35/EC, 94/36/EC and 95/2/EC until the establishment 
of the Community list of food additives in the Annex of Regulation (EC) No 1333/2008. 

Further  simplification  of  the  legal  framework  is  ensured  by  Regulation  (EC)  No  1331/2008 
which establishes an effective, expedient and transparent common authorisation procedure for 
food additives, food enzymes and food flavourings. 

14.4.12.2.  Legislative Changes Underway 

A number of implementing measures under Regulation (EC) 1333/2008 and Regulation (EC) 
No 1331/2008 are required. 

It is not yet possible to fully appreciate the enforcement of Regulation (EC) No 1331/2008, as 
significant improvement is expected (in particular by food businesses) from the simplification 
of the authorisation procedure for food additives. 

14.4.13. Food enzymes 

14.4.13.1.  Current Situation 

Directive 89/107/EEC only covers enzymes used as food additives. The remaining enzymes 
were not regulated at all or were regulated as processing aids under non harmonised national 
provisions, which were diverse. Directive 95/2/EC on  food additives other than colours and 

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sweeteners allows for the use of two enzymes as food additives: E 1103 Invertase and E1105 
Lysozyme. 

The new Regulation (EC) No 1332/2008 on food enzymes will harmonise for  the  first time 
the use of food enzymes, both as food additives and processing aids. 

The  Community  list  of  food  enzymes  which  will  be  established  under  Regulation  (EC)  No 
1332/2008  and  based  on  the  safety  assessment  carried  out  by  the  EFSA  will  be  set  up  in  a 
stepwise  manner.  The  Commission  must  adopt  an  implementing  measure  with  modalities 
concerning  the  presentation  and  content  of  the  applications  by  December  2010.  Then 
interested parties must submit within 24 months applications for the inclusion of an enzyme in 
the Community list. The establishment of the Community list will take place in a single step 
procedure  after  the  EFSA  has  expressed  opinions  on  all  products  for  which  sufficient 
information has been submitted during the 24-month period. 

14.4.13.2.  Legislative Changes Underway 

Implementing measures to establish the modalities concerning the presentation and content of 
the applications shall be adopted by the Commission by 16 December 2010. 

14.4.13.3.  Evaluation 

Whilst  it  is  not  yet  possible  to  fully  appreciate  the  enforcement  of  Regulation  (EC)  No 
1332/2008, significant improvements are expected (in particular by food businesses) from the 
simplification of the legislative framework. 

14.4.14. Food Flavourings 

14.4.14.1.  Current Situation 

The general framework for food flavourings in the European Community was established by 
Council  Directive  88/388/EEC  of  22  June  1988  on  the  approximation  of  the  laws  of  the 
Member States relating to flavourings for use in foodstuffs and to source materials for their 
production. This Directive lays down general requirements for safe use of flavourings in food 
and provides definitions for different types of flavourings. It also establishes maximum levels 
for  certain  substances  that  are  naturally  present  in  flavourings  and  in  food  ingredients  with 
flavouring properties, but which may raise concern for human health. 

Commission  Directive  91/71/EEC  of  16  January  1991  completing  Council  Directive 
88/388/EEC sets out labelling rules on flavourings. 

It  was  necessary  to  update  these  Directives  in  the  light  of  technical  and  scientific 
developments.  Therefore,  the  Commission  proposed  on  28  July  2006  a  new  Regulation  on 
flavourings and certain food ingredients with flavouring properties. 

The  new  Regulation  (EC)  No  1334/2008  on  flavourings  and  certain  food  ingredients  with 
flavouring properties for use in and on foods was adopted on 16 December 2008. It repeals 
Council  Directive  88/388/EEC  and  Commission  Directive  91/71/EEC  as  from  20  January 
2011. 

Similar to the previous legislation, the Regulation lays down general requirements for safe use 
of flavourings and provides definitions for different types of flavourings. The Regulation sets 

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out  flavourings  and  source  materials  for  which  an  evaluation  and  approval  is  required.  The 
Regulation  prohibits  the  addition  of  certain  substances  as  such  to  food  and  lays  down 
maximum levels for certain substances, which are naturally present in flavourings and in food 
ingredients with flavourings properties, but which may raise concern for human health. The 
Regulation also sets out the rules for labelling of flavourings from business to business and 
for sale to the final consumers. It also describes the specific requirements for use of the term 
"natural". 

Currently,  Regulation  (EC)  No  2232/96  sets  out  the  basic  rules  for  the  use  of  flavouring 
substances  in  or  on  foodstuffs  and  lays  down  a  procedure  for  the  establishment  of  a 
Community  list  of  flavouring  substances.  The  Regulation  will  become  obsolete  after  the 
establishment, foreseen by the end of 2010 at the latest, of the Community list provided for in 
Regulation (EC) No 1334/2008, when only those flavouring substances listed will be allowed 
to be added to foods. 

The European Parliament and the Council Regulation (EC) 2065/2003 on smoke flavourings 
used  or  intended  for  use  in  or  on  foods  establishes  a  Community  procedure  for  the  safety 
assessment  and  the  authorisation  of  smoke  flavourings  in  order  to  ensure  a  high  level  of 
protection  of  human  health  and  protection  of  consumers'  interests,  as  well  as  to  ensure  fair 
trade practices. 

In addition, a separate Regulation (EC) No 1331/2008 establishes an effective, expedient and 
transparent  common  authorisation  procedure  for  food  additives,  food  enzymes  and  food 
flavourings. 

14.4.14.2.  Legislative Changes Underway 

The Community list on flavouring substances will be adopted by end 2010 and will form part 
of the Regulation (EC) No1334/2008. An implementing measure for guidance on applications 
for  authorisations  on  flavourings  2008  will  be  elaborated  under  Regulation  (EC)  No 
1331/2008. 

A common methodology for monitoring flavourings will be elaborated under Regulation (EC) 
No 1334/2008. 

The Community list on smoke flavourings will be established once the EFSA has published 
all the opinions on evaluated smoke flavourings, possibly by end 2009/beginning 2010. 

14.4.14.3.  Evaluation 

The  use  of  flavourings  will  be  fully  harmonised  with  specific  Community  lists  for  certain 
categories of flavourings. 

14.4.15. Food Contact Materials 

14.4.15.1.  Current Situation 

Regulation (EC) No 1935/2004 of the European Parliament and of the Council on materials 
and articles intended to come into contact with food (FCM) sets out the basic requirements for 
a  harmonised  European  market  on  food  contact  materials,  while  ensuring  a  high  level  of 
protection of human health. This legal act empowers the Commission to set material specific 
rules in specific legislation. 

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Specific  legislation  exists  for  ceramic  materials,  regenerated  cellulose  film  and  plastic  food 
contact materials. In 2008 specific legislation was adopted for recycled plastic to be used in 
contact  with  food.  Commission  Regulation  (EC)  No  282/2008  on  recycled  plastic  materials 
and articles intended to come into contact with foods introduces a harmonised procedure for 
risk assessment and authorisation of recycling processes used to manufacture recycled plastic 
for food contact. It sets out requirements for the quality assurance systems to be established in 
companies  using  authorised  recycling  processes.  It  requires  that  recycled  plastics  are 
accompanied by a detailed declaration of compliance. The regulation thus harmonises in the 
EU the criteria for placing on the market recycled plastic for food contact. 

14.4.15.2.  Legislative Changes Underway 

New  developments  in  food  packaging  technology cover also the use of packaging materials 
that  can  interact  with  the  food  by  absorbing  or  releasing  substances  or  that  monitor  the 
conditions of the packaged food. These materials are called active or intelligent food contact 
materials.  Basic  rules  for  these  materials  are  set  out  in  the  framework  Regulation  for  food 
contact  materials.  However,  specific  rules  including  establishing  a  list  of  authorised 
substances are to be set out in a specific Commission Regulation.  

Harmonisation  of  legislation  for  plastic  food  contact  materials  started  in  1980  and  led  to  a 
series of 13 Directives setting out a list of authorised substances, limits for the substances in 
food and testing regimes. Simplification and rationalisation of this legislation dispersed over 
several Directives will be achieved by the adoption of a Commission Regulation, foreseen in 
2010. This Regulation will speed up authorisation of new substances and to simplify rules on 
migration testing. 

14.4.15.3.  Evaluation 

While the harmonisation of legislation on plastic food contact materials at Community level is 
nearly  complete,  only  the  basic  principles  are  set  out  for  other  materials  such  as  paper  and 
board,  printing  inks,  adhesives.  In  the  future  it  needs  to  be  analysed  to  what  extent 
harmonisation at Community level of other materials would be necessary. 

14.4.16. Plant Protection Products– Pesticide Residues 

The  yield  of  agricultural  and  horticultural  crops  can  be  severely  reduced  as  a  result  of 
infestation  by  pests  and  diseases.  In  order  to  protect  crops  before  and  after  harvest,  plant 
protection products (or pesticides) are used. Such pesticides could have severe undesirable 
effects if they are not strictly regulated. 

The  legislation  in  this  area  regulates  the  placing  on  the  market  and  use  of  plant  protection 
products (Directive 91/414/EEC) and the maximum residue levels (MRLs) of pesticides that 
can be found in or on food and feed (Regulation (EC) No 396/2005). 

Prior  to  Regulation  (EC)  No  396/2005,  the  legislation  was  too  complex  as  it  combined 
harmonised  EU421  and  divergent  national  rules.  This  situation  led  to  confusion  about  which 
MRL  was  applicable.  It  made  the  life  of  traders  and  importers  difficult  and  gave  rise  to 

421 

The  previous  European  legislation  set  different  levels  for  different  kinds  of  product:  some  fruit  and 
vegetables  (Directive  76/895/EEC),  cereals  (Directive  86/362/EEC),  foodstuffs  of  animal  origin 
(Directive 86/363/EEC) and plant products, including fruit and vegetables (Directive 90/642/EEC). 

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questions  from  consumers,  particularly  in  cases  where  food  exceeding  the  defined  MRL  in 
one Member State was acceptable in other Member States. 

Regulation  (EC)  No  396/2005  covers  approximately  1100  pesticides  currently  or  formerly 
used  in  agriculture  in  or  outside  the  EU.  It  lists  limits  for  315  agricultural  products.  These 
limits also apply to processed products, adjusted to take account of dilution or concentration 
during  processing.  The  new  rules  take  into  consideration  the  safety  of  all  consumer  groups. 
This  includes,  for  example,  babies,  children  and  vegetarians.  EFSA  is  responsible  for  the 
safety assessment, which is based on the properties of the pesticide, on the maximum levels 
expected on food and on the different diets of European consumers. 

The  evaluation,  marketing  and  use  of  plant  protection  products  in  the  Community  are 
regulated under Council Directive 91/414/EEC. This Directive lays out a comprehensive risk 
assessment  and  authorisation  procedure  for  active  substances  and  products  containing  these 
substances. Each active substance has to be proven safe in terms of human health, including 
residues  in  the  food  chain,  animal health  and  the  environment,  in  order  to  be  allowed  to  be 
marketed. It is the responsibility of industry to provide the data showing that a substance can 
be used safely with respect to human health and the environment. 

In  accordance  with  Article  8  of  Directive  91/414/EEC  concerning  the  placing  of  plant 
protection products on the market, the Commission has to assess within a certain timeframe 
the active substances contained in plant protection products that were already on the market 
on the date of the application of that Directive. 

In  1992,  the  Commission  launched  an  ambitious  review  programme.  Regulation  (EEC)  No 
3600/92 laid down detailed rules for the first stage of that programme. The procedures for the 
three  further  stages  of  the  programme  were  established  in  2000  (Regulation  (EC)  No 
451/2000), 2002 (Regulation (EC) No 1490/2002) and in 2004 (Regulation No 2229/2004). 

The rules laid down in those Regulations provide that persons or companies wishing to secure 
the  inclusion  of  active  substances  in  the  positive  list  of  Annex  I  of  Directive  91/414/EEC 
submit  by  a  certain  date  a  dossier  meeting  the  requirements  of  the  Directive  in  order  to 
demonstrate  that  it  may  be  expected  that  plant  protection  products  containing  those  active 
substances are sufficiently safe for human or animal health or for the environment. 

The Commission finalised the review programme of existing pesticides in March 2009. The 
review has led to the removal from the market of pesticides which cannot be used safely. Of 
some 1 000 active substances on the market in at least one Member State before 1993, 26 %, 
corresponding  to  about  250  substances,  have  passed  the  harmonised  EU  safety  assessment. 
The  majority  of  substances  (67%)  have  been  eliminated  because  dossiers  were  either  not 
submitted, incomplete or withdrawn by industry. 

About 70 substances failed the review and have been removed from the market, because the 
evaluation  carried  out  did  not  show  safe  use  with  respect  to  human  health  and  the 
environment.  In  order  to  obtain  that  the  plant  protection  products  containing  those  active 
substances can remain on the market, certain companies that notified the dossiers, are seeking 
the  annulment  by  the  Court  of  those  Commission  decisions  by  invoking  errors  during  the 
assessment or with regard to the procedural rules. 

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14.4.16.1.  Legislative Changes Underway 

After an intensive consultation of stakeholders, the Commission proposed on 12 July 2006 a 
Regulation  concerning  the  placing  of  plant  protection  products  that  will  replace  Directive 
91/414/EEC.  The  draft  Regulation  contains  measures  for  shorter  and  clearer  authorisation 
criteria,  streamlined  procedures,  simplified  data  protection  rules,  provisions  for  the 
substitution  of  active  substances  with  safer  alternatives  and  a  reduction  in  testing  on 
vertebrate animals. 

14.4.16.2.  Evaluation 

The Commission received only a few complaints on the bad application by the Member States 
of Directive 91/414/EEC. Most concern issues relating to the provisions on data protection. In 
one  of  those  cases  an  infringement  procedure  is  ongoing.  It  has  to  be  stressed  that  in  this 
policy  area  numerous  guidance  documents  and  strong  cooperation  between  Member  States 
and  the  Commission  through  expert  groups  contribute  to  a  correct  application  of  the 
Community legislation. 

14.4.17. Contaminants in food 

14.4.17.1.  Current situation 

The EU harmonisation of legislation on contaminants in food fulfils two essential objectives: 
the protection of public health and the removal of internal barriers to trade. 

Council  Regulation  (EEC)  No  315/93  of  8  February  1993,  laying  down  community 
procedures  for  contaminants  in  food,  is  the  framework  for  the  Community  action  on 
contaminants. 

The Regulation provides that: 

•  Food containing a contaminant in an amount which is unacceptable from the public health 

viewpoint shall not be placed on the market; 

•  Contaminant levels shall be kept as low as can reasonably be achieved by following good 

practices at all stages of the production chain; 

•  In  order  to  protect  public  health,  maximum  levels  for  specific  contaminants  shall  be 

established where necessary (by comitology); and 

•  The consultation of EFSA for all provisions which may have an effect upon public health 

is mandatory. 

Based on this framework Regulation, maximum levels for the following specific contaminants 
in  foodstuffs  have  been  established  by  Commission  Regulation  (EC)  No  1881/2006  of  19 
December 2006: 

•  Nitrate; 

•  Aflatoxins, ochratoxin A, Fusarium-toxins, and patulin (mycotoxins); 

•  Lead, cadmium, mercury (heavy metals); 

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•  Dioxins and PCBs; 

•  3-MCPD; 

•  Inorganic tin; 

•  Benzo(a)pyrene (as marker substance for the group of PAH). 

In  addition,  several  Regulations  have  been  adopted  containing  provisions  as  regards  the 
sampling and methods of analysis to be used for official control of the compliance with the 
maximum  levels  established  on  contaminants,  in  order  to  ensure  a  harmonised  enforcement 
approach: 

•  Commission Regulation (EC) No 1882/2006 of 19 December 2006 laying down methods 
of  sampling  and  analysis  for  the  official  control  of  the  levels  of  nitrates  in  certain 
foodstuffs; 

•  Commission Regulation (EC) No 1883/2006 of 19 December 2006 laying down methods 
of  sampling  and  analysis  for  the  official  control  of  the  levels  of  dioxins  and  dioxin-like 
PCBs in certain foodstuffs; 

•  Commission Regulation (EC) No 401/2006 of 23 February 2006 laying down methods of 
sampling and analysis for the official control of the levels of mycotoxins in foodstuffs; 

•  Commission  Regulation  (EC)  No  333/2007  of  28  March  2007  laying  down  methods  of 
sampling  and  analysis  for  the  official  control  of  the  levels  of  lead,  cadmium,  mercury, 
inorganic tin, 3-MCPD and benzo(a)pyrene in foodstuffs. 

In response to frequent findings of high levels of aflatoxins in some products originating from 
some  third  countries,  specific  measures  have  been  introduced  by  Commission  Decision 
Commission Decision 2006/504/EC of 12 July 2006 on special conditions governing certain 
foodstuffs imported from certain third countries due to contamination risks of these products 
by aflatoxins, imposing special conditions on the import of pistachios from Iran, peanuts from 
Egypt  and  China,  hazelnuts,  dried  figs  and  pistachios  from  Turkey,  Brazil  nuts  in  shell  and 
peanuts from Brazil and almonds from the United States. 

Furthermore Commission Decision 2008/352/EC of 29 April 2008 imposes special conditions 
governing  guar  gum  originating  in  or  consigned  from  India  due  to  contamination  risks  of 
those products by pentachlorophenol and dioxins. 

In 2008 the following legislative acts were adopted: 

•  Commission  Regulation  (EC)  No  565/2008  amending  Regulation  (EC)  1881/2006: 

establishment of a maximum level for dioxins and PCBs in fish liver; 

•  Commission  Regulation  (EC)  No  629/2008  amending  Regulation  (EC)  1881/2006: 
amendment  to  maximum  level  for  lead  in  mushrooms,  for  cadmium  in  mushrooms  and 
certain fish species and mercury in certain fish species  and establishment of  a maximum 
level for lead, cadmium and mercury in food supplements. 

Two  important  safeguards  were  adopted  in  2008  to  counter  risks  posed  by  food 
contamination: 

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•  Commission  Decision  2008/433/EC  of  10  June  2008  imposing  special  conditions 
governing  the  import  of  sunflower  oil  originating  in  or  consigned  from  Ukraine  due  to 
contamination risks by mineral oil; and  

•  Commission  Decision  2008/798/EC  of  14  October  2008  imposing  special  conditions 
governing  the  import  of  products  containing  milk  or  milk  products  originating  in  or 
consigned from China as amended by Decision 2008/921/EC. 

14.4.17.2.  Legislative Changes Underway 

Initiatives  for  possible  changes  to  the  contaminant  legislation  include  the  development  of 
proposals  to  limit  the  presence  in  food  of  other  contaminants  (T-2  toxin,  HT-2  toxin  and 
PCBs)  and  to  review  some  existing  provisions  (aflatoxins,  ochratoxin  A,  heavy  metals, 
polycyclic aromatic hydrocarbons (PAHs) and dioxins). 

The presence of acrylamide in food is under continual close scrutiny, pending availability of 
further scientific information and new monitoring. 

Data  is  being  collected  on  a  number  of  other  contaminants,  such  as  brominated  flame 
retardants (polybrominated diphenyl ethers (PBDE’s), …), acrylamide, furan, perfluorooctane 
sulfonates/acids (PFOS/A). 

In  the  contaminants  area  new  and  emerging  risks  are  difficult  to  predict,  but  require 
continuous attention to protect public health. 

14.4.17.3.  Evaluation 

Much  attention  is  paid  to  the  effective  and  uniform  enforcement  of  the  legislation  on 
contaminants  and  of  related  safeguard  Decisions.  Consideration  is  given  to  enforcement 
issues  from  the  very  first  stages  of  the  discussions  on  new  measures,  in  order  to  ensure 
optimal uniform enforcement across the EU. 

Enforcement issues are discussed in the Standing Committee on the Food Chain and Animal 
Health  and  in  relevant  expert  groups  thereof.  These  discussions  result  in  some  cases  in 
guidance documents for the control of the legislation, publicly available and published on the 
Commission services web pages: 

•  Guidance  document  for  competent  authorities  for  the  control  of  compliance  with  EU 

legislation on aflatoxins422; 

•  Guidelines  for  the  enforcement  of  provisions  on  dioxins  in  the  event  of  non-compliance 

with the maximum levels for dioxins in food423; 

•  Guidance on sampling of whole fishes of different size and/or weight424; 

•  Guidance for the application of the Decision 2008/433/EC on sunflower oil from Ukraine 

contaminated with mineral oil425; 

422 
423 
424 

http://ec.europa.eu/food/food/chemicalsafety/contaminants/aflatoxin_guidance0309_en.pdf; 
http://ec.europa.eu/food/food/chemicalsafety/contaminants/guidelines-july_2004_en.pdf; 
http://ec.europa.eu/food/food/chemicalsafety/contaminants/guidance-sampling%20-whole-fish-with%20exemples- 
dec2006.pdf 

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•  Report  on  the  relationship  between  analytical  results,  measurement  uncertainty,  recovery 
factors and the provisions of EU food and feed legislation, with particular reference to the 
contaminants legislation426. 

14.4.18. Animal Health - Zoonoses 

Zoonoses are diseases and infections that can be transmitted from animals to humans, directly 
or,  in  particular,  through  food  (e.g.  Salmonella  in  eggs,  Listeria  in  cheeses  etc.)  The 
monitoring  of  zoonoses  along  the  entire  food  chain  and  in  humans  is  necessary  to  assess 
related  risks.  Zoonoses,  in  particular  at  the level of primary  production, must be adequately 
controlled. 

The main pieces of legislation relating to zoonoses are: 

•  Directive 2003/99/EC of the European Parliament and of the Council on the monitoring of 
zoonoses  and  zoonotic  agents,  amending  Council  Decision  90/424/EEC  and  repealing 
Council  Directive  92/117/EEC.  The  latter  Directive  aims  to  obtain  comparable  data  to 
evaluate  related  risks.  The  monitoring  of  eight  zoonoses  is  mandatory,  whereas  other 
zoonoses should be monitored according to the epidemiological situation in each Member 
State. Monitoring of antimicrobial resistance and investigation of food-borne outbreaks are 
also required by the Directive; and 

•  Regulation  (EC)  No  2160/2003  of  the  European  Parliament  and  of  the  Council  on  the 
control  of  salmonella  and  other  specified  food-borne  zoonotic  agents.  This  Regulation 
prescribes that controls on zoonoses should cover the whole food chain. Its primary aim is 
to  ensure  that  effective  measures  are  taken  to  decrease  the  occurrence  of  Salmonella 
serotypes of significance for public health progressively, in different categories of poultry 
and pigs. 

Member States or regions may be granted special guarantees for Salmonella at the placing on 
their market of foodstuffs of animal origin, similar to the ones granted to Finland and Sweden 
at  their  accession,  if  they  have  a  control  programme  recognised  as  equivalent427  Such  a 
request  was  put  forward  by  Denmark.  Before  analysing  the  equivalence,  it  was  considered 
opportune to agree on the minimum requirements for submission and this was laid down in a 
Commission  Guidance  Document428.  The  Danish  control  programmes  were  then  considered 
equivalent  as  regards  table  eggs  but  not  as  regards  broiler  meat  because  the  prevalence  of 
Salmonella in flocks of broilers was still too high. Nevertheless, a qualified majority within 
the  Standing  Committee  was  not  reached  on  a  Commission  proposal  to  grant  special 
guarantees to Denmark as regards table eggs because a number of Member States oppose the 
principle of extending special guarantees. 

14.4.18.1.  Legislative Changes Underway 

A Community target for the reduction of Salmonella should have been set by the end of 2008, 
subject  to  a  cost/benefit  analysis.  Obtaining  the  necessary  elements  for  completing  such  an 

425 
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427 

428 

http://ec.europa.eu/food/committees/regulatory/scfcah/toxic/summary20062008_en.pdf 
http://ec.europa.eu/food/food/chemicalsafety/contaminants/report-sampling_analysis_2004_en.pdf  
Article  8  of  Regulation  (EC)  853/2004  of  the  European  Parliament  and  of  the  Council,  OJ  L  226, 
25.6.2004, p.22; 
SANCO/745/2008r6(http://ec.europa.eu/food/food/biosafety/salmonella/docs/guidance_document_swe_fin_en.pdf)  

EN 

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analysis  proved  to  be  difficult.  An  external  contractor  will  be  procured  for  the  purpose  of 
carrying  this  through.  A  Communication  from  the  Commission  is  being  prepared  to  inform 
the Parliament and the Council on these difficulties and the delay. 

14.4.18.2.  Evaluation 

With  the  adoption  of  Directive  2003/99/EC  the  system  has  been  considerably  improved,  in 
particular with regard to the comparability of data, and extended to cover additional zoonoses 
on  a  mandatory  basis  and  certain  important  aspects  such  as  antimicrobial  resistance  and 
foodborne outbreaks. 

14.4.19. Transmissible Spongiform Encephalopathies 

Regulation (EC) No 999/2001 of the European Parliament and of the Council lays down rules 
for 
transmissible  spongiform 
encephalopathies (TSEs). 

the  prevention,  control  and  eradication  of  certain 

The  Community  has  made  great  strides 
its  battle  against  bovine  spongiform 
encephalopathy  (BSE).  The  consistent  decline  in  the  number  of  BSE/TSE  incidents  bears 
witness  to  the  effectiveness  of  strong,  comprehensive  Community  measures  put  in  place  to 
combat  this  disease.  The  Commission  has  at  no  point  stopped  monitoring  or  reacting  to  the 
challenge of BSE. As a result, consumers' confidence has increased. 

in 

In the light of the reduction of BSE cases, new developments in science, and in accordance 
with  the  TSE  Roadmap,  new  measures  have  been  adopted  to  target  surveillance  and 
eradication  schemes  better,  revise  the  list  of  specified  risk  materials  and  set  import  rules 
linked to the BSE risk status of countries. 

In  light  of  this  positive  trend,  and  new  developments  in  science  and  technology,  the  TSE 
Roadmap  considers  possible  amendments  to  certain  BSE  measures  currently  in  place  while 
still making food safety and consumer protection the highest priority. Any adaptations made 
to the BSE measures, however, will not affect in any way the fundamental objectives of TSE 
eradication and the protection of the EU citizens. These have always been and will continue to 
be the main considerations of EU policy making in this area. 

14.4.19.1.  Legislative Changes Underway 

In  relation  to  the  legislation  applicable  to  TSE,  priority  is  being  given  to  the  review  of  the 
provisions  related  to  the  total  feed  ban  and  eradication  measures  in  small  ruminants  on  the 
basis of evolving science. 

14.4.19.2.  Evaluation 

As  regards  TSE  in  particular,  efforts  focus  on  the  need  to  adjust  existing  measures  to  new 
scientific findings and thus to risk. 

EN 

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14.4.20. Animal Health – Non Zoonotic Diseases 

14.4.20.1.  Current Situation 

Animal health is an important factor for a functioning agriculture and the safe supply of food. 
It  has  been  part  of  the  Community  acquis  from  the  very  beginning  of  the  Community  and 
legislation in force dates back to the 1960s. 

Animal  health  legislation  has  been  adapted  over  the  years,  in  order  to  accommodate  new 
diseases such as BSE or changes in the spread of existing diseases such as avian influenza. 
Outbreaks of e.g. classical swine fever and foot and mouth disease have triggered adoption of 
specific legislation. 

The  result  is  a  body  of  law  of  over  60  acts  (mostly  Directives)  laying  down  horizontal  and 
vertical  principles  for  intra  Community  trade,  imports  of  animals  and  their  products,  health 
and movement controls (veterinary checks), the notification of diseases and financial support. 

Formal complaint cases in this area are few. Most refer to isolated cases of alleged incorrect 
implementation at local level which cannot be solved by the Community institutions but have 
to be dealt with in national courts. 

Nevertheless, requests for interpretation and the difficulties arising from the complexities and 
inconsistencies  have  shown  that  this  framework  does  not  comply  with  more  modern 
requirements  for  transparency  and  flexibility.  Thus  in  2007  the  Commission  presented  its 
plans  to  improve  the  situation  through  a  New  Animal  Health  Strategy429.  This  triggered  a 
broad  consultation  involving  stakeholders,  trade  partners  and  institutions.  As  a  result,  a 
Communication  on  an  Animal  Health  Action  Plan430  was  published,  listing  all  actions 
considered necessary for a new approach on animal health. The most important action is the 
work preparing a proposal on a new animal health law. 

Disease Situation 

Against  this  background  the  challenge  to  address  acute  animal  health  concerns  effectively 
remains.  Animal  health  is  under  consistent  threat  of  outbreaks  within  the  Community,  in 
neighbouring countries or on the territory of trade partners. 

Diseases  such  as  classical  swine  fever  and  foot  and  mouth  disease,  which  cause  heavy 
economic losses, are constantly at our gates. The necessary implementation of tough measures 
often results in unpleasant portrayals by the press. Modified agricultural practices increase the 
importance of fish diseases and tuberculoses. Changes in the environment foster the spread of 
bluetongue. 

Bluetongue is a viral disease transmitted by specific midges among ruminants (cattle, sheep, 
goats) and is difficult to prevent and control. It causes considerable losses to stock farmers. 
The  midges  spread  within  a  favourable  environment  and  recently  to  more  northern  parts  of 
Europe  with  new  serotypes  and  large  scale  epidemics.  This  suggests  its  link  to  climate 
change. 

429 
430 

COM(2007)539final. 
COM(2008)545final. 

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The threat of a pandemic through the spread of an avian influenza virus is still present though 
currently we observe only isolated cases. 

14.4.20.2.  Work done in 2008 

The  European  Commission  adopted  a  Communication  laying  down  the  Action  Plan  for  the 
implementation of the EU's animal health strategy. The Action Plan contains an overview and 
summary of the key actions. A programming document was agreed. It contains all the actions 
and  their  relevant  details,  such  as  milestones,  marking  important  steps  within  the  actions, 
organisations involved and indicative dates for the completion of actions. The plan is updated 
regularly to enable any interested person, organisation or other parties to follow the progress 
of the different activities. 

Given the devastating impact that serious disease outbreaks can have on farmers, society and 
the economy, the new strategy is based on the principle that “prevention is better than cure”. 
The aim is to put greater focus on precautionary measures, disease surveillance, controls and 
research,  in  order  to  reduce  the  incidence  of  animal  disease  and  minimise  the  impact  of 
outbreaks when they do occur. 

We have taken a collaborative approach, maintaining effective partnerships at all levels. An 
Animal  Health  Advisory  Committee  involving  all  stakeholders  has  been  created  and  is 
expected to follow the Animal Health Strategy's progress. It is to be consulted on all impact 
assessments  and  will  advise  the  Commission  on  the  best  means  of  delivering  agreed 
outcomes.  The  Committee  may  also  provide  strategic  guidance  on  the  appropriate  level  of 
animal or public health protection, and on priorities for action and communication. 

Disease Situation 

The disease status in and outside the Community, modified agricultural practices or changes 
in the environment such as climate change may call for the adaptation of legislation before the 
result of the complete overhaul becomes effective. Here the already agreed general principles 
of  the  Animals  Health  Strategy,  such  as  the  emphasis  on  preventive  measures,  are 
implemented. 

Successful  disease  control  not  only  relies  on  an  adequate  legal  framework  but  also  on  its 
consequent  implementation.  In  2008  Member  States  have  responded  to  outbreaks,  in 
particular, of avian influenza, in a swift and successful manner, by applying the provisions of 
Council Directive 2005/94/EC on the control of avian influenza. None of the outbreaks had an 
impact on public health or major economic losses. 

Nevertheless,  if  Member  States  fail  to  transpose  respective  legislation,  such  as  Italy  in  the 
case of Council Directive 2005/94/EC, the Commission will use its powers under Article 226 
of the Treaty. 

The  control  of  the  spread  of  bluetongue  remains  difficult.  The  rules  of  Council  Directive 
2000/75/EC on bluetongue control and eradication appear to be not fully sufficient. By means 
of  implementing  rules  laid  down  in  Commission  Regulation  (EC)  No  1266/2007,  the 
Commission has, however, used the elements of flexibility of Directive 2000/75/EC to better 
respond  to  the  problem  and  this  has  brought  satisfactory  results,  decreasing  the  number  of 
bluetongue outbreaks in 2008 significantly (~ 58000 outbreaks in 2007 to ~ 24000 outbreaks 
in 2008). 

EN 

326 

   EN 

14.4.20.3.  Evaluation 

Considering the above, animal health is currently in a phase of reform. The entire system is 
being assessed to identify opportunities of enhancing efficiency. At the same time we have to 
keep the existing firewall against disease outbreaks in good shape. In 2008, as shown above, 
we have been successful. 

For animal health the action plan envisages measures over the next five years. It is based on 
the results of an extensive evaluation and a large consultation of stakeholders. 

