COMMISSION STAFF WORKING DOCUMENT SITUATION IN THE DIFFERENT SECTORS   Accompanying document to the  REPORT FROM THE COMMISSION  27th ANNUAL REPORT ON MONITORING THE APPLICATION OF EU LAW (2009)
Date: 2010-10-01
Institutions: European Commission
Subjects: EU control, EU legal system, European Union, application of EU law

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EUROPEAN COMMISSION 

Brussels, 1.10.2010 
SEC(2010) 1143 final 

COMMISSION STAFF WORKING DOCUMENT 

SITUATION IN THE DIFFERENT SECTORS 

Accompanying document to the 

REPORT FROM THE COMMISSION 

27th ANNUAL REPORT ON MONITORING THE APPLICATION OF EU LAW 
(2009) 

COM(2010) 538 
 SEC(2010) 1144 

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   EN 

 
 
  
 
 
 
 
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

1.4. 

ENTERPRISE and INDUSTRY............................................................................. 18 

General introduction................................................................................................ 18 

Automotive Industry................................................................................................ 21 

Chemicals .................................................................................................................. 25 

Pharmaceuticals ....................................................................................................... 30 

1.5.  Medical devices......................................................................................................... 34 

1.6. 

Cosmetics .................................................................................................................. 35 

1.7.  Mechanical, electrical and telecommunications equipment................................. 37 

1.8. 

Gas appliances, pressure equipment and legal metrology ................................... 38 

1.8.1.  Gas appliances ........................................................................................................... 38 

1.8.2.  Pressure equipment.................................................................................................... 39 

1.8.3.  Legal metrology ......................................................................................................... 40 

1.9. 

Construction products ............................................................................................. 42 

1.10.  Textiles/clothing, footwear and wood..................................................................... 43 

1.11.  Toys............................................................................................................................ 44 

1.12.  Cultural goods .......................................................................................................... 44 

1.13.  Late payment ............................................................................................................ 45 

1.14.  Weapons .................................................................................................................... 45 

1.15. 

Product liability........................................................................................................ 46 

1.16.  Defence goods ........................................................................................................... 46 

1.17.  Non-harmonised area............................................................................................... 47 

1.18. 

Preventive rules of Directive 98/34/EC .................................................................. 51 

2. 

COMPETITION ...................................................................................................... 52 

2.1. 

Current position ....................................................................................................... 52 

2.1.1.  General Introduction.................................................................................................. 52 

2.1.2.  Work done in 2009 ..................................................................................................... 53 

2.2. 

2.3. 

3. 

Evaluation based on the current situation ............................................................. 58 

Priorities and planned action .................................................................................. 59 

EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES ....... 59 

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3.1. 

Free movement of workers and coordination of social security schemes ........... 61 

3.1.1.  Current Position......................................................................................................... 61 

3.1.2.  Evaluation of the current situation ............................................................................ 67 

3.1.3.  Evaluation results....................................................................................................... 68 

3.1.4. 

Summary..................................................................................................................... 70 

3.2. 

Labour Law .............................................................................................................. 71 

3.2.1.  Current position ......................................................................................................... 71 

3.2.2.  Evaluation based on the current situation ................................................................. 74 

3.2.3.  Evaluation results....................................................................................................... 75 

3.2.4. 

Summary..................................................................................................................... 76 

3.3. 

Health and safety at work........................................................................................ 76 

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

3.3.2.  Evaluation based on the current situation ................................................................. 80 

3.3.3.  Evaluation results....................................................................................................... 80 

3.3.4. 

Summary..................................................................................................................... 82 

3.4. 

Antidiscrimination and gender equality ................................................................ 83 

3.4.1.  Current position ......................................................................................................... 83 

3.4.2.  Evaluation based on the current situation ................................................................. 85 

3.4.3.  Evaluation results....................................................................................................... 85 

3.4.4. 

Summary..................................................................................................................... 86 

4. 

AGRICULTURE AND RURAL DEVELOPMENT............................................. 87 

4.1. 

Current position ....................................................................................................... 87 

4.1.1.  General introduction.................................................................................................. 87 

4.1.2.  Report of work done in 2009...................................................................................... 89 

4.2. 

Evaluation ............................................................................................................... 104 

4.2.1.  General evaluation................................................................................................... 104 

4.2.2. 

Sector based remarks ............................................................................................... 105 

4.3. 

Evaluation results................................................................................................... 107 

4.3.1.  Priorities and action planed 2010............................................................................ 107 

4.4. 

Summary................................................................................................................. 111 

5. 

ENERGY , MOBILITY and TRANSPORT........................................................ 112 

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5.1. 

ENERGY - Internal electricity and gas market .................................................. 112 

5.1.1.  Current position ....................................................................................................... 112 

5.1.2.  Evaluation of the current position............................................................................ 113 

5.1.3.  Evaluation results..................................................................................................... 114 

5.1.4. 

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

5.2. 

ENERGY - Coal and Oil........................................................................................ 114 

5.2.1.  Current position ....................................................................................................... 114 

5.2.2.  Evaluation of the current position............................................................................ 116 

5.2.3.  Evaluation results..................................................................................................... 116 

5.2.4. 

Sector summary........................................................................................................ 117 

5.3. 

ENERGY - Renewable energy sources ................................................................ 117 

5.3.1.  Current position ....................................................................................................... 117 

5.3.2.  Evaluation of the current position............................................................................ 118 

5.3.3.  Evaluation results..................................................................................................... 119 

5.3.4. 

Sector summary........................................................................................................ 119 

5.4. 

ENERGY - Energy efficiency of products ........................................................... 120 

5.4.1.  Current Position....................................................................................................... 120 

5.4.2.  Evaluation of the current position............................................................................ 121 

5.4.3.  Evaluation results..................................................................................................... 121 

5.4.4. 

Sector summary........................................................................................................ 122 

5.5. 

ENERGY - Energy performance of buildings..................................................... 122 

5.5.1.  Current position ....................................................................................................... 122 

5.5.2.  Evaluation of the current position............................................................................ 123 

5.5.3.  Evaluation results..................................................................................................... 123 

5.6. 

ENERGY - Energy end-use efficiency and energy services ............................... 123 

5.6.1.  Current position ....................................................................................................... 123 

5.6.2.  Evaluation of the current position............................................................................ 124 

5.6.3.  Evaluation results..................................................................................................... 124 

5.7. 

ENERGY - Combined heat and power generation (CHP, cogeneration)......... 125 

5.7.1.  Current position ....................................................................................................... 125 

5.7.2.  Evaluation of the current position............................................................................ 125 

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5.7.3.  Evaluation results..................................................................................................... 125 

5.7.4. 

Sector summary........................................................................................................ 126 

5.8. 

ENERGY - Nuclear Energy .................................................................................. 126 

5.8.1.  Current position ....................................................................................................... 126 

5.8.2.  Evaluation of the current situation .......................................................................... 132 

5.8.3.  Evaluation Results.................................................................................................... 132 

5.8.4. 

Summary by Sector................................................................................................... 132 

5.9.  MOBILITY and TRANSPORT - Passengers' rights.......................................... 133 

5.9.1.  Current position ....................................................................................................... 133 

5.9.2.  Evaluation of the current position............................................................................ 135 

5.9.3.  Evaluation results..................................................................................................... 135 

5.9.4. 

Sector summary........................................................................................................ 136 

5.10.  MOBILITY and TRANSPORT -  Inland Waterway Transport....................... 137 

5.10.1.  Current position ....................................................................................................... 137 

5.10.2.  Evaluation of the current position............................................................................ 138 

5.10.3.  Evaluation results..................................................................................................... 138 

5.10.4.  Sector summary........................................................................................................ 138 

5.11.  MOBILITY and TRANSPORT - Logistics and co-modality............................. 139 

5.11.1.  Current position ....................................................................................................... 139 

5.11.2.  Evaluation of the current position............................................................................ 139 

5.11.3.  Evaluation results..................................................................................................... 140 

5.11.4.  Sector summary........................................................................................................ 140 

5.12.  MOBILITY and TRANSPORT - Inland Transport .......................................... 140 

5.12.1.  Current position ....................................................................................................... 140 

5.12.2.  Evaluation ................................................................................................................ 145 

5.12.3.  Evaluation results..................................................................................................... 146 

5.12.4.  Summary by sector ................................................................................................... 147 

5.13.  MOBILITY and TRANSPORT - Air Transport ................................................ 148 

5.13.1.  Current position ....................................................................................................... 148 

5.13.2.  Evaluation of the current situation .......................................................................... 154 

5.13.3.  Evaluation results..................................................................................................... 158 

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5.13.4.  Summary by sector ................................................................................................... 160 

5.14.  MOBILITY and TRANSPORT - Maritime Safety............................................. 162 

5.14.1.  Current position ....................................................................................................... 162 

5.14.2.  Evaluation of the current position............................................................................ 163 

5.14.3.  Evaluation results..................................................................................................... 164 

5.14.4.  Sector summary........................................................................................................ 164 

5.15.  MOBILITY and TRANSPORT - Maritime Security ......................................... 165 

5.15.1.  Current position ....................................................................................................... 165 

5.15.2.  Evaluation of the current position............................................................................ 166 

5.15.3.  Evaluation results..................................................................................................... 167 

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

6. 

ENVIRONMENT................................................................................................... 168 

6.1. 

Nature Conservation.............................................................................................. 168 

6.1.1.  Current position ....................................................................................................... 168 

6.1.2.  Evaluation based on the current situation ............................................................... 172 

6.1.3.  Evaluation results..................................................................................................... 173 

6.1.4. 

Sector summary........................................................................................................ 174 

6.2.  Waste Management................................................................................................ 175 

6.2.1.  Current position ....................................................................................................... 176 

6.2.2.  Evaluation based on the current situation ............................................................... 179 

6.2.3.  Evaluation results..................................................................................................... 180 

6.2.4. 

Sector summary........................................................................................................ 181 

6.3. 

Environmental Impact Assessment & Strategic Environmental Assessment .. 182 

6.3.1.  Current position ....................................................................................................... 182 

6.3.2.  Evaluation based on the current situation ............................................................... 186 

6.3.3.  Evaluation results..................................................................................................... 188 

6.3.4. 

Sector summary........................................................................................................ 189 

6.4. 

Protecting Water Resources.................................................................................. 190 

6.4.1.  Current position ....................................................................................................... 190 

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

6.4.3.  Evaluation results..................................................................................................... 197 

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6.4.4. 

Sector summary........................................................................................................ 199 

6.5. 

Air quality and environmental noise .................................................................... 200 

6.5.1.  Current position ....................................................................................................... 200 

6.5.2.  Evaluation based on the current situation ............................................................... 203 

6.5.3.  Evaluation results..................................................................................................... 203 

6.5.4. 

Sector summary........................................................................................................ 205 

6.6. 

Industrial installations ........................................................................................... 205 

6.6.1.  Current position ....................................................................................................... 205 

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

6.6.3.  Evaluation results..................................................................................................... 210 

6.6.4. 

Sector summary........................................................................................................ 212 

6.7. 

Chemicals and Biocides ......................................................................................... 212 

6.7.1.  Current position ....................................................................................................... 212 

6.7.2.  Evaluation based on the current situation ............................................................... 217 

6.7.3.  Evaluation results..................................................................................................... 218 

6.7.4. 

Sector summary........................................................................................................ 220 

6.8. 

Governance and Environmental Liability ........................................................... 220 

6.8.1.  Current position ....................................................................................................... 220 

6.8.2.  Evaluation based on the current situation ............................................................... 223 

6.8.3.  Evaluation results..................................................................................................... 225 

6.8.4. 

Sector summary........................................................................................................ 226 

6.9. 

Climate change ....................................................................................................... 226 

6.9.1.  Current position ....................................................................................................... 226 

6.9.2.  Evaluation based on the current situation ............................................................... 235 

6.9.3.  Evaluation results..................................................................................................... 238 

6.10.  Ozone-depleting substances and Fluorinated greenhouse gases........................ 240 

6.10.1.  Current position ....................................................................................................... 240 

7. 

7.1. 

7.2. 

INFORMATION SOCIETY AND MEDIA......................................................... 242 

General Overview................................................................................................... 242 

Electronic communications ................................................................................... 242 

7.2.1.  Current position ....................................................................................................... 242 

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7.2.2.  Changes underway ................................................................................................... 249 

7.2.3.  Evaluation based on the current situation ............................................................... 250 

7.2.4.  Evaluation: priorities and planned action (2010 and beyond)................................ 251 

7.3. 

The Audiovisual and Media .................................................................................. 251 

7.3.1.  Current position ....................................................................................................... 251 

7.3.2.  Changes Underway .................................................................................................. 252 

7.3.3.  Evaluation based on the current situation ............................................................... 253 

7.3.4.  Evaluation results: priorities and planned action (2010 and beyond) .................... 253 

7.4. 

Public Sector Information ..................................................................................... 254 

7.4.1.  Current Position....................................................................................................... 254 

7.4.2.  Evaluation based on the current situation ............................................................... 255 

7.4.3.  Evaluation results..................................................................................................... 255 

7.4.4. 

Sector summary........................................................................................................ 256 

7.4.5.  Measures in force..................................................................................................... 256 

7.5. 

Electronic Signatures ............................................................................................. 256 

7.5.1.  Current Position....................................................................................................... 256 

7.5.2.  Evaluation ................................................................................................................ 257 

8. 

MARITIME AFFAIRS AND FISHERIES.......................................................... 257 

8.1. 

Current situation.................................................................................................... 258 

8.1.1.  General introduction................................................................................................ 258 

8.1.2.  Work done in 2009 ................................................................................................... 259 

8.2. 

8.3. 

Evaluation ............................................................................................................... 260 

Evaluation results................................................................................................... 261 

8.3.1.  Priorities .................................................................................................................. 261 

8.3.2.  Planned action (for 2010 and beyond)..................................................................... 261 

8.4. 

Summary................................................................................................................. 262 

9. 

INTERNAL MARKET AND SERVICES ........................................................... 262 

9.1. 

General overview.................................................................................................... 262 

9.1.1.  Efficient and effective enforcement of Community law – achievements in 2009 ..... 262 

9.1.2.  Enforcement priorities and key challenges for 2010 - 2011 .................................... 266 

9.2. 

Analysis by sector................................................................................................... 268 

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

Services) ................................................................................................................... 268 

9.2.2.  Financial Services.................................................................................................... 279 

9.2.3.  Free movement of capital (Articles 63 et seq. TFEU) ............................................. 296 

9.2.4.  Public procurement.................................................................................................. 299 

9.2.5.  Regulated professions (qualifications)..................................................................... 303 

9.2.6.  The business environment ........................................................................................ 309 

9.2.7.  Protection of rights .................................................................................................. 318 

10. 

REGIONAL POLICY ........................................................................................... 321 

10.1.  Current situation.................................................................................................... 321 

10.1.1.  General introduction................................................................................................ 321 

10.1.2.  Report of work done in 2009.................................................................................... 323 

10.2.  Evaluation based on the current situation ........................................................... 326 

10.2.1.  Assessment of the current situation (satisfactory or problematic nature of the current 
situation) .................................................................................................................. 326 

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

.................................................................................................................................. 327 

10.2.3.  Underlying reasons for problematic areas .............................................................. 327 

10.2.4.  Responsibility for the problems and their correction .............................................. 328 

10.2.5.  Corrective action required (priority character, timing and scale) .......................... 328 

10.3.  Evaluation results................................................................................................... 328 

10.3.1.  Priorities .................................................................................................................. 328 

10.3.2.  Planned action (2010 and beyond) .......................................................................... 329 

11. 

TAXATION AND CUSTOMS SERVICES......................................................... 330 

11.1. 

Situation in the sector of CUSTOMS ................................................................... 330 

11.1.1.  Current position ....................................................................................................... 330 

11.1.2.  Evaluation based on the current situation ............................................................... 332 

11.1.3.  Evaluation results..................................................................................................... 333 

11.1.4.  Sector summary........................................................................................................ 334 

11.2. 

Situation in the sector of INDIRECT TAXATION ............................................ 334 

11.2.1.  Current position ....................................................................................................... 334 

11.2.2.  Evaluation based on the current situation ............................................................... 341 

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11.2.3.  Evaluation results..................................................................................................... 341 

11.2.4.  Sector summary........................................................................................................ 343 

11.3. 

Situation in the sector of DIRECT TAXATION................................................. 343 

11.3.1.  Current position ....................................................................................................... 343 

11.3.2.  Evaluation based on current situation ..................................................................... 346 

11.3.3.  Evaluation results..................................................................................................... 346 

11.3.4.  Sector summary........................................................................................................ 347 

12. 

EDUCATION AND CULTURE ........................................................................... 347 

12.1.  Current position ..................................................................................................... 347 

12.1.1.  General introduction................................................................................................ 347 

12.1.2.  Report of work done in 2009.................................................................................... 352 

12.2.  Evaluation based on the current situation ........................................................... 353 

12.2.1.  Education and training ............................................................................................ 353 

12.2.2.  Sport ......................................................................................................................... 353 

12.3.  Evaluation results................................................................................................... 354 

12.3.1.  Priorities .................................................................................................................. 354 

12.3.2.  Planned action (2010 and beyond) .......................................................................... 354 

13. 

HEALTH AND CONSUMERS ............................................................................ 355 

13.1. 

Introduction ............................................................................................................ 355 

13.2. 

Public Health .......................................................................................................... 356 

13.2.1.  Current position ....................................................................................................... 356 

13.2.2.  Evaluation, Priorities & Perspectives...................................................................... 359 

13.2.3.  Summary of Sector ................................................................................................... 359 

13.3.  Consumer Affairs ................................................................................................... 359 

13.3.1.  Current position ....................................................................................................... 359 

13.3.2.  Evaluation, Priorities & Perspectives...................................................................... 371 

13.3.3.  Summary of Sector ................................................................................................... 371 

13.4. 

Food safety .............................................................................................................. 372 

13.4.1.  General Introduction................................................................................................ 372 

13.4.2.  Work done in 2009 ................................................................................................... 372 

13.4.3.  Food Hygiene ........................................................................................................... 375 

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13.4.4.  Food Labelling ......................................................................................................... 378 

13.4.5.  Nutrition labelling.................................................................................................... 380 

13.4.6.  Nutrition and Health Claims.................................................................................... 381 

13.4.7.  Dietetic foodstuffs..................................................................................................... 384 

13.4.8.  Food Supplements and addition of vitamins and minerals and of certain other 

substances to foods................................................................................................... 386 

13.4.9.  GMO Food and Feed ............................................................................................... 387 

13.4.10. Novel Foods ............................................................................................................. 389 

13.4.11. Food additives.......................................................................................................... 390 

13.4.12. Food Flavourings..................................................................................................... 392 

13.4.13. Food Contact Material............................................................................................. 393 

13.4.14. Plant Protection Products – Pesticide Residues...................................................... 394 

13.4.15. Contaminants in food ............................................................................................... 396 

13.4.16. Zoonoses and antimicrobial resistance.................................................................... 399 

13.4.17. Transmissible Spongiform Encephalopathies .......................................................... 401 

13.4.18. Animal Health – Non Zoonotic Diseases ................................................................. 402 

13.4.19. Zootechnics .............................................................................................................. 406 

13.4.20. Animal by-products .................................................................................................. 407 

13.4.21. Feed.......................................................................................................................... 408 

13.4.22. Animal welfare ......................................................................................................... 412 

13.4.23. Plant Health ............................................................................................................. 417 

13.4.24. Seeds and Plant Propagating Material.................................................................... 418 

13.4.25. Plant Variety Rights ................................................................................................. 419 

13.4.26. Enforcement of the rules applicable to the food and feed chain.............................. 420 

13.5.  Overall evaluation .................................................................................................. 421 

13.5.1.  Better application of the health and consumer acquis is everyone's concern ......... 421 

13.5.2.  Prevention ................................................................................................................ 421 

13.5.3.  Regular review of legislation ................................................................................... 423 

13.5.4.  Audits, Inspections and market surveillance............................................................ 423 

13.5.5.  Processing and prioritisation of infringements........................................................ 424 

13.5.6.  Challenges................................................................................................................ 424 

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14. 

JUSTICE, FREEDOM AND SECURITY ........................................................... 425 

14.1. 

Immigration and integration................................................................................. 425 

14.1.1.  Current position: general introduction.................................................................... 425 

14.1.2.  Current position: Report on work done in 2009 ...................................................... 426 

14.1.3.  Evaluation based on the current situation ............................................................... 427 

14.1.4.  Evaluation results: Priorities................................................................................... 428 

14.1.5.  Evaluation results: Planned action (2010 and beyond)........................................... 428 

14.1.6.  Summary................................................................................................................... 429 

14.2.  Asylum..................................................................................................................... 429 

14.2.1.  Current position: Report on work done in 2009 ...................................................... 429 

14.2.2.  Evaluation based on the current situation ............................................................... 431 

14.2.3.  Evaluation results: Priorities and planned action (2010 and beyond).................... 432 

14.2.4.  Summary................................................................................................................... 432 

14.3.  European visa policy .............................................................................................. 433 

14.3.1.  Current situation: Report on work done in 2009 ..................................................... 433 

14.3.2.  Evaluation based on the current situation ............................................................... 433 

14.3.3.  Evaluation results: Planned action (2010 and beyond)........................................... 433 

14.4.  Document Security (European passport and residence permits) ...................... 434 

14.4.1.  Current situation: Report on work done in 2009 ..................................................... 434 

14.4.2.  Evaluation based on the current situation ............................................................... 435 

14.4.3.  Evaluation results: planned action (2010 and beyond) ........................................... 435 

14.5.  Border management and return policy................................................................ 435 

14.5.1.  Current position: General introduction ................................................................... 435 

14.5.2.  Current position: Report on work done in 2009 ...................................................... 435 

14.5.3.  Evaluation based on the current situation ............................................................... 436 

14.5.4.  Evaluation results: Priorities................................................................................... 438 

14.5.5.  Evaluation results: Planned action (2010 and beyond)........................................... 438 

14.6. 

Free movement of persons..................................................................................... 439 

14.6.1.  Current position: General introduction ................................................................... 439 

14.6.2.  Current position: Report on work done in 2009 ...................................................... 439 

14.6.3.  Evaluation based on the current situation ............................................................... 440 

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14.6.4.  Evaluation results: Priorities................................................................................... 441 

14.6.5.  Evaluation results: Planned action (2010 and beyond)........................................... 442 

14.6.6.  Summary................................................................................................................... 442 

14.7.  Citizenship .............................................................................................................. 442 

14.7.1.  Current position: General introduction ................................................................... 442 

14.7.2.  Current position: Report on work done in 2009 ...................................................... 443 

14.7.3.  Evaluation based on the current situation ............................................................... 443 

14.7.4.  Evaluation results: Priorities................................................................................... 444 

14.7.5.  Evaluation results: Planned action (2010 and beyond)........................................... 444 

14.7.6.  Summary................................................................................................................... 444 

14.8. 

Fundamental rights................................................................................................ 445 

14.8.1.  Current position: General introduction ................................................................... 445 

14.8.2.  Current position – Report on work done in 2009 .................................................... 445 

14.9. 

Protection of personal data ................................................................................... 445 

14.9.1.  Current position: Report on work done in 2009 ...................................................... 445 

14.9.2.  Evaluation based on the current situation ............................................................... 446 

14.9.3.  Evaluation results: Priorities and planned action (2010 and beyond).................... 446 

14.10.  Judicial cooperation in civil matters .................................................................... 446 

14.10.1. Current position: Report on work done in 2009 ...................................................... 446 

14.10.2. Evaluation based on the current situation ............................................................... 448 

14.10.3. Evaluation results: Priorities................................................................................... 449 

14.10.4. Evaluation results: Planned action (2010 and beyond)........................................... 449 

14.11.  Judicial cooperation in criminal matters ............................................................. 450 

14.11.1. Current position: Report on work done in 2009 ...................................................... 450 

14.11.2. Evaluation based on the current situation ............................................................... 451 

14.11.3. Evaluation results: Priorities and planned action (2010 and beyond).................... 452 

14.12.  Data Retention Directive ....................................................................................... 452 

14.12.1. Current position: Report on work done in 2009 ...................................................... 452 

14.12.2. Evaluation based on the current situation ............................................................... 453 

14.12.3. Evaluation results: Priorities and planned action (2010 and beyond).................... 454 

14.13.  European Programme for Critical Infrastructure Protection........................... 454 

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14.13.1. Current position: General introduction ................................................................... 454 

14.13.2. Current position – Report on work done in 2009 .................................................... 455 

14.13.3. Evaluation based on the current situation ............................................................... 455 

14.13.4. Evaluation results: Priorities and planned action (2010 and beyond).................... 455 

14.14.  Third pillar instruments – police and criminal justice cooperation.................. 455 

14.14.1. Current position: Report on work done in 2009 ...................................................... 455 

14.14.2. Evaluation based on the current situation ............................................................... 457 

14.14.3. Evaluation results: Priorities and planned action (2010 and beyond).................... 457 

15. 

16. 

TRADE.................................................................................................................... 457 

ENLARGEMENT .................................................................................................. 458 

16.1.  Current position - Most important legal instruments and related work and 

reporting on 2009 ................................................................................................... 458 

16.1.1.  General instruction .................................................................................................. 458 

16.1.2.  Report of work done in 2009.................................................................................... 458 

16.2.  Evaluation based on the current situation ........................................................... 459 

16.3.  Evaluation results................................................................................................... 459 

16.4. 

Summary by sector ................................................................................................ 459 

17. 

EUROSTAT............................................................................................................ 459 

17.1.  Current position-.................................................................................................... 459 

17.2.  Report on 2009........................................................................................................ 460 

17.3.  Evaluation Results.................................................................................................. 461 

17.3.1.  Priorities .................................................................................................................. 461 

17.3.2.  Planned action ......................................................................................................... 461 

18. 

HUMAN RESOURCES AND SECURITY ......................................................... 462 

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

reporting on 2009 ................................................................................................... 462 

18.1.1.  Existing measures in force ....................................................................................... 462 

18.1.2.  Report of work done in 2009.................................................................................... 462 

18.2.  Evaluation based on the current situation ........................................................... 463 

19. 

BUDGET................................................................................................................. 463 

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

on 2009..................................................................................................................... 463 

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19.1.1.  Existing measures in force ....................................................................................... 463 

19.1.2.  Report of work done in 2009.................................................................................... 464 

19.2.  Evaluation based on the current situation ........................................................... 465 

19.3.  Evaluation results................................................................................................... 465 

19.3.1.  Priorities .................................................................................................................. 465 

19.4. 

Summary................................................................................................................. 465 

Annex I - List of measures in force and other relevant instruments referred to in the text 
of the document ...................................................................................................... 466 

I. 

I.1. 

I.2. 

I.3. 

I.4. 

I.5. 

I.6. 

II. 

 ENTERPRISE AND INDUSTRY........................................................................ 466 

Chemicals ................................................................................................................ 466 

Pharmaceuticals ..................................................................................................... 466 

Medical devices....................................................................................................... 467 

Cosmetics ................................................................................................................ 467 

Textiles/clothing...................................................................................................... 467 

Non-harmonised area............................................................................................. 467 

 EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES .... 467 

II.1. 

Free movement of workers and coordination of social security schemes ......... 467 

II.1.1.  Free movement of workers ....................................................................................... 467 

II.1.2 

Social Security.......................................................................................................... 468 

II.2. 

Labour Law ............................................................................................................ 468 

II.2.1.  Working conditions .................................................................................................. 468 

II.2.2. 

Information and consultation of workers................................................................. 469 

II.2.3.  Protection of workers............................................................................................... 470 

II.2.4. 

Implementation and application reports.................................................................. 471 

II.3.  Health and safety at work...................................................................................... 471 

II.4.  Gender equality and anti-discrimination............................................................. 475 

II.4.1.  Gender equality........................................................................................................ 475 

II.4.2.  Anti-discrimination .................................................................................................. 476 

III. 

 ENERGY................................................................................................................ 476 

III.1.  Legislation in force................................................................................................. 476 

III.2.  Legislation adopted in 2009................................................................................... 478 

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III.3.  New measures proposed or in preparation in 2009............................................. 481 

IV. 

V. 

 ENVIRONMENT – Climate sector ..................................................................... 482 

 INTERNAL MARKET AND SERVICES .......................................................... 483 

V.1.   Existing and in force acquis .................................................................................. 483 

V.2.   Recently adopted measures ................................................................................... 483 

V.3.   New measures already proposed and due to be adopted.................................... 484 

V.4.   Other relevant legal documents adopted in 2009 by the Commission .............. 485 

VI. 

TAXATION AND CUSTOMS UNION ............................................................... 485 

VI.1.   CUSTOMS .............................................................................................................. 485 

VI.2. 

INDIRECT TAXATION ....................................................................................... 486 

VI.3.  DIRECT TAXATION............................................................................................ 488 

VII. 

EDUCATION AND CULTURE ........................................................................... 488 

VIII. 

 HEALTH AND CONSUMERS ........................................................................... 489 

VIII.1.  Public Health .......................................................................................................... 489 

VIII.2.  Consumers .............................................................................................................. 491 

VIII.3.  Food Safety ............................................................................................................. 493 

GENERAL ............................................................................................................................. 493 

FOOD 

.................................................................................................................................. 494 

ANIMAL HEALTH............................................................................................................... 499 

ANIMAL WELFARE............................................................................................................ 503 

FEED 

.................................................................................................................................. 504 

PLANT HEALTH.................................................................................................................. 505 

SEEDS – PLANT VARIETY ................................................................................................ 507 

IX. 

X. 

EUROSTAT............................................................................................................ 511 

BUDGET................................................................................................................. 511 

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SITUATION IN THE DIFFERENT SECTORS 

1. 

 ENTERPRISE AND INDUSTRY 

1.1. 

General introduction 

Responsibility for ensuring the free movement of goods within the Single Market is entrusted 
to  the  Directorate  General  for  Enterprise  and  Industry  which  manages  a  large  part  of  the 
Community  acquis  consisting  of  Articles  34  to  36  TFEU  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  under  the  management  of  DG 
Enterprise and Industry” (the latest version of the “Pink Book”) is on the internet at  

http://ec.europa.eu/enterprise/dg/files/pink_book_2008_en.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  34-36  TFEU  ensure  the  easy  cross-border  exchange  of 
goods. 

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. Steps are being taken to 
streamline this activity, for example in the automotive sector where a framework instrument 
lays  down  fundamental  principles  while  technical  specifications  are  established  through 
comitology. In the cosmetics sector, the principal legislation has been recast in the form of a 
regulation,  adopted  by  the  legislature  in  November,  which  will  apply  from  11  July  2013. 
Future technical adaptations will be made by directly applicable Commission regulations. 

The  Commission's  legislative  activity  in  the  "Enterprise  and  Industry"  sector  is  fully  in 
accordance  with  Better  Regulation  principles  with  preference  being  given  to  regulations 
which  require  less  effort  in  relation  their  transposition.  This  sector  also  regards  the 
simplification  and  codification  of  existing  legislation  as  important  tools  in  achieving  better 
implementation of EU law. For example, preparatory work continued during 2009 for a recast 
of the medical devices legislation. 

The REACH Regulation continues to be phased in with the Directive governing restrictions 
being  repealed  and  replaced  on  1  June.  The  pharmaceutical  package  continued  its  progress 
through  the  legislature  under  the  co-decision  procedure  and  measures  were  also  adopted  to 
simplify the systems governing variations and the  classification of pharmacologically active 
substances regarding maximum residue limits. 

In  relation  to  the  “goods  package”,  adopted  in  2008,  the  first  national  reports  on  the 
application of the regulation on procedural aspects of the mutual recognition principle are due 
in  May  2010  which  will  enable  an  assessment  of  its  initial  impact  to  be  made.  Work  is 
ongoing to align 10 existing new approach directives1 with the ‘new legislative framework’, 

1 The 10 directives are- 

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created  by  the  package.  This  will  simplify  the  application  of  EU  harmonising  legislation.  
Crucially, the package will strengthen rules on market surveillance to protect consumers from 
unsafe products, shelter business from unfair competition from operators not complying with 
the law and reduce the risk for enterprises that their products do not gain access to the market 
of the Member State of destination. Efforts continued during 2009 to enhance the quality of 
market surveillance by the Member States. 