Following a comprehensive evaluation of EU legislation on the animal health of aquaculture 
animals, this  legislation has been updated.  Council Directive 2006/88/EC  on  aquatic  animal 
health  takes  better  account  of  the  diversity  of  European  aquaculture  and  the  significant 
development of the industry over the last decades (e.g. more farmed species). Implementing 
decisions and guidelines on the risk based animal health surveillance schemes were adopted to 
ensure a harmonised implementation of the Directive. By May 2008, it became apparent that 
Austria, Belgium, Greece, Poland, Portugal, Sweden and the United Kingdom have failed to 
implement the Directive in time. 

The  problem  of  bluetongue  needs  further  reflection  and  the  Commission  launched  a 
discussion  with  the  Member  States  on  the  need  to  revise  Directive  2000/75/EC.  This 
reflection might lead to new Community rules on bluetongue in the next years. 

Priorities 

The combat of disease outbreak is the first priority dictated by the circumstances. The second 
priority will be the further development of the Animal Health Strategy as a long term goal. 

Planned action 

The  new  Animal  Health  Strategy  provides  general  guidance  for  the  conversion  of  animal 
health  legislation  in  the  coming  years.  While  all  parties  involved  agree  on  the  general 
strategy, the challenge is now to mould insights into a new legal framework. To this end areas 
for more specific impact assessment studies have been identified and specific working groups 
comprising all stakeholders have been established. Given the devastating impact that serious 
disease outbreaks can have on farmers, society and the economy, the new legislation does not 
only  have  the  objective  of  increased  transparency  and  simplification,  but  also  pursues  the 
principle  that  “prevention  is  better  than  cure”.  The  aim  is  to  put  greater  focus  on 
precautionary  measures,  disease  surveillance,  controls  and  research,  in  order  to  reduce  the 
incidence of animal disease and minimise the impact of outbreaks when they do occur. The 
legislation  also  intends  to  improve  the  interfaces  of  issues  inextricably  linked  to  animal 
health,  such  as  public  health,  food  safety,  animal  welfare,  sustainable  development  and 
research. 

In 2009, SANCO will start a fundamental reflection process on effective measures to combat 
bluetongue within the Community. 

A guidance document will be drafted to give competent authorities, third countries, business 
operators,  exporters  and  importers  of  aquaculture  animals  an  introduction  to  the  placing  on 
the market and import rules of the Directive and implementing legislation. 

EN 

327 

   EN 

The FVO will continue to monitor the implementation within the Member States. Failure to 
implement agreed legislation will be pursued with the powers provided under Article 226 of 
the Treaty, taking the principle of proportionality into account. 

14.4.20.4.  Summary of Sector 

This  sector  with  a  long  common  regulatory  tradition  faces  major  overhaul.  The  goal  is  to 
consolidate a long term and largely successful and profound collaboration in a more modern 
system by integrating tried and tested methods within an improved framework. The challenge 
to swiftly and effectively react to epidemics will remain. 

14.4.21. Veterinary Import Controls – Live animals and their products 

The present system of border veterinary checks has generally worked well during 2008. The 
current Directives require Member States to ensure that no consignments from third countries 
are introduced into the territory of the EU without undergoing mandatory veterinary checks at 
designated  Border  Inspection  Posts.  These  checks  include  100%  documentary,  identity  and 
physical  checks  on  all  live  animals  and  animal  products.  Moreover  for  animal  products  a 
random programme of analytical laboratory checks is applied and the level of these checks is 
reduced to specified levels dependent on the animal and public health status of the exporting 
country.  Additional  specific  safeguard  or  reinforced  measures  may  be  taken  by  the 
Commission  when  serious  or  repeated  deficiencies  are  identified  (i.e.  results  of  a  mission 
carried  out  by  the  FVO)  or  in  cases  of  outbreaks  of  major  foodborne  diseases  in  a  third 
country. 

However,  it  has  been  recognised  that  there  is  scope  to  improve  the  controls  and  a  need  to 
update  the  legislation  on  border  security  of  imports  and  transits  of  animals  and  animal 
products so that it becomes more coherent with other EU legislation. One of the conclusions 
of  the  Commission's  new  Animal  Health  Strategy431  is  for  the  development  of  a  policy  and 
framework designed to deliver a better risk based approach  to veterinary  border inspections 
and to target illegal trade. To assist in achieving this goal the Commission in 2008 launched a 
review  of  the  current  EU  veterinary  border  import  control  legislation  covering  live  animals 
and  their  products,  including  an  information  gathering  exercise  seeking  the  views  of  all 
Member States. 

During  2008  a  Council  CVO432  Working  Group  considered  the  issue  of  improved  border 
security including imports of animals and their products and produced a guidance paper for 
assistance and consideration of the Commission. In addition a paper on a strategy for imports 
of  all  food  products,  including  animals  and  products  of  animal  origin,  was  prepared  by  the 
French  Presidency.  This  paper  informed  a  series  of  discussions  in  the  Council  and  a 
conference  under  the  French  Presidency  in  Paris  on  3  October  2008,  leading  in  turn  to 
conclusions  adopted  at  the  Agriculture  Council  in  December  2008,  following  on  from 
discussions  at  the  June  Council.  The  Commission  services  prepared  a  paper  on  the  current 
status  and  future  proposals  for  imports  of  food  products  into  the  EU.  The  Economic  and 
Social  Committee  also  adopted  a  paper  on  imports  in  November  2008.  These  papers  have 
been discussed at various attaches and CVO/CPO433 meetings. 

431 
432 
433 

COM(2007)539final. 
Chief Veterinary Officers (CVO). 
Chief Phytosanitary Officers (CPO). 

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The results of the above are being considered by the Commission with a view to proposing 
legislation  to  simplify  and  clarify  existing  border  veterinary  import  controls  legislation  and 
provide a framework for a more harmonised approach of application and enforcement by the 
Member  States.  The  legislation  would  also  provide  a  more  coherent  relationship  with  other 
EU legislation on import controls. A series of consultations has taken place with stakeholders 
in  the  framework  of  the  Animal  Health  Advisory  Committee  and  a  wide  public  stakeholder 
consultation is envisaged in late 2009/10. 

The main problems identified with the current legislative framework are the following: 

•  The current programme of checks is random and does not address identified risk areas, nor 
makes best use of existing risk assessment tools. The EU is  the biggest importer of food 
products in the world and this trend is set to increase in the coming years, including in the 
area of products of animal origin. The volume and diversity of trade has also grown very 
substantially, increasing the potential level of risk. The EC has also enlarged substantially 
from  15  to  27  Member  States,  leading  to  a  greatly  increased  land  border  with  third 
countries  with  increased  risks.  New  technologies  are  also  under-utilised  in  considering 
controls and assessing risk. This increase needs to be reflected in how we evaluate the risk 
of products entering the EU. 

•  Lack of clarity and common approach to enforcement amongst Member States as regards 
certain  rules  and  procedures  especially  as  regards  supervision  of  transit  consignments, 
transhipment,  pre-notification  of  consignments,  approval  and  supervision  of  free  and 
customs  warehouses,  approval  and  supervision  of  ship  suppliers,  re-enforced  checks,  re-
import of consignments, definition of consignments. 

•  The system does not take into account latest developments in EU food legislation covering 
imports  as  well  as  new  technological  developments  (and  especially  TRACES  and 
electronic identification). 

•  Need to ensure adequate subsidiarity/flexibility for Member States to operate. 

14.4.22. Animal feed and animal by-products 

Animal  feed  and  animal  by-products  (e.g.  animal  carcasses  of  dead  animals  or  products  of 
animal origin that are not intended for human consumption) are strictly regulated because of 
the potential negative impact which their use may have for the safety. Several of the past food 
crises  were  related  to  feed  (e.g.  dioxin  content)  or  the  use  of  animal  by-product  (bovine 
spongiform encephalitis – BSE). 

14.4.22.1.  Feed marketing 

Current Position 

Currently,  the  general  rules  for  the  marketing  of  feed  are  spread  over  several  Directives 
according to the type of feed concerned: 

•  Directive  79/373/EEC  with  the  rules  for  the  circulation  of  compound  in  the  EU  (e.g. 

labelling requirements). It also covers pet food; 

•  Directive 93/74/EEC contains the principle rules for feeding stuffs intended for particular 

nutritional purposes (“dietetic feeds”); 

EN 

329 

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•  Directive 96/25/EC on general rules for the circulation and use of feed materials; and  

•  Directive 82/471/EEC lays down the marketing conditions for certain products, belonging 

to the category feed materials, used in animal nutrition (“bio-proteins”). 

Apart  from  these  Directives  further  specific  legislation  is  applicable,  e.g.  TSE-Regulation 
(EC) No 999/2001, containing the ban to feed meat and bone meal to food producing animals, 
the  Regulation  (EC)  No  1829/2003  on  GM  Food  and  Feed,  setting  the  rules  for  the  use  of 
genetically  modified  feed,  the  Feed  Hygiene  Regulation  (EC)  No  183/2005,  focussing  on 
assuring safety during the production process of feed. 

Report on Work Done in 2008 

Feed Marketing 

In 2008 the Commission adopted a proposal for a Regulation on the placing on the market and 
use of feed434. It intends to replace the legislation on marketing and use of feed, both for farm 
animals  and  pets  and  will  thus  simplify  existing  legislation.  It  will  also  improve  the 
information requirement in order to increase transparency for farmers and pet owners, foster 
innovation  and  competitiveness,  reduce  the  administrative  burden  for  the  stakeholders  and 
develop the single market of feed. 

This  new  Regulation  closes  gaps  in  the  feed  safety  system  concerning  emerging  feed 
materials,  prohibited  substances  in  feed.  It  clarifies  borderlines  between  different  types  of 
feed  and  introduces  rules  on  misleading  advertising  and  proper  consumer  information.  The 
new  rules  will  increase  feed  safety,  clarify  the  current  rules  on  feed  marketing.  It  reduces 
administrative burden for stakeholders and is likely to enter into force in 2009. 

Feed additives, contaminants and undesired substances 

In 2008 30 requests for the authorisation of feed additives (mostly zootechnical or nutritional 
additives) were processed. The authorised additives improve both welfare and productivity of 
food  producing  animals.  Confidentiality  concerning  data  supporting  authorisations  has  been 
granted in several cases. 

Maximum levels of certain contaminants in feed have been reviewed (Directive 2002/32/EC). 
Levels  for  unavoidable  carry  over  of  from  one  feed  product  to  the  other  during  production 
have been set (Coccidiostats). 

The  contamination  of  milk  and  soy  products  in  China  with  melamine  has  triggered  import 
related safeguard measures. 

Evaluation 

The current rules on animal feed are scattered over several Directives and some 50 amending 
or  implementing  acts.  The  medicated  feed  Directive  90/167/EEC  is  not  in  line  with  the 
Veterinary  Medicines  Code  (Directive  2001/82/EC)  and  the  new  feed  hygiene  legislation. 
Existing  legislation  extremely  relies  on  many  cross  references.  Uniform  application  is 
hampered. Hence, only 2.6% of the compound feed produced in Member States is traded on 

434 

COM(2008)124final. 

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the  Internal  Market.  This  appears  to  be  the  result  of  the  asymmetrical  transposition  of 
Directives. For example, the different transposition of two Member States resulted in different 
permitted levels for vitamin D3 in complementary feed. 

Planned Action 

Directive 90/167/EEC on medicated feed will be recast and modernised in order to be adapted 
to the new existing Community law concerning feed but also veterinary medicinal products: 
impact assessment is to be launched. 

Implementing rules for the new "feed marketing" Regulation need to be prepared. 

14.4.22.2.  Feed hygiene 

Current position 

Regulation  (EC)  No  183/2005  of  the  European  Parliament  and  of  the  Council  lays  down 
minimum  requirements  for  feed  hygiene  which  apply  from  primary  production  of  feed  (at 
farm  level),  through  production,  processing  and  distribution,  to  the  point  of  feeding  the 
animals. 

The responsibility for compliance with these requirements rests with feed business operators, 
although the adequacy of the measures put in place by these operators must be verified by the 
competent authorities of the Member States before an establishment is approved as part of the 
feed chain. In most cases this must be done by an on-the-spot visit. There are two resulting 
priorities, firstly strengthening the approval conditions for establishments using direct heating 
process for drying and secondly defining microbiological criteria for feed. 

The  development,  dissemination  and  use  of  both  national  and  Community  guides  to  good 
practice are encouraged. However, these guides may only be used on a voluntary basis by the 
feed  business  operators.  Three  Community  guides  have  already  been  developed435.  One  of 
these three guides (inclusion of medicated feed) has been modified and is under evaluation. 
Two more guides are under preparation and will be submitted to evaluation. 

The Commission is also considering strengthening the approval conditions for establishments 
using direct heating process for drying in order to avoid incidents that occurred in the past. 

Evaluation 

The  Member  States  have  greatly  promoted  the  development  of  national  guides.  The 
participation  of  the  competent  authorities  differs  from  one  Member  State  to  another,  but  in 
general, guidelines for developing such guides, practical advice and guidance have been given 
by  the  competent  authorities  to  food  sectors.  Most  private  stakeholders'  organisations  have 
expressed a positive attitude to national guides to good practice. 

14.4.22.3.  Feed Labelling 

Current position 

435 

http://ec.europa.eu/food/food/animalnutrition/feedhygiene/guide_goodpractice_en.htm. 

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Council Directive 96/25/EC on the circulation and use of feed materials, amending Directives 
70/524/EEC,  74/63/EEC,  82/471/EEC  and  93/74/EEC  and  repealing  Directive  77/101/EEC 
sets  out  harmonised  rules  for  the  marketing  and  labelling  of  feed  materials.  Feed  materials 
may only be put on the market if they are sound, genuine and of merchantable quality. They 
must not represent any danger to human or animal health or to the environment. The Annex to 
Directive provides a non-exhaustive list of the feed materials that need to be identified on the 
label. 

Legislative Changes Underway 

Following  approximately  five  years  of  preparatory  work  and  based  on  intense  consultation 
with  all  stakeholders  and  Member  States,  the  Commission  adopted  on  3  March  2008  a 
proposal for a Regulation of the European Parliament and of the Council on the placing on the 
market  and  use  of  feed436.  This  proposed  Regulation  considerably  simplifies  the  existing 
procedures  for  labelling  and  marketing  animal  feed  and  pet  food,  while  making  the  overall 
system  more  efficient  and  maintaining  the  same  high  level  of  protection  of  animal  health, 
animal welfare and public health. Industry should also benefit from the proposed new rules, as 
they set up a clearer, more harmonised legislative framework for food labelling and create a 
level playing field for all operators. 

Evaluation 

The  new  feed  labelling  legislation  simplifies  greatly  the  current  legislation  scattered  over 
more  than  5  acts,  maintaining  however  the  high  level  of  feed  and  food  safety  and  the 
protection of animal health. The new legislation strikes the right balance between consumer 
protection  and  information  and  intellectual  property  rights,  and  removes  the  administrative 
burden  of  pre-marketing  authorisation  of  proteins  used  in  feed.  This  legislation  facilitates 
innovation and competitiveness for the feed business. 

14.4.22.4.  Animal by-products 

Current Position 

Animal by-products not intended for human consumption include slaughterhouse waste, fallen 
stock  and  dairy  products  going  to  animal  feed,  as  well  as  a  variety  of  other  products  for 
different applications. The health rules for those animal by-products are currently laid down 
in Regulation (EC) No 1774/2002 and a number of implementing Comitology measures. The 
Regulation relies on a risk-based categorisation of animal by-products, which determines the 
options for their use and obligations for their disposal. Experience with the application of the 
Regulation since 2003 revealed that the interaction with other Community legislation, its risk-
benefit ratio, and the proportionality of the prescribed measures in particular as regards their 
use for technical applications, posed problems and needed to be reviewed. 

Currently  7  complaint  cases  concerning  animal  by-products  are  open.  These  were  either 
triggered by unsatisfactory results of inspection by the FVO or complaints of stakeholders that 
considered their products not adequately classified. 

Report on Work Done in 2008 

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Current  legislation  builds  on  the  risk-based  categorisation  of  animal  by-products,  which 
determines  the  obligations  to  dispose  of  and  the  options  to  use  those  materials.  The 
Regulation  has  been  applied  since  2003.  Experience  shows  that  interfaces  with  Community 
legislation  need  to  be  clarified  and  that  the  proportionality  of  certain  measures  needs  to  be 
reviewed.  The  latter  is  especially  valid  for  the  potential  use  of  animal  by-products  for 
technical  applications.  As  a  consequence,  the  Commission  adopted  a  proposal  for  a  revised 
Regulation on animal by-products437. 

Evaluation 

The  Regulation  on  animal  by-products  has  been  applied  since  2003.  Experience  shows  that 
interfaces  with  Community  legislation  need  to  be  clarified  and  that  the  proportionality  of 
certain measures needs to be reviewed. The latter is especially valid for the potential use of 
animal by-products for technical applications. 

The  Commission  adopted  a  proposal  for  a  revised  Regulation  on  animal  by-products.  It  is 
expected  that  future  application  of  the  new  legislation  will  benefit  from  the  extensive 
consultation  with  all  relevant  actors  during  its  creation  and  from  the  more  streamlined  and 
clearer basic principles, with the possibility to adopt and adapt the detailed rules, as necessary, 
by Comitology procedure. 

Planned Action 

The  proposal  for  a  revised  Regulation  on  animal  by-products  is  subject  to  the  co-decision 
procedure. It is expected that the proposal will be adopted in 2009. The plan is, after having 
consulted  Member  States  and  stakeholders,  to  complement  the  new  Regulation  with 
Comitology measures determining the technical standards for the collection, processing, use 
and disposal of animal by-products. 

Once  the  shape  of  the  new  rules  is  clear,  the  organisation  of  training  courses,  in  particular, 
under the "Better Training for Safer Food" initiative, will be considered. 

Summary of Sector 

The use of inapt material in the production of food and feed remains a temptation for the feed 
and  food  industry  as  it  works  under  a  severe  cost  pressure.  The  regulatory  challenge  is  to 
establish clear and enforceable rules that remain proportionate and do not create a sprawling 
bureaucracy. 

14.4.22.5.  Animal Welfare 

Current Position 

Despite the fact that animal welfare is not one of the objectives of the Treaty or the Common 
Agricultural  Policy,  full  regard  must  be  had  to  it  in  the  formulation  and  implementation  of 
Community policies as it was stated by the Protocol on the Protection and Welfare of Animals 
attached to the Treaty of Amsterdam. According to this, the Community has delivered a raft 
of significant measures in the animal welfare area. Such measures are mostly based on Article 
37  EC(agriculture)  while  others  aimed  at  harmonising  health  and  consumer  protection 

437 

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indirectly  linked  with  animal  issue  as  well  as  measures  in  the  veterinary  and  phytosanitary 
fields having as their main objective the protection of human health are adopted on the basis, 
respectively, of Article 95 and 152 EC. The European Court of Justice has also declared that 
"the interests of the Community include the health and protection of animals" (Joined cases 
C-37/06 and C-58/06, para. 23). 

Animal welfare in holdings/on the farm 

Council  Directive  98/58/EC  on  the  protection  of  animals  kept  for  farming  purposes  sets 
general  rules  for  the  protection  of  animals  of  all  species  kept  for  the  production  of  food, 
textiles or for other farming purposes. It defines general principles and minimum standards on 
appropriate  feeding,  comfort  and  prevention  of  unnecessary  suffering.  More  specific  rules 
apply to laying hens, broilers, calves and pigs. 

Animal welfare during transport 

Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during 
transport  and  related  operations  intends  to  reduce  the  stress  and  harm  that  animals  can 
experience when moved. It sets general principles and introduces standards for vehicles and 
equipment, and requirements for those dealing with animals in transport. It also provides rules 
for enforcement of EU rules, such as the use of satellite navigation systems. 

Animal welfare during slaughter 

Every  year  nearly  360  million  pigs,  sheep,  goats  and  cattle,  several  billion  poultry  and  25 
million fur animals are slaughtered in the Community for the production of meat and textiles. 
The  control  of  contagious  diseases  may  require  the  culling  of  thousands  to  millions  of 
animals. 

The technical requirements of Directive 93/119/EC on the protection of animals at the time of 
slaughter  or  killing  have  become  outdated.  New  technologies,  international  standards  and 
scientific opinions from the EFSA call for the revision of the Directive. Culling as a response 
to  animal  epidemics  calls  the  methods  used  into  question.  New  stunning  methods  need 
harmonised rules. The responsibility of operators and training requirements for staff needs to 
be redefined. 

Complaints: 

The  number  of  complaints  on  animal  welfare  remains  relatively  high  (17  current 
investigations, 22 closed in 2008). This appears to be due to: 

•  The  fact  that  a  part  of  the  Community's  population  is  particularly  interested  in  animal 

welfare and prepared to use considerable resources to address their concerns; 

•  The  fact  that  a  number  of  welfare  requirements  are  in  conflict  with  some  economic 

interests; 

•  The fact that animal welfare science is a relatively new area and consequently stakeholders 

are not aware of the benefits of respecting some provisions of the EU legislation. 

Different levels of priority are given to animal welfare in Member States due to the following 
factors: 

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•  The  need  for  compromise  on  minimum  standards  which  lead  to  complaints  against 

Member States applying stricter rules; 

•  Animal welfare not being high on the political agenda of some Member States. 

Moreover;  agricultural  practices  or  cultural  traditions  accepted  in  one  Member  State  upset 
citizens  in  other  Member  States  who  seek  improvement  via  Community  institutions.  In 
addition, the situation is aggravated by the fact that many operators are transporting animals 
without proper knowledge of Council Regulation (EC) No 1/2005 on transport of animals. 

Report on Work Done in 2008 

Animal welfare in holdings/on the farm 

As  a  result  of  additional  means  provided  by  the  European  Parliament,  we  commissioned  a 
pilot  project  for  study  on  the  improved  methods  for  animal-friendly  production,  i.e.  on 
alternatives for castrating pigs and dehorning cattle. 

Animal welfare during transport 

The  Commission  initiated  during  2008  a  study  on  travelling  times  and  space  allowances, 
which  was  used  for  preparing  an  impact  assessment,  because  the  appropriateness  of  current 
requirements  is  questioned  by  stakeholders  and  animal  welfare  organisations  for  different 
reasons. 

We  also  continued  our  cooperation  with  the  Joint  Research  Centre  to  evaluate  tracking 
systems  for  vehicles  transporting  animals  over  eight  hours.  Such  systems  could  improve 
enforcement of Community rules involving the transport of animals through several Member 
States  and  contribute  to  simplification  and  the  reduction  of  administrative  burden  for 
stakeholders and control staff. 

We  have  started  to  draft  an  impact  assessment  on  the  effects  of  rules  concerning  improved 
rules  on  comfort  for  and  traceability  of  animal  during  transport  and  engaged  in  preparatory 
action  to  promote  high  quality  control  posts  for  resting  animals  transported  over  long 
journeys. 

Animal welfare during slaughter 

Following  the  scientific  opinions  of  2004  and  2006  from  the  EFSA,  the  shortcomings 
identified by the FVO and complaints, the Commission presented a proposal for a Regulation 
on  the  protection  of  animals  at  the  time  of  killing438.  This  proposal  intends  to  improve  the 
conditions  for  animals  when  slaughtered  or  culled  and  ensures  that  they  are  treated  with 
respect. To simplify the existing legislation and bring it in line with food hygiene regulations, 
the proposal integrates welfare considerations into the design of slaughterhouses and requires 
the regular monitoring of the efficiency of stunning techniques. 

FVO Inspections Findings 

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FVO  missions  found  that  in  a  small  number  of  Member  States,  where  enforcement  was 
strong, good implementation of the laying hens Directive had been achieved and progress had 
been  made  in  phasing  out  conventional  cages.  However  the  majority  of  Member  States  are 
lagging behind on this issue. 

In  the  pig  sector  only  a  handful  of  Member  States  have  made  progress  in  implementing 
requirements  from  2001  and  there  is  a  general  lack  of  enforcement  of  long  standing 
requirements  such  as  provision  of  enrichment  materials  and  elimination  of  tail-docking. 
Concerning the transport of animals, control of journey times was not sufficiently dealt with, 
with the exception of one Member State visited. 

Although on farm emergency slaughter has been implemented in a number of Member States, 
the  issue  of  the  transport  of  seriously  injured  cows  to  slaughterhouses  continues  to  be  a 
significant problem in others. The main issue regarding animal welfare in relation to slaughter 
was that although certain Member States only allow animals to be ritually slaughtered without 
stunning after determining a specific need for this, others have allowed the derogation to be 
applied  to  all  animals  killed  at  certain  slaughterhouses  without  adequately  identifying  this 
need. 

Evaluation 

Animal welfare remains an issue attracting public attention. 

Some  attention  is  devoted  to  dealing  with  situations  for  which  we  lack  powers  to  regulate. 
Stray  dogs,  for  instance,  do  not  fall  under  the  scope  of  the  Treaty  but  yet  the  Commission 
devotes considerable resources to replying to citizens complaining about cruelty. 

The different relevance and political weight that animal welfare has amongst Member States 
makes  it  difficult  to  set  rules  that  satisfy  agriculture,  animal  welfare  organisations  and 
consumers  at  the  same  time.  Without  further  legal  powers  in  the  Treaty  and  additional 
resources  dedicated  to  this  field  we  will  not  be  able  to  satisfy  the  expectations  of  animal 
welfare organisations. 

Animal welfare during transport 

The  number  of  complaints  (8  of  17  open  complaints  deal  with  transport)  and  numerous 
requests for specific amendments reveal that Council Regulation (EC) No 1/2005 on transport 
of  animals  needs  to  be  amended.  The  main  concerns  are  the  ambiguity  of  its  scope  (which 
animals  and  what  kind  and  means  of  transport  are  covered),  the  difficulty  to  define  certain 
requirements with sufficient clarity, while allowing a degree of flexibility (e.g. water supply, 
approval of transport means, documentation requirements). 

Animal welfare in holdings/on the farm 

We  continue  to  receive  complaints  on  certain  practices  used  by  farmers  to  facilitate  the 
rearing  and  manipulation  of  animals  (e.g.  tail  docking  in  pigs,  procedures  to  castrate  male 
piglets).  It  remains  difficult  to  objectively  evaluate  these  practices.  We  have  reacted  by 
commissioning studies and by encouraging others to conduct such studies. Further exploration 
of viable alternatives to respective practice is necessary. 

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Compliance  with  the  laying  hens  Directive  continues  to  be  problematic  mainly  in  the  new 
Member  States  where  cages  used  are,  amongst  others,  often  too  small  to  comply  with 
Community rules. 

Priorities 

It  will  remain  important  to  react  swiftly  and  proportionately  to  the  concerns  of  interested 
stakeholders.  The  FVO  will  continue  to  put  an  emphasis  on  establishing  data  on  the 
compliance  of  Member  States  with  Community  rules  on  animal  welfare  to  detect 
shortcomings but also in order to understand more precisely why certain Member States have 
difficulties to comply with welfare rules. 

Planned Action 

A number of actions that have been initiated in 2008 will be maintained and expanded. These 
include,  for  example,  the  “Farmland”  initiative  (an  interactive  website  for  children  on  the 
origin of food and on the welfare of farm animals), pilot project on the castration of piglets, 
and improving control posts. 

The  Commission  constantly  receives  requests  to  develop  European  strategies  to  give 
transparent  information  on  animal  welfare  in  food  production.  The  Commission  wishes  to 
further assess the feasibility of possible options to introduce animal welfare labelling and will 
present a communication to support an in-depth debate on the subject in the Council and in 
the European Parliament. 

The Community Action Plan on the Protection and Welfare of Animals 2006-2010 envisages 
the  creation  of  a  European  Network  of  Reference  Centres  for  the  protection  and  welfare  of 
animals, which could serve as a coordinating body for the different initiatives related to the 
animal  welfare  labelling  and  perform  tasks  in  particular  in  relation  to  harmonisation  and 
coordination,  policy  advice  and  sharing  of  best  practices,  education  and  training  and 
dissemination  of  information.  The  Centre  should  also  facilitate  the  preparation  of  relevant 
socio-economic studies and impact assessments. 

In  addition,  the  Commission  will  start  an  evaluation  process  on  the  Community  policy  on 
animal welfare in order to reassess the need for an action plan, foreseen for 2010. 

We  intend  to  present  a  proposal  to  amend  Council  Regulation  (EC)  No  1/2005  in  order  to 
improve the applicability of the rules in an effort to streamline and strengthen the protection 
of animals during transport. 

As to address the problems identified, the proposal on the protection of animals at the time of 
killing  aims  at  increasing  the  responsibility  of  operators  on  animal  welfare  and  the  level  of 
competence of the personal in slaughterhouses. Several changes are also introduced as to take 
into account the technological changes and the new scientific knowledge in this field. 

Summary of Sector 

The challenge in this sector is to reply to the growing European citizens' concerns on animal 
welfare and to balance expectations of animal welfare organisation with the requirements of a 
competitive  agriculture,  while  seeking  to  simplify  legislation  and  reduce  administrative 
burden. 

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14.4.23. Plant Health 

14.4.23.1.  Current Situation 

In 2008, the strategy of the Commission in this field has gone in two directions: 

First, ensure the application of the current acquis through, in particular, the strengthening of 
the  emergency  measures  against  pinewood  nematode  (Bursaphelenchus  xylophilus),  the 
adoption  of  new  emergency  measures  against  Chinese  long  horn  beetle  (Anoplophora 
chinensis),  and  the  update  of  the  list  of  the  harmful  organisms  mentioned  in  Directive 
2000/29/EC. 

In  parallel  different  exercises  have  been  undertaken  to  initiate  an  evaluation  of  the  whole 
acquis in this area: 

An evaluation of the Community regime of financial contributions to help Member States to 
control outbreaks of organisms harmful to plants and plant products has been completed. An 
action plan has been presented and discussed in the Council. This action plan intends to ease 
the  use  of  the  regime  by  Member  States  and  its  administration  by  the  Commission.  Certain 
more strategic issues have also been considered and will be evaluated in the framework of the 
above mentioned overall evaluation of the plant health regime. 

In addition, in order to develop the future Community plant health strategy, terms of reference 
have  been  prepared  for  conducting  an  overall  evaluation  of  the  current  Community  plant 
health regime. The regime aims to protect the EU territory against introduction and spread of 
regulated  organisms  which  are  harmful  to  plants.  It  lays  down  specific  requirements  for 
imports  of  all  plants  and  some  plant  products  into  the  EU  and  for  internal  movement  of  a 
limited number of plants within the EU. The first objective of the evaluation will be to analyse 
the results of the existing regime. The second objective will be to clarify which aspects of the 
current  regime  need  to  be  improved  and  to  suggest  potential  options  for  amendment, 
including  possible  improvements  to  its  structure  and  working  practices.  The  evaluation  will 
start in the early 2009 and be completed in 2010. 

In  parallel,  in  order  to  better  protect  the  Community  against  the  entry  and  spread  of  plant 
harmful organisms,  Community  legislation has been  developed or amended,  in particular as 
regards  emergency  measures  against  the  pinewood  nematode,  and  the  Chinese  long  horn 
beetle, attacking a broad range deciduous trees and shrubs). 

The  implementation  of  Community  legislation  in  the  field  of  protected  zones  has  been 
simplified  by  converting  the  ad  hoc  Directive  2001/32/EC  into  the  Regulation  No  (EC) 
690/2008. 

Moreover,  7  new  harmful  organisms  have  been  added  to  the  lists  of  regulated  harmful 
organisms in the basic plant heath Directive 2000/29/EC. 

EUROPHYT, the Community database for notification of interceptions, has been upgraded in 
2008 to automatically inform the third country of origin whenever a consignment originating 
in  that  country  has  been  intercepted  at  import  for  phytosanitary  reasons  and  has  been 
introduced  in  EUROPHYT.  In  essence,  this  achieves  compliance  to  an  international  IPPC 
obligation  to  inform  the  country  of  origin  about  interceptions  at  import  and  facilitates  this 
process for the EU Member States. 

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A  guidance  document  has  been  prepared  to  explain  the  EU  requirements  for  additional 
declarations on phytosanitary certificates439. 

14.4.23.2.  Legislative Changes Underway 

The  preparatory  work  to  allow  a  recast  of  the  main  plant  health  Directive  (Directive 
2000/29/EC) was achieved in 2008 and will continue to be rolled out in 2009. 

An  impact  assessment  study  has  been  launched  to  analyse  the  economic,  social  and 
environmental  impacts  of  options  for  the  long-term  EU  strategy  against  Western  Corn 
Rootworm (Diabrotica virgifera), a regulated harmful organism of maize. 

14.4.24. Seeds and Plant Propagating Material 

14.4.24.1.  Current Situation 

In  2007-2008,  an  evaluation  of  the  legislation  on  marketing  of  seeds  and  plant  propagating 
material  (12  basic  Directives  concerned440)  was  carried  out.  This  evaluation,  which  was 
placed in the general context of Better Regulation initiative, aimed at establishing objectively 
how effectively and efficiently the legislation has met its original objectives, and to identify 
its  strengths,  the  areas  for  improvement  and  its  robustness  with  regards  to  potential  new 
challenges affecting this field. It also aimed to analyse the coherence of the intervention with 
other related interventions, and with the OECD and other international standards as well as to 
assess the relevance and the utility of the intervention. 

Possible  options  for  future  were  suggested  with  a  particular  attention  paid  on  to  the  social, 
environmental and economic impact of each of these options, as well as on the feasibility of 
each option, stakeholders' level of support and their strengths and weaknesses. The concepts 
of  simplification  and  reduction  of  administrative  burden  on  the  public  authorities  and  the 
private sector were also taken into account. 

In addition, in September 2008, the Council adopted Directive 2008/90/EC on the marketing 
of  fruit  plant  propagating  material  and  fruit  plants  intended  for  fruit  production  which  is  a 
recast of the  Directive on the marketing of fruit plant propagating material. This recast was 
prepared by the Commission based on the principle of better regulation and simplification to 
ensure  a  more  efficient  and  transparent  functioning  of  the  internal  market  for  fruit  plant 

439 
440 

http://ec.europa.eu/food/index_en.htm. 
Council  Directive  66/401/EEC  on  the  marketing  of  fodder  plant  seed  (OJ  125,  11.7.1966,  p.  2298–
2308);  Council  Directive  66/402/EEC  on  the  marketing  of  cereal  seed  (OJ  125,  11.7.1966,  p.  2309–
2319);  Council  Directive 2002/54/EC  on  the  marketing  of  beet  seed  OJ L  193,  20.7.2002,  p. 12–32); 
Council  Directive  2002/55/EC  on  the  marketing  of  vegetable  seed  (OJ  L  193,  20.7.2002,  p.  33–59); 
Council  Directive  2002/56/EC  on  the  marketing  of  seed  potatoes  (OJ  L  193,  20.7.2002,  p.  60–73); 
Council Directive 2002/57/EC on the marketing of seed of oil and fibre plants (OJ L 193, 20.7.2002, p. 
74–97); Council Directive 68/193/EEC on the marketing of material for the vegetative propagation of 
the  vine  (OJ  L  93,  17.4.1968,  p.  15–23);  Council  Directive  2008/72/EC  of  15  July  2008  on  the 
marketing of vegetable propagating and planting material, other than seed (OJ L 205, 1.8.2008, p. 28–
39); Council Directive 2008/90/EC of 29 September 2008 on the marketing of fruit plant propagating 
material  and  fruit  plants  intended  for  fruit  production  (OJ  L  267,  8.10.2008,  p.  8);  Council  Directive 
98/56 on the marketing of propagating material of ornamental plants (OJ L 226, 13.8.1998, p. 16–23); 
Council Directive 1999/105/EC on the marketing of forest reproductive material (OJ L 11, 15.1.2000, p. 
17–40);  Council  Directive  2002/53/EC  on  the  common  catalogue  of  varieties  of  agricultural  plant 
species (OJ L 193, 20.7.2002, p. 1–11). 

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propagating  material.  It  was  intended  to  clarify  and  simplify  the  regulatory  framework  in 
which  business  operates  (clarification  of  the  definitions,  of  the  requirements  to  be  met),  to 
adapt  the  legislation  based  on  technical  and  scientific  progress  and  finally  to  align  this 
Directive  with  the  other  Directives  on  the  marketing  of  propagating  material  which  have 
recently been amended in the framework of the new Common Agricultural Policy441. 

To  facilitate  trade,  to  harmonise  rules  for  the  internal  market  and  to  reduce  administrative 
burden, the following implementing measures were also adopted: 

•  In  June  2008,  the  Commission  adopted  Directive  2008/62/EC  providing  for  certain 
derogations  for  the  acceptance  of  agricultural landraces  and  varieties  which  are  naturally 
adapted to the local and regional conditions and threatened by genetic erosion and for the 
marketing  of  seed  and  seed  potatoes  of  those  landraces  and  varieties  (conservation 
varieties). This Directive, an implementing measure based on the various Directives on the 
marketing  of  seed  of  agricultural  plant  species  and  potatoes,  sets  out  specific  conditions 
under which the marketing of conservation varieties may take place. Before the adoption of 
this Directive,  the marketing  of  conservation varieties  was not  possible  as these  varieties 
were not able to meet the required marketing conditions set out by the basic Directives. 

•  In December 2008, Council Decision 2008/971/EC on equivalence of forest reproductive 
material produced in third countries was adopted. This Decision harmonises at Community 
level the conditions under which forest reproductive material may be imported from third 
countries.  It  was  completed  by  the  adoption  of  Commission  Decision  2008/989/EC 
authorising  Member  States,  in  accordance  with  Council  Directive  1999/105/EC,  to  take 
decisions on the equivalence of the guarantees afforded by forest reproductive material to 
be imported from certain third countries. 

14.4.24.2.  Legislative Changes Underway 

Based  on  the  results  of  the  mentioned  evaluation  the  Commission  is  currently  preparing  an 
action  plan  to  be  finalised  by  June  2009.  In  addition,  the  process  has  started  to  identify  the 
issues  on  which  detailed  impact  assessments  should  be  carried  out  before  options  for  the 
future can be chosen. 

Notwithstanding the work done on the evaluation - which will produce its fruits in the future - 
different  actions  have  been  undertaken  to  ensure  the  updating  and  adaptation  of  the 
Community legislation on the seed and propagating material legislation to current needs. In 
particular,  several  key  implementing  measures,  sometimes  long  time  awaited,  were  adopted 
(i.e. Directive 2008/62/EC providing for certain derogations for the acceptance of agricultural 
landraces  and  varieties  which  are  naturally  adapted  to  the  local  and  regional  conditions  and 
threatened  by  genetic  erosion  and  for  the  marketing  of  seed  and  seed  potatoes  of  those 
landraces  and  varieties  and  the  review  of  the  conditions  of  import  of  certain  forest  material 
coming from third countries into the Community). 

441 

Council  Directive  98/56  on  the  marketing  of  propagating  material  of  ornamental  plants  (OJ  L  226, 
13.8.1998, p. 16–23); Council Directive 1999/105/EC on the marketing of forest reproductive material 
(OJ L 11, 15.1.2000, p. 17–40). 

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14.4.25. Plant Variety Rights 

The  Community  Plant  Variety  Rights  system  was  created  by  Council  Regulation  (EC)  No 
2100/94. This Regulation is based on the UPOV Convention of 1991 (International Union for 
the Protection of New Varieties of Plants) and provides protection of new plant varieties valid 
throughout  the  European  Community.  The  plant  variety  protection  right  is  a  form  of 
intellectual property akin to a patent. On the basis of a single application to the Community 
Plant  Variety  Office  based  in  Angers  (F),  a  breeder  may  be  granted  a  Community-wide 
intellectual  property  right  for  his/her  new  variety.  In  2008,  the  Community  Plant  Variety 
Rights results were outstanding: more than 3 000 applications were received by the Office in 
Angers. Currently, nearly 16.000 varieties of plants are protected under the Community Plant 
Variety Rights system. 

During  the  course  of  2008  efforts  were  made  to  improve  the  implementation  of  the  plant 
variety system. Commission Regulation (EC) No1239/95 establishing implementing rules for 
the  application  of  Council  Regulation  (EC)  No  2100/94  as  regards  proceedings  before  the 
Community Plant Variety Office was amended by Commission Regulation (EC) No 355/2008 
as  regards  the  use  of  electronic  means  of  communication  in  proceedings  before  the 
Community Plant Variety Office. 

Furthermore,  Commission  Regulation  (EC)  No  1238/95  establishing  implementing  rules  for 
the  application  of  Council  Regulation  (EC)  No  2100/94  as  regards  the  fees  payable  to  the 
Community Plant Variety Office was amended by Commission Regulation (EC) No 572/2008 
as regards the level of the annual fee and the fees relating to technical examination, payable to 
the Community Plant Variety Office, and the manner of payment. 

In  the  frame  of  "better  regulation",  a  recast  of  Commission  Regulation  (EC)  No  1239/95 
establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as 
regards proceedings before the Community Plant Variety Office started in the last quarter of 
2008. 

15. 

JUSTICE, FREEDOM AND SECURITY 

15.1. 

Immigration and integration 

15.1.1.  Current position: general introduction 

Community legislation in the field of immigration and integration currently consists of seven 
directives. The two first directives concern illegal immigration and were adopted on the basis 
of Articles 61(a) and 63(3)(b) of the EC Treaty: the carriers liability Directive 2001/51442 and 
Directive 2002/90443 defining facilitation. As concerns legal migration, three sets of measures 
of have been adopted: 

442 

443 

Council  Directive  2001/51  of  28  June  2001  supplementing  the  provisions  of  Article  26  of  the 
Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187, 10.7.2001, p. 45). 
Council Directive 2002/90 of 28 November 2002 defining the facilitation of unauthorised entry, transit 
and residence (OJ L 328, 5.12.2002, p. 17). 

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•  a first set of measures adopted in 2003: the family reunification Directive 2003/86444 and 

the long-term residents Directive 2003/109445; 

•  Directive  2004/81  of  29  April  2004  on  the  residence  permit  issued  to  third-country 
nationals who are victims of trafficking in human beings or who have been the subject of 
an action to facilitate illegal immigration, who cooperate with the competent authorities446; 

•  the students Directive 2004/114447 and the researchers Directive 2005/71448. 

The EU’s comprehensive migration policy is still being developed, and consequently efforts 
in  this  area  are  as  much  about  developing  new  legislation  as  ensuring  the  application  of 
existing legislation. As concerns labour migration, the Commission in its 2005 Policy Plan on 
Legal  Migration449  announced  its  intention  to  present  proposals  for  a  general  framework 
directive  and  directives  for  specific  categories  of  paid  workers.  As  at  the  end  2008  the 
Council was close to agreement on the first such specific directive, the highly-skilled workers 
directive (“EU Blue Card”). In the field of illegal immigration, the European Parliament and 
Council  were  close  to  final  agreement  on  the  employer  sanctions  directive.  Both  those 
directives have been  adopted in 2009, with a deadline for transposition in 2011.  

Further legislative proposals are likely to result from the programme that will follow on from 
the Hague programme and its accompanying Action Plan. 

15.1.2.  Current position: Report on work done in 2008 

As concerns infringements, the Commission continued, in line with the priorities stated in the 
2007  Annual  Report450,  to  prioritise  non-communication  cases  and  the  most  important 
suspected infringements disclosed by complaints. 

As regards non-communication cases, in the course of 2008 most of the Member States that 
had  not  initially  complied  with  the  transposition  deadlines  did  so.  By  the  end  of  the  year 
transposition  measures  had  still  not  been  communicated  by  Cyprus  in  relation  to  Directive 
2005/71 and Spain in relation to Directives 2003/109451, 2004/81452, 2004/114 and 2005/71453. 

444 

445 

446 
447 

448 

449 
450 
451 

452 
453 

Council  Directive  2003/86  of  22  September  2003  on  the  right  to  family  reunification  (OJ  L  251, 
3.10.2003, p. 12). 
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals 
who are long-term residents (OJ L 16, 23.1.2004, p. 44). 
OJ L 261, 6.8.2004, p. 19. 
Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country 
nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ L 
375, 23.12.2004, p. 12). 
Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country 
nationals for the purposes of scientific research (OJ L 289, 3.11.2005, p. 15). 
COM(2005) 669 final. 
SEC(2008) 2854 at p.226. 
Following judgment of 15.11.2007, Case C-59/07 Commission v. Spain, an Article 228 procedure was 
begun. 
Case pending before the Court, Case C-266/08 Commission v. Spain. 
Case pending before the Court, Case C-523/08 Commission v. Spain. 

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As  regards  suspected  infringements  disclosed  by  complaints,  the  Commission  started  an 
infringement procedure against the Netherlands in relation to the high level of fees charged to 
those applying for long-term residents permits. 

As  concerns  the  management  of  the  existing  acquis,  a  meeting  of  the  contact  committee  on 
the  legal  migration  directives  provided  the  opportunity  for  a  useful  exchange  of  views 
between  the  Commission  and  national  experts  involved  in  the  application  of  the  legal 
migration directives. A meeting of the national contact points appointed under the long-term 
residents Directive 2003/109 was also held. Alongside discussions in the contact committee, 
the European Migration Network454 (EMN) allowed Member States (and the Commission) to 
address  ad-hoc  queries  to  obtain  a  quick  overview  on  how  other  Member  States  transpose 
specific provisions of the Directives. 

The final report of a study into the transposition of 10 immigration and asylum directives was 
delivered. The study was carried out by the Odysseus Academic Network for Legal Studies on 
Immigration  and  Asylum  in  Europe  on  behalf  of  the  European  Commission.  In  the  field  of 
immigration the report covers Directives 2001/51, 2002/90, 2003/86, 2003/109 and 2004/81.  

The  Commission  presented  a  report  on  the  application  of  the  family  reunification  Directive 
2003/86455, based on the Odysseus network study, a study carried out by the EMN and other 
studies. The report notably revealed a few cross-cutting issues in relation to the transposition 
or  application  of  the  Directive,  such  as  the  provisions  on  visa  facilitation,  granting 
autonomous residence permits, taking into account the best interest of the child, legal redress 
and more favourable provisions for the family reunification of refugees.  

As  concerns  the  development  of  new  legislation,  legislative  discussions  in  Council  and 
European  Parliament  continued  on  the  three  proposals  presented  in  2007:  the  general 
framework  directive  for  labour  migration  (“Rights  and  single  permit”)456,  the  highly-skilled 
workers directive (“EU Blue Card”)  457 and the employer sanctions directive 458. In addition, 
the Commission started preparing its proposals for directives on other specific categories of 
paid workers (seasonal workers, intra-corporate transferees and remunerated trainees) in line 
with the 2005 policy plan. 

15.1.3.  Evaluation of work done in 2008 

2008 nevertheless marked the year in which the transposition process for the existing acquis 
was  for  the  most  part  achieved.  It  is  regrettable  that  many  Member  States  were  late  in 
transposing  the  directives  in  this  field.  For  future  directives  Member  States  need  to  make 
renewed efforts to complete the transposition within the deadlines. 

454 

Council Decision 2008/381/EC of 14 May 2008 establishing a European Migration Network (OJ L 131, 
21.5.2008, p. 7). 
COM(2008) 610 final. 

455 
456 Proposal for a Council Directive on a single application procedure for a single permit for third-country 
nationals to reside and work in the territory of a Member State and on a common set of rights for third-country 
workers legally residing in a Member State COM(2007) 638 final 
457 Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the 
purposes of highly qualified employment COM(2007) 637 final 
458 
employers of illegally staying third-country nationals COM(2007) 249 final 

Proposal for a Directive of the European Parliament and of the Council providing for sanctions against 

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The external transposition study covering 5 of the directives provides a good foundation for 
future work in ensuring the correct application of this acquis. The study notably provided one 
of the bases for the Commission’s report on the family reunification directive, which in turn 
will  form  the  basis  of  future  work  to  review  that  directive.  This  approach  (first  an  external 
study, then a Commission report as a basis for further action) will be progressively applied to 
the other directives which contain a reporting obligation for the Commission. 

Legislative  activity  (preparing  new  proposals  as  well  as  legislative  discussions  themselves) 
continued to be important in this sector. 

15.1.4.  Evaluation results: priorities 

1. 

Assessing the need for a review of the family reunification Directive 2003/86. This 
was  the  first  legislative  instrument  on  legal  migration  at  EU  level  and,  as  a  result 
several Member States459 for the first time have a detailed set of rules on the right to 
family reunification in their national legislation. 

2. 

Preparing Commission reports on the application of other priority directives. 

15.1.5.  Evaluation results: planned action (2009 and beyond) 

As regards the first priority, the family reunification Directive 2003/86, the Commission will 
follow up its report on the directive as follows: 

•  In  line  with  the  with  the  call  of  the  European  Pact  on  Immigration  to  regulate  family 
migration  more  effectively460,  the  Commission  will  launch  a  wider  consultation  –  in  the 
form of a Green Paper – on the future of the family reunification regime. This could lead to 
proposals, at earliest in 2010, to amend the current directive. 

As regards the second priority, the Commission will start preparing its reports on the victims 
of  trafficking  directive.  On  the  basis  of  those  reports  the  Commission  will  decide  on  what 
further action is needed. 

Other activity will include: 

•  Handling  individual  enquiries  and  complaints  (the  number  of  which  is  rising),  where 

possible using the EU Pilot project. 

•  Commissioning an external transposition study, as well as a study to update the Odysseus 

network study on the long-term residents directive. 

As concerns new legislation: 

459 
460 

EL, CY, MT, RO. 
Presidency  Conclusions,  document  14368/08.  The  Pact  itself  is  in  document  13440/08,  and  the 
reference to family migration is at point I(d). 

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•  Two directives have been adopted in 2009: the highly-skilled workers directive (“EU Blue 
Card”)  and  the  employer  sanctions  directive.  Beginning  in  2009  and  continuing  until  the 
transposition  deadline  in  2011  the  Commission  will  follow  closely  the  transposition  and 
will  offer  assistance  to  Member  States  through  meetings  of  contact  committees  and 
bilateral contacts. 

•   

15.1.6.  Summary 

Priority will be given to following up the first Commission report on a directive in this sector, 
the  family  reunification  directive.  A  Green  Paper  will  launch  a  consultation  on  whether  the 
rules should be changed. The Commission will prepare reports for the victims of trafficking 
directive.  Given  the  ongoing  development  of  the  EU’s  comprehensive  migration  policy, 
attention also needs to be given to the good preparation of new proposals and the following of 
the transposition of directives that have been adopted in 2009. 

15.2.  Asylum 

15.2.1.  Current position – report on work done in 2008 

On  17  June  2008,  the  Commission  adopted  a  Policy  Plan  on  asylum461,  summarising  the 
feedback  to  the  Green  Paper  on  asylum  policy  published  in  June  2007  462  and  setting  out  a 
"road map" for the future development of the Common European Asylum System (CEAS). In 
particular,  the  plan  underlined  the  need  for  the  Commission  to  make  further  legislative 
initiatives  in  the  near  future,  including  proposals  for  the  revision  of  the  principal  existing 
Community legal instruments in the asylum field, as well as further proposals for the adoption 
of legislation establishing a European Asylum Support Office to support practical cooperation 
efforts  between  Member  States  in  asylum  matters  and  establishing  an  EU  resettlement 
scheme. Further possible measures, including better coordination of the external aspects of the 
Community's  asylum  policy,  and  providing  for  greater  solidarity  between  Member  States  in 
the reception of asylum seekers, were also contemplated.  

On  3  December  2008,  the  Commission  adopted  proposals  to  revise  three  legislative 
instruments: the Reception Conditions Directive (Directive 2003/9), the "Dublin" Regulation 
(Regulation 343/2003) 463, and the EURODAC Regulation (Regulation 2725/2000). The main 
purpose  of  the  proposed  revision  of  the  Reception  Conditions  Directive  is:  to  enhance  the 
general standards of treatment for asylum seekers; to ensure greater protection of vulnerable 
persons; to improve access to the labour market for asylum seekers; to limit the detention of 
asylum seekers to those situations where it is necessary; and, to ensure that the scope of the 
Directive  extends  to  all  those  seeking  protection  (both  refugee  and  subsidiary  protection 
status).  The  main  purpose  of  the  proposed  revisions  of  the  "Dublin"  and  EURODAC 
Regulations  is:  to  enhance  the  protection  of  asylum  seekers,  in  particular  of  vulnerable 

461 
"Policy Plan on Asylum – an integrated approach to protection across the EU" (COM(2008) 360). 
462  
COM(2007) 301 final 
463  
Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and 
mechanisms  for  determining  the  Member  State  responsible  for  examining  an  application  for  international 
protection lodged in one of the Member States by a third-country national or a stateless person COM(2008) 820 
final 

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persons;  to  ensure  greater  efficiency  in  the  system  for  the  determination  of  the  State 
responsible for examining asylum applications, and; to introduce flexibility in the system to 
enable  the  transfer  of  asylum  seekers  to  be  suspended  in  the  interests  of  solidarity  between 
Member States or in order to ensure the protection of the persons concerned. 

In January 2008, the Commission sent letters of formal notice to 15 Member States for non-
communication  of  transposition  measures  relating  to  the  Asylum  Procedures  Directive 
(Directive 2005/85). In September 2008, the Commission sent a reasoned opinion to Belgium 
for non-communication of transposition measures relating to that Directive; Belgium had not 
replied  to  the  letter  of  formal  notice.  By  December  2008,  6  Member  States  still  had  not 
communicated  full  transposition  of  the  relevant  parts  of  the  Directive.  In  December  2008, 
proceedings  against  4  Member  States  for  non-communication  of  transposition  measures 
relating to the Qualification Directive (Directive 2004/83) were still pending.464  

In  January  2008,  the  Commission  initiated  proceedings  against  Greece  before  the  European 
Court  of  Justice  for  non-application  of  the  Dublin  Regulation,  and  in  particular  for  not 
granting effective access to the asylum procedure to asylum seekers who were transferred to 
Greece under the Dublin Regulation, thus creating a risk of violation of the non-refoulement 
principle;  the  Greek  legislation  provided  that  the  substance/merits  of  an  asylum  application 
would  not  be  examined,  if  the  examination  had  been  interrupted  by  the  asylum  seeker's 
having  left  the  territory  of  Greece.465  These  proceedings  before  the  ECJ  were  withdrawn  in 
September 2008, following the revision of legislation by Greece. 

During  2008,  the  Commission  also  pursued  activities  aimed  at  enhancing  practical 
cooperation  between  Member  States  in  the  asylum  field,  notably  by  organising  a  series  of 
Workshops  focused  on  the  assessment  of  the  protection  needs  of  asylum  seekers  from 
particular countries-of-origin. 

15.2.2.  Legislative changes underway (2009-2010) 

Discussion  of  the  three  Commission  proposals  for  revision  of  the  Reception  Conditions 
Directive,  the  Dublin  Regulation,  and  the  EURODAC  Regulation  in  the  Council  Working 
Group is expected to continue throughout 2009. 

On  18  February  2009,  the  Commission  adopted  a  proposal  to  create  a  European  Asylum 
Support  Office  (EASO)  as  an  independent  Community  agency  to  manage  practical 
cooperation  in  the  asylum  field,  including  an  amendment  of  the  Decision  establishing  a 
European  Refugee Fund.466 The establishment  of  an EASO  enjoyed the unanimous  political 
support of the European Council in October 2008, in the context of the conclusion of the so-
called European Pact on Immigration and Asylum. It is expected that political agreement will 
be reached on the proposal during the first half of 2009, and that it will be adopted before the 
end of 2009. 

464 

465 
466 

The case against Finland resulted in a ruling by the ECJ on 5 February 2009 that Finland had breached 
Art. 226 (Case C-293/08, Commission v Finland). 
Case C-130/08, Commission v. Greece. 
Council Decision No 573/2007/EC. 

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15.2.3.  Evaluation based on the current situation 

The Community acquis in the asylum field, all of which  has been  in  force  for less  than ten 
years,  is  still  relatively  recent.  In  line  with  the  ambitions  articulated  by  the  Council  in  the 
Hague  Programme in 2004 and in the Commission's own 2008 Policy Plan, the scope of the 
acquis is in need of being extended and enhanced, in order to see the successful completion of 
the  CEAS.  More  specifically,  Community  asylum  legislation  should  ensure  higher  levels  of 
protection  generally,  a  more  level  playing  field  for  persons  seeking  asylum  in  the  different 
Member States, greater efficiency in the treatment of asylum applications, better coordination 
of  the  external  aspects  of  asylum  policy,  and  more  solidarity  between  Member  States  in 
sharing the burdens associated with receiving asylum seekers. 

Moreover,  the  Commission  is  particularly  concerned  by  the  fact  that,  notwithstanding  the 
existence  of  the  common  minimum  standards  and  a  partial  harmonisation  in  the  current 
acquis, the rates of recognition of asylum seekers as qualifying for protection still varies very 
considerably  between  Member  States.  This  deficit  can  be  attributed  to  a  number  of  causes, 
including  a  lack  of  legislative  harmonisation,  variation  in  the  manner  in  which  the  current 
legislation is applied in practice, and variation in the nature of the information on the situation 
in countries-of-origin upon which asylum decisions are taken.  

In view of these shortcomings, the Commission sees a need to pursue a "twin track" approach 
consisting of, on the one hand, extending the Community acquis and, on the other, at the same 
time  consolidating  the  acquis  by  means  of  (a)  taking  infringement  actions  against  Member 
States  for  non-transposition  and/or  incorrect  application  of  the  acquis,  and  (b)  enhancing 
practical cooperation activities, notably regarding the exchange of information/best practice, 
and the pooling of resources/expertise.  

15.2.4.  Evaluation results: priorities and planned action 

To  date,  the  Commission  has  given  priority  to  the  creation  and  further  development  of 
Community  legislation  in  the  asylum  field,  and  to  facilitating  practical  cooperation  among 
Member State authorities.  

The  Commission  intends  to  pursue  the  following  priorities  in  relation  to  the  development, 
application and monitoring of Community law in the asylum field in the coming years:  

•  The  creation  and  further  development  of  Community  legislation  in  the  asylum  field, 
notably as regards the amendment of the existing legislative instruments and the adoption 
of new ones in line with the Policy Plan on asylum and the Immigration and Asylum Pact; 

•  Pursuit  of  practical  cooperation  efforts  between  Member  States,  aimed  at  improving  the 
practical  implementation/application  of  the  acquis  in  the  Member  States,  with  a  view  in 
particular to ensuring an effective transition to the establishment of the EASO; 

•  Monitoring and evaluation of the implementation of Community legislation in the asylum 

field; 

•  Contribution  to  the Commission's intervention before  the  ECJ  with  regard to requests  by 
national  courts  for  preliminary  rulings  on  the  interpretation  of  Community  legislation  in 

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the  asylum  field,  and  follow-up  of  individual  complaints  about  compliance  with 
Community legislation in the asylum field in the Member States. 

15.2.5.  Summary 

Community  law  in  the  asylum  field  is  still  in  the  process  of  being  developed.  Some 
shortcomings  have  been  identified  in  the  existing  acquis  and  in  the  manner  in  which  it  is 
applied. Priority in the short to medium term should be accorded to extending and improving 
Community  legislation  in  the  asylum  field.  At  the  same  time,  it  is  necessary  to  intensify 
practical  cooperation  between  Member  States  with  a  view  to  ensuring  more  consistency  in 
their  application  of  the  acquis,  in  particular  by  ensuring  the  successful  establishment  of  a 
European  Asylum  Support  Office.  The  Commission  will  moreover  continue  to  monitor  and 
evaluate the implementation of Community legislation in the asylum field, to intervene before 
the ECJ with regard to requests by national courts for preliminary rulings on its interpretation, 
and to follow up complaints against Member States for incorrect application of the acquis. 

15.3.  European visa policy 

15.3.1.  Current position: general introduction 

Currently the issuance of short-stay visas is governed by a number of legal instruments drawn 
up over the last 15 years which were mostly developed within the Schengen framework.  

In order to update and simplify this legal framework, the Commission proposed in 2006 to the 
Council  and  the  Parliament  the  revision  of  the  Common  Consular  Instructions  on  visas  for 
diplomatic  missions  and  consular  posts  (CCI)  for  the  introduction  of  biometrics  and  the 
adoption of a Community Code on Visas467. The proposals have been under discussion in the 
Council  and  the  European  Parliament  for  the  last  two  years.  They  are  due  to  be  formally 
adopted during the first semester of 2009. 

15.3.2.  Report on work done in 2008 

Due to the process of revision of the community acquis on short-stay visas during the years 
2007-2008,  it  was  not  considered  necessary  to  advance  infringement  procedures  initiated  in 
2007 which are related to incorrect implementation of legislation for which the Commission 
proposed a revision. 

In  2008  the  Commission  received  and  followed  up  several  complaints  from  individuals 
related to the incorrect implementation of Community law in the field of visas. Most of these 
complaints related to failure to give reasons by consular offices for the visa refusals, lack of 
comprehensive information on the visa application process, delays in the visa processing time, 
absence of appeal procedures against refusal or lack of harmonisation among Member States 
Consular  offices  regarding  the  lists  of  supporting  documentation  requested  from  the  visa 
applicants.  

467 

Draft  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  Community  Code  on 
Visas (COM(2006) 403 final, 19.7.2006). 

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15.3.3.  Evaluation based on the current situation 

The complaints received reflected the weakness of the current visa acquis; a large majority of 
these common problems will be resolved with the introduction of the new Visa Code which 
includes  inter  alia  mandatory  provision  for  reasons  on  visa  refusal  and  right  to  appeal, 
harmonised  deadlines  for  the  visa  handling  process,  enforcement  of  local  consular 
cooperation  and  development  of  consular  representation  at  local  level.  In  addition,  the 
introduction  of  biometrics  is  expected  to  ensure  sharing  of  information  between  Member 
States Consular offices and to resolve the problem of visa shopping.  

15.3.4.  Evaluation results: priorities and planned action (2009 and beyond) 

In  light  of  the  adoption  by  the  European  Parliament  and  the  Council  of  the  revision  of  the 
Common  Consular  Instructions  introducing  biometrics  and  the  Visa  Code,  the  Commission 
has  the  intention  to  encourage  the  timely,  correct  and  efficient  implementation  of  the  new 
legislative  framework  by  all  Member  States.  Due  to  the  importance  of  visa  policy  in  EU 
external relations as well as the impact of an efficient visa policy for fighting against illegal 
migration,  the  Commission  will  also  identify,  in  consultations  with  Member  States,  priority 
areas of action.  

15.4.  Document Security - European passport and residence permits 

15.4.1.  Current position – report on work done in 2008 

The  Commission  continued  to  closely  monitor  the  implementation  of  the  Regulation 
1030/2002 laying down a uniform format for residence permits for third country nationals.  

In  addition,  within  the  framework  of  the  process  for  the  introduction  of  biometrics  to  the 
documents  issued  by  EU  Member  States,  the  Council  adopted  on  18  April  2008  an 
amendment  of  Regulation  1030/2002  regarding  the  collection  of  the  facial  image  and  two 
finger prints from third country nationals.  

Ensuring the implementation of Regulation 2252/2004 on standards for security features and 
biometrics in passports and travel documents issued by Member States was a priority for the 
Commission,  in  particular  in  relation  with  Member  States  which  acceded  to  the  European 
Union in 2004 and 2007. 

In 2008, the revision of regulation 2252/2004 was discussed on the basis of the Commission's 
proposals  dated  18  October  2007  which  provides  harmonised  exceptions  for  children  under 
6years old and persons who are physically unable to give fingerprints.  

15.4.2.  Evaluation based on the current situation 

During 2008 the Commission continued to closely monitoring the correct implementation of 
Regulation 1030/2002 laying down a uniform format for residence permits for third country 
nationals; in this context, reasoned opinions have been sent to Italy and Belgium for incorrect 
implementation of Article 9 of that Regulation.  

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Significant  progress  has  been  achieved  in  2008  regarding  the  implementation  of  Regulation 
2252/2004 on standards for security features and biometrics in passports and travel documents 
issued by Member States, in particular in relation with Member States which acceded to the 
European Union in 2004 and 2007.  

15.4.3.  Evaluation results: priorities and planned action (2009 and beyond) 

Ensuring the correct and timely implementation by all Member States of the second biometric 
identifier  (finger  prints)  -  in  line  with  Regulation  2252/2004  -  in  the  passports  and  travel 
documents of EU citizens is a priority action for 2009.  

15.5.  Border management and return policy 

15.5.1.  Current position: general introduction 

In the field of border management and return policy, the Commission mainly carried out its 
control  of  the  application  of  Community  law,  which  resulted  in  the  launch  of  infringement 
proceedings  in  few  cases.  Moreover,  the  Commission  handled  numerous  consultations  with 
Member  States  on  the  compatibility  of  draft  bilateral  agreements  with  third  countries  in  the 
framework of the Local Border Traffic Regulation 468.  

15.5.2.  Current position: report on work done in 2008 

The  Commission  has  received  and  followed-up  several  complaints  and  petitions  from 
individuals  related  to  the  incorrect  application  of  Community  law  in  the  field  of  border 
management,  and  particularly  of  the  Schengen  Borders  Code  469.  Most  of  these  complaints 
and petitions concern the non compliance with provisions related to the abolition of internal 
border  controls  and  to  the  removal  of  obstacles  to  traffic  at  road  crossing  points  at  internal 
borders  between  Member  States,  particularly  at  the  new  internal  borders  after  the  Schengen 
enlargement in December 2007.  