In  May  2009,  the  Council  and  the  European  Parliament  adopted  directive  2009/43/EC 
simplifying  intra-EU  transfers  of  defence-related  products  (OJ  L  146,  10.6.2009,  p.  1–36). 
This directive is the first internal market instrument dealing with the circulation of defence-
related  products.  The  directive  will  enable  defence  industries  to  benefit  from  smoother  and 
more  predictable  supply  chains  while  improving  security  of  supply  for  EU  armed  forces 
relying on cross-border deliveries. The Directive must be transposed before 30 June 2011 and 
will fully apply from 30 June 2012.  

1.  Low Voltage Directive: Directive 2006/95/EEC on the harmonisation of the laws of 
Member States relating to electrical equipment designed for use within certain voltage 
limits; 

2.  Simple  Pressure  Vessels  Directive:  Council  Directive  2009//105/EC  on  the 
harmonisation of the laws of the Member States relating to simple pressure vessels;  

3.  Non-automatic Weighing Instruments Directive: Council Directive 90/384/EEC on 
the  harmonisation  of  the  laws  of  the  Member  States  relating  to  non-automatic 
weighing instruments;  

4.  Civil Explosives Directive: Council Directive 93/15/EEC on the harmonisation of the 
provisions relating to the placing on the market and supervision of explosives for civil 
uses; 

5.  ATEX Directive: Directive 94/9/EC of the European Parliament and the Council on 
the  approximation  of  the  laws  of  the  Member  States  concerning  equipment  and 
protective systems intended for use in potentially explosive atmospheres;  

6.  Lifts Directive European Parliament and Council Directive 95/16/EC of 29 June 1995 

on the approximation of the laws of the Member States relating to lifts 

7.  Pressure Equipment Directive: Directive 97/23/EC of the European Parliament and 
of  the  Council  on  the  approximation  of  the  laws  of  the  Member  States  concerning 
pressure equipment; 

8.  Measuring Instruments Directive: Directive 2004/22/EC of the European Parliament 

and of the Council on measuring instruments;  

9.  Electromagnetic  Compatibility  Directive:  Directive  2004/108/EC  on 

the 
approximation  of  the  laws  of  the  Member  States  relating  to  electromagnetic 
compatibility and repealing Directive 89/336/EEC  

10. Pyrotechnic  articles  Directive  2007/23/EC  on  the  placing  on  the  market  of 

pyrotechnic articles  

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The proposal to recast the late payment directive was adopted on 8 April 2009. This  is part of 
the Small Business Act which introduced a comprehensive SME policy framework for the EU 
and its Member States. 

The  Commission  provides  also  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  (736  in  2009)  and  reactions  from  the  Commission  (173)  and  the 
Member  States  (217)  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  the  acquis  under  its 
responsibility  and  opens  infringement  procedures  against  Member  States  if  necessary.  In 
2009, the Commission registered 50 new complaints in this sector.  

The  Commission  services  attach  great  importance  to  resolving  problems  coming  to  its 
attention  as  quickly  as  possible  and  support  the  use  of  methods  other  than  infringement 
proceedings  such  as  the  EU  Pilot  project,  designed  to  clarify  and  solve  problems  with  the 
application  of  EU  law  in  cooperation  with  the  participating  Member  States.  They  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  260 
TFEU cases are dealt with as quickly as possible, given their automatic priority status under 
the  September  2007  Communication.  In  accordance  with  the  other  criteria  set  out  in  the 
Communication,  since  2009  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 34-36 TFEU raising horizontal questions about the functioning of the 
market (e.g. the registration of vehicles). 

Harmonised area 

Breaches  of  key  directives,  in  particular  new  legislation  which  is  adopted  in  response  to  a 
clearly  identified  need  to  correct/enhance  market  performance  and  should  be  enforced  in  a 
manner commensurate with the risk of failing to achieve that aim. 

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, 

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in  relation  to  each  of  which  are  set  out  below  a  description  of  the  current  state  of  the 
legislation in force, an evaluation of the effectiveness of regulatory framework in the domain 
concerned  and  an  indication  of  plans  for  the  future.  Information  is  also  provided  about 
infringement proceedings pursued in each product domain.  

1.2. 

Automotive Industry 

Current position 

The  harmonized  regulatory  framework  in  the  automotive  sector  covers  motor  vehicles, 
motorcycles (two and three-wheel vehicles as well as certain quadricycles), and 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 EU Member State and 
then to be able to market vehicles of that type 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  of  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.  

While  the  latter  two  directives  still  allow  a  national  approval  system  to  operate  for  certain 
vehicle categories in parallel, Directive 2007/46/EC in principle provides for the phasing-in of 
obligatory  EC-whole  vehicle  type  approval  (and  in  particular  the  phasing  out  of  national 
whole  vehicle  type  approval  for  heavy-duty  vehicles  and  their  trailers).2  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.  

In line with better regulation and simplification principles and to increase the competitiveness 
of  EU  industry  on  the  global  market,  in  the  wake  of  the  CARS  21  exercise  the  regulatory 
framework  in  the  automotive  sector  has  been  reformed  along  the  following  lines:  (i)  the 
introduction  of  the  ‘split-level’  approach:  the  co-decision ‘framework’  act is  intended  to lay 
down  fundamental  provisions  while  the  technical  specifications  are  set  out  through 
comitology;  (ii)  the  use  of  Regulations  instead  of  Directives;  and  (iii)  international 

From  29  April  2009,  the  national  legislation  transposing  Directive  2007/46/EC 

2  
became applicable, and the repeal of its predecessor, Directive 70/156/EEC, took effect. 

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harmonisation: whenever possible, EU acts are replaced by UNECE Regulations compliance 
with which is made mandatory.3  

Report of work done in 2009 

During  2009,  various  steps  were  taken  to  implement,  simplify  and  update  the  technical 
legislation  in  the  sector.  In  particular,  in  early  2009  Regulations  were  adopted  on  the  type-
approval of motor vehicles with regard to pedestrian protection4 and on the type-approval of 
hydrogen-powered  vehicles5.  This  was  followed  in  June  by  a  Regulation  adopted  by  the 
Council and the European Parliament laying down stricter exhaust emission levels for heavy-
duty vehicles (Euro VI).6 Shortly thereafter, in July, the Commission adopted a Regulation on 
type  approval  requirements  for  the  general  safety  of  motor  vehicles.7  By  virtue  of  this  last 
Regulation,  UNECE  regulations  adopted  in  accordance  with  the  1958  UNECE  Agreement 
will become compulsory for the majority of items currently the subject of EU type-approval, 
thereby significantly simplifying the regulatory system. Preparatory work was also begun on 
the  revised  regulatory  framework  for  type-approval  legislation  in  relation  to  two  and  three-
wheeled  vehicles  and  tractors,  notably  the  impact  assessments  for  the  two  proposals  and  a 
very specific comitology approval for some aspects of the tractor legislation. 

In October 2009, the Commission decided to establish the Type-Approval Authorities Expert 
Group  (TAAEG)  -  a  consultative  body  composed  of  representatives  of  all  national  type-
approval  authorities.  Bearing  in  mind  that  EC  whole  vehicle  type-approval  will  gradually 
become  mandatory  by  October  2012  for  all  new  types  of  motor  vehicles,  the  aim  of  the 
TAAEG is to ensure uniform application of the relevant technical requirements within the EU 
type-approval system. This will involve several tasks, including monitoring the enforcement 
of EU legislation by national authorities and solving the issue of diverging views concerning 
type-approval in order to ensure mutual recognition. 

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 Nations Economic Commission for Europe (www.unece.org). As a 
contracting party to the 1958 UNECE Agreement, the European Union can decide to apply a 
Regulation.  

4 
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 

5 
January 2009 on type-approval of hydrogen-powered vehicles (OJ L 35, 4.2.2009, p.32).  

6  
Regulation  (EC)  No.595/2009  of  the  European  Parliament  and  of  the  Council  of  18 
June  2009  on  type-approval  of  motor  vehicles  and  engines  with  respect  to  emissions  from 
heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information 
(OJ L 188, 18.7.2009, p.1).   

7 
Regulation  (EC)  No.661/2009  of  the  European  Parliament  and  of  the  Council  of  13 
July  2009  concerning  type-approval  requirements  for  the  general  safety  of  motor  vehicles, 
their  trailers  and  systems,  components  and  separate  technical  units  intended  therefor  (OJ  L 
200, 31.7.2009, p.1).  

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The  Commission  has  also  taken  steps  to  provide  practical  guidance  to  Member  States.  In 
particular,  it  became  clear  in  early  2009  that  many  Member  States  had  introduced  or  were 
planning  to  introduce  scrapping  schemes  for  vehicles.    In  light  of  this,  a  seminar  on  best 
practices on scrapping schemes was organized for Member States in February 2009.  This was 
followed  by  the  publication  of  guidance  on  scrapping  schemes.8  Member  States  also 
introduced or have announced their intention to introduce financial incentives for vehicles that 
fulfil pollutant emission limits that are stricter than those currently in force. Consequently, in 
November 2009, a Commission staff working document, "Guidance on Financial Incentives 
for Vehicles" was published with a view to providing practical guidance for Member States 
wishing to introduce such incentives.9  

Thirty-two infringement cases were opened during 2009 in relation to EU legislation in this 
sector  (compared  to  29  cases  in  2008).  All  but  one  of  these  cases  resulted  from  late 
communication  of  national  measures  transposing  EU  Directives  (which  generally  contained 
technical updates of  the acquis). The  Member States most at  fault  were  Austria, Latvia  and 
Portugal (with four proceedings each). The majority of these cases were closed after national 
implementation measures were communicated by the Member States. In around two-thirds of 
these  closed  cases,  communication  took  place  before  the  Commission  issued  a  Reasoned 
Opinion.  The  Commission  opened  one  own-initiative  infringement  case  in  2009  concerning 
the conformity of national financial incentives with the harmonised Euro 5/Euro 6 legislation 
for light-duty vehicles. 

During 2009 the Commission services 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. In many cases, the issues raised could be dealt with 
by giving guidance on the Commission's interpretation of the relevant EU legislation. Where 
the  complaint  turned  out  to  be  unsubstantiated,  the  matter  was  closed  and  the  reasons  for 
doing so were explained.  

Evaluation 

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  the  preparation  of 
legislative  proposals  and  policy  initiatives,  the  Commission  is  assisted  by  two  types  of 
advisory  bodies:  comitology  committees  and  working  groups.  In  the  case  of  technical 
amendments to legislation, the Commission acts in close cooperation with Member States in 
comitology on implementation issues. The informal working groups, which may consist not 
only of national experts but also experts or stakeholders from industry, NGOs, trade unions, 
academia, etc., provide expert advice to the Commission. 

8 
cars21/competitiveness/index_en.htm 

  http://ec.europa.eu/enterprise/sectors/automotive/competitiveness-

9  

SEC(2009)1589 final/2 

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As a result of this close cooperation between the Commission and Member States, significant 
problems  regarding  conformity  or  incorrect  application  are  a  relatively  rare  occurrence. 
Nevertheless, the complexity of the legislation in this sector and the constant development of 
new  technologies  (and  the  corresponding  adaptation  of  legislation)  mean  that  problems  of 
interpretation  are  an  ever-present  risk.  On  occasion,  the  Commission  has  had  to  give  its 
interpretation  of  the  legislation  in  order  to  maintain  a  harmonized  approach.  In  addition, 
Member States may take measures which risk compromising the harmonized approach.  

In  many  cases,  due  to  the  technical  nature  of  the  legislation,  Member  States  resort  to 
transposing  technical  amendments  by  reference  to  EU  acts.  However,  this  is  not  always  the 
case.  Where this occurs, the use of correlation tables is particularly helpful. 

Finally,  the  approach  taken  in  co-decision  legislation  on  the  harmonization  of  vehicle 
standards  now  favours  the  adoption  of  Regulations  rather  than  Directives  (one  exception 
being  the  framework  Directive  2007/46/EC  on  the  type-approval  of  motor  vehicles). 
Consequently,  there  is  no  transposition  of  these  acts  and  this  should  increase  overall 
efficiency  by  lowering  the  overall  number  of  infringement  cases  based  on  non-  or  late 
communication of national transposition measures.  

Consequences of evaluation 

The  main  priority  in  the  automotive  sector  continues  to  be  the  proper  implementation, 
management and enforcement of legislative acts. This is unchanged over the last 12 months.  
In particular, there has to be long-term regulatory clarity as well as accurate quantification of 
the costs and benefits of legislative activity, notably by recourse to impact assessments where 
appropriate. Given the impact of the current economic crisis, the Commission will weigh up 
the  costs  and  benefits  of  new  legislative  initiatives  and  seek,  as  far  as  possible,  to  avoid 
creating new economic burdens.  

A  significant  proportion  of  the  work  in  the  automotive  sector  in  2010  and  beyond  will  be 
focused  on  recasting  the  legislative  framework,  its  subsequent  completion  and  the 
implementation of new technical legislation.  

In particular, regulatory framework for type-approval legislation in relation to two and three-
wheeled  vehicles  and  tractors  is  to  be  revised.    New  legislation  will  update  and  replace  the 
present  framework  Directive  and  separate  Directives.  The  Commission  is  also  working  on 
various proposals to complete the framework Directive 2007/46/EC for the type-approval of 
motor  vehicles  and  trailers  (e.g.  a  Commission  Regulation  to  harmonize  the  administrative 
and  technical  provisions  regarding  individual  approvals)  as  well  as  implementing  measures 
for  the  type-approval  of  hydrogen  vehicles,  Euro  VI  and  general  safety.    A  number  of 
Directives due for partial repeal through the application of the General Safety Regulation and 
for which there is no equivalent UNECE Regulation will be the subject of a recast and where 
possible simplified. Finally, preparatory work is ongoing to make mandatory the application 
of UNECE Regulation No.100 for the type-approval of electric vehicles.    

Summary 

The  current  situation  regarding  compliance  by  Member  States  with  the  acquis  in  the 
automotive sector is generally acceptable. Nevertheless, there are delays in the transposition 
of certain Directives (for example, framework Directive 2007/46/EC, where only 15 Member 
States  communicated  national  transposition  measures  before  the  deadline).    The  constant 

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evolution  of  technical  legislation  means  that  it  is  important  to  pay  close  attention  to  timely 
transposition and effective enforcement to ensure that objectives are met.  

1.3. 

Chemicals 

1.3.1.  REACH 

Current position 

Regulation No 1907/2006 (REACH) is the cornerstone of the EU’s new chemicals legislation, 
which began to apply on 1 June 2008. 

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  compliance  check  on  registration  files  and  the  examination  of  testing 
proposals.  Certain  substances  may  undergo  ‘substance  evaluation’,  whereby  national 
authorities may request from industry further information on a given substance, taking a risk-
based approach, and consider further regulatory measures. In relation to substances giving rise 
to very high concern, it may be necessary to obtain Commission authorisation before they can 
be placed on the market or used, 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. 

Report of work done in 2009 

The  REACH  system  is  supplemented  by  a  comprehensive  package  of  technical  guidance 
documents  that  was  already  in  place  by  mid  2008,  to  ensure  its  uniform  and  consistent 
interpretation.  Throughout  2009,  the  Commission  assisted  ECHA  in  developing  further 
guidance  and  reviewing  and  updating  existing  guidance,  actively  participated  in  various 
ECHA  committees  and  organised  workshops  for  industry  stakeholders  with  a  view  to 
ensuring  that  REACH  functions  properly.  Many  implementation  problems  were  resolved  in 
collaboration  with  ECHA,  which  has  developed  various  tools  to  help  operators  fulfil  their 
REACH  obligations  (guidance  package,  Navigator  tool,  helpdesk,  FAQs  etc.).  National 
REACH helpdesks are also functioning well. 

The Commission also carried out a review of Annex II of REACH (compilation of the safety 
data sheet), with the main aim of aligning it with the new “CLP” Regulation (Regulation (EC) 
No  1272/2008).  With  regard  to  restrictions,  REACH  replaced  Directive  76/769/EEC  on  1 
June 2009. Until then, amendments to Directive 76/769/EEC were being enacted as decisions 
instead  of  directives,  as  they  did  not  require  transposition.  A  number  of  decisions  on 
restrictions  were  adopted:  Decision  No  455/2009  of  the  European  Parliament  and  of  the 
Council  on  Dichloromethane,  Commission  Decision  No  2009/424  on  lamp  oils  and  grill 
lighters  and  Commission  Decision  2009/425  on  organotin  compounds.  The  Commission 
reviewed  Annex  XVII  of  REACH,  clarifying  the  drafting  to  facilitate  implementation  when 
the  text  is  directly  applicable.  It  was  also  adapted  to  definitions  contained  elsewhere  in 
REACH  and  to  the  “CLP”  Regulation,  and  to  ensure  coherence  of  the  restrictions  under 
REACH  with  other  EU  legislation.  In  addition,  Annex  XVII  was  completed  with  recently 
adopted restrictions not included in the existing text which reflected the situation in mid 2006: 
Directive  2006/122/EC  on  perfluorooctane  sulfonates  (PFOS),  Directive  2006/139/EC  on 

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arsenic, Directive 2007/51/EC on mercury in measuring devices and Decision 1348/2008/EC 
on  2(2-methoxyethoxy)ethanol,  2-(2-butoxyethoxy)ethanol,  methylenediphenyl  diisocyanate, 
cyclohexane and ammonium nitrate. 

The  Commission  actively  participated  at  three  meetings  of  the  Forum  for  the  Exchange  of 
Information  on  Enforcement,  comprised  of  representatives  of  national  enforcement 
authorities, with a view to identifying joint enforcement strategies and priorities. The first EU-
coordinated  enforcement  project  was  carried  out  by  Member  States  during  2009  and  more 
than 1000 inspections were carried out. The results of this project are expected by the end of 
the  first  quarter  of  2010.  In  addition,  the  Forum  is  developing  an  electronic  information 
exchange procedure.  

The Commission continued to hold regular dialogues on various implementation issues with 
Member  States,  competent  authorities  and  other  stakeholders  in  three  meetings  of  its  expert 
group  “Competent  Authorities  for  the  REACH  and  CLP  Regulations  (CARACAL)”  and  its 
subgroups, notably the Subgroup on nanomaterials. 

In  2009,  the  Commission  dealt  with  a  very  limited  number  of  enquiries  regarding  REACH 
compliance. Following a public announcement by the enforcement authority of one Member 
State  that  it  would  enforce  a  certain  REACH  obligation  (related  to  substances  in  articles) 
differently, the Commission took action to have that statement withdrawn, without recourse to 
infringement proceedings. 

National  provisions  on  penalties  for  infringement  of  REACH  had  to  be  notified  by  1 
December 2008.  As not all Member States fulfilled this obligation on time, the Commission 
launched 8 infringement proceedings for non-notification. Two are still open (at the stage of 
reasoned opinion). In this respect, the Commission also contracted out a study to analyse and 
compare  types  and  levels  of  notified  national  penalties  and  assess  their  effectiveness, 
proportionality and dissuasiveness.  

Three  infringements  proceedings  were  launched  for  non-implementation  of  Directive 
2006/122/EC on PFOS. One petition (139/2009) was received concerning the fact that articles 
containing asbestos are still  being  sold  in Portugal. The Commission confirmed that, on the 
basis of EU legislation (Directive 76/769/EEC before 1 June 2009 and REACH from 1 June 
2009)  and  national  law,  the  sale  of  products  containing  asbestos  fibres  has  been  illegal  in 
Portugal  since  June  2005  and  that responsibility  for  the  enforcement  rests  with  Portuguese 
national authorities. The Commission had invited the Portuguese authorities to report on the 
inspections carried out, which Portugal had done. The Commission awaits further details and 
facts  from  the  petitioner  in  order  to  provide  the  Portuguese  authorities  with  more  specific 
information.  

Evaluation 

As REACH is a Regulation, directly applicable in Member States, its enforcement is primarily 
ensured  by  the  Member  States  through  a  system  of  official  controls  and  other  appropriate 
activities.  

It needs to be stressed that, at this stage, the main REACH obligations are still being phased-
in and so enforcement is still at an early stage. The pre-registration of substances by industry, 
which was the first main phase was completed successfully in 2008. Around 2.75 million pre-

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registrations  were  made  by  65,000  companies  for  143,000  different  substances.  Pre-
registration allowed the vast majority of businesses to benefit from extended deadlines for the 
fulfilment of the main registration obligation. The first registration deadline for high volume 
substances and the most dangerous substances is 30 November 2010 (further deadlines are in 
2013  and  2018)  and  enforcement  of  registration  will  begin  thereafter.  This  is  also  why  the 
Commission  has  not  yet  received  complaints  regarding  Member  States’  enforcement  of 
REACH.  

Obligations related to the provision of information in the supply chain are already applicable 
and should be enforced by Member States. The Commission has not received any complaints 
about this.  

The enforcement of restriction obligations came under the umbrella of REACH in the second 
half  of  2009.  The  change  from  Directive  76/769/EEC  to  REACH  will  allow  more  coherent 
implementation  of  restrictions  in  the  Member  States.  The  volume  of  enquiries  relating  to 
restrictions  under  Directive  76/769/EEC  has  always  been  high.  There  are  still  a  lot  of 
enquiries  concerning  restrictions  under  REACH  as  new  restrictions  continue  to  be  adopted. 
But a set of Frequently Asked Questions has been developed over the years and is published 
on the website of the Commission. It is regularly updated. With the replacement of Directive 
76/769/EEC by the REACH Regulation, fewer infringements are expected in the future as less 
transposition will be required.  

The  Member  States  will  submit  to  the  Commission  their  first  report  on  the  operation  of 
REACH, including evaluation and enforcement aspects, by 1 June 2010.  

Consequences of evaluation 

(1) Priorities 

As REACH 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. In 2010, the 
Commission will continue to monitor the enforcement by Member States of pre-registration, 
registration  obligations  (including  obligatory  data  sharing  within  “substance  information 
exchange forums”), information in the supply chain and restriction provisions. 

(2) Planned action (2010 and beyond) 

The Commission will need to closely monitor how Member States enforce REACH in order 
to  ensure  transparency,  impartiality  and  consistency  in  enforcement  throughout  the  EU.  To 
this end, the Commission will in particular continue to work closely with the Forum for the 
Exchange  of  Information  on  Enforcement  which  co-ordinates  a  network  of  national 
authorities responsible for enforcement. The Commission will, in particular, review Member 
States’ reports on the operation of REACH by 1 June 2010.  

Concerning registration obligations, 2010 is a crucial year for industry. The Commission will 
continue meeting industry stakeholders, resolving interpretation problems and participating in 
workshops  to  ensure  timely  implementation  of  REACH.  A  “Director  Contact  Group”  has 
been  created  by  the  Commission  involving  the  main  industry  stakeholders  to  help  resolve 
urgent issues.  

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The  Commission  will  discuss  with  Member  States  the  results  of  the  study  on  national 
penalties  with  a  view  to  ensuring  a  consistent  approach  throughout  the  EU.  If  necessary, 
appropriate follow-up action may be taken by the Commission. 

The  Commission  will  prepare  itself  for  one  of  its  main  roles  under  REACH  -  granting 
authorisations for the placing on the market and the use of substances giving rise to very high 
concern. This will become the Commission’s main role under REACH in the future. 

In 2011, on the basis of Member States’ and ECHA’s reports on the operation of REACH, the 
Commission will prepare the first general report on the operation of REACH and will review 
its scope by June 2012. 

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

Summary 

REACH, as a new horizontal regulatory framework for chemicals, has the long-term objective 
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. This objective should be progressively attained over the next decade and beyond. 
The correct implementation of REACH is vital to the chemical industry sector in the coming 
years.  We  are  still  at  the  early  phase  of  its  implementation  and  it  will  only  be  possible  to 
evaluate  to  what  extent  its  objectives  are  being  fulfilled  over  the  coming  years,  whereupon 
corrective action will be taken if necessary. 

Links to legislation 

REACH and its implementing legislation are available through the following link: 

http://ec.europa.eu/enterprise/sectors/chemicals/documents/reach/index_en.htm 

REACH and its links to previous legislation on restrictions is available here:  

http://ec.europa.eu/enterprise/sectors/chemicals/documents/reach/archives/market-
restrictions/index_en.htm 

1.3.2.  Other chemicals legislation 

Current position 

Drug  precursors  are  chemicals  used  in  the  illicit  manufacture  of  drugs  such  as  cocaine, 
heroin, ecstasy or methamphetamines. However, these chemicals also have a wide variety of 
legitimate  uses,  for  example  in  the  production  of  plastics,  pharmaceuticals,  cosmetics, 
perfumes, detergents or aromas. Effective control of the legitimate trade of these chemicals is 
therefore  required  to  fight  against  their  diversion  into  illicit  drug  manufacture.  Work 
continued on infringement procedures against Member States for non transposition of national 
implementing measures. Out of 8 infringement cases opened in 2007, 3 were still pending at 
the Court of Justice of the European Union. Activity continued at national level with a view to 
bringing these remaining cases to a close. 

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The  purpose  of  Regulation  (EC)  No  2003/2003  on  mineral  fertilisers  is  to  allow  the  free 
circulation within the internal market of 'EC fertilisers’. In 2009 the Regulation was adapted 
to technical progress to include new types of fertilisers that can be marketed as 'EC fertilisers' 
and to introduce new CEN test methods that will facilitate compliance with the provisions of 
the Regulation. The adoption of Regulation (EC) No 764/2008 on mutual recognition raised a 
lot  of  interest  in  the  fertiliser  area.  The  Regulation  was  discussed  with  national  authorities 
responsible  for  implementing  the  fertiliser  legislation  to  ensure  that  the  recently  introduced 
measures were fully understood and avoid potential situations of non compliance. 

Regulation (EC) No 648/2004 on detergents ensures that only detergents with surfactants that 
are fully biodegradable are placed on the market and that laundry detergents are appropriately 
labelled to protect the health of consumers, especially against allergies.  The Regulation was 
adapted  to  technical  progress  to  grant  a  derogation  for  the  placing  on  the  market  of  a 
surfactant  that  does  not  fulfil  the  requirements  of  ultimate  biodegradability  in  line  with  the 
criteria foreseen in the Regulation. 

Additionally,  progress  was  made  on  a  Court  case  against  Luxembourg  for  the  non-
implementation of the detergents Regulation.  In its judgment of 24 March 2009 (C-184/08) 
the European Court of Justice held that Luxembourg had failed to implement its obligations 
pursuant to Regulation EC No 648/2004 by not adopting the relevant penalties. The national 
authorities are drafting legislation to comply with the Court ruling. 

Directive  2007/23/EC  protects  consumers  by  requiring  that  pyrotechnic  articles  must  meet 
essential  safety  requirements.  It  also  creates  an  internal  market  for  those  articles  that  meet 
these  essential  safety  requirements.  In  2009,  the  Commission  continued  discussions  with 
Member States to ensure the correct application and coherent implementation of the Directive, 
which has to be transposed by Member States in 2010.  In future, the Directive will be recast 
to align it with the New Legislative Framework. 

In  the  explosives  sector,  the  Commission  monitored  progress  and  difficulties  with  the 
transposition  of  Directive  2008/43/EC  setting  up  a  system  for  the  identification  and 
traceability of explosives for civil uses.  The Directive harmonises the safety requirements for 
civil explosives at a high level of protection in order to protect the general public from illicit 
uses.  Infringement  procedures  were 
launched  against  10  Member  States  for  non 
communication  of  national  transposition  measures.  Work  is  on-going  to  ensure  that  all 
Member  States  have  the  required  measures  in  place  by  2012,  when  the  Directive  must  be 
applied. 

Directive  93/15/EEC  on  the  harmonisation  of  the  provisions  relating  to  the  placing  on  the 
market  and  supervision  of  explosives  for  civil  uses  will  be  recast  to  align  it  with  the  New 
Legislative Framework. 

Evaluation and consequences 

In 2009, the Commission adopted a report to the European Parliament and the Council on the 
implementation and functioning of Regulation (EC) No 273/2004 on drug precursors, which 
identifies key areas where Community action is recommended to improve the functioning of 
this  area  of  the  internal  market.  This  action  consists  mainly  of  striving  for  better 
implementation of existing legislation to achieve immediate gains from the use of established 
best practices, but does not exclude amendment of the legislation subject to further analysis of 
the impact of various options for both competent authorities and economic operators. 

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Work is expected to continue in order to include additional types of fertilisers in Regulation 
(EC) No 2003/2003 and replace some national standards by common ones across the EU.  As 
recommended  in  the  Risk  Reduction  Strategy  on  Cadmium  established  in  the  framework  of 
Regulation  (EC)  No  793/93  on  the  evaluation  of  the  risk  of  existing  chemicals,  the 
Commission  has  started  to  assess  the  possibility  of  reducing  the  content  of  cadmium  in 
phosphate  fertilisers.  Meetings  have  been  organised  with  stakeholders  and  Competent 
Authorities  to  understand  the  impact  of  potential  measures  and  gather  information  for  the 
required impact assessment. 

Pursuant to Article 16 (1) of the Regulation, in 2007 the Commission had submitted a report 
to the Parliament and the Council on the use of phosphates in detergents. In the wake of this 
Report, a study was carried out to obtain scientific evidence on the contribution of detergents 
to  the  eutrophication  of  EU  waters.  The  study  was  completed  in  2009  and reviewed  by  the 
Scientific Committee of Health and Environmental Risks (SCHER). The Commission is in the 
process of preparing an impact assessment for a range of policy options regarding the use of 
phosphates in detergents and if legislative action is to be adopted, a legislative proposal will 
be prepared by the Commission in 2010.  

Article 16 (2) of the Detergents Regulation requires the Commission to review and report on 
the environmental impact of detergent ingredients other than surfactants, and where justified, 
to  prepare  a  legislative  proposal.  The  Commission  prepared  reports  on  the  anaerobic 
biodegradation of surfactants and the main non-surfactant organic detergent ingredients. The 
conclusion was that there are currently no risks that require additional legislative restrictions. 
Further  investigation  will  be  done  on  certain  issues  (e.g  potential  environmental  effects  of 
certain detergent ingredients) in collaboration with industry and any new scientific evidence 
will be evaluated by the Commission Working Group on Detergents.  

Summary 

The  acquis  in  these  sectors  is  stable  and  effective  overall  and  does  not  require  significant 
modification. 

Links to legislation 

Legislation  and  documents  related  to  the  specific  chemical  sectors  are  available  at: 
http://ec.europa.eu/enterprise/sectors/chemicals/documents/specific-chemicals/index_en.htm 

1.4. 

Pharmaceuticals 

Current position 

Over the past decades the pharmaceutical sector has been increasingly regulated at EU level 
with  the  result  that  nowadays  many  aspects  concerning  safe,  effective  and  high-quality 
medicinal  products  are  harmonised.  EU  legislation  specifically  focuses  on  authorisation 
requirements for human and veterinary medicines by establishing the principal procedures and 
the substance of the scientific assessment; but it also covers surrounding aspects like clinical 
trials,  orphan  medicines  and  advanced  therapies.  Such  legislation  is  mainly  based  on  the 
internal market competence of the Union, but also partly on health competencies. 

As  regards  compliance  with  the  acquis,  in  2009  the  Commission  received  fewer  new 
complaints than in 2008, but had to launch more proceedings for non-communication. 

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By the end of the year, several infringement cases were closed following agreement between 
the  Commission  and  the  Member  States  on  solutions  to  the  problems.  However,  it  was  not 
always possible to reach agreement in the pre-litigation stage and the Commission decided to 
refer  one  case  against  Poland  to  the  Court  of  Justice  (C-349/09).  It  concerns  a  failure  to 
implement parts of Directive 2005/28/EC laying down principles and detailed guidelines for 
good clinical practice as regards investigational medicinal products for human use, as well as 
requirements for authorising the manufacture or importation of such products. 