Within  the  framework  of  the  Local  Border  Traffic  Regulation,  multiple  consultations  took 
place  between  the  Commission  and  a  number  of  Member  States  on  the  compatibility  of 
bilateral draft agreements with third countries with the LBT Regulation, in form of exchange 
of  information  and  informal  advice,  expert's  meetings  as  well  as  formal  exchange  of 
correspondence.  In  particular,  the  Commission  analysed  the  compatibility  of  the  following 
draft  agreements  with  Community  law:  Poland-Ukraine,  Lithuania-Belarus,  Latvia-Russian 
Federation, Slovakia-Ukraine, Poland-Belarus, Bulgaria-Serbia, Bulgaria-FYROM, Romania-
Ukraine.  Two  bilateral  agreements  on  the  local  border  traffic  entered  into  force  in  2008: 
Hungary-Ukraine and Slovakia-Ukraine.  

As far as the implementation of the Council Directive 2004/82/EC is concerned, all Member 
States  notified  their  national  legislation  except  Poland,  against  which  an  infringement 
procedure  was  opened  and  is  still  pursued  for  non-communication.  The  infringement 
procedure for non-communication against Greece opened in 2007 has been closed, following 
the communication of the transposition measures.  

468 20 December 2006, Regulation (EC) No 1931/2006  
469 15 March 2006, Regulation (EC) No 562/2006 

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In the field of return action focused on some remaining open cases of non-communication of 
transposition  of  Directives  2001/40/EC  (cases  related  to  incomplete  transposition  had  to  be 
launched against CZ, EE, MT and SK) and 2003/110/EC (a pending case against BE could be 
closed; a 228 reasoned opinion had to be sent to ES). 

15.5.3.  Evaluation based on the current situation 

The  correct  application  of  Community  legislation  in  the  field  of  border  management  and 
particularly  in  the  absence  of  internal  border  controls  has  a  substantial  impact  on  the  area 
without internal borders in which the free movement of persons has to be ensured. The nature 
of  the  problems  identified  through  complaints  and  petitions  of  individuals  has  been  and 
remains a cause of concern for the Commission as to the effective application of the acquis. 
Particularly,  following  the  Schengen  enlargement  in  December  2007  to  the  nine  Member 
States which joined the EU in 2004, new problems raised related to the correct application of 
the  acquis  at  the  new  internal  borders.  The  Commission  endeavours  to  closely  monitor  the 
situation in these internal border zones.  

In this context, in March 2009 the Commission adopted a proposal for a Council Regulation 
on the establishment of  the evaluation mechanism  to verify the application of  the Schengen 
acquis470.  This  proposal  provides  for  a  possibility  for  the  Commission  to  carry  out 
unannounced  on-site  visits  to  verify  the  absence  of  controls  at  internal  borders.  If  this  new 
instrument  is  adopted  by  the  Council  as  proposed  by  the  Commission,  it  will  contribute 
considerably to the correct application of the absence of internal border controls.  

In  the  field  of  return,  the  main  achievement  in  2008  was  the  adoption  of  the  European 
Parliament  and  Council  Directive  2008/115/EC  on  common  standards  and  procedures  in 
Member  States  for  returning  illegally  staying  third  country  nationals.  So  far,  Community 
legislation in the field of return had been limited to certain specific issues chosen by Member 
States  under  their  right  of  co-initiative,  such  as  the  organisation  of  joint  flights  for  removal 
(Decision  2004/573/EC),  assistance  in  cases  of  transit  for  removal  by  air  (Directive 
2003/110/EC)  and  the  possibility  of  mutual  recognition  of  expulsion  Decisions  (Directive 
2001/40/EC). The series of non-communication cases related to these instruments is about to 
come to an end in 2009.  

Contrary  to  the  abovementioned  measures,  the  return  Directive  2008/115/EC  is  the  first 
horizontal  piece  of  Community  legislation  harmonising  systematically  and  inclusively  the 
standards  in  Member  States  on  return,  removal,  entry-ban,  detention  etc.  The  focus  of  the 
Commissions activities in the next years will therefore be to support and monitor the correct 
transposition of this important legal instrument by Member States. 

15.5.4.  Evaluation results: priorities 

In 2008, priority has been given to the follow-up of complaints and  petitions received from 
citizens  in  the  field  of  internal  borders,  notably  with  relation  to  the  checks  carried  out  on 
persons  in  internal  border  zones  and  with  the  remaining  obstacles  to  traffic  at  the  road 
crossing points at internal borders. The Commission regularly addressed national authorities 

470 

COM(2009)102 final. 

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of  the  Member  States  in  order  to  obtain  explanations,  particularly  on  the  alleged  checks  on 
persons within the internal border zones.  

In  2008,  priority  was  also  given  to  obtaining  an  agreement  on  the  return  Directive 
2008/115/EC. Numerous complaints and petitions related to return issues have been received 
but no concrete follow-up could be given, due to a lack of binding Community legislation in 
this field.  

15.5.5.  Evaluation results: planned action (2009 and beyond) 

As  one  of  the  fundamental  objectives,  the  Commission  will  continue  to  closely  monitor  the 
correct  application  of  the  Community  legislation  in  the  field  of  absence  of  internal  border 
controls.  The  aforementioned  Commission's  proposal  could  undoubtedly  contribute  to  the 
accomplishment of this objective. Priority will thus still be given to complaints and petitions 
received from individuals in relation to checks carried out on persons in internal border zones 
and  with  the  remaining  obstacles  to  traffic  at  road  crossing  points  at  internal  borders.  It  is 
expected  that  the  volume  of  enquiries  will  increase,  as  the  sensitivity  of  the  border  acquis 
increases.  

Moreover, the Commission will continue to carry out consultations with Member States and 
analyse  the  compatibility  of  draft  LBT  agreements  with  Community  law.  The  priority  will 
also be to closely monitor the compliance with EC law of the agreements which are already in 
force.  

Furthermore,  the  analysis  of  the  correct  transposition  of  the  Directive  on  the  obligation  of 
carriers to communicate passenger data  471 will be finalised in the first months of 2009.  

Finally, numerous complaints and petitions related to return issues are being received by the 
Commission.  The  recent  adoption  of  the  return  Directive  2008/115/EC  will  allow  the 
Commission  to  become  more  active  and  intervene  with  Member  States  on  return  related 
issues (to a certain extent already during the transposition period which will end in December 
2010  and  to  a  full  extent  after  this  date).  In  view  of  the  likely  high  number  of  complaints 
which will be received from 2010 onwards, there will be a need for priority setting. 

A  focus  of  the  Commissions  activities  in  the  next  years  will  also  be  to  accompany  and 
supervise  the  correct  transposition  of  the  return  Directive  by  means  of  convening  contact 
groups with Member States representatives in order to facilitate the identification of possible 
problems  and  questions  of  interpretation  at  an  early  stage  and  to  offer  an  opportunity  for 
discussion between Member States and the Commission Services. 

15.6. 

Free movement of persons 

15.6.1.  Current position: general introduction 

Free movement of persons constitutes one of the fundamental freedoms of the internal market, 
to the benefit of EU citizens, of the Member States and of the competitiveness of European 

471 2004/82/EC 

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economy.  In  the  first  days  of  the  European  project,  only  workers  benefited  from  free 
movement.  Over  time,  this  right  was  extended  to  all  EU  citizens.  Citizenship  of  the  Union 
confers on every EU citizen a primary and individual right to move and reside freely in the 
EU  (Article  18  of  the  EC  Treaty).  The  details  of  this  right  are  to  be  found  in  Directive 
2004/38/EC472  which  codified  the  existing  legislation  and  case-law  in  the  area  of  free 
movement, and simplified it in the interest of reader-friendliness and clarity. 

Article 18 of the EC Treaty stipulates that every EU citizen has the right to move and reside 
freely within the territory of the Member States, subject to the limitations and conditions laid 
down in this Treaty and by the measures adopted to give it effect. The respective limitations 
and conditions are to be found in Directive 2004/38/EC. 

15.6.2.  Current position – report on work done in 2008 

In 2008 the Commission continued to deal with a large number of enquiries and complaints in 
the area of free movement of persons - 1070 for 2008 compared with 770 received in 2007. 
Complaints  management  was  also  a  significant  part  of  ensuring  full  and  proper 
implementation  of  Directive  2004/38/EC.  In  2008,  81  complaints  were  registered  with  the 
Secretariat-General  (compared  with  64  registered  in  2007).  There  were  91  written  EP 
questions and 29 petitions in the area of free movement of persons in 2008. 

The  Commission  also  made  an  extensive  use  of  informal  dispute-settlement  mechanisms, 
such  as  SOLVIT.  According  to  the  2008  report  on  development  and  performance  of  the 
SOLVIT network, the number of cases in the residence rights area rose by 93 %. 

In 2008 9 cases were submitted to the EU Pilot scheme. 

The  single  most  important  activity  concluded  in  2008  was  adoption  of  the  report  on  the 
application  of  Directive  2004/38/EC473.  The  purpose  of  this  report  was  to  present  a 
comprehensive  overview  of  how  the  Directive  was  transposed  into  national  law  and  how  it 
was applied in everyday life. With this report, the Commission discharged its obligation under 
Article 39(1) of the Directive to draw up a report on the application of the Directive and to 
submit it to the European Parliament and the Council. 

The  report  has  been  drawn  up  on  the  basis  of  many  sources,  including  an  implementation 
study, carried out by an external contractor, analysing the conformity of national provisions 
with the Directive, a questionnaire on practical implementation of the Directive answered by 
the Member States, the Commission’s own investigations, individual complaints, co-operation 
with  the  European  Parliament,  Parliamentary  resolutions474,  questions  and  petitions  and 
discussions in two meetings of the group of experts from Member States on practical issues 
arising from application of the Directive. 

472 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens 
of  the Union  and  their family  members  to move  and reside  freely  within  the  territory of  the  Member 
States (OJ L 158 of 30 April 2004, p. 77). 
COM(2008)840 final. 
EP resolution of 15 November 2007 on application of Directive 2004/38/EC (P6_TA(2007)0534). 

473 
474 

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353 

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Concerning implementation of priorities established in the 25th Annual Report on the Control 
of Application of Community law (2007) in the area of free movement of persons for 2008475, 
all  19  infringement  procedures  against  Member  States  for  their  failure  to  communicate  the 
text of the provisions of national law adopted to transpose the Directive have been closed by 
November  2008,  as  all  Member  States  have  gradually  adopted  and  communicated  the 
transposition measures. 

Progress on Article 228 of the EC Treaty cases has been less satisfactory with no cases closed. 
The correct transposition of the Directive 2004/38/EC, which overhauled the whole system of 
national  rules,  will  also  ensure  compliance  with  the  judgments  of  the  Court  in  a  number  of 
Article 228 of the EC Treaty cases. 

Concerning  cases  raising  issues  of  principle  or  having  particularly  far  reaching  negative 
impact  for  citizens,  the  Commission  actively  pursued  a  number  of  such  issues.  In  February 
2009,  62  cases  concerning  the  Irish  rules  requiring  third  country  family  members  to  be 
lawfully resident in another Member State before arriving in Ireland, which have been ruled 
contrary to Community law by the Court on 28 July 2008476 and immediate amendment of the 
rules by the Irish authorities, were closed. 

15.6.3.  Evaluation based on the current situation 

Priorities set in the previous Annual Report have proven adequate to allow the Commission to 
focus  its  efforts  in  2008  on  the  most  important  areas.  Crucially,  all  Member  States  have 
completed  transposition  of  the  Directive  by  the  end  of  2008  and  the  legal  situation  of  EU 
citizens has therefore improved. 

However, despite the efforts of the Commission, the situation in the area of free movement of 
persons remains serious. The report on the application of Directive 2004/38/EC477 concluded 
that the overall transposition of the Directive was rather disappointing. Not one Member State 
has  transposed  the  Directive  effectively  and  correctly  in  its  entirety.  Not  one  Article  of  the 
Directive  has  been  transposed  effectively  and  correctly  by  all  Member  States.  On  the  other 
hand, Member States in some areas adopted transposition measures that are more favourable 
to EU citizens and their family members than required by the Directive itself. 

To  address  the  unsatisfactory  transposition,  the  Commission  will  also  continue  working  at 
technical level with the Member States. In September 2008 the Commission created a group 
of experts from Member States to identify difficulties and to clarify issues of interpretation of 
the Directive. Two meetings of the group of experts identified a number of issues that require 
further discussion and clarification, especially as regards the issues of criminality and abuse. 
A questionnaire was prepared to understand the concerns of the Member States on the ground, 
and to collect statistical data and best practice. The group will continue to meet on a regular 
basis.  

475  
476 
477 COM(2008) 840/3 

COM(2008) 777 final 
Judgment of the Court of 25 July 2008 in case C-127/08 Metock and others (not yet published). 

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The outlook for 2009 and beyond is not optimistic. The Commission is already in contact with 
Member States to address the transposition of the Directive in Member States as around one 
quarter  of  the  provisions  of  the  Directive  have  not  been  correctly  or  fully  transposed.  The 
failure  to  transpose  certain  provisions  at  all  or  in  part  is  producing  situations  of  legal 
uncertainty  which  may  result  in  the  adoption  of  legislative  or  administrative  solutions  that 
could impair the rights of EU citizens and their family members. 

15.6.4.  Evaluation results: priorities 

Priorities for 2009 and beyond must be slightly changed compared to those for the previous 
period  as  all  non-communication  infringements  have  been  meanwhile  closed.  The  main 
emphasis  in  the  next  years  will  be  to  commence  infringement  proceedings  for  non-
conformity.  Priority  will  be  also  assigned  to  Article  228  of  the  EC  Treaty  cases  and  cases 
raising issues of principle or having particularly far reaching negative impact for citizens. 

15.6.5.  Evaluation results: planned action (2009 and beyond) 

In  2009  and  the  following  years,  the  Commission  will  step  up  its  efforts  to  ensure  that  the 
Directive  is  correctly  transposed  and  implemented  across  the  EU.  In  order  to  achieve  this 
result,  the  Commission  will  use  fully  its  powers  under  the  Treaty  and  launch  infringement 
proceedings when necessary. 

The  Commission  will  continue  working  at  technical  level  with  the  Member  States  in  the 
group of experts. 

The  Commission  has  offered  information  and  assistance  to  both  Member  States  and  EU 
citizens by issuing communication478 on guidance for better transposition and application of 
Directive  2004/38/EC  which  provided  guidance  as  toa  number  of  issues  identified  as 
problematic in transposition or application, such as expulsions and fight against abuse, may be 
resolved. 

The Commission will continue to inform EU citizens about their rights under the Directive. 
To this end, the Commission will continue to treat provision of information on the Directive 
as a priority and will continue to distribute a simplified guide for EU citizens and make the 
best use of the Internet. 

The  Commission  will  encourage  and  support  Member  States  to  launch  awareness-raising 
campaigns to inform EU citizens of their rights under Article 34 of the Directive. 

15.6.6.  Summary 

Free movement of persons constitutes one of the fundamental freedoms of the internal market, 
to the benefit of EU citizens, of the Member States and of the competitiveness of European 
economy.  In  the  first  days  of  the  European  project,  only  workers  benefited  from  free 
movement.  Over  time,  this  right  was  extended  to  all  EU  citizens.  Citizenship  of  the  Union 
confers on every EU citizen a primary and individual right to move and reside freely in the 

478  

COM(2009)313 final of 2 July 2009 

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EU  (Article  18  of  the  EC  Treaty).  The  details  of  this  right  are  to  be  found  in  Directive 
2004/38/EC  which  codified  the  existing  legislation  and  case-law  in  the  area  of  free 
movement, and simplified it in the interest of reader-friendliness and clarity. 

Despite  the  importance  of  the  fundamental  and  personal  right  of  EU  citizens  to  move  and 
reside  freely,  the  transposition  of  the  Directive  in  Member  States  is  not  satisfactory,  as  the 
Commission’s report on the application of the Directive has found. In the coming years, the 
Commission  will  step  up  its  efforts  to  ensure  that  the  Directive  is  correctly  transposed  and 
implemented across the EU. It will not shy away from using infringement proceedings, where 
necessary.  The  Commission  will  continue  to  work  together  closely  with  Member  States  at 
technical  level  to  provide  guidance  as  to  how  resolve  more  problematic  issues  of  free 
movement.  This,  together  with  intensified  provision  of  information,  should  bring  real 
improvements to EU citizens in the near future. 

15.7.  Citizenship 

15.7.1.  Current position: general introduction 

Article 19 of the EC Treaty grants the right to EU citizens to vote and to stand as a candidate 
in municipal and European elections in the Member State where they reside, without holding 
the nationality of that State. These rights were put into effect by Directive 1993/109/EC479 as 
regards  European  Parliament  elections  and  Directive  94/80/EC480  as  regards  municipal 
elections.  Directive  1994/80  was  modified  by  Directive  1996/30/EC481  and  Directive 
2006/106/EC482 in view of consecutive enlargements of the Union. 

15.7.2.  Current position – report on work done in 2008 

In  2008  the  Commission  continued  to  deal  with  a  substantial  number  of  enquiries  and 
complaints concerning citizenship and electoral rights of the EU citizens: 80 received in 2008 
(49  on  electoral  rights  and  31  on  citizenship).  There  were  18  written  EP  questions  and  3 
petitions in this area in 2008. 

Concerning implementation of priorities established in the 25th Annual Report on the Control 
of Application of Community law (2007) in the area of the European citizenship, all but one 
of  the  infringement  procedures  against  Member  States  for  their  failure  to  communicate  the 
text  of  the  provisions  of  national  law  adopted  to  transpose  the  Directives  in  the  municipal 
elections have been closed by March 2009483. Since no further infringement proceedings had 

479 

480  

481  
482  
483 

Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise 
of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the 
Union residing in a Member State of which they are not nationals. 
Directive  94/80/EC  of  19  December  1994  laying  down  detailed  arrangements  for  the  exercise  of  the 
right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a 
Member State of which they are not nationals 
Council Directive 96/30/EC of 13 May 1996 amending Directive 94/80/EC 
Council Directive 2006/106/EC of 20 November 2006 adapting Directive 94/80/EC 
Infringement proceedings for non-communication of transposing measures of Directive 2006/106 were 
closed  in  June  2008  (Romania),  in  March  2009  (Lithuania  and  the  Czech  Republic);  infringement 
proceedings  for  non  communicating  transposition  measures  of  Directive  94/80  were  closed  in  May 
2008 (Bulgaria, Romania). 

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to  be  opened  in  2008,  there  was  only  one  proceeding  open  in  that  area  on  31  March  2009 
(three proceedings were open on 1 January 2009). 

An  important  activity  in  the  field  of  Community  legislation  in  electoral  matters  was  the 
adoption  of  a  compliance  study  carried  out  by  an  external  company  which  assessed  the 
compatibility of the legislation of 12 new Member States with the Directives in the electoral 
field. This compatibility study also covers the implementation in the national legislation of all 
Member  States  of  the  Act  of  1976484  on  the  election  of  representatives  of  the  European 
Parliament as amended by Council Decision 2002/772/EC, Euratom485, which lays down the 
common  principles  for  the  Member  States  in  the  organisation  of  the  European  Parliament 
elections. 

15.7.3.  Evaluation based on the current situation 

Essentially, all Member States transposed the Community legislation in electoral matters and 
no infringement proceedings for incorrect or incomplete transposition were open on 1 January 
2009.  Therefore,  the  situation  in  the  field  of  the  electoral  rights  of  EU  citizens  can  be 
considered satisfactory. 

In  2008  the  Commission  worked  closely  with  the  Member  States  to  ensure  the 
implementation  of  Directive  93/109/EC  in  the  context  of  the  2009  European  elections. 
Implementation  of  the  Directive  in  these  elections  will  also  be  assessed  in  the  post-election 
report by the Commission. 

The  compatibility  study  prepared  in  2008  will  serve  as  a  tool  for  the  Commission  in  the 
assessment and consequent actions taken to ensure the correct and complete transposition of 
Community law in  the  national  legislations. The Commission will  extend the assessment of 
compatibility  so  as  to  also  cover  the  checking  whether  the  national  legislations  allow  EU 
citizens from other Member States to join political parties in their Member State of residence, 
under the same conditions as the nationals. 

15.7.4.  Evaluation results: priorities 

Priorities for 2009 and beyond must be slightly changed compared to those for the previous 
period  as  all  but  one  of  the  non-communication  infringements  have  been  closed.  The  main 
emphasis in the coming years will be to ensure conformity of national legislation of the new 
Member  States  with  Directives  93/109/EC  (participation  of  EU  citizens  in  European 
elections)  and  Directive  94/80/EC  (participation  of  EU  citizens  in  municipal  elections),  as 
well  as  conformity  across  the  EU  member  states  with  the  1976  Act  on  the  elections  of  the 
representatives of the European Parliament486. 

484 

485 
486  

The  Act  is  annexed  to  Decision  76/787/ECSC,  EEC,  Euratom  of  20  September  1976  (OJ  L  278, 
8.10.1976). 
OJ L 283, 21.10.2002. 
Act concerning the election of representatives of the European Parliament by direct universal suffrage, 
annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976- OJ L 278, 8.10.1976 

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15.7.5.  Evaluation results: planned action (2009 and beyond) 

In  2009  and  the  following  years,  the  Commission  will  step  up  its  efforts  to  ensure  that  the 
instruments in electoral matters are correctly transposed and implemented. The Commission 
will continue working at a technical level with the Member States in the group of experts and 
launch infringement proceedings when necessary. 

Efforts will continue to raise awareness among EU citizens of their electoral rights. 

15.7.6.  Summary 

Electoral  rights  of  EU  citizens  accompany  their  right  to  free  movement:  Community  law  in 
the  electoral  field  grants  the  right  to  EU  citizens  to  participate  in  municipal  and  European 
elections in the Member State where they reside without holding the nationality of that State 
(Article 19 of the EC Treaty). Detailed arrangements for the exercise of these rights are to be 
found in Directive 94/80/EC  with  regard  to municipal elections and  in Directive 93/109/EC 
with regard to European elections. The Act of 1976 on the election of representatives of the 
European  Parliament  as  amended  by  Council  Decision  2002/772/EC,  Euratom  lays  down 
common principles for Member Sates in the organisation of the European elections. 

Transposition  of  Community  law  in  electoral  matters  can  be  considered  satisfactory. 
However,  over  the  coming  years  the  Commission  should  focus  on  checking  and  ensuring 
correct  transposition  and  implementations  of  Directives  93/109/EC  with  regard  to  European 
elections and 94/80/EC with regard to municipal elections, especially in the 12 new Member 
States  that  will  need  close  work  at  technical  level  with  the  Member  States  and  use  of 
infringement  proceedings,  where  necessary.  Activities  for  improving  awareness  of  the 
electoral rights of EU citizens will be carried on. 

15.8. 

Fundamental rights 

15.8.1.  Current position: general introduction 

Under the Treaty establishing the European Community and the Treaty on European Union, 
the European Commission has no general powers to intervene in individual cases of violations 
of fundamental rights.  

It  can  do  so  only  if  an  issue  of  European  Community  law  is  involved.  The  Commission 
ensures that fundamental rights are protected in the application of Community law within the 
material scope of the legislative instruments they are responsible for.  

The  Commission  has  no  competence  to  follow  up  complaints  which  have  no  link  with 
Community law. However, EU citizens are not aware of this fine distinction and continue to 
rely on the Commission to assist them even where there is no link with Community law. This 
area  falls  outside  the  scope  of  the  Annual  Reports  on  the  Control  of  Application  of 
Community law but it represents an important dossier of relations with EU citizens. 

EN 

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15.8.2.  Current position – report on work done in 2008 

In 2008 the Commission received a number of individual letters and parliamentary questions 
as  well  as  petitions  concerning  alleged  violations  of  fundamental  rights  by  Member  States: 
approximately  800  letters  (no  change  in  comparison  with  2007)  and  more  than  153 
parliamentary  questions  and  petitions  (compared  with  120  received  in  2007).  Most  of  the 
individual  cases  do  not  involve  Community  law  and  fall  outside  the  powers  of  the 
Commission to control the application of Community law. 

The  great  number  of  letters  received  by  the  Commission  reveals  a  strong  interest  and 
expectation from citizens on fundamental rights in Member States. It also reveals that more 
information is needed to explain that the Commission has no general powers to intervene in 
cases of violations of fundamental rights and that it can do so only if an issue of Community 
law is involved. 

15.9. 

Protection of personal data 

15.9.1.  Current position – report on work done in 2008 

The  Commission  continued  the  monitoring  of  the  correct  application  of  the  Directive 
95/46/EC on data protection487, the main piece of legislation for this area. It continued to find 
pro-active  solutions  outside  or  in  parallel  with  the  infringement  procedure  through  the 
'structured dialogue' organised with Member States to discuss mainly infringement cases and 
the  recently  implemented  EU  Pilot  scheme.  However,  in  some  cases  it  was  not  possible  to 
reach  agreement  and  two  requests  for  preliminary  ruling  important  for  a  number  of 
infringements were referred to the European Court of Justice (one case against Germany (C-
524/06)  and  one  case  against  Finland  (C-73/07)),  for  which  judgments  were  given  on  16 
December 2009 confirming the arguments of the Commission. 

74  enquiries  and  20  letters  and  requests  were  received.  There  were  a  total  of  7  petitions  in 
2008. 

In 2008 there were 3 new complaints registered as infringements. The total number of cases 
was 16. There were a higher number of cases referring to the incorrect application of the data 
protection directive and the rest to the non-conformity.  

15.9.2.  Evaluation based on the current situation 

The  situation  and  volume  of  work  in  2008  was  stable  regarding  the  infringement  cases, 
although the number of enquiries has doubled and the number of complaints has decreased, 
compared to 2007. 

No prioritisation was applied in 2007. 

487 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on the free movement of such data –O.J L 
281 , 23/11/1995 P. 0031 - 0050 

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15.9.3.  Evaluation results: priorities and planned action (2009 and beyond) 

Due  to  the  relatively  small  number  of  cases  in  the  field  of  data  protection,  no  prioritisation 
was applied to them. 

The  Commission  will  continue  the  monitoring  of  the  correct  application  of  the  Data 
Protection Directive 95/46/EC. 

15.10.  Judicial cooperation in civil matters 

15.10.1. Current position – report on work done in 2008 

All Member States have notified their national legislation implementing Directive 2003/8 on 
legal aid488.  

Regarding Directive 2004/80 relating to compensation to crime victims489, Greece is the only 
Member  State  failing  to  comply  with  its  transposition  and  communication  obligation,  the 
infringement having reached an advanced stage490.  

In December 2008 the Commission received the final report on a study on the application of 
Directive 2004/80/EC relating  to compensation to crime victims. The objective of the study 
was to assess the current stage of implementation of Directive 2004/80/EC in all EU Member 
States. The study served as a basis for a Commission's report adopted in April 2009. 

Further,  in  November  2008  the  Commission  received  the  final  report  on  a  study  on  the 
compensation of victims of cross-border road traffic accidents in the EU. The study consists 
of  comparison  of  national  practices,  analysis  of  problems  and  evaluation  of  options  for 
improving  the  position  of  cross-border  victims.  It  enables  the  Commission  to  assess  if 
Community  law  –  i.e.  motor  insurance  directives  and  Regulation  Rome  II  ensure  effective 
access to compensation for EU residents involved in road traffic accidents in another Member 
State (“visiting victims”).  

In  view  of  ensuring  the  correct  application  of  Regulation  2201/2003491  (the  'Brussels  II  a 
Regulation’) concerning jurisdiction and the recognition and the enforcement of judgments in 
matrimonial  matters  and  the  matters  of  parental  responsibility,  a  first  request  for  an  urgent 
preliminary ruling (PPU) on a case of parental child abduction was submitted to the Court of 
Justice in May 2008 (case C-195/08 PPU). The Court, in its answers to the referral questions, 
confirmed that opposition to the decision ordering the return of the child was not permitted by 

488 

489 

490 

491  

Council Directive 2003/8 of 27 January 2003 to improve access to justice in cross-border disputes by 
establishing minimum common rules relating to legal aid for such disputes, OJ L 26, 31.1.2003, p. 41. 
Council  Directive  2004/80  of  29  April  2004  relating  to  compensation  to  crime  victims,  OJ  L  261, 
6.8.2004, p. 15. 
Greece was ruled against by the Court on 18 July 2007 (Case C-2007/026) for failure to notify measures 
transposing  the  Directive.  On  23  September  2008  the  Commission  sent  a  reasoned  opinion  under  the 
Article 228 of the EC Treaty to Greece. Greece and still has not complied with the Court's judgment. 
Regulation  2201/2003of  27  November  2003  concerning  jurisdiction  and  the  recognition  and 
enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing 
Regulation (EC) No 1347/2000 -OJ L 338, 23.12.2003 

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Regulation  2201/2003  and  that  it  was  for  the  competent  court  in  the  country  to  which  the 
child had been abducted to allow the immediate return of the child. 

Furthermore, one Member State brought a case before the Commission under Art. 227 of the 
EC Treaty in October 2008, alleging that another Member State had breached Art.10 and 249 
of  the  EC  Treaty  by  virtue  of  the  national  Court’s  incorrect  application  of  Regulation 
2201/2003.  The  Commission  issued  a  reasoned  opinion  ex  art.  227492  in  January  2009, 
whereby it did not find any infringement. 

A comprehensive impact assessment was undertaken for a future proposal on successions and 
wills. 

15.10.2. Evaluation based on the current situation 

The number of formal infringements increased from 12 in 2007 to 18 in 2008. This is due to 
the entry into force of new instruments – mainly the crime victims' directive (3 cases) and the 
number of disputes on parental responsibility (3 cases). 

In 2008 a special attention was paid to the correct application of Regulation 2201/2003 (the 
'Brussels II a Regulation’). The Regulation ensures that children can maintain regular contacts 
with  both  parents  following  a  separation  and  provides  clear  rules  to  deter  parental  child 
abduction throughout the EU. 

The number of preliminary rulings in the area of family law is expected to increase with the 
new  urgent  preliminary  ruling  procedure  available  since  1  March  2008.  The  new  procedure 
enables  the  Court  of  Justice  to  deal  much  more  quickly  with  issues  relating  to  the  area  of 
freedom,  security  and  justice.  Such  an  issue  may  arise,  for  example,  in  proceedings 
concerning  parental  responsibility  if  the  jurisdiction  under  Community  law  of  the  national 
court hearing the case depends on the answer to the question referred for a preliminary ruling. 
Most  interestingly  as  mentioned  above,  the  first  ever  urgent  preliminary  ruling  procedure 
required  the  Court  to  clarify  rules  in  the  Brussels  IIa  Regulation  relating  to  the  return  of  a 
child  wrongfully  retained  in  another  EU  Member  State  (judgment  of  the  Court  of  11  July 
2008 in case C-195/08 PPU Rinau). 

Furthermore,  in  October  2008  there  was  a  rare  case  of  application  of  the  procedure  under 
Article  227  of  the  EC  Treaty  between  two  Member  States  for  misapplication  of  Regulation 
2201/2003 Brussels II a. 

The  current  situation  with  a  restricted  role  of  the  Court  of  Justice  in  interpreting  the  family 
law acquis would change with the coming into force of the Lisbon Treaty, which abrogates 
Article 68 EC. 

Other objectives for the Commission: 

492C(2009)164  

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•  Increased  efforts  to  improve  the  knowledge  of  the  family  law  acquis  through  further 
training of practitioners (judges, central authorities and lawyers) as well to promote the use 
of mediation in the settlement of family disputes to prevent that these disputes are brought 
before the courts. 

•  If  a  problem  of  interpretation  arises  with  one  of  the  family  law  instruments,  the 
Commission could seize the Court of Justice under Article 68(3) of the Treaty and request 
a ruling. 

Following  the  entry  into  force  of  Regulation  1896/2006  establishing  a  European  Payment 
Order  Procedure493  and  Regulation  861/2007  establishing  a  European  Small  Claims 
Procedure494,  the  Commission  has  published  the  references  of  assisting  authorities 
communicated by Member States on the website of the European Judicial Atlas.495 

The  Commission  also  published  leaflets  in  all  languages  about  the  European  Judicial 
Network's tasks  and contact points. The aim is to facilitate requests for judicial  cooperation 
between Member States (e.g. to provide assistance with the service of documents or the taking 
of evidence) and to make it easier to ensure that Community legislation is properly applied in 
practice.  Further,  a  Practice  Guide  on  the  European  Enforcement  Order  was  published  in 
December 2008. 

The Directive 2008/52/EC496 of the European Parliament and the Council on certain aspects 
of  mediation  in  civil  and  commercial  matters  was  adopted  on  23  April  2008.  The  Directive 
provides in particular that Member States shall notify the names of competent authorities for 
the progressive implementation of the Directive on a three-year period. 

Around 12 petitions per year are received in this field. 