In 2009, the Commission continued to use preventive techniques to ensure the correct, timely 
and coherent implementation of the pharmaceutical acquis. Nevertheless, ten new cases had 
to be opened in November for non-communication in relation to Directive 2009/9/EC, which 
replaces  Annex  I  to  the  veterinary  medicines  Directive.  However,  the  exceptionally  short 
transposition period of seven months must be taken into account. 

There is constant dialogue with Member States and competent agencies on regulatory matters 
in  the  pharmaceutical  sector.  This  is  mainly  done  through  working  parties  dealing  with  the 
general  interpretation  of  European  pharmaceutical  legislation,  in  preparation  for  its 
transposition  and  implementation  by  the  Member  States,  namely  the  Pharmaceutical 
Committee  and  the  “Notice  to  applicants”  group  which  examines  the  need  to  update 
guidelines  on  the  requirements  for  marketing  authorisations.  In  2009,  the  activities  of  this 
group were rather limited due to other priorities. Nevertheless, those two forums are important 
tools  used  by  the  Commission  to  find  pro-active  solutions  outside,  or  in  parallel  with, 
infringement proceedings under Article 258 TFEU.  

If necessary, the Commission also establishes ad-hoc groups on specific subjects, such as the 
development  of  guidelines  on  the  implementation  of  Directive  2001/20/EC  relating  to  good 
clinical practice in the conduct of clinical trials on medicinal products for human use. 

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

Preliminary rulings of the Court of Justice help clarify the pharmaceutical acquis. In 2009 the 
Court of Justice gave rulings in the following cases: 

• 

• 

• 

C-140/07 and C-27/08 on the concept of medicinal products by function in relation to 
dosage and content of the active ingredient in the product concerned (Articles 1 and 
2 of Directive 2001/83/EC on human medicines).10 

C-527/07,  confirming  that  reference  products  used  in  generic  applications  must  be 
authorised in accordance with Union law.11 

C-421/07,  clarifying  that  the  advertising  rules  of  Directive  2001/83/EC  may  in 
principle also apply to the dissemination of product information by third parties, even 
if such third parties are not connected to the manufacturer or seller of the product.12 

10 Case C-140/07 Hecht-Pharma; Case C-27/08 BIOS Naturprodukte. 

11 Case C-527/07 Generics (UK). 

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As regards legislative developments, Directive 2009/53/EC on variations entered into force in 
2009.  The  Directive  is  part  of  a  revision  of  the  legal  framework  on  variations  to  make  the 
overall  system  clearer,  simpler  and  more  flexible.  After  the  adoption  of  the  Directive,  the 
Commission published two guideline documents on its implementation. 

2009 also saw improvements in the implementation of advanced therapy provisions. Directive 
2009/120/EC  adapted  Annex  I  to  Directive  2001/83/EC  to  new  advanced  therapy 
specifications  by  updating  the  definitions  and  detailed  scientific  and  technical  requirements 
for  gene  therapy  medicinal  products  and  somatic  cell  therapy  medicinal  products,  and  by 
establishing  technical  requirements  for  tissue  engineered  products,  advanced  therapy 
medicinal products containing devices and combined advanced therapy medicinal products. In 
July  a  Commission  regulation  was  adopted,  laying  down  provisions  for  the  certification  of 
quality  and  non-clinical  data  for  SMEs  developing  advanced  therapies.  It  is  intended  to 
facilitate access to finance for SMEs at an early stage of the product development cycle. 

Legislative discussions on the  so-called “pharmaceutical package” continued in 2009 within 
the co-decision procedure. That package contains: 

• 

• 

• 

legislative  proposals  on  pharmacovigilance, 

Two 
Regulation (EC) No 726/2004 and Directive 2001/83/EC; 

involving  amendments 

to 

Two legislative proposals on the provision of information to patients , also involving 
amendments to Regulation (EC) No 726/2004 and Directive 2001/83/EC; 

A legislative proposal on counterfeit medicines, involving amendments to Directive 
2001/83/EC. 

Finally,  at  the  end  of  the  year,  the  Commission  adopted  a  Commission  Regulation  (EU) 
37/2010 on pharmacologically active substances and their classification regarding maximum 
residue limits. It aims to simplify and clarify Community procedures and ensure consistency 
with international standards. 

The  legal  basis  for  future  pharmaceutical  legislation  has  been  slightly  accentuated  by  the 
addition to the health chapter of the Treaty on the functioning of the European Union of the 
specific  competence  to  set  high  standards  of  quality  and  safety  for  medicinal  products.  To 
date, measures in this regard have been solely based on internal market competence but it was 
a  specific  aim  of  the  Lisbon  Treaty  (see  Articles  2-6  TFEU)  to  define  competences  more 
clearly  and  Article  168(4)(c)  TFEU  seems  to  be  the  result.  This  change  is  not  expected  to 
have a large impact on the content of future harmonisation measures but in some instances the 
legislator may opt for a dual legal basis, together with the internal market competence of the 
Lisbon Treaty (Article 114 TFEU). 

Four petitions were dealt with in 2009. 

Evaluation and consequences 

The  pharmaceutical  sector  remains  a  highly  dynamic  sector,  which  is  subject  to  frequent 
change.  In  this  environment,  questions  of  timely  and  correct  implementation  of  EU  law  are 

12 Case C-421/07 Damgaard. 

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crucial to achieving the public health goals of the legislation and guaranteeing a level-playing 
field for the operators involved. In this respect the priorities remain unchanged. 

Summary 

Experience  over  the  years  shows  that  in  general  the  legal  framework  is  well  respected. 
Implementation  and  compliance  by  Member  States  is  satisfactory.  Important  contributors  in 
this  regard  are  the  various  working  groups,  committees  and  networks  in  the  pharmaceutical 
sector  which  are  useful  forums  for  raising,  discussing  and  resolving  various  issues  and 
questions.  At  the  same  time  they  provide  the  impetus  for  tightening  up  or  clarifying  the 
acquis, where necessary. 

Legislation: see Annex 1- point I.2. 

The Transparency Directive 

In accordance with the Treaty, pharmaceutical pricing and reimbursement policies fall within 
the  responsibility  of  the  Member  States.  However,  Directive  89/105/EEC  -  commonly 
referred to as the "Transparency Directive" - lays down a series of procedural requirements to 
ensure the transparency of national pricing and reimbursement measures. Its provisions do not 
affect  the  capacity  of  Member  States  to  determine  the  organisation  and  financing  of  their 
healthcare systems. In particular, each Member State is free to set the prices of medicines and 
to  decide  on  their  reimbursement  status  in  the  framework  of  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 competences (free movement of goods within the internal market) and 
national responsibilities (organisation of social security systems). The directive only provides 
for  partial  harmonisation,  based  on  the  underlying  principle  of  minimum  interference  in  the 
organisation  by  Member  States  of  their  domestic  social  security  policies.  In  other  words, 
Member  States  are  at  liberty  to  establish  their  own  regulatory  framework,  provided  that  the 
rules and procedures chosen include certain guarantees of transparency. This specificity is not 
without  consequences  for  the  management  of  infringement  procedures:  the  investigation  of 
complaints  always  requires  a  case-by-case  analysis  of  complex  national  systems  and  the 
exercise  is  often  complicated  by  the  repeated  reforms  or  adjustments  of  social  security 
schemes introduced by many Member States in order to curb rising public health expenditure. 
The  specific  features  and  the  legal  complexity  of  each  national  system,  together  with  the 
constant evolution of pricing and reimbursement rules in many EU countries, make it difficult 
to manage infringement procedures in the same way and within the same timeframe as with 
other  directives.  Where  compliance  issues  arise,  Member  States  must  implement  their  own 
solutions because they remain competent for the organisation of their social security systems. 
In  addition,  pharmaceutical  pricing  and  reimbursement  is  a  politically  sensitive  area  in  all 
Member States due to the impact of national measures on healthcare budgets. Consequently, 
the resolution of infringement cases always requires dialogue and sustained cooperation with 
the competent national authorities. 

The  Commission  has  significantly  stepped-up  its  efforts  to  ensure  the  enforcement  of  the 
Directive in the last five years. It became apparent that several Member States - both old and 
new  -  had  adopted  pricing  and  reimbursement  measures  at  odds  with  the  principles  of  the 
Transparency  Directive.  Different  issues  relating  to  compliance  with  time-limits  and  other 
procedural  obligations  were  identified  by  the  Commission  on  the  basis  of  complaints  from 

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economic operators. A majority of these issues were resolved through constructive dialogue 
with the competent national authorities. This enabled the Commission to close infringement 
proceedings in a dozen cases between 2005 and 2008. In 2009, two additional infringement 
cases - one against Slovenia and one against Austria - were closed following the adoption of 
national legislation compatible with the requirements of the Directive. Austrian legislation, in 
particular,  was  amended  to  comply  with  the  judgment  of  the  European  Court  of  Justice  in 
Case C-311/07. Discussions with the Member States on the application and interpretation of 
the Directive also took place in the Transparency Committee which convened in July 2009. In 
addition, three on-going cases (respectively against the Czech Republic, Slovakia and Poland) 
are  being  closely  monitored  as  the  competent  authorities  are  preparing  new  legislation  to 
ensure compliance with the Directive. 

Given the rapid evolution of health insurance systems and the recent multiplication of cost-
containment  measures  in  many  Member  States,  the  compatibility  of  national  measures  with 
Directive 89/105/EEC continues to require constant scrutiny. The Commission will therefore 
continue to investigate complaints pointing to potential incompatibilities of national measures 
with  the  Directive;  priority  will  be  given  to  cases  where  insufficient  or  incorrect 
implementation of the procedural requirements of the directive into national law could entail 
significant barriers to trade in medicinal products 

1.5.  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  amended  several  times,  most  recently  by  Directive 
2007/47/EC  which  was  due  to  be  transposed  by  the  Member  States  by  21  December  2008. 
However,  transposition  was  slow  and  in  2009  the  Commission  initiated  22  infringement 
proceedings  for  non-communication  of  transposition  measures.  At  the  beginning  of  2010, 
seven cases remain open, six of which are at the reasoned opinion stage, while in the seventh 
the Commission is awaiting notification of a transposition measure adopted in 2009.  

The  Commission  has  been  able  to  check  the  conformity  of  national  measures  transposing 
Directive 2007/47/EC in more than half of the Member States. No substantial deviations have 
been  identified  so  far.  Correlation  tables  were  extremely  helpful  in  the  performance  of  that 
task,  in  particular  where  provisions  of  the  Directive(s)  were  transposed  by  amendment  of 
different  legal  acts  of  the  Member  States.  In  connection  with  the  transposition  exercise, 
various guidance documents were developed to facilitate the task of the Member States. 

Four infringement cases based on non-conformity with medical devices directives or incorrect 
application  of  national  transposition  rules  were  still  open  at  the  end  of  2009.  Two  cases 
should be closed in 2010. One new complaint was received in 2009 concerning an issue (i.e. 
registration requirements for medical devices in Italy) for which the Commission had already 
started proceedings based on three complaints received in 2007.  

In  2008,  the  Commission  had  launched  a  public  consultation  concerning  the  recast  of  the 
medical  device  directives  which  elicited  200  responses.  In  2009,  preparation  for  the  recast 
continued, inter alia through intensive bilateral stakeholder consultations, exchanges of views 

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with  the  Member  States  and  analysis  of  a  number  of  topics  emerging.  The  Commission 
intends  to  enhance  patient  safety  by  ensuring  a  uniformly  high  level  of  control  of  medical 
devices, facilitate market access for innovative technologies and maintain the competitiveness 
of the industry by providing a clear, predictable and appropriate legal framework.   

Article 168(4)(c) of the Treaty on the Functioning of the European Union creates a new Union 
competence to set high standards of quality and safety for medical devices. 

Evaluation and consequences 

The  last  revision  of  the  medical  devices  directives  was  implemented  too  slowly  by  many 
Member States. The quality of transposition is, however, good. There are few infringements 
by Member States (apart from the initial non-communication).  

Summary 

The  present  regime  in  the  medical  devices  sector  must  be  continually  adapted  for  a  broad 
range of products and issues in order to ensure a high level of safety for patients, users and 
third  parties,  to  further  improve  safety  standards  and  market  surveillance  in  the  light  of 
technical and scientific progress, to ensure the smooth functioning of the Internal Market and 
to simplify the legislation in accordance with better regulation principles. 

Links to legislation 

Regulatory Framework:  

http://ec.europa.eu/enterprise/sectors/medical-devices/regulatory-framework/index_en.htm 

1.6. 

Cosmetics 

Current position 

The  Cosmetics  “acquis”  consists  of  Council  Directive  76/768/EEC,  which  was  amended 
seven  times  by  the  European  Parliament  and  the  Council  and  modified  for  the  purpose  of 
adapting  to  technical  progress  59  times13.  It  will  be  replaced  by  Regulation  (EC)  No 
1223/2009 on cosmetic products. 

In  2009,  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  the  Industry  and  the  Consumers.  The 
agenda of the Standing Committee always included a point on the transposition of directives. 

In 2009, seven directives adapting the Cosmetics Directive to technical progress were adopted 
by  the  Commission,  three  with  transposition  deadlines  in  2009  and  four  in  2010.  After  the 
adoption of each directive, the Commission sent a letter to the Member States reminding them 
of the deadlines and offering support with the transposition. The inclusion of an obligation on 
the  Member  States  to  provide  correlation  tables  was  not  necessary  for  the  above-mentioned 

13  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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directives  because of  the nature of their content (technical changes  to  annexes)  and the fact 
that Member States use the original text of the directive for their transposition measures. 

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  15  infringement  proceedings  for  non  communication  of  national 
transposition measures relating to Commission Directives 2008/88, 2008/123 and 2009/6 on 
the  adaptation  to  the  technical  progress  of  Council  Directive  76/768/CEE  on  cosmetic 
products,  whose  transposition  deadlines  were  in  2009.  11  of  these  proceedings  were  closed 
within the same year. 

One complaint was received for alleged incorrect application of Directive 76/768/EEC, which 
is  currently  being  investigated,  and  one  non-conformity  case  reached  the  stage  of  reasoned 
opinion. 

Regulation (EC)  No 1223/2009 of the  European Parliament and of the Council on cosmetic 
products  was  adopted  on  30  November  2009.  This  new  (recast)  Regulation  aims  at 
guaranteeing  the  safety  of  cosmetic  products  in  the  light  of  innovation  and  simplifying  the 
legislative environment. It will apply from 11 July 2013.  

Evaluation and consequences 

By  its  very  nature,  the  cosmetics  sector  is  subject  to  continuous  innovation  and  technical 
progress and so the legislation will 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  Regulation  (EC)  No  1223/2009  will 
improve the efficiency with which the internal market for cosmetics functions. After the date 
of  application  of  the  Regulation,  all  future  technical  adaptations  will  also  be  adopted  by 
regulation. This will lead to a single identical legislative framework as the sole reference for 
operators on the internal market; in addition, it will allow resource savings by removing the 
need to adopt and monitor transposition measures and by avoiding infringement proceedings 
for non-communication. During the transition period between the adoption of the Regulation 
and its application, the Commission will continue to adopt technical adaptation directives to 
update the Annexes to Directive 76/768/EEC, which will be repealed on 11 July 2013.  

Summary 

The current legislative regime on cosmetic products is solid and dynamic. The new Cosmetics 
Regulation is an attempt to reinforce the safety of cosmetic products in the light of innovation, 
and  to  simplify  the  legislative  environment  and  the  Commission  looks  forward  to  its  entry 
into force to assess whether it has been successful. 

Links to legislation 

Cosmetics Regulatory Framework: 

http://ec.europa.eu/enterprise/sectors/cosmetics/regulatory-framework/index_en.htm 

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1.7.  Mechanical, electrical and telecommunications equipment 

Current position 

The Machinery Directive 2006/42/EC, published on 9th June 2006, began to apply from 29th 
December  2009,  replacing  Machinery  Directive  98/37/EC.  The  new  Directive  does  not 
introduce  any  radical  changes  compared  with  98/37/EC  but  aims  to  consolidate  the 
achievements  of  the  Machinery  Directive  in  terms  of  free  circulation  and  safety,  while 
improving  its  application.  However,  the  scope  of  the  new  Directive  is  extended,  since 
construction-site  hoists  and  portable  cartridge-operated  fixing  and  other  impact  machinery, 
designed for industrial or technical purposes only, will no longer be excluded. 

The  new  Directive  has  already  been  amended  to  introduce  into  the  Directive  environmental 
protection requirements for new machinery placed on the market for use in the application of 
pesticides. 

Eight  infringement  proceedings  for  non-communication  of  national  measures  implementing 
the  Directive  were  closed  following  receipt  of  the  measures.    Reasoned  opinions  were 
addressed  to  Greece,  Italy  and  Luxembourg  which  had  still  not  notified  their  transposition 
measures.    By  the  end  of  2009,  these  three  Member  States  are  the  only  ones  not  having 
communicated their transposing measures. 

Two cases brought under the old Directive (98/37/EC) were closed and another was referred 
to the Court since the required changes to the national legislation had not yet taken place. 

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, following 
notification of the national transposition measures, the Commission decided to withdraw the 
case against Luxembourg that had been referred to the ECJ the previous year.  In the course of 
2009, all national transposition measures were communicated by Member States.   

Two  other  cases  were  closed,  one  under  Directive  1999/5/EC  on  radio  equipment  and 
telecommunications  terminal  equipment  and  one  under  Directive  2000/9/EC  on  cableways, 
following modification of infringing national legislation. 

Finally,  with  regard  to  the  lifts  Directive,  95/16/EC,  one  case  was  closed  and  a  reasoned 
opinion was issued in a case where the Member State must amend its national legislation. 

Evaluation 

Compliance by Member States with the law in this sector is satisfactory.  The existing acquis 
is relatively long-standing and well established and has not required (and is not expected to 
require) much substantial development.  The situation is stable, manageable and acceptable.  
The  volume  of  problems  arising  is  reasonably  limited  and  stable  and  no  special  corrective 
action is required. 

Consequences of evaluation 

Priorities 

As  in  2008,  priorities  were  the  non-communication  cases.    In  2008,  Directive  2004/108/EC 
and  Machinery  Directive  2006/42/EC  had  been  the  main  focus.  In  2009  Directive 

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2004/108/EC was fully transposed and the priority non-communication cases remained those 
relating to the Machinery Directive. 

Planned action 

Following adoption of Decision No 768/2008/EC on a common framework for the marketing 
of  products,  and  repealing  Council  Decision  93/465/EEC,  some  existing  directives  must  be 
revised,  in  particular  Directive  2006/95  relating  to  electrical  equipment  designed  for  use 
within certain voltage limits, Directive 2004/108/EC on the approximation of the laws of the 
Member  States  relating  to  electromagnetic  compatibility,  Directive  94/9/EC  regarding 
equipment intended for use in potentially explosive atmospheres and Directive 95/16/CE on 
lifts.  It is intended to start this revision process in the course of 2010.   

An increase in work on the amendment of existing legislation is therefore expected.. 

An amendment is planned for 2010 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. 
The  changes  to  be  made  are  an  adaptation  to  technical  progress,  relating  to  type  approval 
testing procedures for certain larger diesel engines, and a revision of the “flexibility scheme”. 

Summary 

Planned work will include the revision of some directives, in order to align them to Decision 
No  768/2008/EC  on  a  common  framework  for  the  marketing  of  products.    However,  the 
acquis  is  relatively  well  established  and  the  situation  is  stable.    The  sectors  of  mechanical, 
electrical and telecommunications equipment function smoothly.   

1.8. 

Gas appliances, pressure equipment and legal metrology 

Gas  appliances,  pressure  equipment,  and  metrology are technically complex sectors  that are 
regulated by EU law to a certain extent. Legislation in the sector is designed to protect health 
and safety in relation to risks posed by high pressure and covers goods ranging from simple 
pressure cookers to the largest chemical installations. 

1.8.1.  Gas appliances 

Current position 

The  gas  appliances  sector  is  regulated  by  Directive  2009/142/EC  relating  to  appliances 
burning gaseous fuels14 which codifies one of early New Approach Directives. It has the dual 
purposes  of  ensuring  the  free  movement  of  gas  appliances  through  technical  harmonisation 
with regard to hazards due to gas and guaranteeing a high level of protection of health, safety, 

14  Directive  2009/142/EC  of  the  European  Parliament  and  of  the  Council  of  30  November 
2009  (OJEU  L330,  16.12.2009,  p.10).  This  Directive  is  the  codification  of  Directive 
90/396/EEC relating to appliances burning gaseous fuels. 

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the  environment  and  consumers.  It  defines  mandatory  essential  requirements  and  sets  up 
mandatory conformity assessment procedures. 

The  final  Report  on  a  “Competitiveness  study  on  the  EU  gas  appliances  sector”  has  been 
published.  The  study  was  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 and developments in the sector. 

A case against Germany was closed as following a letter of formal notice Germany modified 
the  contested  provision.  A  letter  of  formal  notice  was  sent  to  Greece  for  incorrect 
implementation of the Directive. 

Summary 

The  Directive  has  been  operating  satisfactorily  for  more  than  fifteen  years.  However, 
experience of its implementation and technical progress and innovation led to an examination 
of the need for revision by the Commission together with the Member States Working Group 
on Gas Appliances. A subgroup was created to present specific proposals, and to facilitate and 
accelerate  the  preparatory  phase.  In  this  context,  the  Directive  will  also  be  aligned  with 
Decision 768/2008/EC on a common framework for the marketing of products.   

The management of the Directive and its correct and effective implementation, including the 
infringement  procedures  and  safeguard  clauses,  will  continue  in  2010,  together  with 
discussions and preparations for the revision of the Directive. 

1.8.2.  Pressure equipment 

Current position 

Until 2009, the main EU legislation in the area was the harmonising Directives 87/404/EEC 
on  simple  pressure  vessels  and  97/23/EC  on  pressure  equipment,  covering  design, 
manufacture  and  conformity  assessment.  Directive  87/404/EEC  has  been  replaced  by 
Directive 2009/105/EC of the European Parliament and of the Council of 16 September 2009 
relating to simple pressure vessels (codified version), (OJEU L 264, 8.10.2009, p.12), in the 
interests  of  clarity  and  rationality,  as  it  had  been  previously  substantially  amended  several 
times.    The  legislation  is  being  aligned  with  the  new  legal  framework  for  the  marketing  of 
products,  in  particular  Decision  No  768/2008/EC  of  the  European  Parliament  and  of  the 
Council on a common framework for the marketing of products. 

Directive 75/324/EEC on aerosol dispensers covers the safety and labelling requirements that 
aerosol dispensers must satisfy in order to be placed on the market.  Directive 2008/47/EC of 
8  April  200815,  modified  Directive  75/324/EEC  to  adapt  it  to  technical  progress.  Member 
States  had  until  29  October  2009  to  transpose  it  and  it  will  apply  from  29  April  2010. 
Infringement  proceedings  were  begun  against  13  Member  States  for  non  communication  of 
transposition measures. Following up these procedures will be a priority in 2010. 

15  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).  

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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), would be repealed by a proposal adopted by the Commission on 18 September 
2009, for a Directive of the European Parliament and of the Council on transportable pressure 
equipment (COM(2009)482). 

One  case  against  Spain  concerning  solar  panels  used  for  the  production  of  hot  water  was 
closed,  as  it  concerned  installation  aspects  rather  than  design  requirements  relating  to  the 
product itself. 

Infringement  procedures  and  issues  relating  to  the  correct  implementation  of  the  Directives 
will be priority issues for the Commission services in the pressure sector in 2010, as well as 
the alignment of Directives 97/23/EC and 2009/105/EC to Decision No 768/2008/EC. 

Summary 

The pressure sector functions smoothly and there are no major problems.  Managing this part 
of  the  acquis  is  largely  a  matter  of  enforcing  transposition  on  time.    This  will  be  pursued 
rigorously where required. 

1.8.3.  Legal metrology 

Current position 

Legal  metrology  covers  units  of  measurement  and  the  metrological  requirements  to  be 
satisfied by pre-packed products and measuring instruments before they may be legally placed 
on the market and put into service. 

The  main  Directives  relating  to  the  design  and  manufacture  of  measuring  instruments  are 
Directives  71/316/EEC  on  the  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. 

Directive  71/316/EEC  was  replaced  by  (recast)  Directive  2009/34/EC  of  the  European 
Parliament  and  of  the  Council  of  23  April  2009  relating  to  common  provisions  for  both 
measuring  instruments  and  methods  of  metrological  controls,  as  it  had  been  substantially 
amended  several  times  (OJEU  L  106,  28.4.2009,  p.7).  It  has  also  been  adapted  to  the  new 
regulatory  procedure  with  scrutiny,  established  by  Council  Decision  1999/468/EC  laying 
down the procedures for the exercise of implementing powers conferred on the Commission, 
as amended by Decision 2006/512/EC. 

Directive 2004/22/EC was modified by Commission Directive 2009/137/EC of 10 November 
2009 in relation to maximum permissible errors and the instrument-specific annexes MI-001 
to MI-005 (OJEU L 294, 11.11.2009, p.7).  Member States must transpose these changes by 1 
December 2010. The new Directive will apply from 1 June 2011. Timely transposition will be 
a priority for the Commission services in 2010. 

Discussions in the Council and European Parliament continued on a Commission proposal for 
a  Directive  of  the  European  Parliament  and  of  the  Council  repealing  8  old  metrology 

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Directives  (COM(2008)801)16.  These  Directives  were  adopted  under  the  old  framework 
Directive  71/316/EEC  and  co-existed  aside  with  national  provisions.  However,  in  practice 
adaptation of the regulatory framework to technical progress and innovation in relation to the 
measuring  instruments  concerned  was  effected  by  the  voluntary  application  of  European  or 
international standards, or of national provisions implementing such new specifications. In the 
specific  case  of  tyre  pressure  gauges,  the  existing  Directive  on  Tyre  Pressure  Gauges  for 
Motor  Vehicles  (Directive  86/217/EEC)  is  virtually  obsolete  in  terms  of  technology  and,  in 
the absence of an up-to-date international standard, a standardisation mandate has been issued 
to the European Standardisation Organisations. More generally, it was considered that the free 
circulation within the internal market of the products concerned could be adequately ensured 
by Articles 34 to 36 TFEU and the mutual recognition principle.  

Transposition of Commission Directive 2007/13/EC of 7 March 200717 modifying Annex II 
to  Directive  71/316/EEC  to  include  drawings  of  the  distinguishing  capital  letters  of  some 
Member  States  (used  in  the  initial  verification  mark  affixed  on  a  measuring  instrument  to 
show conformity) has been completed. Four remaining cases were closed by the Commission 
following communication of national transposition measures.  

Directive 90/384/EEC was replaced by Directive 2009/23/EC of the European Parliament and 
of  the  Council  of  23  April  2009  on  non-automatic  weighing  instruments  (codified  version), 
(OJEU  L  122,  16.05.2009,  p.6)  in  the  interests  of  clarity  and  rationality  as  it  had  been 
substantially amended.  

With  regard  to  pre-packed  products,  Directives  75/106/EEC  on  pre-packaged  liquids  and 
80/232/EEC on ranges of nominal quantities and nominal capacities for certain pre-packaged 
products were repealed on 11 April 2009 when Directive 2007/45/EC came into force. As of 
that date, Directive 76/211/EEC contains the metrological requirements for all pre-packaged 
products  as  defined  in  its  amended  scope.    Directive  2007/45/EC  will  liberalise  nominal 
quantities of pre-packaged products within the EU in line with Court of Justice jurisprudence, 
with the exception of wine and spirits for which nominal quantities will continue to be defined 
at Community level. Transposition (due by 11 October 2008) is almost complete - only one 
infringement procedure remains open, against Italy.  

Units of measurement are harmonised by Directive 80/181/EEC which creates a harmonized 
regulatory framework throughout the EU, eliminating trade barriers between Member States. 
Directive 80/181/EEC was modified by Directive 2009/3/EC of the European Parliament and 
of the Council of 11 March 2009 to allow the use of supplementary indications to legal units 
of measurement on a permanent basis, to adapt the Directive to technical progress and, in line 
with the subsidiarity principle, to allow 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. Keeping these local 
and limited exemptions does not lead to barriers to the free circulation of products. Member 

16 The Directives that are proposed to be repealed are Directives 71/317/EEC, 71/347/EEC, 
71/349/EEC, 74/148/EEC, 75/33/EEC, 76/765/EEC, 76/766/EEC and 86/217/EEC.  

17 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). 

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States  had  until  31  December  2009  to  transpose  it  and  it  applied  from  1  January  2010. 
Enforcing  transposition  where  national  measures  have  not  been  communicated  will  be  a 
priority in 2010. 

Summary 

The sector functions smoothly and no serious problems are encountered. 

1.9. 

Construction products 

Current position 

Directive 89/106/EEC on construction products (“the CPD”) has not been amended recently, 
which  has  allowed  its  steady  implementation  within  Member  States’  national  systems. 
Harmonisation  through  European  standards,  published  in  the  OJEU  has  continued  and 
conditions  for  businesses  operating  in  the  sector,  whether  as  manufacturers  or  users  of 
construction  products,  have  experienced  stable  progress  during  2009.  However,  certain 
fundamental  problems  with  the  implementation  of  the  CPD  remain  unsolved,  resulting  in 
different  transposition  in  the  Member  States  and  thus  causing  deficiencies  in  regulatory 
framework. 

The  constant  enlargement  of  the  sphere  harmonised  and  its  inherent  complexity  have 
exacerbated  these  difficulties.  This  situation  is  reflected  in  the  number  and  variety  of 
infringement cases currently underway in the construction sector. 

The  revision  of  the  CPD  has  proceeded  during  2009  more  or  less  as  expected:  after  the 
adoption of the Commission proposal for a Regulation (“the CPR”) on 23 May 2008, the best 
case scenario was first reading in the European Parliament based on a compromise with the 
Council  before  the  2009  elections,  with  adoption  of  the  CPR  during  2009  and  the  new 
legislation  entering  into  force  in  mid-2011.  However,  developments  in  the  co-decision 
procedure before the elections made this impossible; instead after a first reading vote in the 
plenary  in  late  April  2009,  the  proposal  was  left  to  be  dealt  with  by  the  newly  chosen 
Parliament.  This,  together  with  differences  in  the  positions  of  the  Member  States  in  the 
Council,  hampering  agreement  on  key  issues  of  the  proposal,  has  considerably  delayed  the 
adoption and the entry into force of the CPR. 

Evaluation 

Infringement procedures (both current and future) must be seen in the context of the revision 
of the CPD. One of the main reasons for revising the CPD is the confusion caused by different 
approaches taken by the Member States to its transposition (in particular as regards the use of 
CE marking).  It is difficult to pursue cases under the CPD where the approach taken under 
the  CPR  will  be  different.    Yet,  the  opinion  of  the  Court  of  Justice  would  be  helpful  in 
formulating  certain  aspects  of  the  CPR  and  it  must  be  borne  in  mind  in  this  regard  that  the 
CPR will not come into force in 2010 or even 2011.  

Consequences of evaluation 

The  emphasis  will  continue  to  be  on  the  legislative  process  for  the  CPR  which  will 
monopolise resources. Yet, since the new legislation will not be in place in the next two years, 
we  will  continue  to  be  confronted  with  legal  uncertainties  deriving  from  the  CPD  and  its 
various interpretations in Member States.  

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However, the intention is to reduce the number of pending infringements. Looking forward, 
the  focus  will  be  on  dealing  with  complaints,  present  and  future,  more  swiftly  than  before, 
with greater use being made of the new procedures such as the EU Pilot in the case of new 
complaints  against  participating  Member  States.  Contact  with  all  Member  States  must  be 
intensified  with  a  view  to  the  introduction  of  the  CPR  to  promote  discussion  of  necessary 
adjustments  to  their  current  practices..  On  certain  occasions  during  2009,  this  approach 
appears  to  have  contributed  well  towards  us  avoiding  the  necessity  of  registering  new 
infringement cases in this field for this whole year.  

1.10.  Textiles/clothing, footwear and wood 

Current position 

Textiles  and  clothing  are  regulated  by  Directive  2008/121/EC  on  textile  names.  This 
Directive  was  adopted  on  14  January  2009  as  a  recast  Directive  and  repealed  Directive 
96/74/EC  on  textile  names.  Directive  2008/121/EC  incorporates  Commission  Directives 
97/37/EC,  2004/34/EC,  2006/3/EC  and  2007/3/EC  which  amended  Directive  96/74/EC. 
Directive  2008/121/EC  was  itself  amended  by  Commission  Directive  2009/121/EC.  Other 
legislation  on  textiles  is  Directive  96/73/EC  (adapted  to  technical  progress  by  three 
Commission  Directives  2006/2/EC,  2007/4/EC  and  2009/122/EC)  and  Directive  73/44/EEC 
specifying  testing  methods  for  sampling  and  analysis  of  fibre  mixtures  to  determine  the 
conformity of information supplied on a label in accordance with Directive 96/74/EC. Due to 
the technical  nature of the  textiles  directives,  the Committee for textile  names and labelling 
(composed  of  experts  from  Member  States  and  other  interested  parties)  assists  the 
Commission in their adaptation to technical progress.  

One ongoing infringement case was closed in 2009, but there no new infringement case was 
launched during the course of the year.  

In the footwear area, the legislation (Directive 94/11/EC on the labelling of materials used in 
consumer  footwear)  is  well-established  and  stable  -  ,  unlike  the  clothing  and  textiles 
legislation,  it  is  not  necessary  to  amend  this  legislation  often  in  the  light  of  technical 
developments. There is no committee work in this area.  

In the wood sector, there is no EU legislation. 

Changes underway (only concerns textiles and clothing) 

Due to the length and cost of the procedure for the technical adaptation of textiles Directives 
on  the  adoption  of  a  new  fibre  name  (involving  the  introduction  of  new  fibre  names  and 
testing methods by Commission Directive) it was proposed that they be revised and replaced 
by  a  regulation  which  would  simplify  this  procedure  and  create  a  single  directly  applicable 
legal instrument.  The Commission adopted a Proposal for a Regulation on textile names and 
related labelling of textile products [COM(2009) 31 final] on 30 January 2009.  

In  accordance  with  the  ordinary  legislative  procedure,  this  Proposal  is  currently  under 
discussion  in  the  relevant  Council  Working  Party  and  in  the  Internal  Market  and  Consumer 
Protection  Committee  of  the  European  Parliament.  It  has  already  received  the  favourable 
opinion of the European Economic and Social Committee.  

Evaluation and consequences 

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The major legislative effort in the textiles sector is going to be the continuation of work on the 
Proposal  for  a  Regulation  on  textile  names  and  related  labelling.  Monitoring  the 
implementation  and  application  of  the  legal  instruments  already  in  force  will  continue  as 
necessary. 

Summary 

Stable acquis posing few enforcement difficulties. 

Links to legislation 

The relevant legislation can be found at the following webpage: 

http://ec.europa.eu/enterprise/sectors/textiles/single-market/textiles-names-
legislation/index_en.htm  

1.11.  Toys 

The new toy safety Directive was adopted on 18 June 2009 and published on 30 June 2009. 
Member  States  must  adopt  and  publish  implementing  provisions  by  20  January  2011  and 
apply them from 20 July 2011. The later date of 20 July 2013 is laid down for the application 
of chemical requirements. 

The  objective  of  the  new  Directive  is  to  ensure  a  high  level  of  safety  of  toys,  ensuring  the 
health  and  safety  of  children,  whilst  guaranteeing  the  functioning  of  the  internal  market  by 
setting  harmonised  safety  requirements  for  toys  and  minimum  requirements  for  market 
surveillance.  The  Directive  applies  to  products  designed  or  intended,  whether  or  not 
exclusively, for use in play by children under 14 years of age.  

The main changes to the current legal framework concern: enhanced requirements, especially 
in relation to the use of chemicals in toys, mandatory safety assessment prior to the marketing 
of toys and stringent obligations for economic operators.  

In  July  2009,  the  Commission  issued  a  mandate  to  CEN  (European  Committee  for 
Standardisation)  and  CENELEC  (European  Committee  for  Electrotechnical  Standardisation) 
to review the existing harmonised standards and  adapt  them  to  the  requirements  of  the  new 
directive.  The  process  is  under  way  and  revised  standards  should  be  available  before  the 
directive becomes applicable.  

General  and  specific  guidance  documents  aimed  at  facilitating  the  application  of  the  new 
directive are currently being prepared and will be available on the Commission website over 
the course of 2010. 

1.12.  Cultural goods 

In 2009, the acquis in this area remained stable.  

The  proposal  to  codify  Directive  93/7/EEC  on  the  return  of  cultural  objects  was  part  of  the 
Codification  exercise  of  the  Commission.  However,  this  proposal  was  withdrawn  from  the 
Codification  exercise  in  June  2009  because,  in  the  light  of  the  Court’s  decision  in  case  C-
133/06, it was concluded that Article 16(3) of  the Directive constitutes a second legal basis 
and therefore the European Parliament must be involved in the procedure. As no changes of 
substance can be made on codification, the proposal to codify was withdrawn.  

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44 

   EN 

On  30  July  2009,  the  Commission  adopted  its  third  report  reviewing  the  application  of  the 
Directive by the Member States over the period 2004-2007. The Commission concluded that 
amendment  of  the  Directive  should  be  considered  and  that  the  impact  of  any  proposal  to 
amend should be analysed in depth by the national authorities responsible for implementing 
the Directive.   

To that end, the Commission service responsible for the Directive suggested to the Committee 
on  the  Export  and  Return  of  Cultural  Goods  that  a  working  group  be  set  up  to  identify 
problems associated with the application of the Directive and suggest solutions with a view to 
its possible amendment. The "Return of cultural goods" working group held its first meeting 
in November 2009.  

A second meeting will be organised during the first half of 2010. The intention is to proceed 
with a recast of Directive 93/7/EEC in 2012. 

1.13.  Late payment 

Despite the entry into force of Directive 2000/35/EC, late payment in commercial transactions 
is  still  a  general  problem  within  the  EU.  Late  payment  affects  the  competitiveness  and 
viability  of  companies,  notably  SMEs.  This  risk  strongly  increases  in  periods  of  economic 
downturn when access to financing is particularly difficult. 

On  8  April  2009,  the  Commission  adopted  a  legislative  proposal  to  strengthen  the  existing 
rules  combating  late  payment  in  contracts  between  businesses  or  between  businesses  and 
public  authorities.  It  is  essential  to  introduce  additional  tools  to  reduce  the  number  of  late 
payments in  commercial  transactions, to shorten payment  periods for public administrations 
and to substantially  reinforce incentives  for public  administrations  to  pay  on  time.  The  new 
proposal  amending  and  recasting  Directive  2000/35/EC  should  have  a  direct  and  positive 
effect on the cash flow of enterprises, facilitating their day-to-day business. 

The proposal, which is now under the ordinary legislative procedure, would improve remedies 
for  late  payment  by  introducing  an  entitlement  to  the  recovery  of  administrative  costs  and 
compensation  for  internal  costs  incurred  as  a  consequence  of  late  payment.  In  the  case  of 
public administrations, the proposal would shorten payment periods by harmonising periods 
for payment by public authorities to businesses. Finally, it would also abolish the possibility 
to exclude claims for interest of less than €5. 

In  2009,  four  new  complaints  were  received.  One  case  dating  back  to  2005  was  closed  and 
two others were closed in January 2010.  Two cases remain open. 

1.14.  Weapons 

Council  Directive  91/477/EEC  on  control  of  the  acquisition  and  possession  of  weapons  has 
been amended by 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  the  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. On 11 May 2009, the 
Commission  held  the  first  meeting  of  the  "Contact  Group  on  Firearms"  created  by  the 

EN 

45 

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amending directive, and provided the Member Sates with assistance to facilitate appropriate 
and timely transposition of the Directive. 

1.15. 

Product liability 

Directive  85/374/EEC  on  the  approximation  of  the  laws,  regulations  and  administrative 
provisions of the Member States concerning liability for defective products is a consolidated 
instrument that fairly apportions risk between citizens and producers, assuring citizens of the 
safety of products put into circulation in the internal market.  

In 2009, the Court of Justice gave two preliminary rulings. In the first, where the Appellate 
Committee of the UK House of Lords had requested clarification of the meaning of “instituted 
proceedings against the producer” in article 11 of the Directive 85/374, the Court ruled that:  
"Article 11 of Council Directive 85/374/EEC precludes national legislation, which allows the 
substitution  of  one  defendant  for  another  during  proceedings,  from  being  applied  in  a  way 
which permits a ‘producer’, within the meaning of Article 3 of that directive, to be sued, after 
the expiry of the period prescribed by that article, as defendant in proceedings brought within 
that period against another person. 

However, first, Article 11 must be interpreted as not precluding a national court from holding 
that,  in  the  proceedings  instituted  within  the  period  prescribed  by  that  article  against  the 
wholly-owned  subsidiary  of  the  ‘producer’,  within  the  meaning  of  Article  3(1)  of  Directive 
85/374, that producer can be substituted for that subsidiary if that court finds that the putting 
into circulation of the product in question was, in fact, determined by that producer. 

Second,  Article  3(3)  of  Directive  85/374  must  be  interpreted  as  meaning  that,  where  the 
person  injured  by  an  allegedly  defective  product  was  not  reasonably  able  to  identify  the 
producer of that product before exercising his rights against the supplier of that product, that 
supplier must be treated as a ‘producer’ for the purposes, in particular, of the application of 
Article 11 of that directive, if it did not inform the injured person, on its own initiative and 
promptly, of the identity of the producer or its own supplier."  

In the second, on the scope of Articles 9 (concept of “damage”) and 13 (“rights of an injured 
person  under  the  rules  of  the  law  of  contractual  or  non-contractual  liability  or  a  special 
liability system”) of the Directive, the Court ruled that: 

"Council  Directive  85/374/EEC  of  25  July  1985  on  the  approximation  of  the  laws, 
regulations  and  administrative  provisions  of  the  Member  States  concerning  liability  for 
defective products must be interpreted to mean that it does not preclude the interpretation of 
domestic law or the application of settled domestic case-law  according to which an  injured 
person  can  seek  compensation  for  damage  to  an  item  of  property  intended  for  professional 
use and employed for that purpose, where that injured person simply proves the damage, the 
defect in the product and the causal link between that defect and the damage".  

In 2010, the Commission will begin to prepare the fourth report on Directive 85/374/EEC.  

1.16.  Defence goods 

In  May  2009,  the  Council  and  the  European  Parliament  adopted  directive  2009/43/EC 
simplifying  intra-EU  transfers  of  defence-related  products  (OJ  L  146,  10.6.2009,  p.  1–36). 

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46 

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This directive is the first internal market instrument dealing with the circulation of defence-
related products.  

The directive aims to:  

• 

support  cross-border  industrial  cooperation,  requested  by  industry,  by  enabling 
defence  industries  to  benefit  from  smoother  and  more  predictable  supply  chains. 
SMEs, often operating as defence subcontractors, will much more easily be able to 
join cross-border programmes managed by large system integrators.  

• 

improve security of supply for EU armed forces relying on cross-border deliveries.  

Directive 2009/43/EC must be transposed before 30 June 2011 and will fully apply from 30 
June 2012.  

During  the  transposition  period,  the  Commission  will  pay  particular  attention  to  the 
certification of European defence companies that wish to reap maximum advantage from the 
EU  simplified  transfers  regime.  Certification will  establish  the  reliability  of  the  recipient 
undertaking,  in  particular  as  regards  its  capacity  to  observe  export  limitations  of  defence-
related  products  received  under  a  transfer  licence  from  another  Member  State. The 
Commission is considering the preparation of a recommendation or guidelines on the practical 
implementation of certification at national level. 

1.17.  Non-harmonised area 

Current position 

Articles 34-36 TFEU (ex-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  EU  legislation. 
The Commission monitors the correct application of these rules and related Regulations and 
opens infringement procedures against Member States when necessary. 

In 2009, the Commission dealt with fewer complaints and infringement cases in the various 
non-harmonised  fields  covered  by  Article  34-36  TFEU  –  65  in  2009,  compared  with  73  in 
2008 and 85 in 2007.  In 2009, 29 new complaints were received and 3 own-initiative cases 
begun, compared to 27 and 1 respectively, in 2008. 

The main areas of concern remain national rules on registration of vehicles, obstacles to the 
free movement of food supplements and restrictions on the parallel imports of medicines and 
plant protection products. A new area of concern might be the resurgence of systematic border 
checks  on  individuals  and  their  goods.  Today’s  restrictions  on  the  free  movement  of  goods 
often relate to requirements imposed on products 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  still  brought  by  SMEs.  This  confirms  findings 
that,  in  contrast  to  large  operators  who  have  been  very  successful  in  benefiting  from  the 
opportunities of the internal market, SMEs often find it fragmented and difficult to penetrate. 

In 2009, several infringement cases were closed after the Commission and the Member States 
found solutions to the problems:  

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47 

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• 

• 

• 

• 

Finland  modified  its  legislation  to  remove  obstacles  to  the  registration  of  vehicles 
previously registered in other Member States. 

Latvia  suppressed  the  excessive  custom  formalities  applied  to  the  sending  of 
packages within the EU.   

France inserted a mutual recognition clause in its legislation relating to products and 
processes  for  the  treatment  of  water  intended  for  human  consumption,  allowing 
products legally marketed in other Member States to be marketed in France.   

Italy  adapted  its  legislation  to  remove  obstacles  to  the  use  of  venturimetric 
diaphragm gas meters. 

The Court of Justice delivered the following judgments confirming the position taken by the 
Commission, thereby further clarifying the scope of Articles 34-36 TFEU: 

In  case  C-88/0718,  it  was  held  that  the  Spanish  administrative  practice  of  withdrawing  from 
the market products based on medicinal herbs legally marketed in other Member States if they 
included herbs not included in a limitative list was in breach of Article 34 TFEU. 

In case C-100/0819, the Court held that Belgian legislation imposing restrictive conditions on 
the  import,  keeping  and  sale  of  specimens  of  birds  born  and  bred  in  captivity  and  legally 
brought to the market in another Member State, contravened Article 34 TFEU.   

In  case  C-109/08,  the  Commission  had  brought  second  proceedings  against  Greece  under 
Article  260  TFEU  for  not  implementing  the  Court  of  Justice's  decision  on  amusement 
machines20.  On  4  June  200921,  the  Court  ordered  the  Hellenic  republic  to  pay  into  the 
European Union own resources’ account a penalty payment of EUR 31 536 for each day of 
delay in implementing the measures necessary to comply with the judgment in Case C-65/05 
applying from the date of delivery of the judgment. It further ordered the Hellenic Republic to 
pay a lump sum of EUR 3 million.  

However,  in  one  judgment  relating  to  Italian  legislation22  prohibiting  ‘motorcycles’  from 
towing a trailer, the Court dismissed the proceedings brought by the Commission as it found 
that,  even  though  the  national  measure  was  a  trade  restriction,  it  was  justified  for  the 
protection of road safety.  

The  Commission  continued  to  find  pro-active  solutions  outside  or  in  parallel  with 
infringement proceedings under Article 258 TFEU EC through the SOLVIT problem-solving 
network,  the  preventive  mechanism  of  Directive  98/34/EC  (whereby  Member  States  are 

18 Judgment of 5 March 2009, Case C-88/07, Commission v. Spain 

19 Judgment of 10 September 2009, Case C-100/08, Commission v. Belgium 

20 Judgment of 26 October 2006, Case C-65/05, Commission v. Greece 

21 Judgment of 4 June 2009, Case C-109/08, Commission v. Greece 

22 Judgment of 10 February 2009 , Case C-110/05, Commission v. Italy 

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obliged to notify new national technical rules to the Commission at the draft stage), the EU 
PILOT23  mechanism  which  facilitates  contacts  with  Member  States  and  helps  resolve  some 
complaints  more  swiftly  and  through  bilateral  meetings  organised  with  Member  States  to 
discuss active complaints and infringement cases as well as various horizontal issues.   

Regulation (EC) 764/2008 (the so-called “Mutual Recognition Regulation”) began to apply on 
13  May  2009.  This  Regulation  sets  out  the  procedural  requirements  for  denying  mutual 
recognition and defines the rights and obligations of national authorities on the one hand and, 
on the other, enterprises wishing to sell in one Member State products lawfully marketed in 
another, when the competent authorities intend to take restrictive measures in relation to the 
product.  It  is  a  crucial  tool  in  facilitating  enterprises’,  in  particular  SMEs’,  access  to  other 
national markets. In 2009, attention focused mainly on ensuring the correct application of this 
regulation: the Committee created by the regulation was set up and its first meeting organized, 
the  list  of  national  “Product  Contact  Points”  to  inform  enterprises  about  national  technical 
rules  was  established  and  published,  an  indicative  list  of  products  not  covered  by  EU 
harmonisation was set up and work on a database incorporating this data has advanced. 

Some petitions were dealt with in 2009. Two of them (1087/2002 and 1374/2002) concerned a 
request  for  information  of  case  C-109/08  against  Greece.  The  Commission  explained  that 
several letters have been sent to Greece during 2009 asking for the payment as established in 
the Court' judgment. The Commission also clarified that this case only related to amusement 
game machines where no gambling is involved.  

In  petition  488/2006  the  petitioner  asked  for  information  on  Greece's  ban  on  the  use  of 
electronic  games  in  Internet  cafés,  in  particular  law  3037/2002,  which  had  been  subject  to 
proceedings before the Court in case C-65/05. The Commission explained that it has taken a 
decision  on  17  October  2007  to  refer  Greece  to  the  Court  given  that  Greece  has  not  yet 
complied with the judgment delivered in case C-65/05. 

Petition  578/2007  concerned  a  complaint  about  the  French  legislation  regarding  the  dossier 
requirements  to  place  on  the  market  either  a  product  or  a  process  to  treat  water  for  human 
consumption. The Commission explained that the new legislation seemed compliant with Art. 
34 TFEU. 

Finally, in petition 721/2009 the petitioner informed the Commission that some of the herbal 
products that his online company sells have been banned by Germany and confiscated by the 
police. Having also contacted directly the Commission services, these explained to him that 
neither  the  ban  nor  the  confiscation  of  stocks  containing  products  suspected  to  infringe 
national narcotic law amounted to an infringement of Community law. 

Evaluation 

Articles  34-36  TFEU  remain  essential  to  tackling  cross-border  obstacles  to  trade.  As  these 
provisions apply only  to the non-harmonised area, their ambit fluctuates in  accordance  with 
developments in secondary Community legislation. 

23 16 complaints or requests for information were handled through the EU-PILOT which has 
proved, in some cases, to be a useful tool to provide very quick solution to problems.   

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In  2009,  a  further  slight  decrease  in  the  number  of  open  infringement  cases  was  observed, 
conforming  to  a  longer  term  trend.  This  is  due  to  the  quicker  handling  of  cases  and 
importance given to the pursuit, when possible, of alternative solutions through dialogue and 
cooperation  with  the  Member  States  outside  the  infringement  procedure.  Nevertheless,  the 
volume of infringement cases and the volume of new cases remain substantial and show 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.    The  main  sectors  concerned  evolved  slightly  even 
though car registration cases still trigger a lot of complaints from citizens. 

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 is one of the priority sectors, new 
framework Directive 2007/46/EC which was to be transposed by the end of April 2009 should 
create  more  legal  certainty,  which  ought  to  facilitate  the  re-registration  of  used  vehicles  in 
Member States and hopefully decrease the number of infringement cases. 

Consequences of evaluation 

On  the  basis  of  the  evolution  observed  in  the  main  sectors  of  complaints  as  well  as  the 
anticipated  effects  of  Directive  2007/46/EC,  priority  cases  are  to  be  re-focused  on  cases 
relating  to  free  movement  of  food  supplements,  parallel  imports  of  medicines  and  plant 
protection  products  and  obstacles  which,  on  a  case  by  case  analysis,  have  the  greatest 
economical  impact  on  internal  trade.  When  a  pattern  of  complaints  reveals  a  similar  issue 
arising in several Member States, all Member States may be asked to explain their particular 
approaches by means of a horizontal enquiry.. 

In  the  light  of  positive  results  observed  so  far,  the  Commission  is  encouraged  to  engage  in 
dialogue with Member States with a view to reaching quicker solutions to free movement of 
goods issues.   

To raise awareness of the free movement of goods principles among Member States and their 
officials, an updated version of the ‘Guide to the application of Treaty provisions governing 
Free  Movement  of  Goods  (Articles  34-36  TFEU)’24  has  been  prepared  which  will  be 
distributed to all national officials concerned.  

The first national reports on the application of the “Mutual Recognition Regulation” are due 
in  May  2010.    The  impact  of  the  regulation  on  the  application  of  the  mutual  recognition 
principle by national authorities will then be assessed together with the anticipated effect on 
the volume and type of infringement cases brought by Commission.  

Summary 

24  This  Commission  staff  working  document  has  been  adopted  on  12  May  2009 
http://ec.europa.eu/enterprise/policies/single-market-
goods/files/goods/docs/art2830/new_guide_en.pdf  

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Monitoring  the  application  of  the  free  movement  of  goods  principle  in  the  non  harmonised 
area remains a substantial task as a constant flow of complaints and requests for information 
arrives  at  the  Commission.    Many  solutions  are  found  in  non-litigious  dialogue  with  the 
Member  State  but  sometimes  referral  to  the  Court  is  inevitable.  The  Treaty  and  related 
regulations  are  adequate  tools  to  ensure  that  the  fundamental  freedom  of  free  movement  of 
goods  is  safeguarded.  While  any  breach  of  this  fundamental  freedom  must  be  pursued,  the 
priorities are and will continue to reflect the emergence of problematic cases and areas having 
the greatest impact on intra-EU trade.  

Legislation 

Treaty Articles: 

http://ec.europa.eu/enterprise/policies/single-market-goods/files/treaties/tfeu_en.pdf#page=15  

Regulation Mutual recognition regulation 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:218:0021:0029:en:PDF 

1.18. 

Preventive rules of Directive 98/34/EC 

Current position 

In  2009,  preventive  action  continued  under  Directive  98/34/EC  through  the  provision  of 
information,  advice,  interpretation  and  guidance  with  regard  to  national  draft  technical 
regulations  of  the  27  Member  States,  the  EFTA  countries  and  Turkey  concerning  products 
and Information Society Services. 

In 2009, fruitful collaboration between the Member States and the Commission took place 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 Ireland, Italy, Slovenia and Portugal 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  proceedings.  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.  The  awareness 
campaign  of  national  authorities  on  the  need  to  respect  the  requirements  of  the  98/34 
notification procedure yielded good results and a higher number of notifications was made in 
2009 than in 2008. This upward trend seems to be continuing at the beginning of 2010.  

In  addition,  following  a  conference  with  Member  States  and  economic  operators  that  took 
place in 2008 a working group with representatives of the Member States was set up which 

EN 

51 

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will meet three times in 2010 to evaluate the results of the 98/34 notification procedure and 
see whether improvements can be made.  

Changes underway 

There  were  2  new  complaints  in  2009  concerning  failures  to  notify  national  technical 
regulations under Directive 98/34/EC. 

Evaluation 

The steady high number of notifications (736) and reactions from the Commission (173) and 
the  Member  States  (217)  underlines  the  importance  of  Directive  98/34/EC  as  a  tool  for  the 
prevention of barriers to intra-Community trade - and for better regulation since it also leads 
to improvements in the quality of national legislation. Its ex ante operation means that time-
consuming and sometimes controversial infringement procedures can be avoided. 

2. 

COMPETITION 

2.1. 

Current position 

2.1.1.  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; and  

• 

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.  The  Lisbon  Treaty  entered  into  force  on  1  December  2009. 
Since then, the numbering of the articles has changed. For antitrust, Articles 81, 82 and 86 EC 
have become respectively Articles 101, 102 and 106 TFEU. The provisions are in substance 
identical. Articles 10 and 3(g) EC have been replaced with 4(3) EC-new TFEU. Throughout 
this  document,  references  to  the  old  numbering  have  been  maintained  when  they  relate  to 
proceedings taken before 1 December 2009. Also since 1 December 2009, the European Court 
of Justice (ECJ) is renamed the Court of Justice of the European Union (CJEU).  

Out  of  a  relatively  stable  number  of  some  30  pending  infringement  cases,  73%  are 
complaints,  7%  of  the  cases  concern  the  wrong  transposition  or  non-communication  of 
Directives, and 20% of the cases deal with the non-recovery of State aids pursuant to Art. 260 
TFEU.  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 2009 – and, on the 

EN 

52 

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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 2008, the control of the transposition of Directives in 2009 focused on: 

• 

• 

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

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

the  Markets 

in 

Proceedings  pursuant  to  Art.  260  TFEU  constitute  another  important  component  of  the 
Commission  infringement  work  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  CJEU  pursuant  to  Art.  108(2) 
TFEU  in  derogation  of  Art.  258  TFEU.  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  CJEU,  this  time  pursuant  to  Art.  260  TFEU.  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. 260 TFEU onwards. 

2.1.2.  Work done in 2009 

In  2009,  the  priority  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 2009 
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. 106 in conjunction with Art. 102 TFEU 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 2009 that have 
entered the formal infringement procedure can be found below. 

Postal sector 

The  European  Commission  has  continued  with  the  infringement  proceedings  under  Article 
258 TFEU against the Slovak Republic for the non-implementation of the Commission 2008 
decision25.  In  its  decision,  the  Commission  found  the  remonopolisation  of  the  hybrid  mail 

25 

OJ C 322, 17.12.2008, p. 10–11.   

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53 

   EN 

                                                 
sector to the benefit of the postal incumbent Slovak Post to be in breach of competition rules. 
Hybrid mail is a service whereby the content of a communication is electronically transmitted 
from the sender to the service provider, which then prints, envelopes, processes and delivers 
the  postal  item  to  the  final  addressee.  As  a  result  of  the  Slovak  postal  law  amendment, 
alternative postal operators were no longer allowed to deliver hybrid mail items, an activity 
previously  open  to  competition.  Following  the  Commission's  decision,  Slovakia  has  not 
informed the Commission of any measures which would have put an end to the infringement. 
As  a  result,  on  29  October  2009,  the  Commission  adopted  a  Reasoned  Opinion26.  Should 
Slovak Republic fail to comply with the Commission Decision, the Commission may refer the 
matter to the CJEU. In the meantime, the alternative operators may rely on the Commission's 
decision.  

Energy sector 

In  its  efforts  to  promote  competition  in  the  recently  liberalised  energy  markets,  the 
Commission adopted a decision 4 August 2009  pursuant to Article 86(3) EC by which it has 
accepted commitments made by Greece to ensure fair access to Greek lignite deposits27. The 
commitments have been given in order to comply with the Commission's decision of 5 March 
2008  on  the  granting  and  maintaining  in  force  by  Greece  of  privileged  access  to  lignite  in 
favour  of  Public  Power  Corporation  S.A.  (PPC)28.  Currently  competitors  of  PPC  in  the 
electricity  market  cannot  compete  effectively  with  PPC  because  they  are  denied  access  to 
sufficient quantities of lignite. Greece has specifically committed to grant exploitation rights 
to  four  lignite  deposits  through  public  tenders  excluding  PPC,  to  ensure  that  competitors  of 
PPC in the Greek electricity market get access to lignite and to lignite-fired generation. The 
Commission's  decision  makes  the  proposals  legally  binding  on  Greece  and  requires  the 
commitments  to  be  implemented  within  one  year.  On  the  basis  of  Greece's  proposals, 
competitors  of  PPC  will  potentially  access  about  40%  of  all  exploitable  Greek  lignite 
deposits.  The  Commission  is  satisfied  that  the  implementation  of  the  proposed  measures 
would  remove  the  anticompetitive  problems  identified  in  the  Commission's  decision  of  5 
March 2008. 

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  Regulation29  by  subjecting  the  approval  decision  of  the 

26 

IP/09/1632.   

27 

OJ C243, 10.10.2009, p. 5.  

28 

OJ C92, 15.4.2008, p. 3. 

OJ 2004, L 24/1, available 

29  
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0139:EN:NOT  

 at:http://eur-

EN 

54 

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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  dimension30.  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 
takeover31.  On  17  July  2008,  the  European  Court  of  Justice  declared  unlawful  the  Spanish 
legislation  (Royal  Decree  n  4/2006)  on  the  basis  of  which  Spain  imposed  its  conditions. 
Following this judgment, Spain declared its willingness to (i) modify the Royal Decree in line 
with  the  ECJ  judgment  and  to  (ii)  withdraw  all  the  illegal  conditions  based  on  the  Royal 
Decree.  Consequently,  negotiations  started  between  the  Spanish  authorities  and  the 
Commission  services  concerned  (namely  in  the  sectors  of  competition,  internal  market  and 
energy) on both issues. On 13 November 2009 the Spanish authorities withdrew all the illegal 
conditions. Discussions on the modification of the draft Decree are still ongoing.  

Electronic communications 

In the context of an infringement procedure in the broadcasting sector against Italy for failure 
to comply with the EC regulatory framework on electronic communications, the Commission 
continued in 200932 to closely monitor the transition (switch-over) from analogue to digital 
terrestrial  broadcasting.  Following  close  contacts  with  Commissioners  Kroes  and  Reding  in 
the  beginning  of  2009,  the  Italian  authorities  adopted  new  criteria  for  the  "digitization"  of 
terrestrial  television  networks  in  Italy  aimed  at  ensuring  that  more  frequencies  would  be 
available  to  newcomers  and  to  smaller  existing  broadcasters  (AGCom  Delibera  n. 
181/09/CONS and legge comunitaria 2008). At the same time, it was agreed that asymmetric 
measures  would  be  taken  in  favour  of  non-integrated  third  party  independent  content 
providers  wishing  to  access  the  digital  infrastructure  of  major  TV  broadcasters.  On  17 
September  2009,  the  Italian  Authority  for  Communications  (AGCom)  concluded  a  public 
consultation  on  draft  tendering  rules  for  the  allocation  of  the  frequencies.  The  tender  is 
expected to be launched in  2010. 

This case is linked to another infringement action concerning the takeover of Endesa 
30  
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 
31  
infringement  action  brought  by  DG  MARKT  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. 

32  

A Reasoned Opinion in this case was sent to Italy on 18 July 2007. 

EN 

55 

   EN 

                                                 
On 2 February 2009, following up on the infringement proceedings initiated in the course of 
200833, the Commission sent a Reasoned Opinion34 to the Slovak Republic requesting it to 
bring  the  Slovak  Competition  Act  into  conformity  with  EU  law.  The  Reasoned  Opinion 
concerned  in  particular  Section  2(6)  of  the  Slovak  Competition  Act,  which  excluded  the 
applicability of the 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), thus limiting the ability of the NCA to effectively 
apply Article 101 and 102 TFEU to anticompetitive behaviour which would also fall within 
the  competence  of  regulatory  authorities.  In  the  Reasoned  Opinion  the  Commission 
considered  this  provision  of  the  Competition  Act  to  be  incompatible  with  Article  10  EC 
(repealed now Article 4(3) EU-new) and Regulation 1/2003 and enjoined the Slovak Republic 
to  take  the  necessary  measures  to  put  an  end  to  the  infringement.  Following  the  Reasoned 
Opinion, the Slovak Republic repealed the contested provision in its entirety with effect from 
1  June  2009.  On  25  June  2009  the  Commission  therefore  adopted  a  decision  to  close  the 
infringement procedure35. 

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. Since then, a significant number of new "livret A" accounts 
have  been  opened  in  banks  which  are  now  enabled  to  distribute  these  accounts  and  the 
brokerage fees have been cut by nearly half. On 8 October 2009 the European Commission 
therefore adopted a decision to close the infringement procedure. 

Article 260 TFEU cases  

On 31 January 2008, the Commission issued a Reasoned Opinion against Italy for failure to 
comply  with  a  judgment  of  the  ECJ36  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 

The Commission sent a letter of formal notice to the Slovak Republic on 6 June 2008. 

33  
The Slovak Government replied to the letter of formal notice on 14 August 2008.   

34  

See IP/09/200. 

35  
See IP/09/1182. The successful resolution of this case follows a previous infringement 
procedure against the Czech Republic where similar problematic legislation was also repealed 
in 2007.  