15.10.3. Evaluation results: priorities 

The proper application of existing legislation remains a focus on attention in 2009. 

The correct implementation of Regulation 2201/2003 Brussels IIa remains important. Indeed, 
the prevention of parental child abduction is a priority for further EU action and an important 
part of the overall Commission strategy to promote the rights of the child. 

In 2008 a preliminary study for preparing the report on the application of Regulation 44/2001 
(Brussels I) 497 was finalised. The Commission's report 498 adopted in April 2009 evaluated the 
application of Brussels I in order to highlight problems in the application and ways in which 
the operation of the Regulation may be improved. 

493 
494 
495 
496  
497  

(OJ L 399 of 30 December 2006, p.1). 
(OJ L 199 of 31 July 2007, p. 1). 
http://ec.europa.eu/justice_home/judicialatlascivil. 
OJ L 136, 24.5.2008 
Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on  jurisdiction  and  the  recognition  and 
matters- 
enforcement 
OJ L 012 16/01/2001 P. 0001 - 0023 

commercial 

judgments 

civil 

and 

of 

in 

498 COM/2009/0174 

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362 

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The  European  Judicial  Network  in  civil  and  commercial  matters  (EJN)  proved  to  be  an 
important tool  in supporting the  correct application of Community  Law.  Managing the EJN 
continued in 2008, including information and communication activities. The Commission has 
presented  in  June  2008  a  proposal  amending  the  decision  creating  the  EJN  with  the  aim  to 
enlarging  access  to  all  judicial  professions  and  thereby  make  it  the  key  instrument  for  civil 
judicial cooperation. Formal adoption is planned in June 2009. 

Pursuant  to  a  Communication499  in  2008,  the  Commission  established  a  Justice  Forum.  The 
new forum provides a platform for regular dialogue about policies and practice in the area of 
justice  as  well  as  contributing  to  strengthening  mutual  trust,  improving  mutual  recognition 
and access to justice. 

As  for  infringement  cases,  their  limited  number  does  not  require  prioritization  of  their 
treatment.  The  most  common  cases  concern  Directive  2004/80  relating  to  compensation  to 
crime victims and Regulation 2201/2003 Brussels II a. Other types of infringements concern 
incorrect application of Regulation Brussels I and of the Regulation on service of documents.  

Besides  infringements  cases,  the  Commission  is  contributing  to  assessment  of  preliminary 
questions  to  the  Court  of  Justice  (around  ten  questions  raised  in  2008  on  civil  judicial 
cooperation issues). 

15.10.4. Evaluation results: planned action (2009 and beyond) 

In addition to the Report on the application of Regulation 44/2001 on jurisdiction, recognition 
and enforcement of judgments in civil and commercial matters (Brussels I),the Commission 
adopted a Report on the application of the Directive 2004/80/EC relating to compensation to 
crime victims. 

A study will be launched in 2009 in view of assessing the implementation of the Legal Aid 
Directive. 

In  family  law,  the  correct  implementation  of  the  Regulation  2201/2003  Brussels  II  a  will 
remain a priority in the forthcoming years.  

Furthermore,  a  new  Council  Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law, 
recognition and enforcement of decisions and cooperation in matters relating to maintenance 
obligations was adopted on 18 December 2008. It will facilitate the recovery of maintenance 
abroad. 

In  2009  the  development  of  websites  of  the  EJN  and  of  the  Judicial  Atlas  will  continue  in 
order to ensure the continuity of our action and to comply with the new strategy on E-Justice 
and  the  creation  of  a  European  judicial  electronic  Portal.  The  Commission  is  co-financing 
several  pilot  projects,  such  as  electronic  exchanges  for  the  European  Payment  Order  or 
Insolvency Registers.  

499  Communication  from  the  Commission  on  the  creation  of  a  Forum  for  discussing  EU  justice  policies  and 

practice, COM/2008/0038 final 

EN 

363 

   EN 

                                                 
In 2008 three important Regulations entered into force – respectively Regulation 1393/2007 
on  service  of  documents500,  Regulation  1896/2006  establishing  a  European  Payment  Order 
Procedure501  and  Regulation  861/2007  establishing  a  European  Small  Claims  Procedure502. 
The Commission will continue taking all necessary measures to support the implementation 
of these Regulations, particularly by publishing the references of  assisting  Authorities to be 
communicated by Member States. 

15.10.5. Summary 

Directive 2003/8 on legal aid503 has been transposed in all Member States. The transposition 
of  Directive  2004/80  on  compensation  of  crime  victims  has  nearly  been  completed.  The 
Commission  continued  examining  infringements  concerning  incorrect  application  of  the 
Regulations in the civil justice field.  

The  entry  into  force  of  the  Mediation  Directive  and  of  three  Regulations  on  service  of 
documents504, payment order505 and small claims506 require Member States to notify specific 
information  to  the  Commission.  The  Commission  will  therefore  monitor  the  correct 
notifications ad publish them in view of a smooth implementation of these instruments at the 
time of application. 

Judicial cooperation in civil matters will be improved and enhanced thanks to the revision of 
the  functioning  of  the  European  Judicial  Network  in  civil  and  commercial  matters  and  the 
creation of the Justice Forum. 

As  for  infringement  cases,  their  limited  number  does  not  require  prioritization  of  their 
treatment.  The  most  common  cases  concern  Directive  2004/80  relating  to  compensation  to 
crime victims and Regulation 2201/2003 Brussels II a on parental responsibility. Other types 
of infringements concern incorrect application of Regulation Brussels I and of the Regulation 
on service of documents.  

500 Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the 
service  in  the  Member  States  of  judicial  and  extrajudicial  documents  in  civil  or  commercial  matters 
(service of documents), and repealing Council Regulation (EC) No 1348/2000 

501 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating 
a European order for payment procedure -Official Journal L 399 , 30/12/2006 P. 0001 - 0032 
502 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a 

European small claims procedure. 

503 Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border 
disputes by establishing minimum common rules relating to legal aid for such disputes- OJ L 26, 
31.1.2003, p. 41–47  

504 Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of 
judicial and extrajudicial documents in civil or commercial matters- OJ L 160, 30.6.2000, p. 37–
52  

505 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating 

a European order for payment procedure. 

506 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 
establishing a European Small Claims Procedure- OJ L 199, 31.7.2007, p. 1–22  

EN 

364 

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In  2008  special  attention  was  paid  to  the  correct  application  of  the  Regulation  2201/2003 
Brussels II a. Indeed, the prevention of parental child abduction is a priority for further EU 
action and an important part of the overall Commission strategy to promote the rights of the 
child, and will remain a priority in 2009 and beyond.  

Around 12 EP petitions per year are received in this field. 

15.11.  Security 

On 15 September 2007 the Member States should to have brought into force legal instruments 
to  comply  with  the  Data  Retention  Directive  2006/24/EC.  All  but  4  Member  States  have 
transposed  the  directive  and  18  Member  States507  invoked  the  clause  of  Article  15(3)  that 
allowed them to postpone the application of the Directive to the retention of communications 
data relating to Internet Access, Internet telephony and Internet e-mail until 15 March 2009.  
On 23 September 2008 the Commission addressed reasoned opinions for non-communication 
to the following Member States: Austria, Greece, Lithuania, Netherlands, Sweden, Romania 
and  Poland  that  had  all  invoked  the  clause  of  Article  15(3),  as  well  as  Ireland  that  had  not 
invoked  that  clause.  Ireland  had  brought  an  action  for  annulment  of  the  Directive  (Case  C-
301/06) on the ground that it should have been adopted with a third pillar legal basis (Title VI 
TEU). The ECJ dismissed the action in its judgment of 10 February 2009. 

Having  regard  to  that  judgment,  the  intention  of  the  Commission  is  to  seize  the  Court  to 
pursue the action against those Member States that failed to notify legislation. Furthermore, 
the Commission has addressed so-called pre-226 letters to a number of Member States. These 
letters  request  those  Member  States  to  clarify  certain  aspects  of  the  notified  legislation  to 
allow the Commission to assess whether the Directive was correctly transposed. 

Article 14 stipulates that no later than 15 September 2010, the Commission shall submit to the 
European Parliament and the Council an evaluation of the application of this Directive and its 
impact on economic operators and consumers. The state of notifications will also been taken 
on board in that assessment. 

15.12.  List of legal measures in force 

See Annex I for the list of relevant Treaty provisions, Regulation and Directives in force to be 
monitored by Commission services in the sector of Justice, Freedom and Security, divided by 
sector. Please note that the list does not include legal instruments adopted under Title VI of 
the EU Treaty. 

A comprehensive list of the acquis in force in this area, is publicly available on the EUROPA 
website508.  

507 

508 

The  Netherlands,  Austria,  Estonia,  United  Kingdom,  Cyprus,  Greece,  Luxemburg,  Slovenia,  Sweden, 
Lithuania,  Latvia,  Czech  Republic,  Belgium,  Poland,  Finland,  Germany  and  upon  accession  Bulgaria 
and Romania. 
http://ec.europa.eu/justice_home/doc_centre/intro/doc_intro_en.htm. 

EN 

365 

   EN 

                                                 
As  a  follow-up  of  the  Hague  Programme,  it  has  become  customary  to  adopt  a  yearly 
Scoreboard Plus, the last one published on 2 July 2008509. In addition to the monitoring of the 
adoption  process,  this  communication  examines  national  implementation  of  policies  in  the 
Justice, Freedom and Security fields. 

16. 

TRADE 

Trade  policy  is  governed  by  Article  133  of  the  EC  Treaty.  The  bulk  of  the  Community 
legislation in this field takes the form of regulations, for example, the basic anti-dumping and 
countervailing duty regulations, the Generalised System of Preferences Regulation, the Trade 
Barriers Regulation and the Import and Export Regulations.510 There are only two directives. 
These directives are Council Directive 98/29/EC of 7 May 1998 on harmonisation of the main 
provisions  concerning  export  credit  insurance  for  transactions  with  medium  and  long-term 
cover  and  Council  Directive  84/568/EEC  of  27  November  1984  concerning  the  reciprocal 
obligations of export credit insurance organizations of the Member States acting on behalf of 
the State or with its support, or of public departments acting in place of such organizations, in 
the case of joint guarantees for a contract involving one or more subcontracts in one or more 
Member States of the European Communities. In 2007/2008 the only relevant issue was the 
transposition of these directives by Bulgaria and Romania. The transposition measures have 
been communicated correctly to the Commission and the infringement proceedings which had 
been opened were closed during 2008.  

It is not expected that there will be any significant work required on the transposition of these 
directives or other potential infringements in 2009. 

17. 

ENLARGEMENT 

17.1.  Current position – Relevant legal instruments  and  related  work and reporting 

on 2008 

17.1.1.  General introduction 

Enlargement policy is based on Article 49 EU Treaty which is not justiciable. However, EC 
agreements with third countries may contain certain rights and obligations which are directly 
applicable under EU law. Violation of such provisions by one or more Member States could 
therefore be subject to infringement proceedings. 

509 

510 

Communication  of  2  July  2008  from  the  Commission  to  the  Council  and  the  European  Parliament  – 
Report on the implementation of the Hague programme for 2007 – COM(2008) 373 final. Available on 
JLS EUROPA website http://ec.europa.eu/justice_home/doc_centre/scoreboard_en.htm.  
Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from 
countries not members of the European Community as amended; Council Regulation (EC) No 2026/97 
of  6  October  1997  on  protection  against  subsidized  imports  from  countries  not  members  of  the 
European Community as amended; Council Regulation (EC) No 732/2008 of 22 July 2008 applying a 
scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 as 
amended;  Council  Regulation  (EC)  No  3286/94  of  22  December  1994  laying  down  Community 
procedures  in  the  field  of  the  common  commercial  policy  in  order  to  ensure  the  exercise  of  the 
Community's rights under international trade rules, in particular those established under the auspices of 
the World Trade Organization as amended; Council Regulation (EC) No 260/2009 of 26 February 2009 
on  the  common  rules  for  imports  and  Council  Regulation  (EEC)  No  2603/69  of  the  Council  of  20 
December 1969 establishing common rules for exports. 

EN 

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In the field of enlargement, this is in particular the case for the 1963 EEC-Turkey Association 
Agreement,  its  1970  Additional  Protocol  and  related  Association  Council  Decisions, 
particularly  Decision  1/80.  The  Stabilisation  and  Association  Agreements  with  the  former 
Yugoslav  Republic  of  Macedonia  (2004),  with  Croatia  (2005)  and  Albania  (2009)  also  fall 
into the same category of EC law, partly liable for trial in the European Court of Justice as far 
as implementation or application by Member States is concerned. Similar agreements with the 
potential  candidate  countries  Montenegro,  Serbia,  as  well  as  Bosnia  and  Herzegovina,  have 
not yet entered into force. 

17.1.2.  Report of work done in 2008 

The  Commission  receives  a  lot  of  correspondence  and  complaints  from  citizens  related  to 
legal  acts  and  agreements  in  the  field  of  enlargement,  including  financial  instruments. 
However, these cases mainly concern alleged violation of obligations by the third country or 
other matters not directly related to the application of EC law by Member States. Recourse to 
infringement proceedings is therefore very limited in the area of enlargement. 

The case concerning workers’ rights on access to the labour market of Member States under 
Decision 1/80 related to the EEC/Turkey Association Agreement, which was referred to the 
Court in 2006, is still pending. The Commission commented on previous interventions from 
Member  States.  The  question  concerned,  which  is  the  introduction  of  higher  administrative 
fees for handling residence permit requests from Turkish nationals by one Member State, is in 
parallel  the  subject  of  a  reference  for  preliminary  ruling.  At  the  end  of  2008  the  Court 
organised  a  hearing  on  the  latter  case  and  may  issue  its  judgment  in  the  near  future.  The 
EEC/Turkey  Association  Agreement  is  also  subject  to  a  number  of  other  references  for 
preliminary rulings, most of them still pending with the Court.  

In 2008, the Commission received new complaints related to the application and interpretation 
of certain provisions, including standstill clauses, of the EEC/Turkey Association Agreement, 
which  are  at  present  being  examined.  Other  cases,  which  concern  the  compatibility  of 
mandatory  integration  exams  for  Turkish  nationals  working  in  a  Member  State,  or  the 
increase of the minimum age of Turkish citizens for issuing residence permits, were subject to 
a thorough analysis and will now be pursued. 

17.2.  Evaluation 

Since  EU  enlargement  in  2004  and  2007,  the  few  complaints  received  with  a  view  to 
infringement  proceedings  all  concern  the  application  of  the  EEC/Turkey  Association 
Agreement.  Taking  into  account  the  references  to  preliminary  rulings  pending  at  the  Court, 
this  confirms  that  the  application  and  interpretation  of  this  Association  Agreement  is  still 
subject to a variety of legal arguments with regard to residence and work of Turkish citizens 
in  Member  States.  Other  Stabilisation  and  Association  Agreements  with  Western  Balkan 
countries which have entered into force are, so far, not subject to any infringement case. 

The number of complaints that may lead to infringement cases remains limited and therefore 
does not require additional prioritisation among them. This situation is not likely to change in 
future. 

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17.3.  Evaluation results 

There  is  only  one  priority  in  the  area  of  enlargement  and  that  is  the  application  of  the 
EEC/Turkey  Association  Agreement.  This  priority  remains  unchanged  given  the  limited 
number of cases.  

17.4. 

Summary 

Infringement procedures in the area of enlargement are rare. All pending cases at the Court 
and  the  Commission  concern  the  alleged  violation  of  directly  applicable  provisions, 
particularly standstill clauses, under the EEC/Turkey Association Agreement.  

17.5.  Legal measures in force 

EEC-Turkey Association Agreement (1963) Official Journal No 217 of 29.12.1964. 

18. 

EUROSTAT 

18.1.  Current position- Report on 2008 

In  line  with  the  Commission  policy  on  better  monitoring  of  the  application  of  Community 
law,  the  Commission  services  have  continued  to  work  in  close  partnership  with  National 
Statistical  Institutes  managing  the  application  of  the  statistical  legislation  through  contacts, 
networks in the various sectors and regular meetings of national experts.  

Since  2006,  several  internal  Reports  have  been  discussed  within  the  Commission  services  to  take 
note of the state of play and to recommend possible follow-up actions. In order to assure a complete 
follow up of compliance with Community statistical legislation, there are also certain parallel 
systems  in  place  which  serve  the  purpose  of  assuring  fulfilment  of  the  complex 
methodological rules discussed through cooperation with Member States at different sectoral 
statistical Committees and expert Working Groups. 

The  most  frequently  recurring  problem  concerns  the  “delays”  in  meeting  the  transmission 
deadlines. 

Nevertheless, the improvement of the overall situation can generally be confirmed. Member 
States  in  default  are  making  serious  efforts  to  fully  comply  when  they  are  challenged  at 
suitable level. In most cases, Member States react positively to reminders. In several cases, a 
solution  to  the  difficulties  could  be  found  thanks  to  reciprocal  collaboration  between  the 
National Institutes and the Commission services.  

18.2.  Legislative changes underway (2008-2012) 

In accordance with Decision 1578/2007/EC on the Community statistical programme 2008 to 
2012511, compliance monitoring of Community legislation in the field of statistics is a specific 
objective  of  strategic  importance  for  the  medium  to  long-term  development  of  Community 
statistics: 

511 

Decision  1578/2007/EC  of  the  European  Parliament  and  the  Council  of  11  December  2007  on  the 
Community statistical programme 2008 to 2012 - Point 3.2 of Annex I – (OJ L 344, 28.12.2007, p. 15). 

EN 

368 

   EN 

                                                 
"The  quality  of  Community  statistics  comprises  the  fundamental  requirement  of  compliance 
with  the  principles  of  the  Treaty  and  the  secondary  legislation.  Therefore,  a  vigorous  and 
systematic monitoring of the application of the legislation is a priority. A global and coherent 
compliance  strategy  structured  around  the  principles  of  a  realistic  legislative  policy,  the 
obligation of Member States to apply systematically the statistical legislation and a coherent 
and systematic monitoring of compliance, will be followed. Close contacts with the competent 
national authorities throughout all of the phases is part of the compliance process". 

18.3.  Evaluation 

Community  statistical  legislation  is  mainly  composed  of  Regulations.  The  Commission 
services in this area are responsible for only 5 Directives.  

Possible difficulties to apply Community statistical legislation are anticipated and addressed 
when preparing any draft legislative proposal, which is always the result of close cooperation 
with Member States.  

The measures of implementation of the basic acts (as adopted by comitology procedures) are 
prepared and discussed with the Member States.  

It is useful to stress that the obligations of Member States in the field of statistics are recurring 
and therefore need constant follow-up. Thanks to continuous collaboration with the Member 
States, the Commission services are in a position to know beforehand the possible difficulties 
that  a  Member  State  could  encounter  and  can  try  addressing  these  difficulties  in  advance 
together with the responsible national statistical authority.  

18.4. 

Priorities 

The main priority in this area concerns the efficient co-operation with the Member States to 
improve  the  quality  of  Community  statistics  (accuracy,  timeliness  and  comparability  being 
priorities for the ESS).  

The Commission will pursue its policy, based on a comprehensive and coherent approach that 
ensures follow-up and effective control of the application of statistical legislation.  

18.5. 

Planned action 

The  objective  of  having  statistics  of  quality  is  both  an  operational  objective  and  a  legal 
requirement insofar as Community statistics production must respect the principles set out in 
Article 285 of the EC Treaty and in Regulation (EC) No 223/2009 of the European Parliament 
and  of  the  Council  of  11 March  2009  on  European  statistics512  as  well  as  in  the  various 
sectoral legislative instruments.  

In  the  field  of  statistics,  the  Commission  will  continue  to  monitor  the  application  of 
Community  legislation  especially  through  bilateral  meetings  and  discussions  with  Member 
States. 

The Commission services will carry out this structured dialogue with the ambition to ensure 
the full and correct application of statistical legislation without having to recourse to formal 
infringement proceedings. 

512 

OJ L 87, 31.3.2009, p. 164 

EN 

369 

   EN 

                                                 
Identified as an area in which improvements are needed on an ESS-wide scale, the ESS will 
join forces to invest in implementing ESS quality management tools and guidelines. 

19. 

PERSONNEL AND ADMINISTRATION 

19.1.  Current  position  –  Most  important  legal  instruments  and  related  work  and 

reporting on 2008 

19.1.1.  Existing measures in force 

In the field of Personnel and Administration, the Commission must guarantee that Community 
law  is  correctly  applied  to  the  staff  of  the  Communities.  To  this  end,  it  must  ensure  that 
legislation and implementing provisions are adopted by Member States in compliance with the 
Protocol on Privileges and Immunities of the European Communities and the Regulations and 
Rules applicable to officials and other servants of the European Communities. 

In particular, the following legal texts are applicable: 

Council  Regulation  (EEC,  Euratom,  ECSC)  No  259/68  of  29  February  1968  and  further 
modifications, 

The Protocol on the Privileges and Immunities of EC (PPI), annexed to the Merger Treaty of 
1965, 

Other  agreements  between  the  European  Commission  and  Member  States  regarding  the 
functioning of the Institutions' Services. 

19.1.2.  Report of work done in 2008 

In 2008, Commission pursued the infringement proceedings launched in 2007 against Belgium. 
An appeal was lodged with the Court of Justice (Case C-132/09) seeking a judgment confirming 
the  obligation  of  Belgium  to  comply  with  its  undertaking,  in  application  of  the  Headquarters 
Agreement with the Commission, to subsidise the cost of equipment for European Schools.  

In another field, but again regarding Belgium, the Commission considers that the decree of the 
government  of  Brussels-Capital  Region  of  12  June  2003  providing  that  all  construction  or 
expansion  of  office  buildings  that  exceeds  500m²  of  floor  surface  is  subject  to  the  levying  of 
urbanism charges (charges d'urbanisme) is contrary to the tax exemption foreseen in Article 3 
of the PPI. Such charges may be clearly qualified as direct taxes and they cannot be deemed as 
proportional charges for public utility services provided directly to the Institutions. 

In coordination with all the other Institutions based in Brussels, the Commission has contested 
the  legality  of  these  charges  launching  an  infringement  procedure  in  October  2007,  which  is 
going on. 

After  the  adhesion  of  new  Member  States,  the  Commission  has  continued  to  reach  further 
arrangements for the transfer of pension rights of staff who had originally worked and acquired 
pension rights in Member States. This ongoing process has had a number of successes and some 
of the competent authorities have already fulfilled their obligations in this regard.  

EN 

370 

   EN 

19.2.  Evaluation based on the current situation  

The measures which may require specific implementation / transposition work 

The  Commission  closely  follows  the  evolution  of  the  policy  in  Member  States  as  regards 
European Schools. The rules governing their establishment require not only that new structures 
be built and adapted to accommodate new needs in due time, but also that the schools are run 
along efficient lines. 

However, as regards the transfer of pension rights, taking into account the direct applicability of 
the Staff Regulations, a refusal or delay by Member States to come to an agreement regarding 
the implementation of the necessary procedures for such transfers, could lead the Commission 
to examine the launch of infringement proceedings against those Member States. Regarding the 
cooperation with the Member states, this has not been necessary until now.  

In any case, the Commission continues to seek pro-active solutions outside or in parallel with 
the  infringement  procedure  under  Article  226  of  the  EC  Treaty.  Contacts  are  regularly 
organised  between  the  institution's  administration  and  the  competent  authorities  of  Member 
States  which  serve  to  anticipate  and  resolve  questions  which  could  otherwise  lead  to  such 
proceedings.  

20. 

BUDGET 

20.1.  Current  position  –  relevant  legal  instruments  and  related  work  and  reporting 

on 2008 

20.1.1.  Existing measures in force 

The existing legal measures in the budgetary area relate to the procedure for the financing of 
the EU budget through three main own resources: traditional own resources, the VAT-based 
own  resource  and  the  complementary  resource  based  on  Member  States'  GNI.  In  particular, 
the following texts are applicable: 

Article 269 EC,  

Council Decision 2007/436/EC, Euratom on the system of the Communities' own resources. 

Council  Regulation  (EC,  Euratom)  No  1150/2000  implementing  the  above  decision,  in  its 
version of Council Regulation EC, Euratom No 105/2009 applicable from January 1, 2007. 

Council Regulation (EEC, Euratom) No 1553/89 on the definitive uniform arrangements for 
the collection of own resources accruing from value added tax. 

Additionally,  budgetary  receipts  are  obtained  under  Articles  3  and  4  of  the  Protocol  on  the 
Privileges and Immunities of EC (PPI), annexed to the Merger Treaty of 1965. 

20.1.2.  Report of work done in 2008 

Main 2008 activities 

The  area  of  Own  resources  is  based  upon  directly  applicable  Council  Regulations  and 
Decisions. The main problems with Member States stem from different interpretation of the 

EN 

371 

   EN 

 
budgetary  legislation.  One  priority  of  the  Commission  in  this  respect  is  the  prevention  of 
irregularities.  This  is  mainly  realised  via  control  activities  made  by  the  Commission's 
inspectors and their legal and accounting follow-up, thus ensuring the correct functioning of 
the Community own resources system and the PPI. If, however, anomalies are detected, they 
are  closely  followed-up  in  view  of  their  early  settlement.  This  is  the  main  reason  why  the 
number  of  infringement  files  to  be  managed  (ca.  30  on  average)  is  rather  small.  Another 
reason is that under Art. 11 of Regulation 1150/2000, default interest is due when amounts of 
Own  Resources  are  paid  belatedly.  The  amount  of  interest  may  often  exceed  the  principal 
claim depending upon the length of the delay. 

In  2008,  the  Commission  services  detected  117  anomalies  in  the  area  of  traditional  own 
resources (of which 99 in the course of on-the-spot inspections) and set up 51 reservations in 
the area of VAT/GNI (= 41 VAT+ 10 GNI). Most of the newly detected anomalies could be 
solved  at  an  initial  stage  in  bilateral  discussions  with  Member  States  or  in  the  Advisory 
Committee on Own Resources. 

Regarding  infringements,  the  principal  activities  in  2008  concerned  the  follow-up  of  earlier 
Court  decisions  and  the  contribution  to  pending  cases.  The  outcome  of  the  group  of  9 
infringement  procedures  lodged  to  the  ECJ  concerning  duty-free  military  importations  for 
which the oral procedure took place in late autumn 2008 will be of juridical importance. The 
Court will have to determine in its judgments whether, and to what extent, it is possible for 
Member States to invoke Art.296 of the EC-Treaty for not applying Community policies on 
grounds of national security.  

Amongst the other infringement files managed in 2008, one case received special priority due 
to  its  systemic  and  institutional  importance:  Case  No.  2008/2152  regards  a  request,  under 
Article 248 EC, submitted to the German authorities by the European Court of Auditors, for 
auditing the administrative cooperation of Member States in the area of VAT as laid down in 
Council Regulation (EC) No 1798/2003 and the refusal of the German Ministry of Finance to 
allow for such an audit claiming that there was no appropriate legal basis for it.  

Where files - as it is usually the case - relate to the recovery of established amounts, it results 
from  budgetary  Community  rules  that  any  infringement  to  financing  rules  by  one  Member 
State results in a corresponding increase of own resources to be made available by the other 
Member States. Thus the Commission, as guardian of the Treaties, has hardly any discretion 
on  whether  to  start  infringement  proceedings,  and  it  may  not  close  recovery-related 
infringement  actions  only  for  reasons  of  political  opportunity.  Under  the  current  legislative 
framework, the waiving of financial claims vis-à-vis Member States is impossible. 

The  context  mentioned  above  does  not  exclude  the  possibility  to  prioritize  infringements 
according to their gravity and their impact on the budget and to take legal action only if it is 
not possible to settle the issues in bilateral contacts and discussions with Member States in the 
Advisory Committee for Own Resources. 

20.1.3.  Volume of infringements work and petitions 

On 1 January 2008, there were 30 open infringement files in the budgetary area. 

So far, the Commission services in this area have been dealing with only one complaint file, 
transferred from another service of the Commission. All other cases had been detected by the 
Commission inspectors or communicated by other services of the Commission. 

EN 

372 

   EN 

20.2.  Evaluation 

As  already  underlined  in  the  previous  Annual  Report,  Member  States  generally  apply 
correctly  the  legislation  concerning  the  Communities'  own  resources  and  the  PPI.  They 
contribute  timely  to  the  EU  budget.  The  few  infringements  detected  by  the  Commission' 
controllers do not reflect any systemic problems in the application of the Community law. 

The  Commission  will  continue  to  ensure  that  the  Communities'  own  resources  are  timely 
made available, in full respect of the Community law and that the recovery actions concerning 
other amounts due by the Member States are efficient. 

EN 

373 

   EN 

ANNEX I - LIST OF MEASURES IN FORCE AND OTHER RELEVANT INSTRUMENTS 
REFERRED TO IN THE TEXT OF THE DOCUMENT 

I.  ENTERPRISE AND INDUSTRY 

I.1. 

Pharmaceuticals 

In the pharmaceutical sector, the main measures monitored by the Commission are: 

•  Regulation (EC) No 726/2004 of the European Parliament and of the Council, laying down 
Community  procedures  for  the  authorisation  and  supervision  of  medicinal  products  for 
human and veterinary use and establishing a European Medicines Agency (EMEA); 

•  Directive  2001/83/EC of the European  Parliament and  of  the Council on the  Community 

code relating to medicinal products for human use; 

•  Directive  2001/20/EC  of  the  European  Parliament  and  of  the  Council  on  clinical  trials, 

complemented by Commission Directives 2003/94/EC and 2005/28/EC;  

•  Regulation  (EC)  No  141/2000  of  the  European  Parliament  and  of  the  Council  on  orphan 

medicinal products, complemented by Commission Regulation (EC) No 847/2000; 

•  Regulation  (EC)  No  1901/2006  of  the  European  Parliament  and  of  the  Council  on 

medicinal products for paediatric use; 

•  Regulation (EC) No 1394/2007 of the European Parliament and of the Council on advance 

therapy medicinal products; 

•  Directive  2001/82/EC of the European  Parliament and  of  the Council on the  Community 

code relating to veterinary medicinal products; 

Regulation  (EEC)  2377/90  on  maximum  residue  limits  of  veterinary  medicinal 
products in foodstuffs of animal origin. 

II.    EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES 

List of measures in force 

II.1. 

Free movement of workers and coordination of social security schemes 

II.1.1.  Free movement of workers 

Art. 39 TEC 

Regulation  (EEC)  No  1612/68  of  the  Council  of  15  October  1968  on  freedom  of 
movement for workers within the Community. 

EN 

374 

   EN 

Directive  2004/38/EC  of  the  European  Parliament  and  of  the  Council  of  29  April 
2004  on  the  right  of  citizens  of  the  Union  and  their  family  members  to  move  and 
reside freely within the territory of the Member States. 

II.1.2 

Social security  

Article 42 TEC 

Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of 
social  security  schemes  to  employed  persons,  self-employed  persons  and  to  the 
members of their families moving within the Community. 

Regulation  (EC)  No  859/2003  of  the  Council  of  14  May  2003  extending  the 
provisions  of  Regulation  (EEC)  No  1408/71  and  Regulation  (EEC)  No  574/72  to 
nationals of third countries who are not already covered by those provisions solely on 
the ground of their nationality. 

Recently  adopted  measures  due  to  enter  into  force  in  the  sector  of  the  Social 
security  

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 
April 2004 on the coordination of social security schemes. 

New  measures  already  proposed  and  due  to  be  adopted  in  the  sector  of  the 
Social security  

Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  laying 
down  the  procedures  for  implementing  Regulation  (EC)  No  883/2004  on  the 
coordination of social security schemes. 

Proposal for a Regulation of the Council extending the provisions of Regulation (EC) 
No 883/2004 and of Regulation (EC) No [….]to nationals of third countries who are 
not already covered by those provisions solely on the ground of their nationality. 

II.2.  Labour Law 

II.2.1.  Working conditions 

–  Directive  96/71/EC513  of  the  European  Parliament  and  of  the  Council  of  16 
December  1996  concerning  the  posting  of  workers  in  the  framework  of  the 
provision of services 

–  Council Directive  97/81/EC514 of 15 December 1997  concerning the  Framework 
Agreement  on  part-time  work  concluded  by  UNICE,  CEEP  and  the  ETUC  - 
Annex : Framework agreement on part-time work; 

–  Council  Directive  98/23/EC515  of  7  April  1998  on  the  extension  of  Directive 
97/81/EC on the framework agreement on part-time work concluded by UNICE, 

513 
514 
515 

OJ L 18, 21.1.1997, p. 1–6 
OJ L 14, 20.1.1998, p. 9–14 
OJ L 131, 5.5.1998, p. 10–10 

EN 

375 

   EN 

 
                                                 
CEEP  and  the  ETUC  to  the  United  Kingdom  of  Great  Britain  and  Northern 
Ireland; 

–  Council  Directive  1999/70/EC516  of  28  June  1999  concerning  the  framework 

agreement on fixed-term work concluded by ETUC, UNICE and CEEP; 

–  Council  Directive  1999/63/EC517  of  21  June  1999  concerning  the  Agreement  on 
the  organisation  of  working  time  of  seafarers  concluded  by  the  European 
Community  Shipowners  Association  (ECSA)  and  the  Federation  of  Transport 
Workers' Unions in the European Union (FST); 

–  Council Directive 2000/79/EC518 of 27 November 2000 concerning the European 
Agreement  on  the  Organisation  of  Working  Time  of  Mobile  Workers  in  Civil 
Aviation concluded by the Association of European Airlines (AEA), the European 
Transport Workers' Federation (ETF), the European Cockpit Association (ECA), 
the European Regions Airline Association (ERA) and the International Air Carrier 
Association (IACA); 

–  Directive  2003/88/EC519  of  the  European  Parliament  and  of  the  Council  of  4 
November 2003 concerning certain aspects of the organisation of working time; 

–  Council Directive 2005/47/EC520 of 18 July 2005 on the Agreement between the 
Community of European Railways (CER) and the European Transport Workers’ 
Federation (ETF) on certain aspects of the working conditions of mobile workers 
engaged in interoperable cross-border services in the railway sector; 

–  Directive  2008/104/EC521  of  European  Parliament  and  of  the  Council  of  19 

November 2008 on temporary agency work. 

–  Council  Directive  2009/13/EC  implementing  the  Agreement  concluded  by  the 
European  Community  Shipowners'  Associations  (ECSA)  and  the  European 
Transport Workers' Federation (ETF) on the Maritime Labour Convention, 2006 
and amending Directive 1999/63/EC 

II.2.2. 

Information and consultation of workers 

–  Council  Directive  94/45/EC522  of  22  September  1994  on  the  establishment  of  a 
European  Works  Council  or  a  procedure  in  Community-scale  undertakings  and 
Community-scale  groups  of  undertakings  for  the  purposes  of  informing  and 
consulting employees; 

–  Council  Directive  97/74/EC523  of  15  December  1997  extending,  to  the  United 
Kingdom  of  Great  Britain  and  Northern  Ireland,  Directive  94/45/EC  on  the 

516 
517 
518 
519 
520 
521 
522 
523 

OJ L 244, 16.9.1999, p. 64–64 
OJ L 167, 2.7.1999, p. 33–37 
OJ L 302, 1.12.2000, p. 57–60 
OJ L 299, 18.11.2003, p. 9–19 
OJ L 195, 27.7.2005, p. 15–17 
OJ L 327, 5.12.2008, p. 9-14 
OJ L 254, 30.9.1994, p. 64–72 
OJ L 365, 31.12.1994, p. 46–51 

EN 

376 

   EN 

                                                 
establishment  of  a  European Works Council or a procedure in Community-scale 
undertakings  and  Community-scale  groups  of  undertakings  for  the  purposes  of 
informing and consulting employees 

–  Council  Directive  2006/109/EC524  of  20  November  2006  adapting  Directive 
94/45/EC  on  the  establishment  of  a  European  Works  Council  or  a  procedure  in 
Community-scale undertakings and Community-scale groups of undertakings for 
the purposes of informing and consulting employees, by reason of the accession of 
Bulgaria and Romania; 

–  Council Directive 2001/86/EC525 of 8 October 2001 supplementing the Statute for 

a European company with regard to the involvement of employees; 

–  Council Directive 2003/72/EC526 of 22 July 2003 supplementing the Statute for a 

European Cooperative Society with regard to the involvement of employees; 

–  Directive  2002/14/EC527  of  the  European  Parliament  and  of  the  Council  of  11 
March  2002  establishing  a  general  framework  for  informing  and  consulting 
employees  in  the  European  Community  -  Joint  declaration  of  the  European 
Parliament, the Council and the Commission on employee representation; 

–  Directive  2009/38/EC  on  the  establishment  of  a  European  Works  Council  or  a 
procedure  in  Community-scale  undertakings  and  Community-scale  groups  of 
undertakings for the purposes of informing and consulting employees (Recast). 

II.2.3.  Protection of workers 

–  Council Directive 91/383/EEC528 of 25 June 1991 supplementing the measures to 
encourage improvements in the safety and health at work of workers with a fixed- 
duration employment relationship or a temporary employment relationship; 

–  Council Directive 91/533/EEC529 of 14 October 1991 on an employer's obligation 
to  inform  employees  of  the  conditions  applicable  to  the  contract  or  employment 
relationship; 

–  Council Directive 94/33/EC530 of 22 June 1994 on the protection of young people 

at work; 

–  Council Directive 98/59/EC531 of 20 July 1998 on the approximation of the laws 

of the Member States relating to collective redundancies; 

524 
525 
526 
527 
528 
529 
530 
531 

OJ L 363, 20.12.2006, p. 416–417 
OJ L 294, 10.11.2001, p. 22–32 
OJ L 207, 18.8.2003, p. 25–36 
OJ L 80, 23.3.2002, p. 29–34 
OJ L 206, 29.7.1991, p. 19–21 
OJ L 288, 18.10.1991, p. 32–35 
OJ L 216, 20.8.1994, p. 12–20 
OJ L 225, 12.8.1998, p. 16–21 

EN 

377 

   EN 

                                                 
–  Directive  2008/94/EC532  of  the  European  Parliament  and  of  the  Council  of  22 
October  2008  on  the  protection  of  employees  in  the  event  of  the  insolvency  of 
their employer (codified version); 

–  Council Directive 2001/23/EC533 of 12 March 2001 on the approximation of the 
laws of the Member States relating to the safeguarding of employees' rights in the 
event  of  transfers  of  undertakings,  businesses  or  parts  of  undertakings  or 
businesses; 

II.2.4. 

Implementation and application reports  

–  Implementation  reports  concerning  the  transposition  of  Directives 91/383/EEC, 

97/81/EC, 1999/70/EC, 96/71/EC in the 10 new Member States 

–  Implementation  reports  concerning  the  transposition  of  Directives  2001/23/EC 

and 80/987/EC (as amended by 2002/74/EC) in all 25 Member States 

–  Implementation  reports  concerning  Directives  91/533/EEC,  94/45/EC  (extended 

by 97/74/EC) and 98/59/EC in the 10 new Member States 

–  Implementation  reports  concerning  Directives  2001/86/EC,  2002/14/EC  and 

2003/72/EC in all 25 Member States 

–  Implementation reports concerning Directives 94/33/EC and 2003/88/EC in the 10 

new Member States 

–  Implementation  report  concerning  Directive  2000/34/EC  in  the  EU-15  Member 

States 

–  Implementation reports concerning Directives 1999/63/EC, 2000/79/EC in all 25 

Member States 

II.3.  Health and safety at work 

–  Directive  89/391/EEC534  of  12  June  1989  on  the  introduction  of  measures  to  encourage 

improvements in the safety and health of workers at work; 

–  Council Directive 89/654/EEC535 of 30 November 1989 concerning the minimum 
safety and health requirements for the workplace (first individual directive within 
the meaning of Article 16(1) of Directive 89/391/EEC); 

–  Directive 2009/104/EC536 of the European Parliament and of the Council of 16 September 
2009  concerning  the  minimum  safety  and  health  requirements  for  the  use  of  work 
equipment by workers at work (second individual Directive within the meaning of Article 

OJ L 283, 28.10.2008, p. 36-42 
OJ L 82, 22.3.2001, p. 16–20 

532 
533 
534 OJ L 183, 29.6.1989, p.1. 
535 OJ L 393, 30.12.1989, p.1. 
536 OJ L 260, 3.10.2009, p. 5. 

EN 

378 

   EN 

 
                                                 
16(1) of Directive 89/391/EEC – Codification of Directive 89/655/EEC, as amended by 
Directives 95/63/EC and 2001/45/EC); 

–  Council  Directive  89/656/EEC537  of  30  November  1989  on  the  minimum  health  and 
safety  requirements  for  the  use  by  workers  of  personal  protective  equipment  at  the 
workplace  (third      individual  directive  within  the  meaning  of  Article  16(1)  of Directive 
89/391/EEC); 

–  Council  Directive  90/269/EEC538  of  29  May  1990  on  the  minimum  health  and  safety 
requirements for the manual handling of loads where there is a risk particularly of back 
injury  to  workers  (fourth  individual  directive  within  the  meaning  of  Article  16(1)  of 
Directive 89/391/EEC); 

–  Council  Directive  90/270/EEC539  of  29  May  1990  on  the  minimum  safety  and  health 
requirements for work with display screen equipment (fifth individual directive within the 
meaning of Article 16(1) of Directive 89/391/EEC); 

–  Directive 2004/37/EC540  of the European Parliament and of the Council of 29 April 2004 
on  the  protection  of  workers  from  the  risks  related  to  exposure  to  carcinogens  or 
mutagens  at  work  (sixth  individual  directive  within  the  meaning  of  Article  16(1)  of 
Directive 89/391/EEC - Codification of Directive 90/394/EEC); 

–  Directive 2000/54/EC541 of the European Parliament and of the Council of 18 September 
2000 on the protection of workers from risks related to exposure to biological agents at 
work  (seventh  individual  directive  within  the  meaning  of  Article  16(1)  of  Directive 
89/391/EEC) -  Codification of Directive 90/679/EEC); 

–  Council  Directive  92/57/EEC542  of  24  June  1992  on  the  implementation  of  minimum 
safety and health requirements at temporary or mobile construction sites (eight individual 
directive within the meaning of Article 16(1) of Directive 89/391/EEC); 

–  Council  Directive  92/58/EEC543  of  24  June  1992  on  the  minimum  requirements  for  the 
provision  of  safety  and/or  health  signs  at  work  (ninth  individual  Directive  within  the 
meaning of Article 16(1) of Directive 89/391/EEC); 

–  Council  Directive  92/91/EEC544  of  3  November  1992  concerning  the  minimum 
requirements  for  improving  the  safety  and  health  protection  of  workers  in  the  mineral-
extracting industries through drilling (eleventh individual directive within the meaning of 
Article 16(1) of Directive 89/391/EEC ); 

–  Council Directive 92/104/EEC545 of 3 December 1992 on the minimum requirements for 
improving  the  safety  and  health  protection  of  workers  in  surface  and  underground 

537 OJ L 393, 30.12.1989, p.18. 
538 OJ L 156, 21.6.1990, p.9. 
539 OJ L 156,21.6.1990, p.14. 

540 OJ L 229, 29.6.2004, p.23. 

541 OJ L 262, 17.10.2000, p.21. 

542 OJ L 245, 26.8.1992, p.6. 
543 OJ L 245, 26.8.1992, p.23. 
544 OJ L 348, 28.11.1992, p.9. 
545 OJ L 404, 31.12.1992, p.10. 

EN 

379 

   EN 

                                                 
mineral-extracting  industries  (twelfth  individual  directive  within  the  meaning  of  Article 
16(1) of Directive 89/391/EEC); 

–  Council  Directive  93/103/EC546  of  23  November  1993  concerning  the  minimum  safety 
and health requirements for work on board fishing vessels (thirteenth individual directive 
within the meaning of Article 16(1) of Directive 89/391/EEC); 

–  Council Directive 98/24/EC547 of 7 April 1998 on the protection of the health and safety 
of  workers  from  the  risks  related  to  chemical  agents  at  work  (fourteenth  individual 
directive within the meaning of Article 16(1) of Directive 89/391/EEC); 

Commission Directives establishing indicative exposure limit values: 

–  Commission Directive 91/322/EEC548  of 29 May 1991 on establishing indicative 
limit values by   implementing Council Directive 80/1107/EEC on the protection 
of workers from the risks related to exposure to chemical, physical and biological 
agents at work, 

–  Commission  Directive  2000/39/EC549  of  8  June  2000  establishing  a  first  list  of 
indicative  occupational  exposure  limit  values  in  implementation  of  Council 
Directive 98/24/E on the protection of the health and safety of workers from the 
risks related to chemical agents at work, 

–  Commission  Directive  2006/15/EC550  of  7  February  2006  establishing    a  second 
list of indicative occupational exposure limit values in implementation of Council 
Directive 98/24/EC and amending Directives 91/322/EEC and 2000/39/EC; 

–  Directive  1999/92/EC551  of  the  European  Parliament  and  of  the  Council  of  16 
December  1999  on  minimum  requirements  for  improving  the  safety  and  health 
protection  of  workers  potentially  at  risk  from  explosive  atmospheres  (fifteenth 
individual  directive  within 
the  meaning  of  Article  16(1)  of  Directive 
89/391/EEC); 

–  Directive 2002/44/EC552 of the European Parliament and of the Council of 25 June 
2002  on  the  minimum  health  and  safety  requirements  regarding  the  exposure  of 
workers  to  the  risk  arising  from  physical  agents  (vibration)  (sixteenth  individual 
directive within the meaning of Article 16(1) of Directive 89/391/EEC); 

–  Directive  2003/10/EC553  of  the  European  Parliament  and  of  the  Council  of  6 
February  2003  on  the  minimum  health  and  safety  requirements    regarding  the 

546 OJ L 307, 13.12.1993, p.1. 

547 OJ L131, 5.5. 1998, p.11. 

548 OJ L177, 5.7. 1991, p.22. 

549 OJ L 142, 16.6.2000, p.47. 

550 OJ L 38, 9.2.2006, p.36. 
551 OJ L 23, 28.1.2000, p.57. 
552 OJ L 177, 6.7.2002, p.13. 
553 OJ L 42, 15.2.2003, p.38. 

EN 

380 

   EN 

                                                 
exposure  of workers to the risk arising from physical agents (noise) (seventeenth 
the  meaning  of  Article  16(1)  of  Directive 
individual  directive  within 
89/391/EEC); 

–  Directive  2004/40/EC554  of  the  European  Parliament  and  of  the  Council  of  29 
April  2004  on  the  minimum  health  and  safety  requirements  regarding  the 
exposure  of  workers  to  the  risks  arising  from  physical  agents  (electromagnetic 
fields) (18th individual Directive within the meaning of Article 16(1) of Directive 
89/391/EEC), ); as amended by Directive 2008/46/EC555 

–  Directive 2006/25/EC556 of the European Parliament and of the Council of 5 April 
2006  on  the  minimum  health  and  safety  requirements  regarding  the  exposure  of 
workers  to  risks  arising  from  physical  agents  (artificial  optical  radiation)  (19th 
individual  Directive  within 
the  meaning  of  Article 16(1)  of  Directive 
89/391/EEC); 

–  Council  Directive  92/29/EEC557  of  31  March  1992  on  the  minimum  safety  and 

health requirements for improved medical treatment on board vessels; 

–  Council  Directive  83/477/EEC558  of  19  September  1983  on  the  protection  of 
workers from the risks related to exposure to asbestos at work, as amended by: 

–  Council Directive 91/382/EEC559 of 25 June 1991 amending directive 83/477/EEC 
on  the  protection  of  workers  from  the  risks  related  to  exposure  to  asbestos  at 
work, 

–  Directive  2003/18/EC560,  of  the  European  Parliament  and  of  the  Council  of  27 
March 2003 amending Council directive 83/477/EEC on the protection of workers 
from the risks related to exposure to asbestos at work; 

–  Directive 2007/30/EC561 of the European Parliament and of the Council of 20 June 2007 
amending  Council  Directive  89/391/EEC,  its  individual  Directives  and  Council 
Directives  83/477/EEC,  91/383/EEC,  92/29/EEC  and  94/33/EC  with  a  view  to 
simplifying and rationalising the reports on practical implementation. 

554 OJ L 184, 24.5.2004, p.1. 
555 OJ L 114, 26.4.2008, p. 88 
556 OJ L 114, 27.4.2006, p.38. 
557 OJ L 113, 30.4.1992, p.19. 
558 OJ L 263, 24.9.1983, p.25. 
559 OJ L 206, 29.7.1991, p.16. 
560 OJ L 97, 15.4.2003, p.48. 
561 OJ L 165, 27.6.2007, p.21. 

EN 

381 

   EN 

                                                 
 
II.4.  Gender equality and anti-discrimination 

II.4.1.  Gender equality 

–  Directive 2006/54/EC562 of the European Parliament and of the Council of 5 July 
2006  on  the  implementation  of  the  principle  of  equal  opportunities  and  equal 
treatment of men and women in matters of employment and occupation (recast) 

–  Council  Directive  2004/113/EC563  of  13  December  2004  implementing  the 
principle of equal treatment between men and women in the access to and supply 
of goods and services 

–  Directive  2002/73/EC564  of  the  European  Parliament  and  of  the  Council  of  23 
September 2002 amending Council Directive 76/207/EEC on the implementation 
of  the  principle  of  equal  treatment  for  men  and  women  as  regards  access  to 
employment, vocational training and promotion, and working conditions 

–  Council  Directive  97/80/EC565  of  15  December  1997  on  the  burden  of  proof  in 

cases of discrimination based on sex 

–  Council  Directive  96/97/EC566  of  20  December  1996  amending  Directive 
86/378/EEC  on  the  implementation  of  the  principle  of  equal  treatment  for  men 
and women in occupational social security schemes 

–  Council  Directive  96/34/EC567  of  3  June  1996  on  the  framework  agreement  on 

parental leave concluded by UNICE, CEEP and the ETUC 

–  Council  Directive  92/85/EEC568  of  19  October  1992  on  the  introduction  of 
measures to encourage improvements in the safety and health at work of pregnant 
workers  and  workers  who  have  recently  given  birth  or  are  breastfeeding  (tenth 
individual  Directive  within  the  meaning  of  Article  16  (1)  of  Directive 
89/391/EEC) 

–  Council Directive 86/613/EEC569 of 11 December 1986 on the application of the 
principle  of  equal  treatment  between  men  and  women  engaged  in  an  activity, 
including agriculture,  in  a  self-employed capacity, and  on the  protection of  self-
employed women during pregnancy and motherhood 

–  Council  Directive  86/378/EEC570  of  24  July  1986  on  the  implementation  of  the 
principle  of  equal  treatment  for  men  and  women  in  occupational  social  security 
schemes 

562 
563 
564 
565 
566 
567 
568 
569 
570 

OJ L 204, 26.7.2006 
OJ L 373, 21.12.2004 
OJ L 269, 5.10.2002 
OJ L 14, 20.1.1998 
OJ L 151, 18.6.1999 
OJ L 145, 19.6.1996 
OJ L 348, 28.11.1992 
OJ L 359, 19.12.1986 
OJ L 241, 3.9.1997 

EN 

382 

   EN 

                                                 
–  Council  Directive  79/7/EEC571  of  19  December  1978  on  the  progressive 
implementation of the principle of equal treatment for men and women in matters 
of social security 

–  Council Directive 76/207/EEC572 of 9 February 1976 on the implementation of the 
principle of equal treatment for men and women as regards access to employment, 
vocational training and promotion, and working conditions 

–  Council  Directive  75/117/EEC573  of  10  February  1975  on  the  approximation  of 
the laws of the Member States relating to the application of the principle of equal 
pay for men and women. 

II.4.2.  Anti-discrimination 

–  Council  Directive  2000/78/EC574  of  27  November  2000  establishing  a  general 

framework for equal treatment in employment and occupation 

–  Council  Directive  2000/43/EC575  of  29  June  2000  implementing  the  principle  of 

equal 

III.    ENERGY AND TRANSPORT 

A full description of the legal basis for controlling the application of the Community acquis 
on energy and transport was provided in the context of the 25th Report (Annex I, paragraph 
2.1). 

III.1.  ENERGY 

The texts of current Community legislation on energy are available in section 12 of the EUR-
Lex database 

http://eur-
lex.europa.eu/Repview.do?idRoot=1&refinecode=LEG*T1=V100;T2=V1;T3=V4&rep=12 

The Community acquis relataed to Title II, Chapter 3, can be consulted in section 15 of the 
EUR-Lex  database,  the  Community  acquis  (heading  12.10.20.10  "Nuclear  Safety  and 
Radioactive Waste"). 

http://eur-
lex.europa.eu/Repview.do?idRoot=1&refinecode=LEG*T1=V100;T2=V1;T3=V4&rep=15 

A comprehensive list of acquis and case-law related to the Euratom Treaty can be consulted 
in the annexes to the Commission staff working paper (SEC (2007) 347) accompanying the 
Communication on the 50 years of the Euratom Treaty (COM(2007) 124 final) at  

571 
572 
573 
574 
575 

OJ L 6, 10.1.1979 
OJ L 39, 14.2.1976 
OJ L 45, 19.2.1975 
OJ L 303, 2.12.2000 
OJ L 180, 19.7.2000 

EN 

383 

   EN 

                                                 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC0347:EN:NOT 

List of legislation adopted in 2008 in the field of Energy 

Regulations 

- Commission Regulation (EC) No 1275/2008 of 17 December 2008 implementing Directive 
2005/32/EC  of  the  European  Parliament  and  of  the  Council  with  regard  to  ecodesign 
requirements  for  standby  and  off  mode  electric  power  consumption  of  electrical  and 
electronic household and office equipment 

-  Regulation  (EC)  No  1099/2008  of  the  European  Parliament  and  of  the  Council  of  22 
October 2008 on energy statistics 

Directives 

-  Directive  2008/3/EC  of  the  European  Parliament  and  of  the  Council  of  15  January  2008 
amending Directive 2003/54/EC as regards the application of certain provisions to Estonia 

-  Directive  2008/28/EC  of  the  European  Parliament  and  of  the  Council  of  11  March  2008 
amending  Directive  2005/32/EC  establishing  a  framework  for  the  setting  of  ecodesign 
requirements  for  energy-using  products,  as  well  as  Council  Directive  92/42/EEC  and 
Directives  96/57/EC and  2000/55/EC, as regards the implementing powers conferred on  the 
Commission 

-  Directive  2008/92/EC  of  the  European  Parliament  and  of  the  Council  of  22  October  2008 
concerning a Community procedure to improve the transparency of gas and electricity prices 
charged to industrial end-users (recast) 

III.2.  TRANSPORT 

A full description of the legal basis for controlling the application of the Community acquis 
on energy and transport was provided in the context of the 25th Report (Annex I, paragraph 
2.1). 

The  texts  of  current  Community  legislation  on  transport  are  available  in  section  07  of  the 
EUR-Lex database 

http://eur-lex.europa.eu/en/legis/latest/chap07.htm 

In order to facilitate access to the legislation in force and ease its reading, a European Civil 
Aviation Handbook has been developed, compiling not only Regulations and Directives, but 
also Decisions, Case Law and International Agreements in this field. 

http://ec.europa.eu/transport/air/handbook/handbook_en.htm 

A  Guide  to  European  Community  legislation  in  the  field  of  civil  aviation  (2007  Edition)  is 
also available at 

http://ec.europa.eu/transport/air/internal_market/internal_market_en.htm 

Newest Legislation adopted in 2008 in the field of Transport: 

EN 

384 

   EN 

Regulations 

-  Commission  Regulation  (EC)  No  8/2008  of  11  December  2007  amending  Council 
Regulation (EEC) No 3922/91 as regards common technical requirements and administrative 
procedures applicable to commercial transportation by aeroplane 

- Council Regulation (EC) No 71/2008 of 20 December 2007 setting up the Clean Sky Joint 
Undertaking 

-  Commission  Regulation  (EC)  No  23/2008  of  11  January  2008  amending  Commission 
Regulation (EC) No 622/2003 laying down measures for the implementation of the common 
basic standards on aviation security 

-  Commission  Regulation  (EC)  No  181/2008  of  28  February  2008  laying  down  certain 
measures  for  implementing  Council  Regulation  (EC)  No  718/1999  on  a  Community  fleet 
capacity policy to promote inland waterway transport (Codified version) 

- Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 
2008  on  common  rules  in  the  field  of  civil  aviation  and  establishing  a  European  Aviation 
Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 
and Directive 2004/36/EC 

- Commission Regulation (EC) No 287/2008 of 28 March 2008 on the extension of the period 
of validity of referred to in Article 2c(3) of Regulation (EC) No 1702/2003 

- Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 
2008 on common rules in the field of civil aviation security and repealing Regulation (EC) No 
2320/2002 

- Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures 
for conducting Commission inspections in the field of maritime security 

- Commission Regulation (EC) No 331/2008 of 11 April 2008 amending Regulation (EC) No 
474/2006 establishing the Community list of air carriers which are subject to an operating ban 
within the Community 

-  Commission  Regulation  (EC)  No  351/2008  of  16  April  2008  implementing  Directive 
2004/36/EC  of  the  European  Parliament  and  of  the  Council  as  regards  the  prioritisation  of 
ramp inspections on aircraft using Community airports 

- Commission Regulation (EC) No 358/2008 of 22 April 2008 amending Regulation (EC) No 
622/2003  laying  down  measures  for  the  implementation  of  the  common  basic  standards  on 
aviation security 

- Commission Regulation (EC) No 482/2008 of 30 May 2008 establishing a software safety 
assurance system to be implemented by air navigation service providers and amending Annex 
II to Regulation (EC) No 2096/2005 

- Commission Regulation (EC) No 536/2008 of 13 June 2008 giving effect to Article 6(3) and 
Article 7 of Regulation (EC) No 782/2003 of the European Parliament and of the Council on 
the prohibition of organotin compounds on ships and amending that Regulation 

EN 

385 

   EN 

-  Commission  Regulation  (EC)  No  540/2008  of  16  June  2008  amending  Annex  II  to 
Regulation  (EC)  No  336/2006  of  the  European  Parliament  and  of  the  Council  on  the 
implementation of the International Safety Management (ISM) Code within the Community, 
as regards format of forms 

-  Council  Regulation  (EC)  No  569/2008  of  12  June  2008  amending  Regulation  No  11 
concerning the abolition of discrimination in transport rates and conditions, in implementation 
of Article 79(3) of the Treaty establishing the European Economic Community 

- Commission Regulation (EC) No 668/2008 of 15 July 2008 amending Annexes II to V of 
Regulation  (EC)  No  2096/2005  laying  down  common  requirements  for  the  provision  of  air 
navigation services, as regards working methods and operating procedures 

- Commission Regulation (EC) No 715/2008 of 24 July 2008 amending Regulation (EC) No 
474/2006 establishing the Community list of air carriers which are subject to an operating ban 
within the Community 

- Commission Regulation (EC) No 820/2008 of 8 August 2008 laying down measures for the 
implementation  of  the  common  basic  standards  on  aviation  security  (Text  with  EEA 
relevance) 

-  Commission  Regulation  (EC)  No  859/2008  of  20  August  2008  amending  Council 
Regulation (EEC) No 3922/91 as regards common technical requirements and administrative 
procedures applicable to commercial transportation by aeroplane 

-  Regulation  (EC)  No  1008/2008  of  the  European  Parliament  and  of  the  Council  of  24 
September 2008 on common rules for the operation of air services in the Community (Recast)  

- Commission Regulation (EC) No 1056/2008 of 27 October 2008 amending Regulation (EC) 
No 2042/2003 on the continuing airworthiness of aircraft and aeronautical products, parts and 
appliances, and on the approval of organisations and personnel involved in these tasks 

- Commission Regulation (EC) No 1057/2008 of 27 October 2008 amending Appendix II of 
Annex  to  Regulation  (EC)  No  1702/2003  concerning  the  Airworthiness  Review  Certificate 
(EASA Form 15a) 

-  Regulation  (EC)  No  1100/2008  of  the  European  Parliament  and  of  the  Council  of  22 
October 2008 on the elimination of controls performed at  the frontiers  of Member  States in 
the field of road and inland waterway transport (Codified version) 

-  Commission  Regulation  (EC)  No  1131/2008  of  14  November  2008  amending  Regulation 
(EC)  No  474/2006  establishing  the  Community  list  of  air  carriers  which  are  subject  to  an 
operating ban within the Community  

-  Regulation  (EC)  No  1335/2008  of  the  European  Parliament  and  of  the  Council  of  16 
December  2008  amending  Regulation  (EC)  No  881/2004  establishing  a  European  Railway 
Agency (Agency Regulation) 

-  Council  Regulation  (EC)  No  1361/2008  of 16  December  2008  amending  Regulation  (EC) 
No  219/2007  on  the  establishment  of  a  joint  undertaking  to  develop  the  new  generation 
European air traffic management system (SESAR) 

EN 

386 

   EN 

-  Commission  Regulation  (EC)  No  1356/2008  of  23  December  2008  amending  Regulation 
(EC) No 593/2007 on the fees and charges levied by the European Aviation Safety Agency 

Directives 

-  Commission  Directive  2008/49/EC  of  16  April  2008  amending  Annex  II  to  Directive 
2004/36/EC  of  the  European  Parliament  and  of  the  Council  regarding  the  criteria  for  the 
conduct of ramp inspections on aircraft using Community airports 

-  Directive  2008/54/EC  of  the  European  Parliament  and  of  the  Council  of  17  June  2008 
amending Council Directive 95/50/EC on uniform procedures for checks on the transport of 
dangerous goods by road, as regards the implementing powers conferred on the Commission 

- Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the 
interoperability of the rail system within the Community (Recast) 

-  Council  Directive  2008/59/EC  of  12  June  2008  adapting  Directive  2006/87/EC  of  the 
European  Parliament  and  of  the  Council  laying  down  technical  requirements  for  inland 
waterway vessels, by reason of the accession of the Republic of Bulgaria and Romania 

-  Commission  Directive  2008/65/EC  of  27  June  2008  amending  Directive  91/439/EEC  on 
driving licences 

- Commission Directive 2008/67/EC of 30 June 2008 amending Council Directive 96/98/EC 
on marine equipment 

- Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 
on the inland transport of dangerous goods 

- Commission Directive 2008/87/EC of 22 September 2008 amending Directive 2006/87/EC 
of the European Parliament and of the Council laying down technical requirements for inland 
waterway vessels 

-  Directive  2008/106/EC  of  the  European  Parliament  and  of  the  Council  of  19  November 
2008 on the minimum level of training of seafarers (recast) 

- Directive 2008/110/EC of the European Parliament and of the Council of 16 December 2008 
amending  Directive  2004/49/EC  on  safety  on  the  Community’s  railways  (Railway  Safety 
Directive) 

- Commission Directive 2008/126/EC of 19 December 2008 amending Directive 2006/87/EC 
of the European Parliament and of the Council laying down technical requirements for inland 
waterway vessels 

Legislation in the pipeline (Air Transport): 

– Proposal for a Regulation on a Code of Conduct for computerised reservation systems 

–  Proposal  for  a  Regulation  amending  Regulation  (EC)  No  216/2008  in  the  field  of 
aerodromes,  air  traffic  management  and  air  navigation  services  and  repealing  Council 
Directive 06/23/EEC 

EN 

387 

   EN 

– Proposal to amend Directive 2002/30/EC concerning noise-related operating restrictions at 
Community airports 

– Commission Regulation on national quality control programmes security 

– Commission Regulation on security Commission inspections  

– Commission Regulation on exemptions for small airports in the field of security 

– Commission Regulation on general measures designed to amend non-essential elements of 
the common basic standards of security 

– Commission Regulation on detailed measures for the implementation of the common basic 
standards of security 

–  Commission  Regulations  exempting  from  confiscation  liquids  sold  at  airports  in  the  USA 
and South Korea 

IV.  INTERNAL MARKET AND SERVICES 

IV.1.  Existing and in force acquis 

A  list  of  the  existing  acquis  under  the  remit  of  theCommission in  the  area  "Internal  Market 
and services" is available at the following web address: 

http://ec.europa.eu/dgs/internal_market/mission_en.htm 

IV.2.  Recently adopted measures 

Commission  Directive  2007/16/EC  of  19  March  2007  implementing  Council  Directive 
85/611/EEC on the coordination of laws, regulations and administrative provisions relating to 
undertakings  for  collective  investment  in  transferable  securities  (UCITS)  as  regards  the 
clarification of certain definitions (OJ L 79, 20.03.2007, p. 11). 

Directive  of  the  European  Parliament  and  of  the  Council  amending  Council  Directives 
78/660/EEC  and  83/349/EEC  as  regards  certain  disclosure  requirements  for  medium-sized 
companies  and  obligation  to  draw  up  consolidated  accounts  {SEC(2008)  466}  {SEC(2008) 
467}  COM/2008/0195  final  -  COD  2008/0084  (Adopted  December  18,  2008,  but  formal 
adoption pending finalisation of the text by the lawyers linguists) 

Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  98/26/EC  on 
settlement finality in payment and securities settlement systems and Directive 2002/47/EC on 
financial  collateral  arrangements  as  regards  linked  systems  and  credit  claims  (Adopted  18 
December 2008, but formal adoption pending finalisation of the text by the lawyers linguists) 

Directive  2009/14/EC  of  the  European  Parliament  and  of  the  Council  of  11  March  2009 
amending Directive 94/19/EC on deposit-guarantee schemes as regards the coverage level and 
the payout delay, OJ L 68, 13.3.2009, p. 3.  