36  

C-99/02, Commission v Italy. 

EN 

56 

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were insufficient, also due - to a very significant extent - to the willingness of domestic courts 
to suspend the execution of recovery orders. Subsequently, Italy adopted a series of legislative 
measures aimed at speeding up the recovery for cases pending before national judges. In spite 
of these new provisions, the progress made in the recovery continues to be unsatisfactory. On 
25 June 2009, the Commission has therefore decided to refer this case to the ECJ pursuant to 
Art.  260(2)  TFEU  and  to  propose  the  imposition  of  financial  penalties  against  Italy.  The 
Commission's Legal Service has in the meantime filed this case with the ECJ37. 

In  a  similar  case,  which  concerns  the  non-recovery  of  aid  granted  to  publicly-owned  utility 
companies  ("municipalizzate"),  the  Commission  has  sent  a  Reasoned  Opinion  to  Italy  on  1 
February 2008. This was based on the fact that 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  200238.  Following  the  judgment,  Italy  had  still  not  managed  to  implement  the 
recovery successfully. In recent months, Italy has made considerable progress in the recovery 
proceedings vis-à-vis a number of beneficiaries. For some of the aid still to be recovered, Italy 
is  facing  difficulties  related  to  the  suspension  of  recovery  orders  by  domestic  courts,  which 
are slowing down further progress. 

On 20 November 2009, the Commission issued a reasoned opinion against Spain for failure to 
comply  with  the  judgment  of  20  September  200739 in which the  ECJ confirmed that Spain 
had failed to fulfil its obligations under three Commission recovery decisions of 20 December 
2001  concerning  fiscal  aid  schemes  implemented  in  the  three  Basque  provinces.  Although 
progress  has  been  made  in  the  recovery  of  the  incompatible  aid,  the  decisions  are  still  not 
fully  implemented40.    In  six  other  fiscal  measures  implemented  in  the  Basque  provinces,  a 
Reasoned  Opinion  against  Spain  had  already  been  issued  on  26  June  2008  (for  failure  to 
comply with the judgment of 14 December 200641). Although progress has been made in the 
recovery  of  the  incompatible  aid,  the  decisions  are  still  not  fully  implemented42.  The 
Commission  services  in  the  competition  sector  are  currently  assessing  the  detailed 
information recently submitted by Spain. 

On  20  November  2009,  the  Commission  sent  a  letter  of  formal  notice  pursuant  to  Art.  260 
TFEU  against  Spain  for  failure  to  comply  with  a  judgment  of  the  ECJ  of  July  200243 

37  

Case C-496/09, Commission v Italy. 

38  

C-207/05, Commission v Italy. 

39  

Case C-177/06, Commission v Spain.  

40  

Among others, the Commission services in the competition sector  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. 

41  

Joined Cases C-485/03 to C-490/03, Commission v Spain. 

42  

Among others, the Commission services in the competition sector  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. 

43 Case C-499/99, Commission v Spain. 

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57 

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condemning Spain for non-execution of the Commission's recovery decision of 20 December 
1989  as  regards  of  the  Magefesa  Group.  Twenty  years  after  the  negative  Commission 
decision,  Spain  has  failed  to  fully  and  effectively  recover  the  illegal  aid  from  all  the 
beneficiaries.  In  addition,  Spain  has  not  provided  a  clear  timeline  for  the  completion  of  the 
recovery.  

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. The amount 
of illegal and incompatible aid recovered has increased from € 2.3 billion in December 2004 
to  €  10.4  billion  at  31  December  2009  (i.e.,  88%  of  the  total  amount  to  be  recovered). 
Accordingly, the percentage of illegal and incompatible aid still to be recovered at the end of 
2009  has  fallen  from  75%  to  12%.  This  is  due  to  the  efficient  enforcement  of  recovery 
decisions by the Commission prompting Member States to recover incompatible aid from the 
beneficiaries.  

2.2. 

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 DG's priorities. 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 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 its infringement cases on the basis of Art. 260 
TFEU 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.   

The  priorities  for  2009  as  set  out  in  the  26th  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 competition sector . The 
infringement  procedures  in  the  energy,  postal  and  financial  services  sectors  have  made 
important progress which have resulted in either the closing of the cases or have already led to 
the  sending  of  a  Reasoned  Opinion  in  2009.  Infringement  action  on  the  basis  of  Art.  106 
TFEU  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 101, 102 and 
107  TFEU  (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. 101, 102 or 107 TFEU.  

EN 

58 

   EN 

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 maintains 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  closed  infringement  proceedings  against  Germany 
that fully implemented the Directive and sent Reasoned Opinions to UK and Belgium for not 
having  fully  transposed  or  communicated  all  the  national  transposition  measures  to  the 
Commission. Belgium has not provided sufficient information on the full implementation of 
the Directive in its entire territory. It is therefore envisaged to proceed with the referral of this 
case to the Court of Justice in the first half of 2010.  

2.3. 

Priorities and planned action 

For  2010,  the  draft  Management  Plan  envisages  infringement  action  in  sectors  that  have 
recently  been  liberalised  or  are  in  the  process  of  liberalisation,  such  as  energy  or  postal 
services,  as  well  as  in  the  media  sector.  The  priorities  for  the  year  2010  therefore  follow 
closely the priorities established for 2009: 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. 

Another area of priority action in 2010 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  Commission  services  pursuing  the 
cases against 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.  106(1)  TFEU  by  granting  special  or 
exclusive  rights  to  their  own  companies  in  an  effort  to  protect  national  markets  from 
competition.  

Finally, long standing non-recovery cases will if necessary in 2010 be referred to the CJEU 
pursuant to Art. 260 TFEU 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. 

3. 

EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES 

The  overall  strategy  for  the  monitoring  of  the  application  of  European  law  in  the  field  of 
employment,  social  affairs  and  equal  opportunities  throughout  2009  was  a  problem-solving 
and  dialogue-based  approach.  Priority  was  given  to  identifying  preventive  options  to 
infringement proceedings, based mainly on:  

–  Strengthening  the  cooperation  with  national  authorities  to  foster  the  prevention  of 

problems of application of EC law  

The  Commission  continued  its  practice  of  bilateral  meetings  with  national  authorities  to 
facilitate  implementation  of  Directives.  For  instance,  in  the  area  of  anti-discrimination  and 

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gender equality the Commission set up in 2009 a working group composed of representatives 
of  Member  States  and  stakeholders  to  discuss  the  implementation  of  the  Directive 
2004/113/EC.  A  similar  approach  is  envisaged  for  2010  for  the  transposition  of  the  new 
Directive on Parental Leave.  

In  the  area  of  labour  law,  an  Expert  Committee  on  Posting  of  Workers  provided  for  an 
excellent  opportunity  to  discuss,  with  Member  States  and  Social  Partners  concerned,  a 
number of implementation, application and enforcement issues related to Directive 96/71/EC. 
In addition, an informal Governmental Experts Group provided valuable technical assistance 
in  the  process  of  transposition  and  implementation  of  the  Directives  2008/104/EC  and 
2009/38/EC.  This  helped  addressing  the  problems  at  an  early  phase  and  prevented 
infringement  proceedings.  Moreover,  the  Committee  of  Senior  Labour  Inspectorates  assists 
the  Commission  by  focusing  on  problems  of  enforcement  of  European  Union  law,  in 
particular,  by  encouraging  a  closer  cooperation  between  the  national  labour  inspection 
services.  

–  Making use of all possible alternative options to infringement proceedings 

The  recourse  to  problem-solving  mechanisms  such  as  EU  PILOT  was  streamlined  in  2009, 
and, therefore the number of cases treated by the Commission in EU PILOT and CHAP has 
increased  significantly.  The  Commission  has  also  made  extensive  use  of  external  expertise 
(Equality Bodies, Networks of Independent Legal Experts) to develop informative reports and 
guides used by legal practitioners across the EU.   

–  Raising citizens’ awareness regarding their rights 

Substantial  effort  has  been  put  into  improving  communication  tools  to  inform  the  citizens 
about their rights deriving from EU law particularly in the field of free movement of workers, 
social  security  coordination,  health  and  safety  at  work  as  well  as  anti-discrimination  and 
gender equality. This will furthermore continue in 2010 as the entry into force of the Lisbon 
Treaty which made the Charter of Fundamental Rights legally binding opens new possibilities 
for citizens to defend their rights. 

That  overall  strategy  has  obviously  prevented  the  opening  of  infringement  procedures  but 
nevertheless,  there  were  domains  where  non  compliance  with  specific  Directives  remained 
and those domains were linked to very sensitive political issues. Therefore, the reconciliation 
between the legal and political considerations proved to be very difficult  and led to serious 
challenges:  

–  With regard to working conditions, a key issue was how to pursue the considerable number 
of  registered  working  time  complaints/infringements  related  in  particular  to  the  SIMAP-
Jaeger44 rulings whilst negotiations on a Directive proposal were taking place in Council 
and Parliament on the same issue and had to be ended without success. In that context, it 
was  not  possible  for  the  Commission  to  adopt  the  comprehensive  report  on  the 
transposition  and  application  of  the  Working  Time  Directive  in  all  Member  States, 
although the report was completed in 2008 and submitted during 2009 to Member States, 
social partners and experts for comments.  

44 Judgment of 3.10.2000 in case C-303/98 and judgment of 9.09.2003 in case C-151/02 

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–  In  the  area  of  posting  of  workers,  the  challenge  was  to  have  a  clear  picture  of  the 
implementation of Directive 96/71/EC and a number of initiatives were taken in order to 
assess  the  impact  of  that  Directive,  with  the  launch  of  a  feasibility  study  on  a  European 
platform of cooperation for labour inspectorates, of a study on legal aspects and of a study 
on the economic and social aspects. Along with the impact assessment and the study on the 
protection  of  workers’  rights  in  subcontracting  chains  to  be  launched  in  2010,  these 
instruments should provide the Commission with the necessary information to establish the 
content of a forthcoming legislative proposal in this area.  

–  In the area of anti-discrimination a main challenge was how to advance with the proposal 
for a Council Directive on implementing the principle of equal treatment between persons 
irrespective  of  religion  or  belief,  disability,  are  or  sexual  orientation  outside  the  labour 
market.  The  key  issue  was  how  to  muster  the  agreement  of  all  Member  States  in  the 
Council given that the proposal is based on art. 19 TFUE (ex. art. 13 TEC) and unanimity 
is required in the Council.  

Against  the  complexity  of  matters,  the  Commission  nevertheless  obtained  commendable 
achievements in the area of employment, social affairs and equal opportunities. It is therefore 
worth mentioning the following:  

–  On 30 November 2009, the Council reached an agreement on the proposal for a Directive 
on  the  parental  leave  intended  to  replace  Directive  96/34/EC.  The  proposal  for  Directive 
extends the right to parental leave from three to four months per child. At least one of the 
four months cannot be transferred to the other parent, offering thus incentives to fathers to 
take  the  leave.  The  Framework  Agreement  on  parental  leave,  on  which  the  Directive  is 
based,  was  signed  by  the  European  social  partners  (BUSINESSEUROPE,  ETUC,  CEEP 
and UEAPME) on 18 June 2009. 

–  On 27 July 2009, the Council and the Parliament reached an agreement on Regulation (EC) 
No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 
on the coordination of social security systems. The agreement concluded over a decade of 
negotiations on the new modernised EU social security coordination rules and started the 
countdown to 1 May 2010, the date of the entry into force of the new legislative package 
(Regulation  (EC)  No  883/2004,  as  amended  by  Regulation  (EC)  No  988/2009,  and 
supplemented by Regulation (EC) No 987/2009). The modernised coordination rules will 
make the system work more efficiently. Central to the modernisation is the introduction of 
the electronic exchange of social security information. 

3.1. 

Free movement of workers and coordination of social security schemes 

3.1.1.  Current Position 

3.1.1.1.  Introduction 

In  the  field  of  free  movement  of  workers  and  coordination  of  social  security  schemes,  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,  petitions  of 
citizens  to  the  European  Parliament  and  Parliamentary  questions  which  has  led  the 
Commission  to  increase  its  recourse  to  problem-solving  mechanisms  and  it  intensifies 
communication to prevent problems. 

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3.1.1.2.  Report on progress made in 2009 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,  3  were  still 
ongoing  in  2009.  After  the  Court  of  Justice  confirmed  its  previous  judgments  also  against 
Spain45 (in 2008) the Commission has started the procedure to ensure the correct reform of 
the Spanish rules (Article 260 TFEU); the reform is ongoing and the Spanish authorities have 
announced  that  new  rules  would  be  adopted  by  May  2010.  After  the  Czech  rules  had  been 
brought into line with Community law, the Commission decided to withdraw its case from the 
Court. In December 2009, the Court confirmed its jurisprudence also in relation to Greece46 
and  the  procedure  to  ensure  the  correct  reform  of  the  Greek  rules  (Article  260  TFEU)  has 
been initiated immediately afterwards.  

The  Commission  services  have  received  many  queries  and  complaints  concerning  the 
residence rights of migrant workers in the host Member State. It is still partly due to the fact 
that  in  May  2006,  Directive  2004/38/EC  effectively  entered  into  force  and  introduced  new 
residence  formalities  and  some  important  new  rights  (such  as  the  right  of  permanent 
residence). With a view to ensuring the respect of the provisions of Directive 2004/38/EC, the 
Commission  services  have  been  organising  bilateral  contacts  with  Member  States  to  make 
sure that the Directive is correctly transposed and applied across the EU.  

In the situation of economic crisis, more and more replies had to be provided concerning the 
rights of jobseekers and people retaining the status of a worker and their family members – 
e.g. questions on how long they are entitled to stay in the host Member State, whether they 
have  access  to  social  benefits  and  social  assistance,  and  whether  they  are  protected  against 
expulsion if they are unsuccessfully seeking employment for a long time in another Member 
State.  

The Commission closed the infringement procedure against Denmark concerning the working 
conditions of Polish Seafarers on Danish Ships. In fact the new legislation adopted in March 
2009,  Act  N°  214  of  24  March  2009  amending  section  10(2)  of  the  Act  on  the  Danish 
International  Shipping  Register  together  with  the  explanatory  memorandum  met  the 
Commission's concerns about the Danish legislation, expressed in the letter of formal notice 
of  13  October  2004.  The  Commission  services  consider  that  the  new  legislation  is  in 
conformity  with  EU  law  on  free  movement  of  workers.  It  provides  guarantees  for  seafarers 
from other Member States working on board of a ship flying the Danish flag, insofar as they 
have, in accordance with the Case law of the European Court of Justice, "a sufficiently close 
link to Denmark", to be considered in resident in Denmark and consequently to benefit from 
collective agreements that are concluded by a Danish trade union. 

A  recurring  topic  of  queries  was  again  the  application  of  transitional  arrangements  for 
workers  from  EU8  and  EU2.  There  were  requests  for  information  and  complaints  about  the 

45 
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. 

46 

C-460/08 judgment of 10.12.09, not yet published 

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existence of restrictions as such (by citizens) and calls to end them (parliamentary questions). 
On  this  basis,  the  Commission  services  identified  an  incorrect  application  of  transitional 
arrangements:  it  concerns  eligibility  for  benefits  and  is  linked  to  a  wider  problem  of 
compatibility with EU law in a Member State's legislation which is under investigation. The 
Commission also examined the notifications of three Member States in April 2009 of serious 
labour market disturbances, pre-condition to continue to apply national conditions on labour 
market access for EU-8 workers for two more years after 1 May 2009, and accepted them as 
meeting the requirements 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 line with 
the  jurisprudence  of  the  Court  on  Article  39  (4)  EC.  In  2009  an  infringement  procedure 
against Bulgaria was closed after the reform of the Bulgarian rules for access to posts in 
the civil service. Some other cases are still pending. 

–  the follow-up of the Burbaud-judgment47 has led to the opening of the internal recruitment 
competition for many posts in the French public sector to fully qualified migrant workers 
with a certain length of work experience.  

–  the issue of taking into account 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  when  comparable  experience  is  acquired  in  the  host 
Member State. 

–  Other  complaints  regarding  public  sector  concerned:  discriminatory  working  conditions 
(unrelated  to  the  issue  of  recognition  of  professional  experience),  absence  of  equal 
treatment  in  relation  to  the  taking  into  account  of  foreign  diplomas  for  the  purpose  of 
access to the public sector (e.g. additional points awarded in a recruitment procedure) and 
for  determining  working  conditions,  disproportionate  language  requirements  in  access  to 
posts. 

Sport: for many years the Commission has been dealing with the issues of EU law related to 
free  movement  of  professional  sportsmen  and  sportswomen.  In  2009,  the  Commission 
services, in particular, focused on the following points: 

–  The quotas on nationality applied in professional sport: in the follow-up to the Bosman's 
ruling48 the Commission undertook extensive action, in order to assure the respect of EU 
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 

47 

48 

C-285/01 

C-415/93. 

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for  breach  of  Community  law  in  accordance  with  Article  258  of  the  TFEU  can  only  be 
initiated  against  a  Member  State  of  the  European  Union,  the  Commission  services  have 
sometimes  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. To this 
end the Commission services ordered to an independent expert a comparative study on the 
State responsibility for professional sport activities which was received in November 2009 
and illustrates the role of Member States in the organising and functioning of professional 
sport activities. 

–  The Commission was also closely involved in the analysis and the discussions surrounding 
the FIFA's proposal rule on 6+5 and its conformity with the EU law free movement rules. 
At  present  there  is  a  constructive  dialogue  with  football  stakeholders  on  possible 
alternatives respecting the EU acquis in the area of free movement. 

A  case  concerning  the  access  to  social  advantages  in  the  Netherlands  (study  grants  for 
children of migrant workers) has been transferred to the Court49. 

Regarding the issue of equal treatment of third country nationals, citizens from countries with 
which  the  European  Union  has  signed  an  international  agreement,  the  Commission  has 
prepared  and  ensured  the  follow-up  of  the  case-law  of  the  Court  of  Justice,  namely  in  the 
cases  Kolpak50,  Simutenkov51  and  Kahveci52.  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. 

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. 

3.1.1.3.  Report on progress made in 2009 in the field of social security coordination 

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

49 

50 

51 

52 

C-542/09 

C-438/00. 

C-265/03. 

C-152/08. 

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Major issues concerning sickness insurance benefits in 2009 were the following.  

In  2004,  the  Commission  started  infringement  procedures  against  Finland,  the  UK  and 
Sweden  concerning  benefits  for  disabled  persons.  In  its  judgment  of  18  October  2007,  the 
Court stated that the benefits concerned must be qualified as sickness cash benefits (therefore 
exportable)  and  not  as  special  non-contributory  benefits.  As  the  Member  States  involved 
confirmed their willingness to abide with this judgment and the necessary preliminary steps 
were  made,  the  infringements  were  closed  in  2008.  However,  during  2009,  more  than  50 
persons  contacted  the  Commission  services  to  signal  the  application  of  a  so  called  "past 
presence test" which in most cases prevents the exportability of these benefits from the UK. 
The Commission services analysed the national rules of transposition of the ECJ  ruling and 
considered  that  a  problem  still  existed.  The  Commission  has  therefore  started  infringement 
procedures in that respect. 

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  sensitive  issue  dealt  with  by  the  Commission  concerns  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). The 
exclusion  of  non-active  persons  from  this  regime  constitutes  an  infringement  of  article  3  or 
Regulation 1408/71. To this effect, the Commission opened an infringement procedure, which 
is ongoing, against France in 2008.  

As in the previous years, the Commission services received many queries about the European 
Health  Insurance  Card  (EHIC),  namely  how  to  apply  for  it  or  how  to  use  it.  In  2009,  the 
Commission  closed  infringement  procedures  against  Cyprus,  as  regards  the  eligibility 
conditions  for  receiving  EHIC  and  against  Italy  where  EU  students  who  are  studying 
temporarily in Italy were required to present a form E-106 instead of EHIC. The two Member 
States concerned agreed to take necessary actions to comply with the EU legislation (Art. 22 
of  Regulation  1408/71).  A  new  infringement  procedure  was  opened  against  Spain  in  2009. 
Contrary  to  article  22a  of  Regulation  1408/71,  several  Spanish  Autonomous  Communities 
refuse to issue EHIC to EU nationals residing in Spain who are entitled to sickness benefits as 
regional benefit provided by the Autonomous Communities because under Spanish legislation 
such benefits are not provided under social security legislation. 

As  regards  pensions,  the  Commission  received  various  complaints  about  the  payment  of 
pensions into the beneficiary's bank account in his or her Member State of residence. It seems 
that  certain  Member  States  have  problems  with  such  payments.  The  SEPA  (Single  Euro 
Payment  Area)  should  be  the  answer  to  this  problem.  The  Commission  opened  an 

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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. An infringement procedure was opened 
against Greece, where persons, in order to have their pensions exported, are obliged to open a 
bank account at the Greek national Bank, which is in an alleged breach of EU social security 
coordination rules and EU payment rules (Regulation (EC) No 924/2009). 

With  regard  to  unemployment  benefits,  in  view  of  the  economical  recession  and  the  rise  of 
unemployment rates, the Commission services received a large number of queries concerning 
the  right  of  migrant  workers  to  unemployment  benefits  under  Community  law.  Migrant 
workers  were  in  particular  asking  in  which  State  they  can  claim  unemployment  benefits, 
method  of  calculation  of  the  benefit's  rate,  special  regime  for  frontier  workers  and  the 
possibility  to  have  benefits  exported  in  case  they  were  interested  to  look  for  work  in  other 
Member States. Some of the migrants complained about the cumbersome and time-consuming 
administration of cases involving an EU aspect. 

Several  complaints  were  received  by  the  Commission  services  from  EU-8  nationals 
previously employed or self-employed in the UK who were not granted certain special non-
contributory benefits by the UK authorities as a consequence of their failure to pass the "right 
to  reside  test".  Under  the  UK  national  legislation  the  eligibility  to  certain  categories  of 
benefits is linked to the condition that the claimant needs to have a right to reside in the UK (a 
condition derived from Directive 2004/38/EC). At the end of 2009, the Commission services 
started to analyse the compatibility of those requirements with Community law, in particular 
their  compliance  with  the  principle  of  equal  treatment  with  regard  to  the  award  of  social 
security benefits as stipulated in Article 3 of Regulation 1408/71. The "right to reside test" is 
also  applied  under  the  UK  national  law  to  economically  non-active  persons  who  intend  to 
settle in the UK when they apply for social security benefits in question. 

Although  there  are  no  complaints,  some  Member  States  are  still  hesitant  when  exporting 
family benefits and paying differential supplements. 

Social security coordination legal framework: 

In  2009,  significant  progress  was  made  in  view  of  the  entry  into  application  of  the  new 
Regulations 883/2004 and 987/2009 (Implementing Regulation) on the 1st May 2010, which 
involved: 

–  The Regulation (EC) No 987/2009 of the European Parliament and of the Council laying 
down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of 
social security systems was adopted on 16 September 2009. 

–  The  Regulation  (EC)  No  988/2009,  amending  Regulation  (EC)  No  883/2004  and 

determining the content of its Annexes, was adopted on 16 September 2009. 

–  The  Administrative  Commission  on  social  security  for  migrant  workers  (CASSTM) 
adopted a package of interpretative decisions and recommendations for the application of 
the new Regulations.  

–  The  only  drawback  is  that  Commission's  proposal  (COM(2007)439)  aimed  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,  did  not  meet  agreement  within  the  Social  Question  Working  Party  of  the 

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Council in 2009. Discussion of the proposal will continue under the Spanish Presidency in 
2010. With  the  entry  into  force  of  the  Lisbon  Treaty,  the  legal  basis  has  become  Article 
79(2)(b) TFEU, meaning that the ordinary legislative procedure – with involvement of the 
European Parliament and qualified majority vote in Council – will apply. 

The  coordination  rules  require  an  exchange  of  social  security  information  between  the 
national institutions. The implementation of the Regulations requires that the transmission of 
data between institutions should be carried out by electronic means under a common secure 
network: electronic exchange of social security information (EESSI). The EESSI system is a 
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. 

In order to assist institutions in the Member States to prepare for the entry into force of the 
new system of EU social security coordination rules, the Commission held 5 thematic training 
seminars on the different social security risks for institutions between June and October 2009. 

3.1.2.  Evaluation of the current situation 

In 2009, the services of the Commission received for both sectors (free movement and social 
security coordination) an impressive number of letters and petitions of European citizens and 
Parliamentary  Question  of  Members  of 
the  European  Parliament  (around  3000), 
approximately balanced between both sectors. Globally, the volume of incoming queries and 
complaints is relatively stable. 

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

It should be expected that the entry into application of the new provisions in the field of social 
security coordination (Regulations 883/2004 and 987/2009) as from the 1st of May 2010 will 
temporarily increase the number of queries and infringement procedures due to interpretation 
problems in subsequent years.  

The  infringement  procedures  dealt  with  by  the  Commission  services  in  relation  to  the  EU 
rules  on  free  movement  of  workers  concern  the  non-conformity  of  national  legislation  with 
EU  law  and  systematic  bad  application  of  correct  national  rules  by  national  authorities.  In 
relation  to  coordination  of  social  security  coordination,  the  infringements  concern  the 
incorrect  application  by  the  national  authorities  of  Article  48  TFEU  and  of  existing 
Regulations  in  that  area,  namely  Regulations  1408/71  and  574/72  on  social  security 
coordination. 

At the end of 2009, the Commission services were dealing with 46 infringement procedures 
(compared to 38 procedures at the end of 2008): 18 in the field of free movement and 28 in 
the field of social security coordination. 

In  the  field  of  free  movement  of  workers,  the  current  infringement  procedures  deal  mainly 
with  problems  linked  to  access  to  posts  (e.g.  nationality  condition  for  access  to  posts  of 
captains  and  first  officers  of  ships,  language  requirements),  residence  rights  of  migrant 
workers,  transitional  arrangements,  sports  issues,  access  to  social  advantages  (e.g.  study 
grants for children of migrant workers) and employment in the public sector (e.g. nationality 
condition for access to posts; recognition of professional experience). 

EN 

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In  2009,  one  judgment  was  rendered,  8  infringement  procedures  were  closed,  one  case  was 
withdrawn from the Court and 7 new infringement procedures were registered.  

In  the  field  of  social  security  coordination,  the  infringement  procedures  deal  with  problems 
linked  to  sickness  insurance  benefits,  including  the  European  Health  Insurance  Card, 
residence  clauses  for  eligibility  for  social  security  benefits,  calculation  and  payment  of  old-
age pension, discriminatory practices for the payment of certain social security benefits.  

In 2009, 6 infringement procedures were closed, while 17 new procedures were open. 

A number of complaints have been dealt with successfully through EU Pilot. 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 a website53. 

In  view  of  the  very  high  number  of  queries,  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.54 In the field of social security the brochure "The Community provisions on social 
security. Your rights when moving within the European Union" and the brochure "Moving in 
Europe.  Your  social  security  rights",  containing  information  about  national  social  security 
rights of 25 Member States, were made available on the website55. 

3.1.3.  Evaluation results 

Priorities  set  up  for  2009  have  in  general  been  met.  Many  infringements  procedures  were 
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.  

Network of experts on free movement of workers: 
53 
http://ec.europa.eu/social/main.jsp?catId=475&langId=en 

Tress network: http://www.tress-network.org/TRESSNEW/  

54http://bookshop.europa.eu/eubookshop/download.action?fileName=KE3008406ENC_002.pdf&eubp
hfUid=10049296&catalogNbr=KE-30-08-406-EN-C 

55http://ec.europa.eu/employment_social/social_security_schemes/national_schemes_summa
ries/index_en.htm  

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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, 
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 
masters and chief mates 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 on only one particular issue. As during the last 
year, in 2010 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 Council56 and 
European  Parliament57,  the  Commission  will  also  step  up  its  efforts  to  provide  better 
information to citizens on their rights as migrant workers.  

3.1.3.1.  Priorities regarding free movement of workers 

In  addition  the  Commission  sees  all  infringement  procedures  concerning  the  transitional 
arrangements  as  a  priority  and  will  pay  particular  attention  to  infringement  procedures 
concerning sports and public sector issues. To finalize the systematic  evaluation concerning 
the issue of nationality condition for access to posts of master and chief mate of ships the two 
remaining open infringement procedures (against Spain and Greece) will also be treated as a 
priority.  

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  keep  working  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. 

The  Commission  intends  to  adopt  a  Communication  on  the  rights  of  migrant  workers  – 
updating and reviewing the Communication of 2002 (COM (2002) 694).  

The Commission intends to adopt a Commission Staff Working Document on issues related to 
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). 
It will follow-up a report of an independent expert on these issues summarising, analysing and 
comparing  up-to-date  information  requested  by  the  Commission  from  Member  States 
(members of the Technical Committee on free movement of workers) on this issue.  

56 

Conclusions of the EPSCO Council of 9 May 2009. 

Vălean report on the application of Directive 2004/38/EC and Gacek report "Problems 

57 
and prospects concerning European citizenship". 

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69 

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3.1.3.2.  Priorities regarding social security coordination 

The objective in the area of social security, with regard to the infringements, is to monitor the 
correct application of the new Regulations 883/2004 and 987/2009 which come into force on 
the 1st May 2010 by the national institutions. In particular, the Commission will focus on the 
new aspects of coordination rules. 

Therefore, the Commission published on the DG Employment website in January 2010 a set 
of Explanatory notes, which give some background and explanation of certain new provisions 
and  key  concepts  in  the  new  rules.  These  notes  are  aimed  at  both  the  citizen  and  social 
security institutions. The Commission is also 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. 

To  enable  the  implementation  of  the  new  coordination  rules,  the  Commission  will  focus  on 
finalising  the  development  of  the  system  for  electronic  exchange  of  social  security 
information  (EESSI).  The  EESSI  system  will  enable  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.  

In 2010, discussions will continue on the proposal concerning the extension of the provision 
of Regulations 883/2004 and 987/2009 to third country nationals.  

The Commission intends to follow up, as a priority, the Member States' responses to the Court 
judgment C-229/05, in which the Court ruled that Disability Living Allowance was a sickness 
benefit. Sickness benefits can be exported within the EU in certain circumstances.  

3.1.4.  Summary 

In 2009, the services of the Commission received for both sectors (free movement and social 
security  coordination)  an  impressive  number  of  letters  and  petitions  (around  3000)  from 
European  citizens,  approximately  balanced  between  both  sectors.  Generally,  the  volume  of 
incoming queries and complaints is relatively stable. 

Nevertheless,  in  view  of  the  forthcoming  entry  into  force  of  Regulations  883/2004  and 
987/2009, and during the period of adjustment for national authorities, it can not be excluded 
that more complaints will have to be dealt with and will increase the already workload in that 
area of social security coordination.  

The  forthcoming  years  should  follow  the  trend  presented  above  with  the  positive  impact  of 
the  preventive  approach  based  on  administrative  cooperation  and  on  an  increased 
communication towards citizens and national authorities. The objective for 2010 is to monitor 
a correct application of the new system of coordination by the Member States, with a focus on 
the new aspects of the Regulations. 

EN 

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3.2. 

Labour Law 

3.2.1.  Current position 

3.2.1.1.  Introduction 

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.  

At  present,  in  the  area  of  labour  law,  the  deadline  for  transposition  has  expired  for  all 
directives in force, with the exception of the following three: 

–  Directive 2008/104/EC on temporary agency work58, for which the transposition deadline 

will expire by 5 December 2011; 

–  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)59,  for  which  the  transposition 
deadline of the new or modified provisions will expire by 5 June 2011, as well as  

–  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/EC60  for  which  the  transposition  deadline  will  expire  not  later  than  12  months 
after the date of entry into force of the Maritime Labour Convention, 2006. 

3.2.1.2.  Report of work done in 2009 

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 

Along  the  lines  set  out  horizontally  by  the  Commission  for  2008,  giving  priority  to  the 
handling of procedures under Article 260 of the TFEU and of non communication procedures, 
increased efforts continued in order to close a considerable number of open infringements for 
non  communication  and  non  conformity. As  a  result  the  overall  number  of  outstanding 
infringements  and  complaints  decreased  from  76  (31.12.2008)  to  59  (31.12.2009),  i.e.  a 
reduction of 22 %. It should also be pointed out in this respect that, although the total number 
of outstanding infringements for non communication increased slightly, the still outstanding 

58  

OJ L 327, 05.12.2008 

59 

60 

OJ L 122, 16.05.2009 

OJ L 124, 20.05.2009 

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71 

   EN 

                                                 
ones relate to one single Directive (2005/47/EC), whereas on 31.12.2008 they related to three 
directives  (2003/72/EC,  2006/109/EC  and  2005/47/EC);  the  so  called  fragmentation  factor 
therefore has decreased by 66%. 

The significant decrease in the total number of outstanding cases, as well as the considerable 
shortening of delays in handling these, were nevertheless counterbalanced by the fact that still 
a  considerable  number  of  "old  registered  complaints"  (19  in  total  61),  in  particular,  on  the 
application of  the  working  time  Directive  2003/88/EC,  following  the  SIMAP-Jaeger 
rulings62. These cases have been pending since the Commission proposed amendments to this 
Directive  in  September  2004,  which  could  not  be  agreed  upon  by  the  Council  and  the 
European Parliament in Spring 2009.  

With  regard  to  the  non  communication  cases,  the  infringement  proceeding  against 
Luxembourg  for  non  transposition  of  Directive  2003/72/CE  (due  for  transposition  by  18 
August 2006), pursued under Article 228 EC following the ruling of the Court of Justice63, 
could be closed following the adoption of the necessary transposition measures. 

The only other outstanding infringement proceedings against Member States which failed to 
notify  the  national  measures  concern  Directive  2005/47/EC64  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.  Of  the  17  infringement  proceedings  for  non  communication 
launched against Member States that had failed to take the necessary transposition measures 
within  the  required  time  limit,  8  could  be  closed  following  the  adoption  of  the  necessary 
national measures in 2009 and two will be closed in the periodical exercise M03/2010.  

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') 
was continued under Article 260 TFEU following the judgment of the Court of Justice65 and 
an Article 260 TFEU letter of formal notice was sent. The case against France for incorrect 
and insufficient transposition of Directive 80/987/EEC, and in particular Article 8 (concerning 
old-age  benefits  under  supplementary  company  or  inter-company  pension  schemes),  could 
finally be closed.  

2. 

Monitoring reports 

61 
However, it should be recalled that the number of outstanding working time cases did 
decrease  considerably  in  comparison  to  previous  years:  a  number  of  the  SIMAP-Jaeger 
complaints could be closed, and a letter of formal notice was notified in the cases concerning 
annual paid leave (BE) and doctors in training (BE, IE and PT). 

62 

63 

64 

65 

Judgment of 3.10.2000 in case C-303/98 and judgment of 9.09.2003 in case C-151/02 

Judgment 9.10.2008, case C-70/08 

OJ L 195, 27.7.2005, p. 15–17 

Judgment 19.6.2008, case C-319/06, Commission vs Luxembourg. 

EN 

72 

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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,  consists  in  a  series  of 
reports,  which  was  completed  with  reports  concerning  Bulgaria  and  Romania  in  the  second 
semester of 2009. 

The  contents  of  these  reports  have  in  the  meantime  started  to  be  used  in  the  drafting  of 
implementation reports required by Directives and 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.  However,  in 
comparison  with  2008,  when  five  implementing  reports  could  be  finalised  in  the  area  of 
labour  law,  in  2009,  the  activity  concentrated  in  providing  adequate  follow-up  to  new, 
recently adopted legislation and in preparing initiatives that will be launched in the future. By 
the end of the year, three draft reports were prepared to be submitted to Member States and to 
social partners for comments, in view of their adoption in 2010. As regards the working time 
Directive, a comprehensive report on the transposition and application of this Directive in 27 
Member States completed during 2008, cross-checked against expert reports, and provided to 
member states and social partners for comments, still awaits its final adoption by the College.  

As  a  follow-up  to  a  Staff  Working  Document66  examining  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'),  the 
Commission  services  pursued  their  investigation  in  2009  through  bilateral  contacts  with 
Member  States,  by  sending  a  horizontal  questionnaire  to  all  Member  States  and  launched  a 
further evaluation study on 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. 

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 

66 

SEC (2008) 475 of 11 April 2008. 

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73 

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Four  new  expert  groups  were  created  and  started  their  activities  in  2009.  Two  are  informal 
groups  whose  aim  is  to  assist  Member  States  in  the  transposition  of  Directives  2009/38  (' 
European  Works  Councils')  and  2008/104  ('temporary  agency  work').  They  shall  end  their 
mandate in 2011. Another informal group was created with the aim of discussing the issues 
raised by the conclusion and implementation of transnational company agreements. 

Moreover,  as  regards  the  posting  of  workers  Directive,  a  formal  expert  committee  was  set 
up67 with the purpose to enhance administrative cooperation between the different authorities 
in the Member States in the area of the posting of workers and to examine any questions and 
difficulties which may arise in the implementation, application and enforcement of the posting 
of workers Directive in practice. It held its first meetings in 2009 and adopted a rolling work 
programme for its future activities. 

3.2.2.  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  responsible  Commission  services  have  continued  to  make  visible  progress  in  2009  to 
prioritise  and  accelerate  the  handling  of  open  infringements  (see  above),  there  are  still  a 
number of areas where the application of Community law is not yet satisfactory and needs to 
be improved.  

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  the  Directive  2003/88/EC  (in  particular  as  regards  on-call  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, to ensure effective conformity across the EU and to provide a response to the 
numerous complaints introduced by citizens or professional organisations.  

Moreover, the implementation of Directive 96/71/EC 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  vs.  Luxembourg)  which  will  be  necessary  to  be  closely  followed. 
The analysis of the implementation of Directives 99/70/EC on fixed-term work and 97/81/EC 
on part-time work, both resulting from agreements between social partners, revealed a number 
of deficiencies which are being 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. 

Decision setting up the Committee of Experts on Posting of Workers of 19 December 

67  
2008, OJ 2009 L8/26 

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74 

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It seems justified to inquire whether the objectives of such provisions have been effectively 
reached in 2010.  

3.2.3.  Evaluation results 

Four implementation reports, currently under preparation, are expected to be adopted in 2010. 
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/EC  (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/EC 
(working time of fishermen). 

The  Commission  will  continue  its  efforts  to  bring  further  clarity  to  the  implementation, 
application and enforcement of the Directive 96/71/EC on posting of workers. It has launched 
a study on the legal aspects and another on the economic and social impact of the Directive in 
2009  (results  expected  to  be  ready  by  end  2010,  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.  

Actions  undertaken  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/EC, as well as part time Directive 97/81/EC will be continued through bilateral contacts 
(via EU-PILOT or administrative letters). 

It is also the intention to proceed, in 2010, to further analysis and examination of a number of 
problems/issues  identified  in  the  context  of  Directive  2002/14/EC  (information  and 
consultation). Moreover,  in  the  conclusions  of  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 Commission indicated that it intends to 
take further action aimed at facilitating correct enforcement of the Directive.  

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 the 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  was  established  to  discuss  a  number  of 
outstanding  issues  regarding  the  application  of  the  insolvency  Directive  (Council  Directive 
80/987/EEC  and  its  codified  successor  European  Parliament  and  Council  Directive 

68 

69 

COM (2008) 146 final, 17.3.2008 

SEC (2008) 334 

EN 

75 

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2008/94/EC) in transnational situations, to take into consideration the clarifications given by 
the  ECJ  in  its  judgment  in  the  Holmquist  case  (C-310/08),  as  well  as  to  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 launched in 
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. A group of governmental experts has been 
set  up  for  this  purpose.  The  Commission  has  also  established  a  group  of  experts  to  assist 
Member States in the implementation process of the recast European Parliament and Council 
Directive 2009/38/EC on European Works Councils adopted on 23 April 2009.  

3.2.4.  Summary 

With  all  the  ongoing  initiatives,  including  the  establishment  and  running  of  several  expert 
groups, the Commission has increased its capacity to analyse and identify problematic issues, 
pursue  its  activities  of  control  of  European  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 EU-Pilot, may increase 
the workload considerably, which may require further prioritization. 

3.3. 

Health and safety at work 

3.3.1.  Current position 

3.3.1.1.  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 contributed to, inter alia, 
a substantial reduction of the accidents at work and thus to an improvement of the quality of 
work. 

3.3.1.2.  Report of work done in 2009 

Monitoring the application of health and safety at work legislation 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 practices guides and initiating legal measures if 
necessary. 

The monitoring of the conformity of transposition of EU legislation and the evaluation of its 
effective implementation continued during 2009, pursuant to Article 17 of the Treaty of the 
European Union. The treatment of infringement procedures continued and progress was made 
in  several  cases.  Moreover,  the  progress  in  the  implementation  of  the  acquis  on  health  and 

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safety  at  work  by  candidate  and  potential  candidate  countries  was  evaluated  with  particular 
emphasis  as  regards  the  modification  of  the  Croatian  law  transposing  the  Framework 
Directive with a view to meeting accession criteria on chapter 19. 

(1)  Management of infringements: 

Along  the  lines  set  out  horizontally  by  the  Commission  for  2009,  giving  priority  to  the 
handling of Article 260 of the Treaty on the Functioning of the European Union (ex Article 
228  of  the  EC  Treaty)  procedures  and  non  communication  procedures,  efforts  were  stepped 
up in order to make considerable progress as regards the Article 260 procedures. In addition 
to this priority, work was focused on the priorities identified for the sector, e.g. the analysis of 
the  conformity  of  the  transposition  of  Framework  Directive  89/391/EEC  and  of  the  5 
individual directives related to the highest risk sectors. 

–  Non-communication infringement cases: 

Following  the  closure  of  all  non-communication  cases,  in  2009  no  new  such  cases  were 
opened as no new directive was due for transposition in this year. 

–  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 in 2009. Some of them, such as for example the cases against Sweden on Directive 
92/57/EEC  (construction  sites)  and  Poland  on  the  Framework  Directive  89/391/EEC  were 
closed  further  to  the  adoption  of  national  legislative  measures  that  brought  into  compliance 
the national legislation. In the case against France concerning the application of the provisions 
of Directive 89/391/EEC to RATP and SNCF, following the Court of Justice ruling in favour 
of the Commission70, the proceedings continued and a reasoned opinion ex Article 228 (now 
Article 260 TFUE) was sent. As a result, France modified its legislation in the beginning of 
2010  and  the  case  will  be  closed.  In  the  case  against  Italy  on  Directive  92/57/EEC  on 
construction  sites,  following  the  Court  of  Justice  ruling  in  favour  of  the  Commission71,  a 
letter  of  formal  notice  ex  Article  228  (now  Article  260  TFUE)  was  sent  to  Italy,  which 
modified its legislation in order to bring it in line with the Court's ruling. Consequently, the 
case could be closed in January 2010. In the case against Austria on Directive 92/57/EEC, a 
reasoned opinion was sent. In addition, infringement proceedings were opened against Ireland 
(Directive 92/57/EEC on construction sites), Spain (Directive 93/103/EEC on fishing vessels) 
as  well  as  against  UK  on  the  conformity  of  the  transposition  of  Directive  2003/18/EC  on 
asbestos.  

The  analysis  of  the  national  measures  transposing  Directive  93/103/EEC  (fishing  vessels) 
continued  and  Italy  (through  the  EU  Pilot  project)  was  asked  to  provide  clarifications. 
Clarification was also requested on the transposition of Directive 92/29/EEC from France and 
the  Netherlands  (the  latter  through  the  EU  Pilot  project).  This  also  applies  to  the  UK 
regarding  Directive  92/57/EEC,  and  Germany  and  the  Netherlands  as  regards  certain 
provisions of the Framework Directive 89/391/EEC. 

70 

71 

Case C-226/06, judgment of 5 June 2008. 

Case C-504/06, judgment of 25 July 2008. 

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(2) 

Complaints management  

The management of complaints continued concerns cases of application of national legislation 
transposing  the  health  and  safety  directives  that  should  be  dealt  with,  at  first  instance,  at 
national level. Some of the complaints revealed violations of Health and safety EU law and 
therefore infringements procedures have been launched. 

In this context, as regards the complaint against Sweden in respect of the implementation of 
Directive 89/391/EEC, a reasoned opinion was prepared and was notified in January 2010.  

Concerning the complaint against Denmark regarding several points of Annex IV to Directive 
92/57/EEC, following the complementary letter of formal notice, a bilateral meeting was held 
with Denmark and it resulted from the meeting that the Danish authorities were committed to 
modify national legislation according to the concerns of the Commission.  

Following the letter of formal notice sent to the UK in January 2009, concerning a complaint 
concerning  the  transposition  of  Article  3  of  Directive  2003/18/EC,  a  bilateral  meeting  was 
held with the UK to allow exchange of views on the complex technical issues concerned. 

In  addition,  during  2009  different  correspondence  was  received  (through  CHAP  since 
September 2009) drawing the attention of the Commission to the application of EU law, for 
example in Cyprus as regards the requirements regarding manual handling of loads laid down 
in Directive 90/269/EEC. In none of these cases circumstances were established which would 
give rise to infringement procedures. 

(3) 

Practical Implementation Reports 

The  Commission  has,  in  the  Communication  Improving  quality  and  productivity  at  work: 
Community  strategy  2007-2012  on  health  and  safety  at  work72,  undertaken  to  assess  the 
implementation  of  the  regulatory  framework  with  a  view  to  improving  it.  This  is  inter  alia 
accomplished by presenting reports on the practical implementation of the health and safety at 
work  directives.  These  reports  are  mainly  based  on  the  national  reports  supplied  by  the 
Member States and a study done by an independent expert, analysing the implementation of 
the directives in the economic sectors concerned. They are an important source of information 
as regards the practical implementation of the Directives  and in order  to decide  on possible 
preventive action.  

During 2009, two such reports were presented to the Council,  the European  Parliament, the 
European Economic and Social Committee and the Committee of Regions:  

On 3 September 2009 the Commission adopted a report on the practical implementation of the 
provisions  of  the  Health  and  Safety  at  Work  Directives  92/91/EEC  (mineral-extraction 
(surface  and  underground  mineral  extraction) 
through  drilling)  and  92/104/EEC 
(COM(2009)449). 

In  addition,  on  29  October  2009  the  Commission  adopted  a  report  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) (COM(2009)599).  

72 

COM(2007) 62 final. 

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(4)  Management of the acquis through committees and experts 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.  

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. The Committee developed 
further  its  use  of  the  Commission's  CIRCA  extranet  to  exchange  information  on  fields  of 
enforcement  responsibility  and  practice,  incidents  with  lifting  machines  and  chemical 
substances.  

(5) 

Information  and  risk  awareness  raising  campaigns  of  Senior  Labour  Inspectors 
Committee (SLIC) 

The  European  campaigns  launched  under  the  initiative  of  the  Committee  of  Senior  Labour 
Inspectors (SLIC)73 largely contribute to better compliance with EU legislation in that field. 
European  campaigns  are  indeed  an  effective  means  by  which  the  labour  inspection  services 
can cascade a common message to stakeholders. In 2009, the Committee published 2 reports 
evaluating  pan-European  campaigns  on  two  work  place  hazards,  asbestos  and  the  manual 
handling of loads74, 75. For  the  latter, the inspectorates reached directly more than 10,  000 
workplaces in 2 target sectors: construction and retail trade. A strength of such joint actions is 
the  opportunity  to  share  good  practice  solutions  on  risk  management  amongst  stakeholders 
which can be promoted through new legislative proposals and guidance.  

SLIC  initiated  a  new  campaign  designed  to  enhance  risk  management  of  dangerous 
substances in small- and medium-sized enterprises. It concentrates on 4 workplace activities: 
motor vehicle repair, furniture making, bakeries and cleaning, all widespread activities which, 
if  not  properly  controlled,  pose  risks  of  serious  ill-health  e.g.  from  respiratory  and  skin 
disorders.76  

(6) 

Enlargement 

During 2009, works continued as far as health and safety at work issues are concerned in EU 
candidate and potential candidate countries. A substantial amount of work was performed to 
bring  Croatian  national  legislation  into  line  with  the  Framework  Directive,  which  involved 
detailed analysis of national legislation, organisation of bilateral meetings etc. In addition, a 
mission  to  Croatia  was  carried  out  in  2009  to  evaluate  the  administrative  capacities  of  the 
Labour  Inspectorate  with  input  from  the  SLIC.  As  an  application  for  EU  membership  was 
received  from  Iceland,  questions  were  prepared  concerning  Health  and  Safety  at  work. 
Replies were evaluated accordingly and an assessment was made on the situation in this area. 

73 

Commission Decision 95/319/EC of 12 July 1995, OJ L 188, p. 11 (as amended). 

74  

http://osha.europa.eu/en/campaigns/asbestos 

75  

http://www.handlingloads.eu/en/site/ 

76  

To be launched (21 January 2010) 

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As regards candidate and potential candidate countries, contributions were provided, twice in 
2009,  to  the  Annual  Progress  Reports  as  well  as  to  bilateral  meetings  organised  by  the 
Commission on the progress made by these countries.  Questions  were  prepared  for  Albania 
and  Montenegro  concerning  health  and  safety  at  work,  applications  for  TAIEX  funding  to 
organise  study  visits  and  workshops  and  a  project  under  Instrument  of  Pre-Accession 
assistance were evaluated and assessment made on their eligibility. Participation was ensured 
in bilateral meetings with Croatia and Montenegro to cover the aspects of health and safety at 
work.  

The  overall  goal  of  these  activities  is  to  ensure  that  the  candidate  and  potential  candidate 
countries  make  progress  in  transposition  and  effective  implementation  of  the  EU  acquis  on 
health and safety at work with a view to reaching the level of the EU Member States in this 
area and, in the future, to fulfil the EU accession criteria if and when requested to do so. 

(7) 

Non-binding guides 

In 2009, two practical non-binding guides  were made available in 22 language versions – a 
non-binding Guide on good practices for implementing Directive 2002/44/EC (on vibrations 
at work) and a non-binding Guide on good practices for implementing Directive 2003/10/EC 
(on noise at work).  

Such  non-binding  guides,  several  others  being  currently  available,  aim  at  facilitating  the 
implementation of EU health and safety legislation. The guides contain practical information 
addressed to employers and workers, in an easily understandable way, to encourage a better 
application of the EU legislation at the workplace. 

3.3.2.  Evaluation based on the current situation  

It is essential that the European Union 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. 

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. 

The implementation of the EU directives, in the field of health and safety at work, is bearing 
fruit at European level. Between 2000 and 2007 a reduction trend of 32.6% in the incidence of 
fatal  and  28.7%  in  non-fatal  accidents  at  work  in  the  EU-15  was  observed  according  to  the 
harmonised  data  on  accidents  at  work  that  are  collected  in  the  framework  of  the  European 
Statistics on Accidents at Work (ESAW)77. However, the latest statistics of 2007 show that 
around 3.8 million accidents at work resulting in more than three days of absence from work 
occurred in the EU-15. 

3.3.3.  Evaluation results 

Priorities set for 2009 were largely met but it should be borne in mind that the work planning 
has to be constantly adapted to new priorities introduced during the year which has an impact 

77 http://epp.eurostat.ec.europa.eu/cache/ITY_SDDS/en/hsw_acc_work_esms.htm 

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on  the  priorities  set  regarding  the  control  and  monitoring  of  the  application  of  Community 
law. 

While  all  health  and  safety  at  work  Directives  are  transposed  in  all  Member  States  and  the 
Commission  has  made  visible  progress,  in  2009,  to  accelerate  the  handling  of  open 
infringements and to go further with the priorities set, major efforts should still be deployed to 
progress with the priorities established. 

As examples of progress obtained may be mentioned the legislative amendments adopted in 
Austria, France, Italy, Poland , Sweden and the commitments by some other Member States to 
amend the legislation with a view to bringing their national law in compliance with the EU 
directives. Consequently, some of the infringements could be closed in 2009. 

Moreover,  practical  implementation  reports  were  adopted  in  2009  as  regards  Directives 
93/103/EEC  (fishing  vessels)  and  92/29/EEC  (medical  treatment  on  board  vessels)  and 
Directives  92/91/EEC  (mineral-extraction  through  drilling)  and  92/104/EEC  (surface  and 
underground mineral extraction)78. 

Following the adoption of Directive 2007/30/EC harmonising the reporting requirements for 
the  health  and  safety  at  work  Directives,  a  common  structure  and  questionnaire  for  future 
reports  were  prepared.  During  2010,  the  Commission  intends  to  prepare  guidelines,  which 
will  give  practical  information  with  examples  to  help  Member  States  prepare  the  reports  in 
such  a  way  that  these  provide  adequate  information  for  the  Commission  to  assess  the 
implementation of the EU acquis in the field of health and safety at work. 

As previously mentioned, 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. Moreover, such analysis is also required due to 
the fact that often Member States are legislating in the fields covered by these Directives and 
there is a need to constantly follow-up the legislative developments that, sometimes, are not 
notified to the Commission. 

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, mining engineers, etc.), a prioritisation 
was essential and the development of preventive actions was intensified such as the adoption 
of  non-binding  guidelines.  In  this  context,  also  with  a  view  to  avoiding  court  proceedings, 
bilateral meetings with national authorities took place in 2009 on six occasions79. As a result 
of those meetings, amendments to national legislation have been foreseen to bring it into line 
with the acquis.  

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 

78  

COM(2009) 449 and COM (2009) 599. 

79  

Bilateral meetings with DK, CZ, EL, IE, IT and UK 

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sectors  of  activity,  continues  to  be  a  major  priority  for  2010,  in  particular  as  regards  the 
correct transposition in the 12 new Member States. 

The  Commission  intends  to  continue  in  2010  the  analysis  of  the  conformity  of  5  individual 
directives related to the highest risk sectors: construction (directive 92/57/EEC), the maritime 
sector (directives 92/29/EEC and 93/103/EC) and extractive industries (directives 92/91/EEC 
and  92/104/EEC).  In  addition,  it  is  also  the  intention  in  2010  to  further  analyse  the 
transposition of the Asbestos Directive 2003/18/EC as an exposure to asbestos is still a major 
concern for the protection of the workers' health. 

These priorities are in line with the main objectives of the Community Strategy 2007-2012 on 
Health  and  safety  at  Work80  in  particular  those  of  reducing  occupational  accidents  and 
diseases and guaranteeing the proper implementation of EU legislation. 

As  preventive  action  for  2010  is  foreseen  for  instance  the  adoption  by  the  Plenary  of  the 
ACSH of a practical non-binding guide on the construction sites Directive 92/57/EEC which 
will contribute decisively to the dissemination of good practices, being an assistance tool for 
better application of the EU legislation, with a view to improving application and consistency 
of the EU Directive among Member States.  

A  major  priority  for  2010  relates  to  the  follow-up  of  the  respect  of  the  deadline  for 
transposition  of  Directive  2006/25/EC  (artificial  optical  radiation)  in  April  2010  and  the 
resulting non-communication infringements. 

3.3.4.  Summary 

The  Commission  has  continued  to  develop  several  initiatives  to  strengthen  the  preventive 
measures  with  a  view  to  significantly  improving  the  level  of  effective  and  complete 
implementation, application and enforcement of the EU health and safety at work acquis. This 
has  given  successful  results  as  for  example  the  closing  of  all  non-communication 
infringements or the reduction trend in the accidents at work.  

The  limits  of  the  priorities  fixed  should  however  be  highlighted  as  national  legislation  is 
constantly  being  adopted  in  the  field  of  Directive  89/391/EEC  and  its  individual  directives, 
requesting  the  Commission  to  focus  on  the  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 procedures. 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.  

Further to the Resolution of the European Parliament of 15 January 2008 on the Health and 
Safety  Strategy  2007-201281,  which  expressly  requests  to  the  Commission  to  intensify  its 
works  on  the  monitoring  of  the  transposition  of  the  health  and  safety  at  work  directives, 
progress in this area has been intensified and the prioritising approach above indicated as well 

80 

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COM(2007) 62 

Resolution 2007/2146 

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as  the  preventive  initiatives  undertaken,  should  allow  to  deal  with  a  workload  which  is 
constantly increasing and therefore requesting major efforts to adequately manage it. 

3.4. 

Antidiscrimination and gender equality 

3.4.1.  Current position  

3.4.1.1.  Introduction 

The legislative acquis in the field of gender equality and anti-discrimination is composed of 8 
Directives, based mainly on the specific Treaty provisions: Article 157 TFEU (former Article 
141  TEC)  for  gender  equality  and  Article  19  TFEU  (former  Article  13  TEC)  for 
antidiscrimination.  

The  number  of  infringement  proceedings  concerning  this  legislative  domain  was  important 
owing  to  the  combination  of  non-conformity  and  non-communication  cases.  In  2009, 
following an intensified dialogue with the MS, the number of infringement proceedings has 
substantially  decreased,  essentially  due  to  the  fact  that  many  Member  States  have  changed 
national law to comply with the Directives or have communicated their national measures to 
transpose the most recently adopted Directives. Subsequently, the number of cases decreased 
from more than 100 at the end of 2008 to 74 at the end of 2009. The handling and monitoring 
of all these cases remains nevertheless a challenging workload.  

3.4.1.2.  Report of work done in 2009 

(8) 

New legislation in preparation 

In the area of gender equality and anti-discrimination, four legislative proposals were under 
discussion:  

–  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, 

–  a  proposal  for  a  Directive  implementing  the  revised  Framework  Agreement  on  parental 
leave  concluded  by  BUSINESSEUROPE,  UEAPME,  CEEP  and  ETUC  and  repealing 
Directive 96/34/EC, 

–  a  proposal  for  a  Directive  amending  92/85/EEC  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, and 

–  a  proposal  for  a  Directive  on  the  application  of  the  principle  of  equal  treatment  between 
men and women engaged in an activity in a self-employed capacity and repealing Directive 
86/613/EEC. 

The Council reached a political agreement on the adoption of the proposal on parental leave 
on 30 November.  

On the same date, the Council reached political agreement on its first reading opinion on the 
proposal for  a  Directive on the application of  the principle of equal treatment between  men 
and women engaged in an activity in a self-employed capacity.  

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The proposal for a Directive amending Directive 92/85/EEC is in the first reading procedure, 
with possibly a plenary vote in the European Parliament in autumn 2010. 

Finally, concerning the proposal for a Directive implementing the principle of equal treatment 
between persons irrespective of religion or belief, disability, age or sexual orientation outside 
employment, on April 2009 the European Parliament adopted a resolution on it, endorsing its 
main features (grounds covered and material scope), while proposing amendments in detail. 
Negotiations  in  Council  progressed  satisfactorily  during  2009,  essentially  during  the  second 
half. While significant progress has been made in the attempt to clarify the scope, the division 
of  competences,  the  disability  provisions,  and  the  implementation  calendar,  Member  States 
still have strong concerns with regard to costs and legal authority. 

(9)  Monitoring of infringements 

All  Member  States  have  transposed  Directives  2000/43/EC,  2000/78/EC  and  2002/73/EC. 
Two  procedures  for  non  communication  of  national  measures  to  transpose  Directive 
2004/113/EC and seven for Directive 2006/54/EC remain open. 

The work in 2009 to monitor national law can be summarized as follows: 

–  With  regard  to  ensuring  the  conformity  with  art.  157  TFUE,  the  Commission  sent  a 
reasoned opinion to one Member State (FR), while for another one (IT) it was analysing 
the conformity of the new legislation sent to Commission, based on which a decision shall 
be made during 2010.  

–  Concerning  Directive  2000/43/EC,  two  Member  States  received  a  reasoned  opinion  (NL 
and  DE),  and  eleven  cases  were  closed.  At  the  end  of  2009,  twelve  cases  for  incorrect 
transposition remained open. 

–  Concerning  Directive  2000/78/EC,  one  Member  State  received  a  letter  of  formal  notice 
(EL),  three  received  reasoned  opinions  (IT,  UK  and  DE)  while  seven  cases  were  closed 
(DK, EE, FI, SK, MT, FR and AT). 

–  Directive  2006/54/EC  had  to  be  transposed  by  Member  States  by  15  August  2009  at  the 
latest. Immediately after, the Commission took action against seven Member States (AT, 
BE,  EE,  IT,  LU,  PL  and  UK),  which  had  not  notified  national  laws  to  transpose  the 
Directive.  

–  Concerning the cases for non communication of national measures to transpose Directive 
2004/113/EC,  two  Member  States  have  not  yet  notified  their  national  measures  to  fully 
transpose  the  Directive  (PL  and  UK).  In  both  cases,  the  Commission  has  referred  the 
matter  to  the  Court  of  Justice.  On  the  other  hand,  Cyprus,  the  Czech  Republic,  Estonia, 
Latvia and Greece notified transposition laws and the cases have therefore been closed. 

–  As  regards  the  monitoring  of  the  conformity  of  national  measures  transposing  Directive 
2002/73/EC, during 2009, five cases were closed, the Commission being satisfied with the 
amendments  introduced  or  the  explanations  given  (AT,  FI,  CY,  EL  and  FR),  while  five 
Member States received a reasoned opinion (DE, PL, DK, LV and UK). 

(10)  Main actions taken to monitor the correct application of the law 

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On  29  July  2009,  the  Commission  adopted  the  Report  on  the  application  of  Directive 
2002/73/EC82. The Report focuses on transposition problems, the impact of the Directive on 
national law and practice of the Member States, the enforcement of rights and obligations, and 
the role of equality bodies, social partners and NGOs. 

One  of  the  conclusions  of  the  Report  is  that  considering  the  far-reaching  changes  to 
legislation required in a number of Member States and the substantial progress most Member 
States  have  made  in  implementing  its  provisions,  the  transposition  of  Directive  2002/73/EC 
can  generally  be  regarded  as  satisfactory.  However,  effort  is  still  needed  in  some  Member 
States to achieve full and correct transposition. 

3.4.2.  Evaluation based on the current situation  

Considering  that  the  legal  acquis  is  transposed  in  all  Member  States,  with  the  exception  of 
seven procedures open for non communication of national measures to transpose the two most 
recently adopted Directives, the situation as far as transposition is concerned is satisfactory. 

The  monitoring  of  the  transposition  of  the  two  Directives  on  antidiscrimination  adopted  in 
2000  and  of  the  gender  equality  Directive  from  2002  gave  rise  to  a  high  number  of 
infringement  cases,  involving  almost  all  Member  States.  This  was  due  to  two  main  factors: 
the high standard applied by the Commission in a field linked to human rights and the novelty 
and complexity of the legal texts, involving different areas of the legislative framework.  

In the near future, it is expected that the number of cases open and the number of grievances 
will decrease substantially, due to amendments to national laws and to a better understanding 
of the overall legal framework. 

3.4.3.  Evaluation results 

3.4.3.1.  Priorities 

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, while not disregarding the 
overall application of the EU law in the field of gender equality and anti-discrimination, the 
main priorities for 2010 will be: 

–  Cases under Article 260 TFEU; 

–  Follow-up  of  the  proceedings  for  non-communication  of  national  measures  to  transpose 

Directives 2004/113/CE and 2006/54/EC. 

–  Monitoring of the conformity of national measures transposing Directive 2004/113/EC. 

For the remaining cases which do not fall within one of  the above  categories, the treatment 
will  take  into  consideration  the  date  of  the  last  Commission's  decision,  the  stage  of  the 
procedure and the importance of the grievances raised. 

82  

COM(2009) 409 final 

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3.4.3.2.  Planned action 

In  the  area  of  gender  equality  and  anti-discrimination,  the  negotiation  of  the  legislative 
proposals  on  the  table  is  a  priority.  The  Commission  will  have  to  play  its  role  in  the 
procedures in order to facilitate adoption by the Council and by the two co-legislators.  

Thus,  as  regard  the  proposal  for  a  Directive  on  the  application  of  the  principle  of  equal 
treatment  between  men  and  women  engaged  in  an  activity  in  a  self-employed  capacity,  the 
second  reading  will  start  in  2010,  once  the  final  text  is  transmitted  to  the  European 
Parliament.  As  far  as  the  proposal  for  a  Directive  amending  Directive  92/85/EEC  is 
concerned,  the  European  Parliament  has  scheduled  adoption  of  its  first  reading  opinion  on 
March 2010. 