IV.3.  New measures already proposed and due to be adopted 

Proposals in co-decision 

EN 

388 

   EN 

Proposal for a Directive of the European Parliament and of the Council on the taking-up and 
pursuit of the business of Insurance and Reinsurance (SOLVENCY II) (recast) (COM (2007) 
361 of 10.7.07, and COM (2008) 119 of 26.2.2008, COD 2007/0143), (expected to be adopted 
in 2009 and enter into force in late 2012). 

Proposal for a Directive of the European Parliament and of the Council on the coordination of 
laws,  regulations  and  administrative  provisions  relating  to  undertakings  for  collective 
investment  in  transferable  securities  (UCITS)  (Plenary  vote  in  January  2009.  General 
approach adopted in the Ecofin Council on 2 December 2008. Adopted in EP on 13 January 
2009)  

Proposal for a Directive of the European Parliament and of the Council on the coordination of 
procedures for the award of certain public works contracts, public supply contracts and public 
service contracts in the fields of defense and security {SEC(2007) 1598} {SEC(2007) 1599 
COM/2007/0766 final - COD 2007/0280 (Adopted EP January 13 2009. Formal adoption of 
first reading agreement in Council expected under CZ presidency) 

Proposal  for  a  Council  Decision  conferring  jurisdiction  on  the  Court  of  Justice  in  disputes 
relating to the Community patent, COM/2003/0827 final 

Proposal for a Community Patent Regulation 

Proposal for a Directive of the European Parliament and of the Council amending Directive 
98/71/EC on the legal protection of designs (spare parts) 

Proposal for a Council Regulation on the statute for a European private company {SEC(2008) 
2098} {SEC(2008) 2099} /* COM/2008/0396 final - CNS 2008/0130 */ 

Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Council 
Directives 68/151/EEC and 89/666/EEC as regards publication and translation obligations of 
certain  types  of  companies  {SEC(2008)  466}  {SEC(2008)  467}  /*  COM/2008/0194  final  - 
COD 2008/0083 */ 

Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Council 
Directives  77/91/EEC,  78/855/EEC  and  82/891/EECand  Directive  2005/56/EC  as  regards 
reporting  and  documentation  requirements  in  the  case  of  merger  and  divisions  {SEC(2008) 
2486} {SEC(2008) 2487} /* COM/2008/0576 final - COD 2008/0182 */ 

Financial Market: 

Proposal for a Directive of the European Parliament and of the Council amending Directives 
2006/48/EC  and  2006/49/EC  as  regards  banks  affiliated  to  central  institutions,  certain  own 
funds  items,  large  exposures,  supervisory  arrangements,  and  crisis  management  SEC(2008) 
2532) SEC(2008) 2533 - COM/2008/0602 final - COD 2008/0191  

Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  Credit  Rating 
Agencies COM (2008) 704 final, {SEC(2008) 745}{SEC(2008) 2746}  

Proposal for a Directive of the European Parliament and of the Council of on the taking up, 
pursuit and prudential supervision of the business of electronic money institutions, amending 
Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA 
relevance) COM/2008/0627 final 

EN 

389 

   EN 

Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  cross-border 
payments in the Community, COM(2008) 640 final 

V.  TAXATION AND CUSTOMS UNION 

V.1. 

CUSTOMS 

The following webpage contains a list of legal measures in the customs area adopted since 
2003: 

http://ec.europa.eu/taxation_customs/common/legislation/legislation/customs/index_en.htm 

•  Relevant Treaty provisions: 

Art 18; 

Art 23-27 TCE; 

Art 95 (approximation of laws); 

Art 133; 

Art 135. 

•  Relevant secondary Community law acts: 

Council  Regulation  (EEC)  No  2913/92  (Council  Regulation  (EEC)  No  2913/92  establishing  the  Community 
Customs Code) 

Commission Regulation (EEC) No 2454/93 (provisions for the implementation of Council Regulation (EEC) 
No 2913/92 establishing the Community Customs Code); 

The  Common  Customs  Tariff  (Combined  Nomenclature  and  tariff  measures):  Council 
Regulation  (EEC)  No  2658/87  on  the  tariff  and  statistical  nomenclature  and  the  duty  relief 
legislation (Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community 
system of relief from customs duty); 

Regulation (EC) No 1889/2005 of the European Parliament and of the Council; 

International agreements in customs matters or the customs provisions of international agreements; 

Specific  legislation  on  customs  control  (counterfeit,  drug  precursors,  cultural  goods,  cash 
control) in particular : 

Council Regulation (EC) No 1383/2003; 

Council Regulation (EC) No 111/2005; 

Council Regulation (EEC) No 3911/92. 

EN 

390 

   EN 

V.2. 

INDIRECT TAXATION 

The following webpage contains a list of legal measures in the tax area adopted since 2003: 

http://ec.europa.eu/taxation_customs/common/legislation/legislation/taxation/index_en.htm 

Existing measures in force (situation on 31/12/2008) 

•  Relevant Treaty provisions:  

Mainly: 

Art 90;  

Additional: 

Art 39; 

Art 49; 

Art 43; 

Art 56. 

•  Relevant secondary Community law acts:  

Directive 2008/118/EC; 

Directive  2008/55/EC;  (This  Directive  constituted  a  mere  codification  of  the  existing 
legislation  (laid  down  in  Directive  76/308/EEC,  which  had  already  undergone  several 
amendments). Therefore, it did not entail any transposition charge for the Member States) 

Directive 2008/9/EC; 

Directive 2007/74/EC; 

Directive 2006/112/EC (+ amending directives); 

Directive 2006/98/EC; 

Directive 2006/79/EC; 

Directive 2003/96/EEC (+ amending directives); 

Directive 95/60/EC; 

Directive 95/59/EC; 

Directive 92/84/EEC; 

Directive 92/83/EEC; 

Directive 92/80/EEC; 

EN 

391 

   EN 

Directive 92/79/EEC (+ amending directives); 

Directive 92/12/EEC (+ amending directives); 

Directive 91/680/EEC; 

Directive 86/560/EEC; 

Directive 86/247/EEC; 

Directive 83/648/EEC; 

Directive 83/183/EEC (+ amending directive); 

Directive 83/182/EEC; 

Directive 83/181/EEC (+ amending directives); 

Directive 79/1072/EEC; 

Directive 78/1035/EEC (+ amending directive); 

Directive 78/1032/EEC; 

Directive 72/230/EEC; 

Directive 69/463/EEC; 

Directive 68/297/EEC (+ amending directive). 

V.3. 

DIRECT TAXATION 

The following webpage contains a list of legal measures in the tax area adopted since 2003: 

http://ec.europa.eu/taxation_customs/common/legislation/legislation/taxation/index_en.htm 

Existing measures in force (situation on 31/12/2008) 

•  Relevant Treaty provisions:  

Art 18;  

Art 39 (to 42);  

Art 43 (to 48);  

Art 49 (to 55);  

Art 56 (to 60); 

Art 94;  

Art 293. 

EN 

392 

   EN 

•  Relevant secondary Community law acts:  

Directive 69/335/EEC (+ 4 amending directives); 

Directive 76/308/EEC (+ 4 amending directives); 

Directive 77/799/EEC (+2 amending directives);  

Directive 90/434/EEC (+1 amending directive);  

Directive 90/435/EEC (+1 amending directive);  

Directive 2003/48/EC; 

Directive 2003/49/EC (+1 amending directive). 

VI.  HEALTH AND CONSUMERS 

Main Measures in Force 31/12/2008 

VI.1.  Public Health 

Relevant EC Treaty provisions: 

•  Art 95 

•  Art 152 

Relevant secondary Community law acts: 

•  Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the 
approximation of the laws, regulations and administrative provisions of the Member States 
concerning the manufacture, presentation and sale of tobacco products 

•  Directive  2002/98/EC  of  the  European  Parliament  and  of  the  Council  of  27  January  2003 
setting  standards  of  quality  and  safety  for  the  collection,  testing,  processing,  storage  and 
distribution of human blood and blood components and amending Directive 2001/83/EC 

•  Directive  2003/33/EC  of  the  European  Parliament  and  of  the  Council  of  26  May  2003  on 
the  approximation  of  the  laws,  regulations  and  administrative  provisions  of  the  Member 
States relating to the advertising and sponsorship of tobacco products 

•  Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on 
setting  standards  of  quality  and  safety  for the donation, procurement, testing, processing, 
preservation, storage and distribution of human tissues and cells 

•  Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC 
of the European Parliament and of the Council as regards certain technical requirements for 
blood and blood components 

EN 

393 

   EN 

•  Commission  Directive  2005/61/EC  of  30  September  2005  implementing  Directive 
2002/98/EC  of  the  European  Parliament  and  of  the  Council  as  regards  traceability 
requirements and notification of serious adverse reactions and events 

•  Commission  Directive  2005/62/EC  of  30  September  2005  implementing  Directive 
2002/98/EC  of  the  European  Parliament  and  of  the  Council  as  regards  Community 
standards and specifications relating to a quality system for blood establishments 

•  Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC 
of the European Parliament and of the Council as regards certain technical requirements for 
the donation, procurement and testing of human tissues and cells 

•  Commission Directive 2006/86/EC of 24 October 2006 implementing Directive 2004/23/EC 
of  the  European  Parliament  and  of  the  Council  as  regards  traceability  requirements, 
notification of serious adverse reactions and events and certain technical requirements for 
the coding, processing, preservation, storage and distribution of human tissues and cells 

•  Decision  No  2119/98/EC  of  the  European  Parliament  and  of  the  Council  of  24  September 
1998  setting  up  a  network  for  the  epidemiological  surveillance  and  control  of 
communicable diseases in the Community 

•  Regulation  (EC)  No  851/2004  of  the  European  Parliament  and  of  the  Council  of  21  April 

2004 establishing a European Centre for disease prevention and control 

•  Commission Decision 2000/96/EC of 22 December 1999 on the communicable diseases to 
be  progressively  covered  by  the  Community  network  under  Decision  No  2119/98/EC  of 
the European Parliament and of the Council 

•  Commission  Decision  2002/253/EC  of  19  March  2002  laying  down  case  definitions  for 
reporting  communicable  diseases  to  the  Community  network  under  Decision  No 
2119/98/EC of the European Parliament and of the Council 

•  Commission Decision 2000/57/EC of 22 December 1999 on the early warning and response 
system  for  the  prevention  and  control  of  communicable  diseases  under  Decision  No 
2119/98/EC of the European Parliament and of the Council 

•  Commission  Decision  2007/875/EC  of  18  December  2007  amending  Decision  No 
2119/98/EC  of  the  European  Parliament  and  of  the  Council  and  Decision  2000/96/EC  as 
regards communicable diseases listed in those decisions 

•  Commission  Decision  2008/351/EC  of  28  April  2008  amending  Decision  2000/57/EC  as 
regards  events  to  be  reported  within  the  early  warning  and  response  system  for  the 
prevention and control of communicable diseases  

•  Commission  Decision  2008/426/EC  of  28  April  2008  amending  Decision  2002/253/EC 
laying  down  case  definitions  for  reporting  communicable  diseases  to  the  Community 
network under Decision No 2119/98/EC of the European Parliament and of the Council 

VI.2.  Consumers 

Relevant EC Treaty provisions 

EN 

394 

   EN 

•  Art 95 

•  Art 153 

Relevant secondary Community law acts: 

•  Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of 

contracts negotiated away from business premises 

•  Council  Directive  87/102/EEC  of  22  December  1986  for  the  approximation  of  the  laws, 
regulations  and  administrative  provisions  of  the  Member  States  concerning  consumer 
credit 

•  Council  Directive  87/357/EEC  of  25  June  1987  on  the  approximation  of  the  laws  of  the 
Member States concerning products which, appearing to be other than they are, endanger 
the health or safety of consumers 

•  Council Directive 90/88/EEC of 22 February 1990 amending Directive 87/102/EEC for the 
approximation of the laws, regulations and administrative provisions of the Member States 
concerning consumer credit 

•  Council  Directive  90/314/EEC  of  13  June  1990  on  package  travel,  package  holidays  and 

package tours 

•  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 

•  Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the 

protection of consumers in respect of distance contracts 

•  Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on 

consumer protection in the indication of the prices of products offered to consumers 

•  Directive  98/7/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998 
amending  Directive  87/102/EEC  for  the  approximation  of  the  laws,  regulations  and 
administrative provisions of the Member States concerning consumer credit 

•  Directive  98/27/EC  of  the  European  Parliament  and  of  the  Council  of  19  May  1998  on 

injunctions for the protection of consumers' interests 

•  Directive  1999/44/EC  of  the  European  Parliament  and  of  the  Council  of  25  May  1999  on 

certain aspects of the sale of consumer goods and associated guarantees 

•  Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 

on general product safety  

•  Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 
concerning  the  distance  marketing  of  consumer  financial  services  and  amending  Council 
Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC 

•  Directive  2005/29/EC  of  the  European  Parliament  and  of  the  Council  of  11  May  2005 
concerning  unfair  business-to-consumer  commercial  practices  in  the  internal  market  and 
amending  Council  Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC 

EN 

395 

   EN 

of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the 
European Parliament and of the Council (‘Unfair Commercial Practices Directive’) 

•  Directive  2006/114/EC  of  the  European  Parliament  and  of  the  Council  of  12  December 

2006 concerning misleading and comparative advertising 

•  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on 

credit agreements for consumers and repealing Council Directive 87/102/EEC 

•  Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 
on the protection of consumers in respect of certain aspects of timeshare, long-term holiday 
product, resale and exchange contracts 

•  Commission  Decision  2006/502/EC  of  11  May  2006  requiring  Member  States  to  take 
measures to ensure that only lighters which are child-resistant are placed on the market and 
to prohibit the placing on the market of novelty lighters  

•  Commission  Decision  2008/322/EC  of  18  April  2008  prolonging  the  validity  of  Decision 
2006/502/EC requiring Member States to take measures to ensure that only lighters which 
are  child-resistant  are  placed  on  the  market  and  to  prohibit  the  placing  on  the  market  of 
novelty lighters 

VI.3.  Food Safety 

Relevant EC Treaty provisions: 

•  Art 37 

•  Art 95 

•  Art 152 

VI.3.1.  General 

•  Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 
2002  laying  down  the  general  principles  and  requirements  of  food  law,  establishing  the 
European Food Safety Authority and laying down procedures in matters of food safety 

VI.3.2.  Veterinary 

•  Council  Directive  90/425/EEC  of  26  June  1990  concerning  veterinary  and  zootechnical 
checks  applicable  in  intra-Community  trade  in  certain  live  animals  and  products  with  a 
view to the completion of the internal market 

•  Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-

Community trade with a view to the completion of the internal market 

•  Council Directive 96/93/EC of 17 December 1996 on the certification of animals and animal 

products 

EN 

396 

   EN 

•  Council  Directive  2002/99/EC  of  16  December  2002  laying  down  the  animal  health  rules 
governing the production, processing, distribution and introduction of products of animal 
origin for human consumption 

•  Council  Directive  89/608/EEC  of  21  November  1989  on  mutual  assistance  between  the 
administrative authorities of the Member States and cooperation between the latter and the 
Commission to ensure the correct application of legislation on veterinary and zootechnical 
matters 

•  Council  Directive  91/496/EEC  of  15  July  1991  laying  down  the  principles  governing  the 
organization of veterinary checks on animals entering the Community from third countries 
and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC 

•  Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the 
organisation of veterinary checks on products entering the Community from third countries 

•  Regulation  (EC)  No  882/2004  of  the  European  Parliament  and  of  the  Council  of  29  April 
2004 on official controls performed to ensure the verification of compliance with feed and 
food law, animal health and animal welfare rules 

•  Regulation  (EC)  No  1760/2000  of  the  European  Parliament  and  of  the  Council  of  17  July 
2000  establishing  a  system  for  the  identification  and  registration  of  bovine  animals  and 
regarding  the  labelling  of  beef  and  beef  products  and repealing  Council  Regulation  (EC) 
No 820/97 

•  Council  Directive  64/432/EEC  of  26  June  1964  on  animal  health  problems  affecting  intra-

Community trade in bovine animals and swine 

•  Council Directive 2008/71/EC of 15 July 2008 on the identification and registration of pigs 

•  Council  Regulation  (EC)  No  21/2004  of  17  December  2003  establishing  a  system  for  the 
identification and registration of ovine and caprine animals and amending Regulation (EC) 
No 1782/2003 and Directives 92/102/EEC and 64/432/EEC 

•  Council  Directive  90/426/EEC  of  26  June  1990  on  animal  health  conditions  governing  the 

movement and import from third countries of equidae 

•  Council  Directive  90/427/EEC  of  26  June  1990  on  the  zootechnical  and  genealogical 

conditions governing intra-Community trade in equidae 

•  Council  Directive  2003/85/EC  of  29  September  2003  on  Community  measures  for  the 
control  of  foot-and-mouth  disease  repealing  Directive  85/511/EEC  and  Decisions 
89/531/EEC and 91/665/EEC and amending Directive 92/46/EEC 

•  Council Directive 2001/89/EC of 23 October 2001 on Community measures for the control 

of classical swine fever 

•  Council  Directive  2002/60/EC  of  27  June  2002  laying  down  specific  provisions  for  the 
control  of  African  swine  fever  and  amending  Directive  92/119/EEC  as  regards  Teschen 
disease and African swine fever 

EN 

397 

   EN 

•  Council  Directive  92/35/EEC  of  29  April  1992  laying  down  control  rules  and  measures  to 

combat African horse sickness 

•  Council  Directive  2005/94/EC  of  20  December  2005  on  Community  measures  for  the 

control of avian influenza and repealing Directive 92/40/EEC 

•  Council  Directive  92/66/EEC  of  14  July  1992  introducing  Community  measures  for  the 

control of Newcastle disease 

•  Council  Directive  2006/88/EC  of  24  October  2006  on  animal  health  requirements  for 
aquaculture  animals  and  products  thereof,  and  on  the  prevention  and  control  of  certain 
diseases in aquatic animals 

•  Council Directive 2000/75/EC of 20 November 2000 laying down specific provisions for the 

control and eradication of bluetongue 

•  Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 
laying  down  rules  for  the  prevention,  control  and  eradication  of  certain  transmissible 
spongiform encephalopathies 

•  Regulation  (EC)  No  2160/2003  of  the  European  Parliament  and  of  the  Council  of  17 
November  2003  on  the  control  of  salmonella  and  other  specified  food-borne  zoonotic 
agents 

•  Council  Directive  92/119/EEC  of  17  December  1992  introducing  general  Community 
measures for the control of certain animal diseases and specific measures relating to swine 
vesicular disease 

•  Council Directive 82/894/EEC of 21 December 1982 on the notification of animal diseases 

within the Community 

•  Council  Directive  91/68/EEC  of  28  January  1991  on  animal  health  conditions  governing 

intra-Community trade in ovine and caprine animals 

•  Council  Directive  90/539/EEC  of  15  October  1990  on  animal  health  conditions  governing 
intra-Community trade in, and imports from third countries of, poultry and hatching eggs 

•  Council Directive 89/556/EEC of 25 September 1989 on animal health conditions governing 
intra-Community  trade  in  and  importation  from  third  countries  of  embryos  of  domestic 
animals of the bovine species 

•  Council Directive 88/407/EEC of 14 June 1988 laying down the animal health requirements 
applicable  to  intra-Community  trade  in  and  imports  of  deep-frozen  semen  of  domestic 
animals of the bovine species 

•  Council Directive 90/429/EEC of 26 June 1990 laying down the animal health requirements 
applicable to intra- Community trade in and imports of semen of domestic animals of the 
porcine species 

•  Council  Directive  92/65/EEC  of  13  July  1992  laying  down  animal  health  requirements 
governing trade in and imports into the Community of animals, semen, ova and embryos 

EN 

398 

   EN 

not subject to animal health requirements laid down in specific Community rules referred 
to in Annex A (I) to Directive 90/425/EEC 

•  Regulation (EC) No 998/2003 of the European Parliament and of the Council of 26 May 2003 
requirements applicable to the non-commercial movement of pet 

on the animal health 
animals and amending Council Directive 92/65/EEC 

•  Council  Directive  96/22/EC  of  29  April  1996  concerning  the  prohibition  on  the  use  in 
stockfarming  of  certain  substances  having  a  hormonal  or  thyrostatic  action  and  of  ß-
agonists, and repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC 

•  Council Directive 96/23/EC of 29 April 1996 on measures to monitor certain substances and 
residues thereof in live animals and animal products and repealing Directives 85/358/EEC 
and 86/469/EEC and Decisions 89/187/EEC and 91/664/EEC 

•  Council  Directive  2004/68/EC  of  26  April  2004  laying  down  animal  health  rules  for  the 
importation  into  and  transit  through  the  Community  of  certain  live  ungulate  animals, 
amending Directives 90/426/EEC and 92/65/EEC and repealing Directive 72/462/EEC 

•  Regulation  (EC)  No  854/2004  of  the  European  Parliament  and  of  the  Council  of  29  April 
2004  laying  down  specific  rules  for  the  organisation  of  official  controls  on  products  of 
animal origin intended for human consumption 

•  Directive  2004/41/EC  of  the  European  Parliament  and  of  the  Council  of  21  April  2004 
repealing  certain  Directives  concerning  food  hygiene  and  health  conditions  for  the 
production  and  placing  on  the  market  of  certain  products  of  animal  origin  intended  for 
human  consumption  and  amending  Council  Directives  89/662/EEC  and  92/118/EEC  and 
Council Decision 95/408/EC 

•  Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 
2002  laying  down  health  rules  concerning  animal  by-products  not  intended  for  human 
consumption  Council  Directive  98/58/EC  concerning  the  protection  of  animals  kept  for 
farming purposes 

•  Council  Directive  1999/74/EC  of  19  July  1999  laying  down  minimum  standards  for  the 

protection of laying hens 

•  Council  Directive  2007/43/EC  of  28  June  2007  laying  down  minimum  rules  for  the 

protection of chickens kept for meat production 

•  Council Directive 2008/119/EC of 18 December 2008 laying down minimum standards for 

the protection of calves 

•  Council  Directive  91/630/EEC  of  19  November  1991  laying  down  minimum  standards  for 

the protection of pigs 

•  Council  Regulation  (EC)  No  1255/97  of  25  June  1997  concerning  Community  criteria  for 
staging  points  and  amending  the  route  plan  referred  to  in  the  Annex  to  Directive 
91/628/EEC 

EN 

399 

   EN 

•  Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time 

of slaughter or killing 

•  Council Directive 77/504/EEC of 25 July 1977 on pure- bred breeding animals of the bovine 

species 

•  Council  Directive  88/661/EEC  of  19  December  1988  on  the  zoo  technical  standards 

applicable to breeding animals of the porcine species 

•  Council  Directive  89/361/EEC  of  30  May  1989  concerning  pure-bred  breeding  sheep  and 

goats 

•  Council  Directive  90/428/EEC  of  26  June  1990  on  trade  in  equidae  intended  for 

competitions and laying down the conditions for participation therein 

•  Council  Directive  91/174/EEC  of  25  March  1991  laying  down  zootechnical  and  pedigree 
requirements for the marketing of pure-bred animals and amending Directives 77/504/EEC 
and 90/425/EEC 

•  Council  Directive  94/28/EC  of  23  June  1994  laying  down  the  principles  relating  to  the 
zootechnical  and  genealogical  conditions  applicable  to  imports  from  third  countries  of 
animals, their semen, ova and embryos, and amending Directive 
on 
pure-bred breeding animals of the bovine species 

77/504/EEC 

•  Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field 

•  Regulation  (EC)  No  852/2004  of  the  European  Parliament  and  of  the  Council  of  29  April 

2004 on the hygiene of foodstuffs 

•  Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public 
health  requirements  governing  trade  in  and  imports  into  the  Community  of  products  not 
subject  to  the  said  requirements  laid  down  in  specific  Community  rules  referred  to  in 
Annex A (I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC 

•  Regulation (EC) No 183/2005 of the European Parliament and of the Council of 12 January 

2005 laying down requirements for feed hygiene 

•  Regulation (EC)  No  853/2004 of the European Parliament and  of the Council of 29 April 

2004 laying down specific hygiene rules for food of animal origin 

•  Commission  Regulation  (EC)  No  2073/2005  of  15  November  2005  on  microbiological 

criteria for foodstuffs 

•  Commission  Regulation  (EC)  No  2074/2005  of  5  December  2005  laying  down 
implementing  measures  for  certain  products  under  Regulation  (EC)  No  853/2004  of  the 
European Parliament and of the Council and for the organisation of official controls under 
Regulation  (EC)  No  854/2004  of  the  European  Parliament  and  of  the  Council  and 
Regulation (EC) No 882/2004 of the European Parliament and of the Council, derogating 
from  Regulation  (EC)  No  852/2004  of  the  European  Parliament  and  of  the  Council  and 
amending Regulations (EC) No 853/2004 and (EC) No 854/2004 

EN 

400 

   EN 

•  Commission  Regulation  (EC)  No  2075/2005  of  5  December  2005  laying  down  specific 

rules on official controls for Trichinella in meat  

•  Directive 2003/99/EC of the European Parliament and of the Council of 17 November 2003 
on  the  monitoring  of  zoonoses  and  zoonotic  agents,  amending  Council  Decision 
90/424/EEC and repealing Council Directive 92/117/EEC 

•  Council  Regulation  (EC)  No  1/2005  of  22  December  2004  on  the  protection  of  animals 
during  transport  and  related  operations  and  amending  Directives  64/432/EEC  and 
93/119/EC and Regulation (EC) No 1255/97 

VI.3.3.  Food Safety Rules 

•  Commission Directive 87/250/EEC of 15 April 1987 on the indication of alcoholic strength 

by volume in the labelling of alcoholic beverages for sale to the ultimate consumer 

•  Council Directive 89/396/EEC of 14 June 1989 on indications or marks identifying the lot to 

which a foodstuff belongs 

•  Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs 

•  Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on 
the approximation of the laws of the Member States relating to the labelling, presentation 
and advertising of foodstuffs 

•  Regulation  (EC)  No  1924/2006  of  the  European  Parliament  and  of  the  Council  of  20 

December 2006 on nutrition and health claims made on foods 

•  Regulation  (EC)  No  1331/2008  of  the  European  Parliament  and  of  the  Council  of  16 
December  2008  establishing  a  common  authorisation  procedure  for  food  additives,  food 
enzymes and food flavourings 

•  Regulation  (EC)  No  1333/2008  of  the  European  Parliament  and  of  the  Council  of  16 

December 2008 on food additives 

•  Regulation  (EC)  No  1332/2008  of  the  European  Parliament  and  of  the  Council  of  16 
December  2008  on  food  enzymes  and  amending  Council  Directive  83/417/EEC,  Council 
Regulation  (EC)  No  1493/1999,  Directive  2000/13/EC,  Council  Directive  2001/112/EC 
and Regulation (EC) No 258/97 

•  Council  Directive  88/344/EEC  of  13  June  1988  on  the  approximation  of  the  laws  of  the 
Member  States  on  extraction  solvents  used  in  the  production  of  foodstuffs  and  food 
ingredients 

•  Council  Directive  88/388/EEC  of  22  June  1988  on  the  approximation  of  the  laws  of  the 
Member States relating to flavourings for use in foodstuffs and to source materials for their 
production 

•  Council Decision 88/389/EEC of 22 June 1988 on the establishment, by the Commission, of 
an inventory of the source materials and substances used in the preparation of flavourings 

EN 

401 

   EN 

•  Regulation  (EC)  No  2232/96 of the European Parliament and of the Council of 28 October 
1996 laying down a Community procedure for flavouring substances used or intended for 
use in or on foodstuffs 

•  Regulation  (EC)  N°  2065/2003  of  the  European  Parliament  and  of  the  Council  of  10 

November on smoke flavourings used or intended for use in or on foods 

•  Regulation  (EC)  No  1331/2008  of  the  European  Parliament  and  of  the  Council  of  16 
December  2008  establishing  a  common  authorisation  procedure  for  food  additives,  food 
enzymes and food flavourings 

•  Regulation  (EC)  No  1334/2008  of  the  European  Parliament  and  of  the  Council  of  16 
December 2008 on flavourings and certain food ingredients with flavouring properties for 
use  in  and  on  foods  and  amending  Council  Regulation  (EEC)  No  1601/91,  Regulations 
(EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC 

•  Regulation 1935/2004/EC of the European Parliament and of the Council of 27 October 2004 

on materials and articles intended to come into contact with food 

•  Commission  Regulation  (EC)  No  2023/2006  of  22  December  2006  on  good  manufacturing 

practice for materials and articles intended to come into contact with food 

•  Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the 

approximation of the laws of the Member States relating to food supplements 

•  Regulation  (EC)  No  1925/2006  of  the  European  Parliament  and  of  the  Council  of  20 
December 2006 on the addition of vitamins and minerals and of certain other substances to 
foods 

•  Council  Directive  89/398/EEC  of  3  May  1989  on  the  approximation  of  the  laws  of  the 

Member States relating to foodstuffs intended for particular nutritional uses 

•  Council  Directive  92/52/EEC  of  18  June  1992  on  infant  formulae  and  follow-on  formulae 

intended for export to third countries 

•  Council Directive 89/108/EEC of 21 December 1988 on the approximation of the laws of the 

Member States relating to quick-frozen foodstuffs for human consumption 

•  Council  Regulation  (EEC)  No  315/93  of  8  February  1993  laying  down  Community 

procedures for contaminants in food 

•  Regulation  (EC)  No  258/97  of  the  European  Parliament  and  of  the  Council  of  27  January 

1997 concerning novel foods and novel food ingredients 

•  Regulation  (EC)  N°  1829/2003  of  the  European  Parliament  and  of  the  Council  of  22 

September 2003 on genetically modified food and feed 

•  Regulation  (EC)  N°  1830/2003  of  the  European  Parliament  and  of  the  Council  of  22 
September  2003  concerning  the  traceability  and  labelling  of  genetically  modified 
organisms  and  the  traceability  of  food  and  feed  products  produced  from  genetically 
modified organisms and amending Directive 2001/18/EC 

EN 

402 

   EN 

•  Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on 
the approximation of the laws of the Member States concerning foods and food ingredients 
treated with ionising radiation 

Note:  No technical adaptation as such in the Directive but obligation to publish in Official Journal 
(C- Series) which (new) Member States authorise the placing on the market of irradiated food other 
than  those  in  EU  list  and  which  irradiation  facilities  in  (new)  Member  States  are  approved  by  the 
national competent authorities for the treatment of food by ionising radiation. 

•  Directive 1999/3/EC of the European Parliament and of the Council of 22 February 1999 on 
the establishment of a Community list of foods and food ingredients treated with ionising 
radiation 

•  Council  Directive  80/777/EEC  of  15  July  1980  on  the  approximation  of  the  laws  of  the 

Member States relating to the exploitation and marketing of natural mineral waters 

•  Commission Directive 2003/40/EC of 16 May 2003 establishing the list, concentration limits 
and labelling requirements for the constituents of natural mineral waters and the conditions 
for using ozone-enriched air for the treatment of natural mineral waters and spring waters 

•  Commission  Regulation  (EC)  No  353/2008  of  18  April  2008  establishing  implementing 
rules  for  applications  for  authorisation  of  health  claims  as  provided  for  in  Article  15  of 
Regulation (EC) No 1924/2006 of the European Parliament and of the Council 

•  Commission  Directive  2008/100/EC  of  28  October  2008  amending  Council  Directive 
90/496/EEC  on  nutrition  labelling  for  foodstuffs  as  regards  recommended  daily 
allowances, energy conversion factors and definitions 

•  Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of 
the Member States concerning food additives authorized for use in foodstuffs intended for 
human consumption 

•  Commission Regulation (EC) No 1882/2006 of 19 December 2006 laying down methods of 
sampling and analysis for the official control of the levels of nitrates in certain foodstuffs 

•  Commission Regulation (EC) No 1883/2006 of 19 December 2006 laying down methods of 
sampling and analysis for the official control of levels of dioxins and dioxin-like PCBs in 
certain foodstuffs 

•  Commission Regulation (EC) No 401/2006 of 23 February 2006 laying down the methods 
of sampling and analysis for the official control of the levels of mycotoxins in foodstuffs 

•  Commission Regulation (EC) No 333/2007 of 28 March 2007 laying down the methods of 
sampling  and  analysis  for  the  official  control  of  the  levels  of  lead,  cadmium,  mercury, 
inorganic tin, 3-MCPD and benzo(a)pyrene in foodstuffs 

•  Commission Decision 2006/504/EC of 12 July 2006 on special conditions governing certain 
foodstuffs  imported  from  certain  third  countries  due  to  contamination  risks  of  these 
products by aflatoxins 

EN 

403 

   EN 

•  Commission Decision 2008/352/EC of 29 April 2008 imposing special conditions governing 
guar  gum  originating  in  or  consigned  from  India  due  to  contamination  risks  of  those 
products by pentachlorophenol and dioxins 

•  Commission Regulation (EC) No 565/2008 of 18 June 2008 amending Regulation (EC) No 
1881/2006  setting  maximum  levels  for  certain  contaminants  in  foodstuffs  as  regards  the 
establishment of a maximum level for dioxins and PCBs in fish liver 

•  Commission Regulation (EC)  No  629/2008 of 2 July 2008  amending  Regulation (EC) No 

1881/2006 setting maximum levels for certain contaminants in foodstuffs 

VI.3.4.  Feed 

•  Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs 

Note:  Council  Directive  70/524/EEC  shall  be  repealed  with  effect  18  October  2004.  However, 
Article 16 of Directive 70/524/EEC shall remain in force until Directive 79/373/EEC has been revised 
to  include  rules  concerning  the  labelling  of  feedingstuffs  incorporating  additives.  Transitional 
measures concerning evaluations under Council Directive 70/524/EEC are set up in Article 25. 