With  regard  to  the  management  of  infringements,  in  order  to  manage  the  remaining  high 
number of infringement proceedings, it is envisaged to concentrate on the priorities set above, 
while making utmost efforts to treat the remaining cases in accordance with the internal rules.  

Since  the  deadline  for  transposing  two  Directives  (2004/113/EC  and  2006/54/EC)  expired 
recently and it is necessary to ensure that they are transposed in all Member States as soon as 
possible. The non communication proceedings will continue to be a top priority in this area. 

Now that almost all Member States have transposed Directive 2004/113/EC, the monitoring 
of the conformity of national laws will start and is likely to lead to an increase in the number 
of open cases. 

On  the  other  hand,  it  is  expected  that  more  cases  will  be  closed  concerning  Directives 
2002/73, 2000/78/EC and 2000/43/EC, as many Member States are engaged in the review of 
their national law.  

Finally,  following  the  entry  into  force  of  the  Lisbon  Treaty,  the  Commission  will  also  give 
special attention to complaints and petitions concerning the rights enshrined in the Charter in 
the area of gender equality and non discrimination. 

3.4.4.  Summary 

The  Commission  will  continue  its  practice  of  bilateral  meetings  with  national  authorities 
whenever  this  seems  useful  to  better  understand  the  complexities  of  the  national  legal 
framework. 

The Commission will also try to anticipate future infringement proceedings by the setting-up 
of  expert  groups  in  order  to  discuss  the  implementation  of  the  new  Directives  by  Member 
States, as soon as they are adopted. This will be the case to prepare the transposition of the 
new Directive on Parental Leave. 

In  general,  it  is  expected  that  national  Equality  Bodies  will  contribute  to  a  reduction  in  the 
number  of  complaints  concerning  this  area  of  EU  law,  in  the  areas  in  which  they  are 
competent (so far gender and race). 

The Commission will continue to make use of problem resolution alternatives to infringement 
proceedings  (EU  Pilot,  CHAP)  but  also  external  expertise  (Equality  Bodies,  Network  of 
Independent  Legal  Experts).  These  tools  coupled  with  the  prioritisation  set  above,  should 
facilitate the management of the heavy workload which is not expected to decrease. 

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4. 

AGRICULTURE AND RURAL DEVELOPMENT 

4.1. 

Current position 

4.1.1.  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 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 1372 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 EU 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  subject  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 1782/200383 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, on which basis 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 

83 
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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supporting  agricultural  markets.  The  second  pillar  of  the  CAP  provides  a  framework  to 
support the development of rural areas of the EU. The first pillar is 100% financed by the EU 
budget, whereas the second pillar is co-financed by the UE budget and those of the Member 
States.  Beginning  on  1st  January  2007  the  programmes  for  rural  development  have  been 
implemented  on  the  basis  of  a  new  strategic  planning  model  based  on  a  Community 
framework  position  and  national  strategic  plans  (see  Council  Regulation  (EC)  No 
1698/200584). 

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 
1290/200585  ,  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  of  Member  States  and  the 
Commission, 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 

84 
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 

85 
common agricultural policy. 

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sectors  which  until  2007  were  individual  CMOs.  It  provides  a  single  legal  framework 
governing the domestic market, trade with third countries and rules regarding competition86. 

4.1.2.  Report of work done in 2009 

4.1.2.1.   New legislation 

If 2008 ended with the successful outcome of the "Health check" reflection process on how to 
improve  the  efficiency  of  the  Common  Agricultural  Policy  in  the  future,  2009  has  been 
characterised by a very active legislative activity dedicated to the formalisation of the political 
agreement reached. 

Implementation of the "Health check" 

The  political  agreement  reached  on  20  November  2008  on  the  "Health  Check"  has  been 
formalised  by  the  adoption  of  three  Council  Regulations  (Regulations  (EC)  N°  72/2009, 
73/2009  and  74/2009)  and  implementation  rules  through  the  Comitology  procedure.  The 
changes concern the main areas of the CAP: direct aid system, market instruments and rural 
development  policy  (new  challenges).  Among  a  range  of  measures,  the  Health  check 
abolishes  set-aside,  provides  for  a  gradual  phasing-out  of  milk  quotas  leading  up  to  their 
abolition in 2015 ("soft landing"), and converts market intervention into a genuine safety net. 

The Health Check also had the effect that the rules for direct payments have been reviewed 
and  simplified  and  led  to  an  increased  degree  of  modulation,  whereby  direct  payments  to 
farmers are reduced and the money transferred to the Rural Development Fund. 

Reform of specific market instruments 

As well as the legislative implementation of the Health Check quoted above, 2009 saw several 
other legislative initiatives adopted regarding specific sectors or horizontal rules. Concerning 
the  latter,  the  single  CMO  provides  a  sound  basis  for  grouping  similar  market  management 
procedures applicable in different sectors in horizontal Commission Regulations. It offers the 
opportunity to reconsider and harmonise the different variations in so far as this is considered 
to  be  useful,  thereby  achieving  a  degree  of  simplification.  In  2009  two important  initiatives 
were taken: 

–  Rules on buying in, storage, and selling under public intervention for all eligible products 
have  been  summarised,  and  where  feasible  harmonised,  in  Commission  Regulation  (EU) 
No 1272/200987.  

–  Communications  between  Member  States  and  the  Commission  on  market  management 
measures  has  been  streamlined  in  one  Commission  Regulation  (EC)  No 792/200988  that 

86 
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). 

87 
Commission  Regulation  (EU)  No  1272/2009  of  11 December  2009  laying  down 
common detailed rules for the implementation of Council Regulation (EC) No 1234/2007 as 
regards buying-in and selling of agricultural products under public intervention. 

EN 

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provides the legal framework for the simultaneous creation and introduction of an IT tool 
for the purpose (ISAMM). 

Besides simplification of CMO rules, the "acquis" concerning several sectors was modified to 
a greater or lesser extent in 2009.  

In the wine sector, the single CMO project was continued. Regulation (EC) No 479/2008 on 
the  common  organisation  of  the  market  in  wine  was  incorporated,  as  expected,  in  Council 
Regulation (EC) No 1234/2007 - the single CMO Regulation by Council Regulation (EC) No 
491/2009. 

Moreover,  the  adoption  of  three  regulations  completed  the  implementation  of  the  wine 
reform: 

- 
as  regards  the  vineyard  register,  compulsory  declarations  and  the  collection  of 
information to monitor the wine market, as well as the documents accompanying consignment 
of wine products and the registers to be kept; Commission Regulation (EC) No 436/200989 
was adopted. 

as regards the categories of grapevine products and oenological practices; Commission 

- 
Regulation (EC) No 606/200990 was adopted. 

- 
as  regards  protected  designations  of  origin  and  geographical  indications,  traditional 
terms,  labelling  and  presentation  of  certain  wine  sector  products;  Commission  Regulation 
(EC) No 607/200991was adopted. The latter two items were subject to consultation of WTO 
partners under the Agreement on Technical Barriers to Trade (TBT). 

88 
Commission  Regulation  (EC)  No 792/2009  of  31 August  2009  laying  down  detailed 
rules for the Member States' notification to the Commission of information and documents in 
implementation of the common organisation of the markets, the direct payments' regime, the 
promotion  of  agricultural  products  and  the  regimes  applicable  to  the  outermost  regions  and 
the smaller Aegean islands. 

Commission  Regulation  (EC)  No 436/2009  of  26 May  2009  laying  down  detailed 
89 
rules  for  the  application  of  Council  Regulation  (EC)  No 479/2008  as  regards  the  vineyard 
register,  compulsory  declarations  and  the  gathering  of  information  to  monitor  the  wine 
market,  the  documents  accompanying  consignments  of  wine  products  and  the  wine  sector 
registers to be kept. 

90 
Commission  Regulation  (EC)  No 606/2009  of  10 July  2009  laying  down  certain 
detailed  rules  for  implementing  Council  Regulation  (EC)  No 479/2008  as  regards  the 
categories of grapevine products, oenological practices and the applicable restrictions 

91 
Commission  regulation  (EC)  No 607/2009  of  14 July  2009  laying  down  certain 
detailed  rules  for  the  implementation  of  Council  Regulation  (EC)  No 479/2008  as  regards 
protected designations of origin and geographical indications, traditional terms, labelling and 
presentation of certain wine sector products 

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Together with the first implementing regulation, Regulation (EC) No 555/200892, this quartet 
of regulations provides a stable and clear legal framework for the sector for the coming years. 
They will contribute to improving competitiveness, increase subsidiarity by enabling Member 
States  to  select  the  measures  in  their  national  support  programmes  most  suited  to  their 
conditions. They also set out clear rules as regards PDOs, PGIs and TTs as well as on annual 
verification  to  be  carried  out  by  Member  States  to  ensure  the  technical  specifications  are 
respected  and  on  labelling  and  presentation  of  wine  products.  The  national  authorities 
carrying  out  assessments  and  checks  have  to  be  competent,  objective  and  impartial.  The 
authorization  of  wine-making  practices  will  be  simplified  –  in  general  taking  over  those 
recommended  by  the  International  Organisation  of  Vine  and  Wine  (OIV).  The  analytical 
methods of the OIV will likewise be used for analysis in the European Union. The collection 
of  information  to  monitor  the  sector  has  also  been  adequately  provided  for  to  ensure  early 
detection of market changes and trends. 

In the fruit and vegetable sector, the implementing rules for the School Fruit Scheme (SFS) 
laid  down  in  Commission  Regulation  (EC)  N°288/200993  were  adopted.  The  scheme  is 
operational  as  from  the  current  school  year  2009-2010.  It  aims  to  encourage  healthy  eating 
habits in young people, thus contributing to the campaign against obesity which has a serious 
impact on health. The SFS makes available €90 million of EU funds per year to provide fruit 
and vegetables to school children and this money is matched by national, private funds and in 
certain cases parental contributions (co-financing). 23 Member States out of 27 have opted to 
participate  in  2009-2010,  which  is  an  excellent  take-up.  Moreover,  the  fruit  juice  Directive 
(2001/112/EC)  has  been  amended  by  Directive  2009/106/EC94.  Adaptation  was  needed  to 
take  account  of  technical  progress  and  developments  in  relevant  international  standards,  in 
particular the Codex Standard for fruit juices and nectars (Codex Stan 247-2005) which was 
adopted by the Codex Alimentarius Commission during its 28th session on 4- 9 July 2005 and 
the Code of Practice of the European Fruit juice Association (AIJN). A second amendment of 
this Directive is scheduled for 2010. Finally, for the smooth functioning of the "acquis" in the 
fruit  and  vegetable  sector  a  recast  of  the  implementing  rules  (Commission  Regulation 
1580/200795)  which  incorporated  interpretative  notes,  was  launched.  Several  issues  are 

Commission  Regulation  (EC)  No 555/2008  of  27 June  2008  laying  down  detailed 
92 
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 

93 
Commission Regulation (EC) No 288/2009 of 7 April 2009 laying down detailed rules 
for applying Council Regulation (EC) No 1234/2007 as regards Community aid for supplying 
fruit  and  vegetables,  processed  fruit  and  vegetables  and  banana  products  to  children  in 
educational establishments, in the framework of a School Fruit Scheme. 

94 
Commission  Directive  2009/106/EC  of  14 August  2009  amending  Council  Directive 
2001/112/EC  relating  to  fruit  juices  and  certain  similar  products  intended  for  human 
consumption. 

95 
Commission  Regulation  (EC)  No 1580/2007  of  21  December  2007  laying  down 
implementing  rules  of  Council  Regulations  (EC)  No 2200/96,  (EC)  No 2201/96  and  (EC) 
No 1182/2007 in the fruit and vegetable sector 

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addressed  such  as  price  reporting,  the  new  crisis  prevention  and  management  tools  for 
producer organisations. 

In  the  animal  products  sector,  various  measures  were  adopted  pursuant  to  the  reforms 
introduced by the Health Check of the PAC and with a view to improving the effectiveness in 
the  application  of  certain  measures.  For  instance,  Commission  Regulation  (CE)  n° 
149/200996 concerning the detailed rules of the arrangement of intervention on the skimmed 
milk  powder  market  simplified  certain  provisions,  integrated  the  new  rule  of  content  of 
proteinaceous  matters  decided  by  the  Council,  and  adapted  the  rules  of  management  of  the 
invitations to tender in order to ensure the respect of the intervention ceiling decided under the 
Heath Check. Also the school milk programme has been modified by Commission Regulation 
(EC)  No  966/2009  to  enlarge  the  game  of  eligible  products  and  increase  its  efficacy.  In  the 
field  of  meats,  legislation  was  adopted  in  accordance  with  the  Health  Check,  so  to  remedy 
certain  crisis  situations  or  pursuant  to  certain  agreements  with  the  third  countries.  For 
example,  public  intervention  in  the  pigmeat  sector  was  abolished  pursuant  to  the  Health 
Check (Article 4 (2) of Regulation (EC) n° 72/200997). This abolition seeks to simplify the 
"acquis" by the removal of an obsolete measure for this market which had not been applied 
since 1971. Also, Council Regulation (EC) No 1047/2009 adapted the legal base on marketing 
standards for poultry meat; it assures the correct coverage for certain poultry preparation (the 
modification of the implementing rules will be adopted in 2010). 

Direct payments and cross compliance 

An intense legislative activity took place in 2009, as a consequence of the agreement reached 
in 2008 on the Health Check of the Common Agricultural Policy, as well as in the context of 
the on-going simplification programme.  

Council  Regulation  (EC)  No  73/2009  adopted  on  19  January  2009  provided  the  revised 
general  legal  framework  for  direct  support  schemes  for  farmers98  This  Regulation  was 
amended in November 200999 in order to introduce a number of technical adaptations and to 

96 
Commission Regulation (EC) No 149/2009 of 20 February 2009 amending Regulation 
(EC) No 214/2001 laying down detailed rules for the application of Council Regulation (EC) 
No 1255/1999 as regards intervention on the market in skimmed milk powder. 

Council  Regulation  (EC)  No  72/2009  of  19  January  2009  on  modifications  to  the 
97 
(EC) 
Common  Agricultural Policy  by  amending  Regulations 
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. 

(EC)  No  247/2006, 

98 
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. 

99 
Council  Regulation  (EC)  No 1250/2009  of  30 November  2009  amending  Regulation 
(EC) No 73/2009 establishing common rules for direct support schemes for farmers under the 
common agricultural policy and establishing certain support schemes for farmers.  

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allow  Member  States  to  decide  specific  support  measures  for  farmers  in  the  dairy  sector 
before 1st January 2010.  

The  Commission's  implementing  rules  were  recast  and  simplified  through  the  adoption  of 
Commission  Regulations  (EC)  No  1120/2009100,  (EC)  No  1121/2009101  and  (EC)  No 
1122/2009102.  

This recast and simplification included the deletion of obsolete provisions, e.g. those related 
to compulsory set-aside or to the establishment of the Single Payment Scheme in the EU-15, 
the introduction of transitional rules for energy crops and the voluntary set-aside scheme as 
well  as  the  integration  of  the  provisions  on  specific  support  under  Article  68  of  Regulation 
(EC)  N°73/2009,  previously  introduced  by  Commission  Regulation  (EC)  N°  639/2009103. 
The  improvements  for  cross  compliance  included  simplification  of  rules  concerning  checks 
and sanction as well as adaptation of the system of maintenance of permanent pasture to better 
reflect reality. The text and the structure of the implementing rules were also revised in order 
to improve their readability. 

As regards in particular the provisions on specific support under Article 68, detailed rules are 
laid  down  for  each  of  the  measures  listed  in  Article  68(1)  of  Regulation  (EC)  No  73/2009. 
Due to the diversity of choices offered for implementing specific support, the responsibility of 
ensuring  consistency  between  specific  support  and  other  Community  support  measures  or 
measures  financed  by  state  aids  is  left  to  the  Member  States.  Provision  is  made  in  the 
implementing  rules  to  prevent  similar  measures  being  financed  twice  under  both  specific 
support  and  other  Community  support  schemes.  Specific  support  measures  must  not 
compensate  for  complying  with  legal  requirements.  The  timing  and  the  content  of  the 
information  to  be  notified  to  the  Commission  are  specified.  Member  States  must  lay  down 
eligibility criteria for specific support measures and ensure that the measures they implement 
are verifiable and controllable. 

100  Commission Regulation (EC) No 1120/2009 of 29 October 2009 laying down detailed 
rules for the implementation of the single payment scheme provided for in Title III of Council 
Regulation  (EC)  No 73/2009  establishing  common  rules  for  direct  support  schemes  for 
farmers  under  the  common  agricultural  policy  and  establishing  certain  support  schemes  for 
farmers.  

101  Commission Regulation (EC) No 1121/2009 of 29 October 2009 laying down detailed 
rules  for  the  application  of  Council  Regulation  (EC)  No 73/2009  as  regards  the  support 
schemes for farmers provided for in Titles IV and V thereof.  

102  Commission Regulation (EC) No 1122/2009 of 29 October 2009 laying down detailed 
rules  for  the  implementation  of  Council  Regulation  (EC)  No  73/2009  as  regards  cross-
compliance, modulation and the integrated administration and control system, under the direct 
support schemes for farmers provided for that Regulation, as well as for the implementation 
of  Council  Regulation  (EC)  No  1234/2007  as  regards  cross-compliance  under  the  support 
scheme provided for the wine sector provided for in Council Regulation (EC) No 479/2008. 

103  Commission Regulation (EC) No 639/2009 of 22 July 2009 laying down detailed rules 
for  the  implementation  of  Council  Regulation  (EC)  No 73/2009  as  regards  specific  support, 
repealed by Regulation (EC) No 1120/2009. 

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Rural development 

The  results  of  the  2008  political  agreement  on  "Health  Check"  were  formalised  by  Council 
Regulation  (EC)  No  74/2009104  amending  Regulation  (EC)  No  1698/2005  and  by 
Commission Regulation (EC) No 363/2009105 amending the implementing Regulation (EC) 
No 1974/2006. Increased modulation was part of the agreement and the corresponding funds 
are  transferred  to  the  Rural  Development  Fund  (EAFRD)  to  be  used  for  new  challenges. 
These  new  challenges  were  identified  to  be  related  to  climate  change,  renewable  energies, 
water management, biodiversity, measures accompanying restructuring of the dairy sector and 
innovation  linked  to  the  four  first  challenges.  A  higher  Community  co-financing  rate  on 
increased  modulation  funds  is  available  for  these  new  challenges  and  also  for  the  amounts 
from unspent funds from the 1st pillar (standard rate 75%, convergence regions 90%). 

Another substantial change in 2009 was the introduction of the European Economic Recovery 
Package (EERP) responding to the financial and economic crisis. The Commission succeeded 
in establishing the legal framework to allow Member States to use the amount of EUR 1 020 
million,  by  the  adoption  of  Council  Regulation  (EC)  N°  473/2009106,  in  line  with  the 
amendments  introduced  by  Council  Regulation  (EC)  No  74/2009  which  enables  Member 
States  to  use  amounts  resulting  from  increased  compulsory  modulation  and  unused  funds 
generated  under  Council  Regulation  (EC)  No  73/2009  on  direct  support  schemes  on 
operations  related  to  the  new  challenges.  Both  these  changes  led  to  a  need  to  revise  all 
national  strategy  plans  and  rural  development  programmes,  except  national  networks,  in  all 
Member  States.  80  programmes  were  revised  in  2009  and  the  remaining  7  programmes  in 
January 2010 using the Comitology approach. 

The implementing rules for controls on rural development, Commission Regulation (EC) No 
1975/2006,  was  amended  to  clarify  some  provisions  and  to  take  into  account  recent 
amendments  of  the  corresponding  regulation  providing  for  controls  under  the  1st  pillar, 
Regulation (EC) No 796/2004, to which there are lot of cross-references. 

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 

104  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)  

105  Commission Regulation (EC) No 363/2009 of 4 May 2009 amending Regulation (EC) 
No 1974/2006  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)  

106  Council  Regulation  (EC)  No 473/2009  of  25 May  2009  amending  Regulation  (EC) 
No 1698/2005 on support for rural development by the European Agricultural Fund for Rural 
Development (EAFRD) and Regulation (EC) No 1290/2005 on the financing of the common 
agricultural policy 

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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. 

More  than  500  contributions  received  from  stakeholders  during  this  public  consultation  on 
quality  policy  were  analysed  in  detail  and  provided  the  basis  for  the  Commission 
in  May  2009 
Communication  on  agricultural  product  quality  policy  adopted 
((COM(2009)234)). The Communication lays down strategic orientations for a coherent and 
comprehensive food quality policy, aimed at improving the communication between farmers 
and consumers on the quality of agricultural products. 

The Communication is based also on the outcomes of the High Level Conference on Quality 
held in Prague in March 2009 and the Impact Assessment exercise carried out in 2009. The 
Impact  Assessment  accompanying  the  Communication  was  the  result  of  a  comprehensive 
reflection  and  analysis  exercise  leading  to  identify  for  each  field  (production  requirements 
and  marketing  standards,  EU  quality  schemes  and  certification  schemes)  covered  by  the 
Green Paper and the subsequent Communication the following elements: the policy context, 
the  underlying  causes  of  problems,  the  policy's  objectives  and  the  policy  options  envisaged 
and those retained. 

The Communication announces a series of actions of different kinds (including guidelines and 
possible  legislative  proposals)  to  be  taken  by  the  Commission  in  respect  of  existing  EU 
quality schemes, quality certification schemes and marketing standards. 

the  Communication,  new 

Following 
the 
establishment of an Impact Assessment Inter Service Group) commenced at the end of 2009, 
in order to have the prospect of legislative proposals in the second semester of 2010. 

Impact  Assessment  exercises 

(including 

Moreover,  in  2009,  the  “Standing  Committee  on  Protected  Geographical  Indications  (PGI) 
and Protected Designations of Origin” (PDO) (Art. 15 of Regulation (EC) No 510/2006) and 
the  “Standing  Committee  on  Traditional  Specialities  Guaranteed”  (TSG)  (Art.  18  of 
Regulation  (EC)  No  509/2006)  gave  favourable  opinions  respectively  on  a  number  of  Draft 
Commission  Regulations  entering  names  in  the  Register  of  PDOs-PGIs  and  of  Draft 
Commission Regulations entering names in the Register of TSGs. 

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 products107, supplemented by implementing regulations 

107  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. 

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adopted in 2008 (Regulations (EC) No 889/2008108 on production, labelling and control and 
Regulation (EC) No 1235/2008109 on import of organic products). These Regulations replace 
the  old  Regulation  (EEC)  No  2092/91  as  from  1  January  2009  onwards.  They  were  further 
developed  in  2009  with  the  adoption  of  amending  Regulation  (EC°  N°  710/2009110, 
establishing common rules for organic aquaculture and seaweed production.  

4.1.2.2.   Preventive measures and actions taken to control the correct application of the law 

In  the  field  of  prevention  the  Commission  continues  to  be  active  as  the  following  actions 
demonstrate. 

Meetings  with  the  Member  States  on  a  bilateral  basis  in  the  context  of 

Comitology 

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.  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 the 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, in particular in the agricultural quality policy sector.  

In that same sector, as the supervision of obligations of Member States under Regulation (EC) 
No  510/2006  has  been  identified  as  an  important  issue  in  need  of  attention,  in  2009  the 
Committee  meetings  provided  the  opportunity  to  keep  Member  States  informed  on  the 
developments in the implementation of the EU legislation relevant to checks. In particular, the 
official food and feed control Regulation (EC) No 882/2004 was presented in the Committees. 
The  monitoring  requirements  for  PDO/PGI/TSG  and  the  link  with  Regulation  (EC)  No 
882/2004 were also presented to the MANCP Network (representatives of the CA of Member 
States). The integration of PDO/PGI/TSG monitoring provisions in the MANCP and Annual 

108  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. 

109  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. 

110  Commission  Regulation  (EC)  No 710/2009  of  5 August  2009  amending  Regulation 
(EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation 
(EC) No 834/2007, as regards laying down detailed rules on organic aquaculture animal and 
seaweed production 

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Report was discussed. 

The accreditation requirements and the state of play of the implementation of Regulation (EC) 
No 765/2008 setting out the requirements for accreditation and market surveillance relating to 
the marketing of products were also presented in the Committees. 

The Commission services informed the MS regarding the interpretative note (No 2009-01) on 
administrative protection of registered names by the competent monitoring authorities of the 
Member States concerning names registered under Regulation (EC) No 510/2006. It applies 
mutatis mutandis also to Regulation (EC) No 509/2006 on TSG. 

In  the  spirit  drinks  sector,  guidelines  relating  to  Articles  9,  10  et  al  of  Regulation  (EC) 
No 110/2008  of  the  European  Parliament  and  of  the  Council  on  the  definition,  description, 
presentation,  labelling  and  the  protection  of  geographical  indications  of  spirit  drinks  were 
provided  to  Member  States  in  the  Spirit  Drinks  Committee  and  to  the  stakeholders  in  the 
Advisory  Group  on  Spirit  Drinks  with  a  view  in  particular  to  ensure  consistent 
implementation  of  the  rules  throughout  the  EU  and  prevent  deceptive  and  misleading 
practices. 

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 
which  is  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 2009 the relevant departments of DG AGRI were formally consulted on 94 
notifications relating to the agricultural sector. Examination of these draft texts subsequently 
led to the issuing of five comments and five 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 
therefore subject to both a detailed opinion and a blocking decision by the Commission until 
1st  May  2009.  The  services  were  subsequently  notified  of  a  new  decree  by  the  Italian 
authorities on 11th November which appears satisfactory. 

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 

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agricultural sector is concerned, the Communication on Simplification and Better Regulation 
for the Common Agricultural Policy [COM(2005)509] set out an ambitious programme for a 
significant simplification of the CAP. The Communication: "A simplified CAP for Europe - a 
success for all (COM(2009) 128 final) takes stock and looks at what has been accomplished. 
It highlights the activities that have been carried out since 2005, and gives indications of the 
resulting  reduction  in  the  administrative  burden  for  farmers  and  administrations.  The  2005 
Communication led to the creation of the rolling Common Agricultural Policy Simplification 
Action Plan, which is used to identify, plan and monitor the implementation of simplification 
projects within the agricultural sector. Launched at the end of 2006, it has evolved from 20 to 
around 62 projects; 46 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.  On  technical  aspects,  it  is  interesting  to  mention  that  in 
order  to  increase  the  transparency  of  EU  law,  which  is  an  essential  element  of  the  better 
lawmaking  strategy  that  the  Institutions  are  implementing,  Council  Regulations  (EC) 
No 1128/2009  and  1139/2009  repealed  33  Council  acts  that  had  become  obsolete,  whereas 
almost  300  Commission  acts  that  equally  had  become  defunct  were  removed  from  the 
"acquis".  The  adoption  of  the  single  CMO  replaces  21  individual  common  market 
organisations with one, reducing the number of articles from around 1080 to around 350 and 
repealing  86  Council  acts.  At  the  end  of  2009,  the  Commission's  services  presented  a  Staff 
Working  Document  SEC(2009)1601,  on  the  assessment  of  39  simplification  suggestions 
submitted at the Agricultural Council of April 2009. The document provides an assessment of 
every simplification suggestion and, where possible, presents a solution to the problem raised. 
Some of the solutions have already been incorporated in the new implementing regulations for 
direct payments. 

Organic farming legislation – monitoring guidelines 

Regarding  the  implementation  of  the  Community  rules  regarding  organic  products,  the  new 
legislative  framework  clearly  delimitates  competences  between  the  Commission  and  the 
Member States. In particular regarding checks, the responsibility lies with the Member States. 
They  are  logically  placed  under  the  responsibility  of  the  Official  Food  and  Feed  Control 
(OFFC)  established  by  Council  Regulation  (EC)  No  882/2004.  To  foster  more  efficient 
monitoring  systems,  a  first  document  of  monitoring  guidelines  was  presented  by  the 
Commission  to  the  Member  States  with  a  view  to  disseminate  knowledge  and  appropriate 
guidance  to  the  competent  authorities,  and  possibly  the  monitoring  bodies,  clarifying  the 
relationship between the monitoring requirements deriving the OFFC and those deriving from 
the organic regulations. This will also help the Commission in its supervisory role. 

Clearance of accounts  

EAGF  and  EAFRD  expenditure  is  implemented  under  shared  management  through  a 
comprehensive management and control system based on four levels consisting of111: 

For  more  explanations  on  the  management  of  the  agricultural  budget  and  its  audit 

111 
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– 

– 

A  compulsory  administrative  structure  at  the  level  of  the  Member  States: 
management  and  control  of  expenditure  is  entrusted  to  dedicated  paying  agencies, 
which prior to their commencement of operations 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  checks  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 checks reveal a high number of irregularities, additional checks must be carried 
out. 

In this context, by far the most important system is the IACS (Integrated Administration and 
Control  System).  To  the  extent  possible,  the  IACS  is  also  used  to  manage  and  control  rural 
development measures relating to parcels or livestock. 

– 

– 

Ex-post checks: in addition to the ex-ante controls, all aid measures other than direct 
payments  covered  by  the  IACS  are  subject  to  ex-post  checks  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 
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 
mentioning as it pertains to the correct application of the legislation establishing the common 
agricultural policy. 

Indeed,  while  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 extrapolation. Where 
this is not possible, flat-rates are used which take account of the severity of the deficiencies in 
the  national  monitoring  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 

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final beneficiaries. However, even where this is not possible because the financial corrections 
only relate to deficiencies in the Member States' management and monitoring 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 2009, the Commission adopted two conformity clearance decisions: 

– 

– 

Ad  hoc  Decision  30:  Commission  decision  No  2009/253/EC  of  19  March  2009 
excluding EUR 214.2 million from Community financing. 

Ad hoc Decision 31: Commission decision No 2009/721/EC of 24 September 2009 
excluding EUR 128.9 million from Community financing. 

In  2009,  the  Commission  also  adopted  Decision  C(2009)810  final  of  13  February  2009 
excluding from Community financing, in respect of 5 Member States, sums lost as result of 
irregularities, which it was considered, the Member States had not acted with due diligence in 
recovering. 

Moreover, in 2009, the Commission carried out 187 on-the-spot missions in the Member States 
and launched 138 desk checks. 

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 2009 have not revealed any deficiencies in the monitoring systems which would 
suggest that those systems are ineffective in determining the eligibility of claims or preventing 
irregularities112.  The  main  exception  concerns  direct  payments  for  Bulgaria  and  Romania 
because of the serious deficiencies in their respective IACS and the ensuing high error rates. 
However, for both Member States, action plans have been developed for the period 2009-2011 
and were accepted by  the  Commission in July 2009.  In  parallel,  DG  AGRI  is  protecting  the 
EU financial interests through conformity clearance procedures which are expected to result 
in significant financial corrections. 

4.1.2.3.   Management of the "acquis" through committees and experts groups 

In the legal context prevailing in 2009, before the Commission adopts legal acts in the area of 
the  Common  Agricultural  Policy,  based  on  powers  conferred  upon  it  by  the  Council,  it 
normally has to consult with Member State representatives and may also consult with experts 
coming from non-governmental organisations. 

In  the  case  of  consultations  with  the  Member  States  representatives  (Comitology)  the 
Commission  proposes  the  draft  measure  to  a  committees  established  by  Council  legislation 
and which are composed of representatives of the EU Member States. Committees give their 
opinion  to  almost  every  implementing  act  drafted  by  the  Commission.  This  process  gives 

For a more detailed description of the conformity clearance activities, see DG AGRI's 

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2009 Annual Activity Report. 

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multiple  possibilities  for  consultation  on  different  solutions  for  the  implementation  of 
agricultural  law.  It  also  has  the  effect  that  Member  States  are  reminded  of  their  duty  to 
comply  with  Community  law.  Comitology  has  a  long  tradition  in  the  agricultural  sector, 
especially  in  the  system  of  the  management  of  the  agricultural  markets  but  comitology  also 
applies  to  the  implementation  of  rural  development  and  direct  payments.  In  relation  to  the 
CAP,  the  management  committee  procedure  is  the  type  of  procedure  that  applies  almost 
exclusively  and  only  in  very  few  cases  is  the  regulatory  procedure  applied  with  or  without 
scrutiny by the EP. 