•  Regulation  (EC)  No  1831/2003  of  the  European  Parliament  and  of  the  Council  of  22 

September 2003 on additives for use in animal nutrition 

•  Council Directive 79/373/EEC of 2 April 1979 on the circulation of compound feedingstuffs 

•  Council Directive 96/25/EC of 29 April 1996 on the circulation of feed materials, amending 
Directives  70/524/EEC,  74/63/EEC,  82/471/EEC  and  93/74/EEC  and  repealing  Directive 
77/101/EEC 

•  Directive  2002/32/EC  of  the  European  Parliament  and  the  Council  of  7  May  2002  on 

undesirable substances in animal feed 

•  Council Directive 93/74/EEC of 13 September 1993 on feedingstuffs intended for particular 

nutritional purposes 

•  Commission  Directive  2008/38/EC of 5 March 2008  establishing  a list of intended uses of 

animal feedingstuffs for particular nutritional purposes 

•  Council Directive 82/471/EEC of 30 June 1982 concerning certain products used in animal 

nutrition 

•  Council Directive 90/167/EEC of 26 March 1990 laying down the conditions governing the 
preparation, placing on the market and use of medicated feedingstuffs in the Community 

VI.3.5.  Phytosanitary 

•  Council  Directive  2000/29/EC  of  8  May  2000  on  protective  measures  against  the 
introduction  into  the  Community  of  organisms  harmful  to  plants  or  plant  products  and 
against their spread within the Community 

•  Council Directive 69/464/EEC of 8 December 1969 on control of Potato Wart Disease 

EN 

404 

   EN 

•  Council  Directive  69/465/EEC  of  8  December  1969  on  control  of  Potato  Cyst  Eelworm 

(until 01/06/2010) 

•  Council Directive 74/647/EEC of 9 December 1974 on control of carnation leaf-rollers 

•  Council Directive 93/85/EC of 4 October 1993 on control of Potato Ring Rot 

•  Council  Directive  98/57/EC  of  20  July  1998  on  the  control  of  Ralstonia  solanacearum 

(Smith) Yabuuchi et al. 

•  Council Directive 2006/91/EC of 7 November 2006 on control of San José Scale 

•  Council Directive 2007/33/EC of 11 June 2007 on the control of potato cyst nematodes and 

repealing Directive 69/465/EEC (from 01/06/2010) 

•  Commission Directive 92/70/EEC of 30 July 1992 laying down detailed rules for surveys to 

be carried out for purposes of the recognition of protected zones in the Community 

•  Commission  Directive  93/51/EEC  of  24  June  1993  establishing  rules  for  movements  of 
certain plants, plant products or other objects through a protected zone, and for movements 
of  such  plants,  plant  products  or  other  objects  originating  in  and  moving  within  such  a 
protected zone 

•  Commission  Regulation  (EC)  No  690/2008  of  4  July  2008  recognising  protected  zones 

exposed to particular plant health risks in the Community 

•  Commission  Directive  92/90/EEC  of  3  November  1992  establishing  obligations  to  which 
producers  and  importers  of  plants,  plant  products  or  other  objects  are  subject  and 
establishing details for their registration 

•  Commission  Directive  92/105/EEC  of  3  December  1992  establishing  a  degree  of 
standardization  for  plant  passports  to  be  used  for  the  movement  of  certain  plants,  plant 
products or other objects within the Community, and establishing the detailed procedures 
related to the issuing of such plant passports and the conditions and detailed procedures for 
their replacement 

•  Commission  Directive  93/50/EEC  of  24  June  1993  specifying  certain  plants  not  listed  in 
Annex  V,  part  A  to  Council  Directive  77/93/EEC,  the  producers  of  which,  or  the 
warehouses, dispatching centres in the production zones of such plants, shall be listed in an 
official register 

•  Commission  Directive  94/3/EC  of  21  January  1994  establishing  a  procedure  for  the 
notification  of  interception  of  a  consignment  or  a  harmful  organism  from  third  countries 
and presenting an imminent phytosanitary danger 

•  Commission Directive 98/22/EC of 15 April 1998 laying down 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 

EN 

405 

   EN 

•  Commission Directive 2008/61/EC of 17 June 2008 establishing the conditions under which 
certain harmful organisms, plants, plant products and other objects listed in Annexes I to V 
to Council Directive 2000/29/EC may be introduced into or moved within the Community 
or certain protected zones thereof, for trial or scientific purposes and for work on varietal 
selections 

•  Council  Directive  91/414/EEC  of  15  July  1991  concerning  the  placing  of  plant  protection 

products on the market 

•  Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 
2005 on maximum residue levels of pesticides in or on food and feed of plant and animal 
origin and amending Council Directive 91/414/EEC 

•  Council Directive 66/401/EEC of 14 June 1966 on the marketing of fodder plant seed  

•  Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed  

•  Council  Directive  68/193/EEC  of  9  April  1968  on  the  marketing  of  material  for  the 

vegetative propagation of the vine 

•  Council  Directive  2008/72/ECof  15  July  2008  on  the  marketing  of  vegetable  propagating 

and planting material, other than seed 

Until 29/09/2012 

•  Council Directive 92/34/EEC of 28 April 1992 on the marketing of fruit plant propagating 

material and fruit plants intended for fruit production 

From 30/09/2012 

•  Council  Directive  2008/90/EC  of  29  September  2008  on  the  marketing  of  fruit  plant 

propagating material and fruit plants intended for fruit production 

•  Council  Directive  98/56/EC  of  20  July  1998  on  the  marketing  of  propagating  material  of 

ornamental plants 

•  Council  Directive  1999/105/EC  of  22  December  1999  on  the  marketing  of  forest 

reproductive material 

•  Council  Directive  2002/53/EC  of  13  June  2002  on  the  common  catalogue  of  varieties  of 

agricultural plant species 

•  Council Directive 2002/54/EC of 13 June 2002 on the marketing of beet seed 

•  Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed 

•  Council Directive 2002/56/EC of 13 June 2002 on the marketing of seed potatoes  

•  Council  Directive  2002/57/EC  of  13  June  2002  on  the  marketing  of  seed  of  oil  and  fibre 

plants 

EN 

406 

   EN 

•  Commission  Directive  75/502/EEC  of  25  July  1975  limiting  the  marketing  of  seed  of 
smooth-stalk meadow grass (Poa pratensis L.) to seed which has been officially certified 
'basic seed' or 'certified seed' 

•  Commission Decision 80/512/EEC of 2 May 1980 authorizing the Kingdom of Denmark, the 
Federal  Republic  of  Germany,  the  Grand  Duchy  of  Luxembourg,  the  Kingdom  of  the 
Netherlands  and  the  United  Kingdom  not  to  apply  the  conditions  laid  down  in  Council 
Directive 66/401/EEC on the marketing of fodder plant seed, as regards the weight of the 
sample for determination of seed of Cuscuta 

•  Commission Decision 85/370/EEC of 8 July 1985 authorizing the Netherlands to assess the 
satisfaction  of  the  varietal  purity  standards  laid  down  in  Annex  II  to  Council  Directive 
66/401/EEC for seed of apomictic uniclonal varieties of Poa pratensis, also on the basis of 
the results of seed and seedling testing 

•  Commission  Decision  2004/371/EC  of  20  April  2004  on  conditions  for  the  placing  on  the 

market of seed mixtures intended for use as fodder plants 

•  Commission Directive 2008/124/EC of 18 December 2008 limiting the marketing of seed of 
certain species of fodder plants and oil and fibre plants to seed which has been officially 
certified as ‘basic seed’ or ‘certified seed’ 

•  Commission  Decision  80/755/EEC  of  17  July  1980  authorizing  the  indelible  printing  of 

prescribed information on packages of cereal seed 

•  Commission Directive 2004/29/EC of 4 March 2004 on determining the characteristics and 

minimum conditions for inspecting vine varieties 

•  Commission  Directive  93/61/EEC  of  2  July  1993  setting  out  the  schedules  indicating  the 
conditions  to  be  met  by  vegetable  propagating  and  planting  material,  other  than  seed 
pursuant to Council Directive 92/33/EEC 

•  Commission  Directive  93/62/EEC  of  5  July  1993  setting  out  the  implementing  measures 
concerning  the  supervision  and  monitoring  of  suppliers  and  establishments  pursuant  to 
Council  Directive  92/33/EEC  on  the  marketing  of  vegetable  propagating  and  planting 
material, other than seed 

•  Commission  Directive  93/48/EEC  of  23  June  1993  setting  out  the  schedule  indicating  the 
conditions to be met by fruit plant propagating material and fruit plants intended for fruit 
production, pursuant to Council Directive 92/34/EEC 

•  Commission  Directive  93/64/EEC  of  5  July  1993  setting  out  the  implementing  measures 
concerning  the  supervision  and  monitoring  of  suppliers  and  establishments  pursuant  to 
Council Directive 92/34/EEC on the marketing of fruit plant propagating material and fruit 
plants intended for fruit production 

•  Commission  Directive  93/79/EEC  of  21  September  1993  setting  out  additional 
implementing provisions for lists of varieties of fruit plant propagating material and fruit 
plants, as kept by suppliers under Council Directive 92/34/EEC 

EN 

407 

   EN 

•  Commission  Directive  93/49/EEC  of  23  June  1993  setting  out  the  schedule  indicating  the 
conditions  to  be  met  by  ornamental  plant  propagating  material  and  ornamental  plants 
pursuant to Council Directive 91/682/EEC 

•  Commission Directive 1999/66/EC of 28 June 1999 setting out requirements as to the label 

or other document made out by the supplier pursuant to Council Directive 98/56/EC 

•  Commission Directive 1999/68/EC of 28 June 1999 setting out additional provisions for lists 
of varieties of ornamental plants as kept by suppliers under Council Directive 98/56/EC 

•  Commission Regulation (EC) No 1597/2002 of 6 September 2002 laying down detailed rules 
for the application of Council Directive 1999/105/EC as regards the format of national lists 
of the basic material of forest reproductive material 

•  Commission Regulation (EC) No 1598/2002 of 6 September 2002 laying down detailed rules 
for  the  application  of  Council  Directive  1999/105/EC  as  regards  the  provision  of  mutual 
administrative assistance by official bodies 

•  Commission Regulation (EC) No 1602/2002 of 9 September 2002 laying down detailed rules 
for  the  application  of  Council  Directive  1999/105/EC  as  regards  the  authorisation  of  a 
Member  State  to  prohibit  the  marketing  of  specified  forest  reproductive  material  to  the 
end-user 

•  Commission Regulation (EC) No 2301/2002 of 20 December 2002 laying down detailed rules 
for  the  application  of  Council  Directive  1999/105/EC  as  regards  the  definition  of  small 
quantities of seed 

•  Commission Regulation (EC) No 69/2004 of 15 January 2004 authorising derogations from 
certain provisions of Council Directive 1999/105/EC in respect of the marketing of forest 
reproductive material derived from certain basic material 

•  Commission  Decision  2004/678/EC  of  29  September  2004  authorising  Member  States  to 
permit  temporarily  the  marketing  of  seed  of  the  species  Cedrus  libani,  Pinus  brutia  and 
planting stock produced from this seed not satisfying the requirements of Council Directive 
1999/105/EC 

•  Commission Decision 2005/853/EC of 30 November 2005 authorising France to prohibit the 
marketing to the end user, with a view to seeding or planting in certain regions of France, 
of  reproductive  material  of  Pinus  pinaster  Ait.  of  Iberian  Peninsula  origin,  which  is 
unsuitable for use in such territories under Council Directive 1999/105/EC 

•  Commission  Decision  2005/871/EC  of  6  December  2005  releasing  Denmark  and  Slovenia 
from  certain  obligations  for  marketing  of  forest  reproductive  material  under  Council 
Directive 1999/105/EC 

•  Commission  Decision  2006/665/EC  of  3  October  2006  temporarily  authorising  Spain  to 
approve for marketing seed of the species Pinus radiata and planting stock produced from 
this seed imported from New Zealand which does not satisfy the requirements of Council 
Directive 1999/105/EC in respect of identification and labelling 

EN 

408 

   EN 

•  Commission  Decision  2007/527/EC  of  25  July  2007  authorising  Bulgaria  and  Romania  to 
derogate  from  Council  Directive  1999/105/EC  on  the  marketing  of  forest  reproductive 
material with regard to the stocks accumulated from 1 January 2003 to 31 December 2006 

•  Council  Decision  2008/971/EC  of  16  December  2008  on  the  equivalence  of  forest 

reproductive material produced in third countries 

•  Commission  Decision  2008/989/EC  of  23  December  2008  authorising  Member  States,  in 
accordance  with  Council  Directive  1999/105/EC,  to  take  decisions  on  the  equivalence  of 
the  guarantees  afforded  by  forest  reproductive material  to  be  imported  from  certain  third 
countries 

•  Commission Directive 89/14/EEC of 15 December 1988 determining the groups of varieties 
of  spinach  beet  and  beetroot  referred  to  crop  isolation  conditions  of  Annex  I  to  Council 
Directive 70/458/EEC on the marketing of vegetable seed 

•  Commission Directive 2003/91/EC of 6 October 2003 setting out implementing measures for 
the purposes of Article 7 of Council Directive 2002/55/EC as regards the characteristics to 
be covered as a minimum by the examination and the minimum conditions for examining 
certain varieties of vegetable species 

•  Commission  Directive  93/17/EEC  of  30  March  1993  determining  Community  grades  of 
basic  seed  potatoes,  together  with  the  conditions  and  designations  applicable  to  such 
grades 

•  Commission  Decision  2004/3/EC  of  19  December  2003  authorising,  in  respect  of  the 
marketing  of  seed  potatoes  in  all  or  part  of  the  territory  of  certain  Member  States,  more 
stringent  measures  against  certain  diseases  than  are  provided  for  in  Annexes  I  and  II  to 
Council Directive 2002/56/EC 

•  Commission  Decision  97/125/EC  of  24  January  1997  authorizing  the  indelible  printing  of 
prescribed information on packages of seed of oil and fibre plants and amending Decision 
87/309/EEC  authorizing  the  indelible  printing  of  prescribed  information  on  packages  of 
certain fodder plant species 

•  Commission  Decision  2004/266/EC of 17 March 2004 authorising the indelible printing of 

prescribed information on packages of seed of fodder plants 

•  Commission Directive 2008/124/EC of 18 December 2008 limiting the marketing of seed of 
certain species of fodder plants and oil and fibre plants to seed which has been officially 
certified as ‘basic seed’ or ‘certified seed’ 

•  Commission  Directive  2008/62/EC  of  20  June  2008  providing  for  certain  derogations  for 
acceptance of agricultural landraces and varieties which are naturally adapted to the local 
and regional conditions and threatened by genetic  erosion  and  for  marketing  of  seed  and 
seed potatoes of those landraces and varieties 

•  Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights 

EN 

409 

   EN 

VII.  JUSTICE, FREEDOM AND SECURITY 

Here  below  the  main  measures  in  force  31/12/2008  in  the  sector  of  Justice  Freedom  and 
Security 

Please note that the list does not include legal instruments adopted under Title VI of the EU 
Treaty. 

A  comprehensive  list  of  JLS  acquis  in  force  is  publicly  available  on  the  JLS  EUROPA 
website576.  

As  a  follow-up  of  the  Hague  Programme,  it  has  become  customary  to  adopt  a  yearly 
Scoreboard Plus, the last one published on 2 July 2008577. In addition to the monitoring of the 
adoption  process,  this  communication  examines  national  implementation  of  policies  in  the 
Justice, Freedom and Security fields. 

VII.1.  Treaty provisions 

VII.1.1.  Fundamental rights 

•  Article  6  of  the  Treaty  on  European  Union  and  a  general  principle  of  Community  law 
according  to  which  Member  States  must  respect  fundamental  rights  when  implementing 
Community law 

VII.1.2.  Citizenship 

•  Article 12 of the Treaty establishing the European Community 

•  Articles 17 to 22 of the Treaty establishing the European Community 

VII.1.3.  Protection of personal data 

•  Article 286 of the Treaty establishing the European Community 

VII.1.4.  Judicial cooperation in civil matters 

•  Article 65 of the Treaty establishing the European Community 

VII.2.  Regulations 

VII.2.1.  Asylum 

•  Council  Regulation  (EC)  No  343/2003  of  18  February  2003  establishing  the  criteria  and 
mechanisms  for  determining  the  Member  State  responsible  for  examining  an  asylum 

576 
577 

http://ec.europa.eu/justice_home/doc_centre/intro/doc_intro_en.htm. 
Communication  of  2  July  2008  from  the  Commission  to  the  Council  and  the  European  Parliament  – 
Report on the implementation of the Hague programme for 2007 – COM(2008) 373 final. Available on 
JLS EUROPA website http://ec.europa.eu/justice_home/doc_centre/scoreboard_en.htm.  

EN 

410 

   EN 

                                                 
application lodged in one of the Member States by a third-country national (OJ L 50 of 25 
of February 2003, p.1); 

–  Commission  Regulation  (EC)  No  1560/2003  of  2  September  2003  laying  down 
detailed  rules  for  the  application  of  Council  Regulation  (EC)  No  343/2003 
establishing  the  criteria  and  mechanisms  for  determining  the  Member  State 
responsible  for  examining  an  asylum  application  lodged  in  one  of  the  Member 
States by a third-country national (OJ L 222 of 5 September 2003, p. 1); 

•  Council  Regulation  (EC)  No  2725/2000  of  11  December  2000  concerning  the 
establishment of 'Eurodac' for the comparison of fingerprints for the effective application 
of the Dublin Convention (OJ L 316 of 15 December 2000, p.1);  

–  Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain 
rules to implement Regulation (EC) No 2725/2000 concerning the establishment 
of "Eurodac" for the comparison of fingerprints for the effective application of the 
Dublin Convention (OJ L 62 of 5 March 2002, p. 1); 

•  Regulation (EC) No 862/2007 of the European Parliament and of  the  Council of 11 July 
2007  on  Community  statistics  on  migration  and  international  protection  and  repealing 
Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers 
(OJ L 199 of 31 July 2007, p. 23); 

VII.2.2.  Visas 

•  Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for 

visas (OJ L 164, of 14 July 1995, p. 1), amended by: 

•  Council  Regulation  (EC)  No  334/2002  of  18  February  2002  (OJ  L  53  of  23 

February 2002, p. 7); 

•  Council Regulation (EC) NO 539/2001 of 15 March 2001 listing the third countries whose 
nationals  must  be  in  possession  of  visas  when  crossing  the  external  borders  and  those 
whose  nationals  are  exempt  from  that  requirement  (OJ  L  81  of  21  March  2001,  p.  1), 
amended by: 

–  Council  Regulation  (EC)  No  2414/2001  of  7  December  2001  (OJ  L  327  of  12 

December 2001, p.1); 

–  Council  Regulation  (EC)  No  453/2003  of  6  March  2003  (OJ  L  69  of  6  March 

2003, p. 10); 

–  Council Regulation (EC) No 851/2005 of 2 June 2005 (OJ L 141 of 4 June 2005, 

p. 3); 

–  Council  Regulation  (EC)  No  1932/2006  of  2  June  2005  (OJ  L  405  of  30 

December 2006, p. 23); 

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•  Council  Regulation  (EC)  No  789/2001  of  24  April  2001  reserving  to  the  Council 
implementing  powers  with  regard  to  certain  detailed  provisions  and  practical  procedures 
for examining visa applications (OJ L 116 of 26 April 2001, p. 2); 

•  Council Regulation (EC) No 1091/2001 of 28 May 2001 on freedom of movement with a 

long-stay visa (OJ L 150 of 6 June 2001, p. 4); 

•  Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms 
for  affixing  the  visa  issued  by  Member  States  to  persons  holding  travel  documents  not 
recognised by the Member State drawing up the form (OJ L 53 of 23 February 2002, p. 4); 

–  Council  Regulation  No  1030/2002/EC  of  13  June  2002  laying  down  a  uniform 
format  for  residence  permits  for  third-country  nationals  (OJ  L  157  of  15  June 
2002,  p.  1)  and  Commission  Decision  of  14  August  2002  laying  down  the 
technical  specifications  for  the  uniform  format  for  residence  permits  for  third 
country nationals (not published); 

•  Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for 

residence permits for third-country nationals (OJ L 157 of 15 June 2002, p. 1); 

•  Council  Regulation  (EC)  No  415/2003  of  27  February  2003  on  the  issue  of  visas  at  the 
border, including the issue of such visas to seamen in transit (OJ L 64 of 7 March 2003, p. 
1); 

•  Council  Regulation  693/2003/EC  of  14  April  2003  establishing  a  specific  Facilitated 
Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the 
Common Consular Instructions and the Common Manual (OJ L 99 of 17 April 2003, p. 8); 

•  Council  Regulation  No  694/2003  of  14  April  2003  on  uniform  formats  for  Facilitated 
Transit Documents (FTD and Facilitated Rail Transit Documents (FRTD) provided for in 
Regulation (EC) No 693/2003 (OJ L 99 of 17 April 2003, p. 15). 

VII.2.3.  Border management and return policy 

•  Council  Regulation  (EC)  No  377/2004  of  19  February  2004  on  the  creation  of  an 

immigration liaison officers network (OJ L 64 of 2 of March 2004, p. 1). 

•  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 
2006  establishing  a  Community  Code  on  the  rules  governing  the  movement  of  persons 
across borders (Schengen Borders Code) (OJ L 105 of 13 April 2006, p.1); 

•  Regulation  (EC)  No  1931/2006  of  the  European  Parliament  and  of  the  Council  of  20 
December 2006 laying down rules on local border traffic at the external land borders of the 
Member States and amending the provisions of the Schengen Convention (OJ L 405 of 30 
December 2006, p.1); 

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VII.2.4.  Protection of personal data 

•  Regulation (EC) 45/2001 of the European Parliament and of the Council of 18 December 
2000 on the protection of individuals with regard to the processing of personal data by the 
Community institutions and bodies and on the free movement of such data (OJ L 8 of 12 
January 2001, p. 1). 

VII.2.5.  Judicial cooperation in civil matters 

•  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L 

160 of 30 June.2000, p.1); 

–  Council  Regulation  (EC)  No  681/2007  of  13  June  2007  amending  the  lists  of 
insolvency proceedings, winding-up proceedings and liquidators in Annexes A, B 
and C to Regulation (EC) No 1346/2000 on insolvency proceedings (OJ L 159 of 
20 June 2007, p. 1); 

–  Council  Regulation  (EC)  No  788/2008  of  24  July  2008  amending  the  lists  of 
insolvency  proceedings  and  winding-up  proceedings  in  Annexes  A  and  B  to 
Regulation (EC) No 1346/2000 on insolvency proceedings (OJ L 213 of 8 August 
2008, p. 1); 

•  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and 
the  recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of 
parental  responsibility,  repealing  Regulation  (EC)  No  1347/2000  (OJ  L  338  of  23 
December 2003, p. 1); 

•  Council  Regulation  (EC)  No  2116/2004  of  2 December  2004  amending  Regulation  (EC) 
No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments 
in  matrimonial  matters  and  the  matters  of  parental  responsibility,  repealing  Regulation 
(EC)  No  1347/2000,  as  regards  treaties  with  the  Holy  See  (OJ  L  367  of  14  December 
.2004, p. 1); 

•  Council  Regulation  (EC)  No  1393/2007  of  13  November  2007  on  the  service  in  the 
Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 
L 324 of 10 December 2007, p.79); 

•  Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on  jurisdiction  and  the 
recognition and enforcement of judgments in civil and commercial matters (OJ L 012 of 16 
January 2001, p.1); 

–  Corrigendum  to  Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on 
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial matters (OJ L 307 of 24 November 2001, p. 28); 

–  Commission Regulation (EC) No 1496/2002 of 21 August 2002 amending Annex 
I (the rules of jurisdiction referred to in Article 3(2) and Article 4(2)) and Annex 
II  (the  list  of  competent  courts  and  authorities)  to  Council  Regulation  (EC)  No 

EN 

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44/2001 on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters (OJ L 225 of 22 August 2002, p. 13); 

–  Commission  Regulation  (EC)  No 1937/2004  of  9  November  2004  amending 
Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction 
and the recognition and enforcement of judgments in civil and commercial matters 
(OJ L 334 of 10 November 2004, p. 3); 

–  Commission  Regulation  (EC)  No  2245/2004  of  27  December  2004  amending 
Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction 
and the recognition and enforcement of judgments in civil and commercial matters 
(OJ L 381 of 28 December 2004, p. 10); 

•  Council  Regulation  (EC)  No  1206/2001  of  28  May  2001  on  cooperation  between  the 
courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 
174 of 27 June 2001, p. 1); 

•  Council Regulation (EC) NO 743/2002 of 25 April 2002 establishing a general Community 
framework  of  activities  to  facilitate  the  implementation  of  judicial  cooperation  in  civil 
matters (OJ L 115 of 1 May 2002 p. 1); 

•  Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 
2004 creating a European Enforcement Order for uncontested claims (OJ L 143 of 30 April 
2004, p.15); 

–  Commission Regulation (EC) No 1869/2005 of 16 November 2005 replacing the 
Annexes to Regulation (EC) No 805/2004 of the European Parliament and of the 
Council creating a European Enforcement Order for uncontested claims (OJ L 300 
of 17 November 2005, p. 6); 

•  Regulation  (EC)  establishing  a  European  payment  order  procedure  No  1896/2006  of  12 

December 2006 (OJ L 399 of 30 December 2006, p.1); 

•  Regulation (EC) No 861/2007 of the European Parliament  and  of the Council of 11 July 
2007 establishing a European Small Claims Procedure (OJ L 199 of 31 July 2007, p. 1); 

•  Regulation (EC) No 864/2007 of the European Parliament and of  the  Council of 11 July 
2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199 of 31 July 
2007, p. 40); 

•  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 
2008 on the law applicable to contractual obligations (Rome I) (OJ L 177 of 4 July 2008, 
p. 7); 

•  Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, 
recognition  and  enforcement  of  decisions  and  cooperation  in  matters  relating  to 
maintenance obligations (OJ L 7 of 10 January 2009, p. 1). 

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VII.3.  Directives 

VII.3.1.  Immigration and integration 

•  Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 
of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187 of 
10 July 2001, p. 45); 

•  Council  Directive  2002/90/EC  of  28  November  2002  defining  the  facilitation  of 

unauthorised entry, transit and residence (OJ L 328 of 5 December 2002, p. 17); 

•  Council Directive  2003/86/EC of 22  September 2003 on the right  to family reunification 

(OJ L 251 of 3 October 2003, p. 12); 

•  Council  Directive  2003/109/EC  of  25  November  2003  concerning  the  status  of  third-

country nationals who are long-term residents (OJ L 16 of 23 January 2004, p. 44); 

•  Council  Directive  2004/81/EC  of  29  April  2004  on  the  residence  permit  issued  to  third-
country  nationals  who  are  victims  of  trafficking  in  human  beings  or  who  have  been  the 
subject  of  an  action  to  facilitate  illegal  immigration,  who  cooperate  with  the  competent 
authorities (OJ L 261 of 6 August 2004, p. 3 and 19); 

•  Council  Directive  2004/114/EC  of  13  December  2004  on  the  conditions  of  admission  of 
third-country nationals for the purposes of studies, pupil exchange, unremunerated training 
or voluntary service (OJ L 375, 23 December 2004 of p. 12); 

•  Council  Directive  2005/71/EC  of  12 October  2005  on  a  specific  procedure  for  admitting 
third-country  nationals  for  the  purposes  of  scientific  research  (OJ  L  289  of  3  November 
2005, p. 15). 

VII.3.2.  Asylum 

•  Council  Directive  2001/55/EC  of  20  July  2001  on  minimum  standards  for  giving 
temporary protection in the event of a mass influx of displaced persons and on measures 
promoting  a  balance  of  efforts  between  Member  States  in  receiving  such  persons  and 
bearing the consequences thereof (OJ L 212 of 7 August 2001, p. 12); 

•  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the 

reception of asylum seekers (OJ L 31 of 6 February 2003, p. 18); 

•  Council  Directive  2004/83/EC  of  29  April  2004  on  minimum  standards  for  the 
qualification  and  status  of  third  country  nationals  or  stateless  persons  as  refugees  or  as 
persons  who  otherwise  need  international  protection  and  the  content  of  the  protection 
granted (OJ L 304 of 30 September 2004, p. 2 and 12); 

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•  Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures 
in Member States for granting and withdrawing refugee status (OJ L 326 of 13 December 
2005, p. 13). 

VII.3.3.  Border management and return policy 

•  Council  Directive  2004/82/EC  of  29  April  2004  on  the  obligation  of  carriers  to 

communicate passenger data (OJ L 261 of 6 August 2004, p. 4 and 24); 

•  European  Parliament  and  Council  Directive  2008/115/EC  on  common  standards  and 
procedures in Member States for returning illegally staying third country nationals (OJ L 
348 of 24 December 2008, p. 98); 

•  Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on 

the expulsion of third country nationals (OJ L 149 of 2 June 2001, p. 34); 

•  Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for 

the purposes of removal by air (OJ L 321, 6 December 2003, p. 26). 

VII.3.4.  Free movement of persons 

•  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on 
the  right  of  citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely 
within  the  territory  of  the  Member  States  amending  Regulation  (EEC)  No  1612/68  and 
repealing  Directives  64/221/EEC,  68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC, 
75/35/EEC,  90/364/EEC,  90/365/EEC  and  93/96/EEC  (Text  with  EEA  relevance)  (OJ  L 
158 of 30 April 2004, p. 77). 

VII.3.5.  Citizenship 

•  Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for 
the  exercise  of  the  right  to  vote  and  stand  as  a  candidate  in  elections  to  the  European 
Parliament  for  citizens  of  the  Union  residing  in  a  Member  State  of  which  they  are  not 
nationals (OJ L 329 of 30 December 1993, p. 34); 

•  Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for 
the  exercise  of  the  right  to  vote  and  to  stand  as  a  candidate  in  municipal  elections  by 
citizens of the Union residing in a Member State of which they are not nationals (OJ L 368 
of 31 December 1994, p. 38); 

–  Council Directive 96/30/EC of 13 May 1996 amending Directive 94/80/EC laying 
down detailed arrangements for the exercise of the right to vote and to stand as a 
candidate  in  municipal  elections  by  citizens  of  the  Union  residing  in  a  Member 
State of which they are not nationals (OJ L 122 of 22 May 1996, p. 14); 

–  Council  Directive  2006/106/EC  of  20  November  2006  adapting  Directive 
94/80/EC laying down detailed arrangements for the exercise of the right to vote 
and  to  stand  as  a  candidate  in  municipal  elections  by  citizens  of  the  Union 

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residing  in  a  Member  State  of  which  they  are  not  nationals,  by  reason  of  the 
accession of Bulgaria and Romania (OJ L 363 of 20 December 2006, p. 409). 

VII.3.6.  Protection of personal data 

•  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on 
the protection of individuals with regard to the processing of personal data and on the free 
movement of such data (OJ L 281 of 23 November 1995, p. 31). 

VII.3.7.  Judicial cooperation in civil matters 

•  Council  Directive  2003/8/EC  of  27  January  2003  to  improve  access  to  justice  in  cross-
border  disputes  by  establishing  minimum  common  rules  relating  to  legal  aid  for  such 
disputes (OJ L 26 of 31 January 2003, p. 41); 

•  Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims 

(OJ L 261 of 6 August 2004, p. 2 and 15); 

•  Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on 
certain aspects of mediation in civil and commercial matters (OJ L 136 of 24 May 2008, p. 
3). 

VII.3.8.  Security 

•  Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on 
the  retention  of  data  generated  or  processed in  connection  with  the  provision  of  publicly 
available  electronic  communications  services  or  of  public  communications  networks  and 
amending Directive 2002/58/EC (OJ L 105 of 13 April 2006, p. 54). 

EN 

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