In  2009,  164  meetings  of  14  management  and  regulatory  committees  presented  the 
opportunity to discuss the implementation of CAP legislation with the representatives of the 
Member States. It should 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  step  by  step  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”  replaced  19  sectoral  management 
committees. 

The Commission therefore cooperates with Member States in a sophisticated manner which 
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  addition  the  Commission  administrates  around  70  expert  and  Civil  Society  Dialogue 
groups  dedicated  to  agriculture  policies.  These  groups  are  not  only  composed  of  national 
administration  experts  but  also  by  agricultural  organisations,  academics  and  independent 
experts.  A  major  proportion  of  these  groups  are  advisory  groups  where  the  Commission 
consults on measures with stakeholders such as producers, exporters, importers, wholesalers, 
retailers, nature preservation NGOs, consumers and other concerned parties. 

In 2009 the Commission was assisted by a number of advisory and working groups, as well as 
permanent  and  temporary  groups  of  experts  (in  total  112)  with  a  view  to  better  adapting 
policies  and  implementing  rules  to  the  real  situation.  Above  all,  these  groups  provide  the 
Commission with agricultural markets data and current production circumstances 

4.1.2.4.   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 
258 TFEU (ex 226 TEC) in the 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 EU Pilot system. In 2009, 31 cases were dealt in EU Pilot system 
and concerned different sectors of the CAP. 

Particular attention was drawn to the correct application of the Community legislation in the 
field of direct payments, organic production and quality policy. The cases concerned inter alia 
undue  reduction  of  agro-environmental  measures  in  certain  Länder  in  Germany,  delayed 
payment  of  direct  support  in  Portugal,  insufficiencies  of  control  systems  for  organic 
production in Italy and in Portugal. 

Furthermore  2009  saw  the  entrance  in  operation  of  the  new  database,  called  CHAP 
(Complaints handling – Accueil des Plaignants), for registering and managing enquiries and 

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complaints about the application of Community law by Member States. In 2009, DG AGRI 
dealt with 33 CHAP files as responsible service (and was associated service for 8 files). 

4.1.2.5.   Petitions 

In  2009  the  Commission  received  8  petitions  related  to  agriculture  which  covered  a  wide 
range of issues. Three petitions  to keep the ban on blending red and white wine to produce 
rosé  (from  an  Italian  petitioner  and  a  petitioner  resident  in  France  and  Spanish,  French  and 
Italian  confederations  of  wine  growers),  on  changes  to  packaging  regulations  and  the 
introduction  of  standard  quantities  in  Germany,  on  denomination  of  fruit  preserves  in 
Germany, on the Polish authorities' alleged disregard of the provisions underlying the Sectoral 
Operational  Programme  'Restructuring  and  modernisation  of  the  food  sector  and  rural 
development  2004-2006'  and  on  the  on  eligibility  for  EU  rural  development  subsidies  for 
mixed fruit orchards in Germany. 

4.1.2.6.   Management of infringements 

In  the  area  of  agriculture  and  rural  development,  monitoring  the  application  of  Community 
law under the Article 258 TFUE (ex Article 226 TEC) 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 respect of removing of barriers to the free movement of agricultural products, in 2009 the 
Commission  issued  a  reasoned  opinion  against  the  Czech  Republic  for  the  use  of  the  sales 
designation  "Pomazánkové  máslo"  (EN  butter  spread)  for  a  dairy  product  wich  does  not 
comply  with  the  requirements  laid  down  in  the  Annex  XV  to  Council  Regulation  (EC) 
No 1234/2007.  In  view  of  the  persistent  refusal  of  the  Czech  authorities  to  amend  the 
legislation so as to put an end to this infringement, a reasoned opinion was issued. 

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 2009 to the 
application of the milk quota regime. Particular attention was devoted to its application in new 
Member  States.  Furthermore,  the  Commission  also  examined  the  compatibility  of  certain 
national rules on the obligatory indication of origin for olive oil in Italy. 

Within the framework of the initiative to promote transparency on all funding deriving from 
the  Community  budget,  the  Commission  gave  particular  attention  to  the  enforcement  of  the 
Community  requirements  concerning  the  publication  of  details  of  the  beneficiaries  of  CAP 
payments made from the agricultural funds (EAGF and EAFRD). A new EU law provided a 
uniform  framework  for  the  publication  of  details  of  the  beneficiaries  of  CAP  payments  and 
the amount of the sums received. Detailed implementing rules have been set in Commission 
Regulation (EC) N° 259/2008 obliging Member States to provide on a single website a search 
tool allowing the users to search by beneficiaries by name, municipality, amounts of subsidies 
received  from  the  agricultural  funds  or  a  combination  thereof  and  to  extract  all  the 
corresponding information as a single set of data. The availability of the information is limited 
to two years from the date of their initial publication.  

The  first  publication  was  to  be  made  by  30  September  2008  (for  EAFRD  payments  made 
between 01/01/2007 and 15/10/2007) and the next publication was the date of 30 April 2009 
for the payments made under the EAGF and the EAFRD for the financial year 2008. All the 
Member states published the information within the deadlines except Germany that justified 

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its  failure  on  account  of  legal  proceedings  by  beneficiaries  opposed  to  publication.  The 
Commission took the necessary steps to convince Germany to comply with the rules with the 
initial result that Germany finally proceeded with publication on 16 June 2009. Nevertheless, 
the  publication  was  still  not  complete  as  it  did  not  cover  the  whole  territory  of  the  Federal 
Republic of Germany and the Commission had to reinforce its measures to force Germany to 
fully  comply  with  the  rules.  As  a  result  of  this  action,  Germany  published  the  required 
information for the whole of its territory. While Member States were on the whole providing 
the information as requested by the Regulation, it has to be pointed out that there were some 
shortcomings  as  regards  either  the  content  or  the  form  of  the  information  provided,  this 
applying both to publication under EAFRD as under EAGF. Hence the Commission has kept 
a close monitoring of the situation and wrote reminding letters to Member States asking for 
the necessary changes whenever deemed necessary. 

In the context of the monitoring of the correct implementation of the new Community organic 
farming  legislation,  the  Commission  insisted  with  to  two  Member  States  on  remedying 
deficiencies  identified  in  their  monitoring  systems.  The  problems  were  solved  by  the 
competent  authorities  within  a  reasonable  period  and  the  performance  of  their  supervisory 
systems was subsequently improved. 

Particular attention has been paid to the treatment of instances of non-compliance with Court 
judgments. In 2009, this resulted in following the progress made by Portugal to implement a 
judgment of the Court in which 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 2082/93113 . The Commission considered 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  260  TFEU  (ex  228  EC) 
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, the execution of which has been followed by the Commission. 

Furthermore the Commission continued monitoring the application of the so-called "Breakfast 
directives", which lay down particular compositional and labelling requirements for products 
including honey, chocolate, jams and fruit juices114. In line with the other priorities defined 

Judgement of 5 October 2006 in case C- 84/04, Commission v. Portuguese Republic, 

113 
Rec 2006, p.I-9843. 

114  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 

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in the communication "Europe of results", the Commission monitored the transposition of one 
agricultural directive. Following the adoption of the Council Directive 2007/61/EC115, 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  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. 
These  cases  were  closed  because  the  Member  States  concerned  communicated  national 
transposition  measures,  with  the  exception  of  Italy.  In June  2009  the  Commission  issued  a 
reasoned opinion to the Italian government, following the failure of the Italian Government to 
comply  with  the  letter  of  formal  notice.  Consequently,  Italy  communicated  national 
transposition  measures,  which  enabled  the  Commission  to  close  the  infringement  procedure 
against  Italy.  The  Commission,  therefore,  managed  to  ensure  full  transposition  of  Council 
Directive  2007/61/EC  by  all  Member  States  within  one  year  from  the date  of deadline for 
communication of national transposition measures set by the Directive. 

More specifically, concerning chocolate (Directive 2000/36/EC), the Commission decided to 
refer  Italy  to  the  Court  of  Justice  for  failing  to  amend  its  legislation  on  the  labelling  of 
chocolate  products.  Infringement  proceedings  were  opened  against  Italy  because  the 
Commission  considered  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  contains  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 
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. 

4.2. 

 Evaluation 

4.2.1. 

 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  subject  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 
in  the  light  of  previous  experience  of  the  relatively  smooth  adoption  and  timely  entry  into 
effect of this type of measure. 

2001/112/EC  of  20  December  2001  relating  to  fruit  juices  and  certain  similar  products 
intended for human consumption. 

115  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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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 and in particular the management and control systems thereof. 

4.2.2. 

 Sector based remarks 

4.2.2.1.   Market instruments 

As regards the functioning of this sector-based "acquis", no major problems were encountered 
in  2009  as  regard  the  application  of  the  existing  rules.  The  "acquis"  can  be  considered  as 
stable providing a generally satisfactory situation. 

The simplification of horizontal regulations contributed to the aim of harmonised application 
and interpretation of Community law in all Member States. The discussions in the Committee 
on  legal  and  technical  issues  and  on  the  annual  report  on  physical  checks  contributed  to 
realising these aims as well. 

In line with the priorities defined in the 26th report to EP for agricultural sector, the priorities 
indicated in the wine sector were realised namely by adopting the implementing regulations of 
the  reform.  The  grubbing-up  scheme  in  the  wine  sector  met  with  considerable  success  in 
2008/09 and in 2009/10. Only half the demand could be satisfied by the available budget. The 
national  support  programmes  budgets  were  also  almost  completely  allocated,  indicating  the 
attainment of many of the objectives set out. 

Member  States  fully  used  the  possibility  provided  in  the  wine  reform  in  2008/2009  to 
establish their national support programmes with the measures necessary for the modification 
of their own wine sector. The budget execution reached 94% of the available funds for 2009. 

4.2.2.2.   Direct payments and cross compliance 

Direct payments scheme 

The "acquis" in the direct payments sector is stable and its application by the Member States 
in 2009 was generally satisfactory. However, a few specific implementing issues have raised 
questions for Member States, for example regarding the assessment of the eligibility of certain 
marginal areas. 

The  legislation  defines  the  agricultural  area  eligible  for  payments  under  the  single  payment 
scheme  (SPS)  and  the  single  area  payment  scheme  (SAPS)  as  well  as  what  is  considered 
agricultural  activity.  Following  the  principle  of  decoupling  introduced  by  previous  reforms, 
no production is required on the eligible hectares. This has led to certain grey zones where it 
can be difficult for both farmers and national authorities to determine in practice whether the 
area in question is actually agricultural or whether the character and main purposes of the area 
are rather to be considered nature, recreation or forest. 

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To help Member States face this challenge and also in reply to a request raised by the Member 
States in the scope of the simplification exercise, the issue of eligibility is being examined in 
the  Management  Committee  for  Direct  Payments.  It  takes  the  form  of  a  number  of 
presentations by the Member States and discussion sessions to allow for an exchange of views 
and experiences as regards challenging situations as well as the best practices and methods to 
deal  with  such  situations.  In  support  of  the  discussions  and  to  provide  a  more  complete 
picture, the Member States have provided written descriptions of their practical approach to 
the issue. The discussions will be finalised in the first half of 2010. 

During  the  year  2009,  the  Commission  services  have  worked  in  close  cooperation  with 
Member  States  to  ensure  the  correct  application  of  the  rules  governing  the  specific  support 
(Articles 68 to72 of Regulation (EC) No 73/2009). Article 68 includes a range of measures for 
which  there  is  on  the  one  hand  a  potential  overlapping  with  possible  measures  under  other 
instruments of the CAP and on the other hand there is the need of ensuring the consistency 
with  those  measures  and/or  the  related  requirements.  Consequently,  Member  States  had  the 
obligation to notify to the Commission the measures they were intending to apply under this 
provision  as  from  2010.  The  Commission  services  examined  these  notifications  and,  where 
appropriate, sent observations to the Member States in order to ensure a correct application of 
the EU legislation. Those notified measures which are subject to a Commission's approval are 
assessed by the Commission services with a view to their approval by the Commission. This 
work will be continued in 2010. 

Cross compliance 

Regarding cross compliance, which was identified as a priority in the 25th and 26th report to 
the EP on monitoring the application of Community law, the main effort during 2009 was an 
extensive  exercise  of  simplification  of  the  system  of  management  and  monitoring.  The 
Commission has carefully assessed the simplification proposals made by Member States and 
accepted the majority of them (11 out of the 15 concerning cross compliance). The accepted 
proposals  had  to  be  translated  into  legislative  or  quasi-legislative  initiatives  and  the 
Commission  started  the  work  without  delay.  In  this  respect  a  first  set  of  amendments  of 
Commission Regulation (EC) No 796/2004 were adopted as early as November 2009 in the 
framework of the recast of this Regulation (now Commission Regulation (EC) No 1122/2009 
in order to improve checks and sanction rules as well as to adapt the system of maintenance of 
permanent  pasture  to  better  reflect  reality.  A  second  set  of  amendments  of  the  same 
Commission Regulation is being finalised in early 2010 with the Management Committee for 
Direct  Payments  in  order  to  better  take  into  account  the  certification  schemes  in  the 
monitoring  system  and  to  better  make  use  of  specific  monitoring  systems.  Certain 
simplification initiatives concern Working Documents which are being modified accordingly.  

The  European  Court  of  Auditors  issued  also  in  2008  a  report  on  cross  compliance116 
recommending  inter  alia  that  Member  States  better  define  obligations  at  farm  level  and 
recommends further streamlining  of the functioning of the system of cross compliance.  The 
Commission has followed up on this report, apart from the simplification proposals referred to 
above by organising discussions in an experts group with Member States with the purpose of 
helping them better to define obligations at farm level under cross compliance. The outcome 

116 

Special Report 8/2008. 

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of these discussions is a Working Document for national authorities providing guidelines on 
the definition of obligations at farm level. 

4.2.2.3.   Rural development 

All  programmes  are  up  and  running  and  have  been  updated  in  the  context  of  Health  Check 
and  EERP.  However,  experience  has  shown  that  there  have  been  substantial  delays  in  the 
accreditation of some measures in a number of programmes and these measures have started 
to  be  applied  only  towards  the  end  of  2009,  i.e.  two  and  half  years  since  the  programming 
period  started.  Otherwise,  the  experience  is  not  enough  to  base  clear  conclusions  on  the 
possible problems. 

4.2.2.4.   Quality policy 

Quality 

Whilst  Community  agricultural  product  quality  legislation  could  be  described  as  a  fairly 
stable  "acquis"  characterised  by  a  globally  satisfactory  situation,  nonetheless, 
the 
Communication has clearly shown the need for a more coherent overall food quality policy. 

Moreover,  the  existing  EU  quality  schemes  (geographical  indications  and  traditional 
specialities) and measures are in need of amendment to make it easier for farmers, producers 
and consumers to understand the various schemes and labelling terms. 

Organic 

The overall application of the organic production rules may be considered as stabilised and on 
the whole satisfactory. The entry into force on 1st January 2009 of the new set of rules has not 
created  particular  difficulties  as  most  of  the  new  legislation  is  directly  inspired  by  the 
previous  one.  Difficulties  in  the  accreditation  of  control  bodies  at  the  beginning  of  the  year 
were  solved  by  the  relevant  competent  authorities  of  the  Member  States,  under  close 
monitoring exercised by the Commission. 

4.2.2.5.   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  2009  there  were,  for  example,  no 
infringement  procedures  launched  against  the  Member  States  for  not  following  detailed 
opinions. 

4.3. 

 Evaluation results 

4.3.1. 

 Priorities and action planed 2010 

 Legislative and management priorities and action programming 2010 

As  a  general  matter,  one  of  the  main  priorities  for  the  Commission  as  regards  legislative 
activity  in  the  agricultural  sector  will  be  to  implement  the  important  changes  introduced  by 
the  Treaty  on  European  Union  (TEU)  and  the  Treaty  on  the  Functioning  of  the  European 
Union  (TFEU)  and  in  particular  the  extension  of  the  ordinary  legislative  procedure  (co-
decision)  to  agriculture  and  the  adoption  of  new  rules  on  the  Commission's  delegated  and 
implementing  powers  (Comitology).  The  TFEU  contains  two  provisions  (Articles  290  and 

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291 TFUE) which entail modifications of the existing Comitology procedures, which govern a 
wide range of decisions and measures which are particularly important for the management of 
agricultural markets and policy. Pursuing the adoption of the Commission Communication of 
09/12/2009  on  the  Implementation  of  Article  290  TFUE  (COM  (2009)  673  final),  the 
Commission  will  align  progressively  agricultural  legislation  with  the  new  mechanisms  of 
delegated acts and implementing acts. 

Market instruments 

,the 
Beyond  the  ongoing  pursuit  of  legal  and  operational  simplification,  including 
simplification of the voluntary labeling system of beef and beef products117, the continuation 
of  efforts  to  achieve  simplification  of  the  hops  regime  by  eliminating  the  burdensome 
requirements  to  register  cultivation  contracts  which  requires  a  modification  of  the  Council 
single CMO regulation N° 1234/2007 as well as further work in the field of licences and trade 
mechanisms,  the  Commission  will  continue  to  work  on  the  improvement  of  the  "acquis"  in 
order  to  be  ready  to  adapt  to  the  challenges  it  faces  notably  regarding  the  animal  products 
sector where the ongoing work of the Milk High Level Group should lead to proposals as well 
as the modification of the implementing rules as regards the marketing standards for poultry 
meat118.  As  concerns  the  wine  sector,  the  following  actions  are  foreseen:  to  continue  to 
monitor  the  implementation  of  the  wine  reform:  the  results  of  the  national  support 
programmes,  the  grubbing-up  scheme,  and  progress  towards  closing,  to  the  extent  possible, 
the  illegal  plantings  files,  to  make  changes  in  the  regulations  on  these  programmes  where 
necessary, to address the low prices of wine and the continuing very high stock levels in the 
wine  sector  and  finally  to  encourage  the  sales  of  the  remaining  stocks  of  wine  alcohol  in 
intervention. 

As the codification/recast of Council Regulation (EEC) No 1601/91 laying down general rules 
on  the  definition;  description  and  presentation  of  aromatized  wines,  aromatized  wine  based 
drinks and aromatized wine product cocktails initiated in 2007 was not finally adopted in the 
co-decision  procedure,  the  outcome  was  that  a  new  proposal  should  be  prepared  by  the 
Commission. This proposal is foreseen for the 3rd quarter of 2010. 

As regards horizontal rules, revision of existing horizontal Regulations will be initiated in the 
field of Tariff Rate Quotas, Licences, and Export Refunds / Trade Mechanisms. 

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. Price volatility, in particular in the milk sector, requires close market 
monitoring and quick reactions by using the existing market measures as reviewed under the 
"Health check". 

117  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. 

118  Commission  Regulation  (EC)  No 543/2008  of  16 June  2008  laying  down  detailed 
rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing 
standards for poultrymeat, OJ L 157, 17.6.2008, p. 46–87. 

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Direct payments and cross compliance 

The proper application of the newly revised legislation in the context of the Health check has 
required  the  adoption  of  detailed  implementing  rules,  particularly  for  Regulations  (EC) 
N°73/2009 and 74/2009. New implementing regulations have included 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 continues providing advice to Member States 
regarding  the  implementation  of  these  regulations.  Finally  the  simplification  proposals 
concerning the Council Regulations (EC) N°73/2009 and 1698/2005 will be dealt with under 
the Lisbon Treaty procedures in the course of 2010. 

Rural development 

The  implementing  rules  for  controls  in  rural  development,  Regulation  (EC)  No  1975/2006, 
will  be  recast  in  order  to  clarify  and  simplify  it  and  to  take  into  account  changes  made  to 
Regulation (EC) No 796/2004 which has now been recast by Regulation (EC) No 1122/2009 
and to which there are cross-references. 

Regulation  (EC)  No  1975/2006  already  sets  out  an  application  deadline  for  payment  claims 
for area-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 checks of area and animal-related measures under the first and 
second pillar and to guarantee the quality of checks, a payment deadline for these measures is 
proposed to be set in Council Regulation (EC) No 1698/2005. 

Quality policy 

Quality 

The  Communication  on  agricultural  product  quality  policy,  adopted  in  May  2009,  sets  out 
strategic orientations offering a new framework for the subject and commits the Commission 
to a number of actions, such as developing guidelines for agriculture product quality schemes; 
preparing the ground for possible legislative initiatives on geographical indications, traditional 
specialities  guaranteed,  and  marketing  standards,  including  optional  reserved  terms; 
investigating the potential for using the CEN standard setting body; improving the recognition 
of EU quality schemes in non-EU countries. 

The  Communication  has  thus  opened  the  way  to  EU  initiatives  such  as  the  provision  of 
guidelines  and  legislative  proposals,  the  latter  also  requiring  the  carrying-out  of  specific 
impact Assessments. 

Moreover,  the  efforts  made  in  accelerating  the  rate  of  reaching  the  final  decision  on 
applications  -  while  ensuring  the  respect  of  sectoral  EC  legislation  -  will  continue.  The 
scrutiny  of  third-country  applications  will  contribute  to  the  finalisation  of  international 
agreements on the protection of geographical indications. The assessment of the Food Quality 
legislations  of  candidate  countries  and  associated  countries  against  EC  legislation  will 
continue. 

Organic 

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The objectives for 2010 are to finalise the revision and the extension of the organic legislation 
with the adoption of a new logo for organic products and with the inclusion of the definition 
of organic wine-making rules.  

Clearance of accounts 

For 2010, the annual work plan foresees 120 conformity audits with missions and several desk 
checks of which the number is estimated to be around 30 based on last years' experience. For 
the conformity audits, the work program is based on a central risk analysis in which all the 
Directorate auditors were actively involved. 

39  audits  are  planned  of  various  market  measures  including  the  sugar  restructuring  fund, 
Article 69/68, wine, POSEI and fruit and vegetable operational funds. 

22 audits will take place for area aids of which 2 each to BG, RO and GR all of which have 
action plans in place for the IACS. 11 cross-compliance audits will take place. For non area 
coupled aids, 9 audits will be carried out covering animal premium schemes, Article 69 and 
entitlements. 

36 audits will be carried out on Rural Development measures of which 15 cover Axes 1 and 3 
and measures with flat rate support and 14 cover Axis 2 focusing on the "Agro-environment" 
and  "Natural  Handicaps"  measures.  Furthermore  there  will  be  a  reinforced  follow-up  (7 
audits) in certain Member States of their control statistics due to the high error rates reported 
for  Axis  2  measures  under  Rural  Development.  3  audits  will  follow-up  outstanding 
irregularities cases. 

 Enforcement priorities 

As  already  mentioned,  in  the  area  of  agriculture  and  rural  development,  monitoring  the 
application of Community law under the Article 258 TFEU (ex Article 226 TEC) procedure 
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  common  rules  referred  to  above,  thereby  jeopardizing  the 
effectiveness  of  important  mechanisms  of  the  common  agricultural  policy,  particularly 
regarding the 1st pillar. 

For  the  years  2010  and  2011,  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"119. 

4.4. 

Summary  

Taking into account the significant volume of agricultural law and its 50 years history, it may 
be considered as a quite stable "acquis" that, on the one hand, is subject 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 was the 2003 reform 
that was subject to the "Health check" process. 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  implementation  of  the  CAP  is  a  joint  responsibility  of  the  Member  States  and  the 
Commission,  known  as  shared  management  under  which 
for 
implementation at the level of the final beneficiaries has been delegated to the Member States. 
In the agricultural sector, preparatory working contacts between experts, review of problems 
arising  and  multilateral  and/or  bilateral  exchange  of  information  all  help  to  ensure  correct 
implementation.  Furthermore,  the  Management  Committees,  which  meet  regularly,  are  a 
privileged  forum  for  the  exchange  of  information  and  best  practice  between  the  Member 
States and the Commission. 

responsibility 

the 

The detailed overview of the implementation of EU law in the agricultural sector shows that it 
can generally be considered as satisfactory while any problem with the implementation of the 
rules in the Member States is closely followed through the audit mechanisms and clearance of 
accounts procedure which acts as a direct incentive to Member States to comply with EU law.  

Still, the agricultural "acquis" is regularly subject to reforms and/or modifications in order to 
adapt the CAP to its new challenges. In 2009, the main challenges that prompted action from 
the Commission as regards this "acquis" consisted of the adoption of the legislative acts for 
the  implementation  of  the  "Health  check"  with  a  view  to  updating  and  adapting  the  2003 
reform,  the  proposals  by  the  Commission  of  legislative  acts  in  response  to  the  general 
financial  and  economic  crisis  ("recovery  package")  as  well  as  their  implementation  and  the 
improvement of transparency of CAP payments to beneficiaries as well as the deepening of 
simplification.  

Nevertheless  deficiencies  and  infringements  in  application  of  Community  law  by  Member 
States in the agricultural sector occur and can be dealt with through infringement proceedings. 
The use of these proceedings 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 infringement proceedings, priority will be afforded to cases which raise issues 
concerning  the  compatibility  of  Member  States'  legislative,  regulatory  or  administrative 
measures with Community agricultural rules and to cases where the Member States concerned 

119  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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refrain from applying these common rules, thereby jeopardizing the effectiveness of important 
mechanisms of the common agricultural policy, particularly regarding the 1st pillar. 

For  the  years  2010  and  2011,  the  Commission  will  in  particular  be  vigilant  in  pursuing 
infringements of the type described in the previous paragraph challenging the application of 
recently  reformed  important  CMO's  (fruit  and  vegetable  and  wine  sectors)  and  those  which 
would  affect  the  application  of  the  direct  payment  regime,  and  in  particular  "cross 
compliance"120. 

In  the  agricultural  sector,  the  Commission  will  make  an  intensive  use  of  the  clearance  of 
accounts  procedure  to  convince  Member  States  to  adapt  their  legislation  in  cases  where  an 
infringement could be detected through conformity audit mechanisms. 

5. 

ENERGY , MOBILITY AND TRANSPORT 

5.1. 

ENERGY - Internal electricity and gas market  

5.1.1.  Current position 

5.1.1.1.  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,  and 
Regulation  1775/2005  of  28  September  2005  on  conditions  for  access  to  the  natural  gas 
transmission networks.  

5.1.1.2.  Report of work done in 2009 

Enquiries, problems and complaints 

Several  complaints  were  received  in  2009.  Problems  reported  mainly  refer  to  the 
malfunctioning  of  cross-border  trade,  the  preferential  treatment  of  national  suppliers  and 
network access in the electricity sector. In the gas sector, problems were reported as regards 
the access to the gas network and generally the malfunctioning of the gas market.  

Very  little  progress  was  registered  in  2009  in  the  regulated  market:  few  Member  States 
reduced  the  scope  of  their  legislation  to  households  and  SME  while  more  than  half  of  the 
Member States still have regulated prices for household and business customers which raise 
doubts with respect to the compliance with the electricity and gas Directive. Therefore, new 
infringement cases were started in 2009. These measures may have a negative impact on the 

120  The  use of infringement proceedings  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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proper functioning of the internal energy market. The European Court of Justice has given its 
judgment in the Federutility case (C-265/08) which has allowed further clarifications on the 
issue of regulated prices. 

Management of infringements 

In  order  to  complete  the  internal  electricity  and  gas  market  and  prepare  the  ground  for  the 
implementation of the third package, it is essential that the rules of the current Directives are 
implemented  correctly.  In  June  2009,  the  European  Commission  initiated  infringement 
procedures  against  25  Member  States  for  electricity  and  against  21  Member  States  for  gas. 
The key violations identified were: lack of transparency, insufficient coordination efforts by 
transmission system operators to make maximum interconnection capacity available, absence 
of regional cooperation, lack of enforcement action by the competent authorities in Member 
States and the lack of adequate dispute settlement procedures for consumers.  

In  October  2009,  the  Commission  launched  further  infringement  proceedings  against  two 
Member States on gas transit and storage. 

As regards Directive 2005/89, in 2009 all Member States notified complete transposition and 
all open infringement cases for non communication started in 2008 were closed. 

New legislation 

On  14  July  2009,  a  third  package  of  legislative  measures  was  adopted,  including  two 
Directives  replacing  the  electricity  and  gas  Directives,  two  Regulations  replacing  the 
electricity and gas Regulations and a Regulation establishing an Agency for the Cooperation 
of  Energy  Regulators  (ACER).  The  third  package  entered  into  force  on  3  September  2009. 
The two Directives have to be transposed into national law until 3 March 2011. The gas and 
the  electricity  Regulations  shall  apply  from  3  March  2011.  The  Regulation  on  ACER  is 
applicable since 3 September 2009 with the exception of the chapter on its tasks which applies 
from 3 March 2011. 

5.1.2.  Evaluation of the current position 

In 2009  a great deal  of  effort was  put  into enhancing  competition  on  the  wholesale  market; 
significant  progress  was  made  through  the  regional  initiatives,  which  focused  on  improving 
congestion management allocation and calculation, harmonising transparency and integrating 
market balancing in the electricity sector and concentrated on new interconnection capacity, 
access  to  pipeline  capacity,  transparency,  interoperability  and  security  of  supply  in  the  gas 
sector.  

In  the  context  of  developing  gas  and  electricity  infrastructure  significant  initiatives  were 
taken: the European Energy Programme for Recovery (EEPR) was adopted to help securing 
and speeding up investments in the energy sector, and thereby has a direct impact on the EU 
economy  and  employment.  It  made  a  sum  of  EUR  2.365  billion  available  for  gas  and 
electricity interconnection projects.  

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  incorrect  implementation  of 

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European  electricity  and  gas  legislation.  For  this  reason,  during  2009  the  Commission  has 
taken actions to ensure the correct implementation of EU legislation at national level through 
the  application  of  infringement  procedures  in  particular  as  regards  the  electricity  and  gas 
regulations  and  Annexes  to  the  electricity  and  gas  directives.  The  Commission  will  closely 
supervise  the  transposition  of  the  third  liberalisation  package  by  the  Member  States.  It  has 
published  several  interpretative  notes  facilitating  its  correct  implementation  by  the  Member 
States. 

5.1.3.  Evaluation results  

Infringement  proceedings  initiated  in  the  gas  and  electricity  sector  have  been  successfully 
carried  out  and  will  be  continued  in  2010.  In  2009  the  European  Court  of  Justice  censured 
Sweden  and  Belgium  for  having  incorrectly  implemented  the  provisions  concerning  the 
competences  of  the  national  regulatory  authorities  with  regard  to  network  electricity  tariffs; 
Belgium was also censured for having failed to designate a gas TSO. 

The  third  energy  package  responds  to  most  of  the  problems  identified  in  the  failure  of 
application of the second package and an action plan to facilitate the transposition by Member 
State of the third energy package is under preparation. 

5.1.4.  Sector summary 

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.  The  need  for 
new legislation was evident and led to the adoption of the third energy package. 

The  Commission's  efforts  concentrated  and  will  continue  concentrating  on  an  efficient 
implementation  of  the  existing  and  new  legislation  in  both  electricity  and  gas  sectors,  by 
combining three actions: 

-  Remedial  action:  Continue  to  pursue  infringement  procedures  so  as  to  ensure  proper 
implementation of the electricity and gas Directives and Regulations in the main areas where 
failures were registered such as: penalties, transparency and capacity allocation of networks; 
third  party  access  and  consumer  protection,  all  in  both  sectors.  This  action  will  continue  in 
2010 for both sectors. 

- Preventive action: In the light of the adoption of the third energy package prepare an action 
plan  in  order  to  facilitate  its  transposition  by  Member  States.  This  action  will  also  be 
undertaken in 2010. 

5.2. 

ENERGY - Coal and Oil 

5.2.1.  Current position 

5.2.1.1.  General introduction 

With  regard  to  the  legislation  in  the  domains  of  coal  and  oil,  the  largest  part  of  the 
Commission's  work  in  EU  law  management  in  2009  consisted  of  the  preparatory  tasks  and 
negotiations  which  lead  to  the  adoption  by  the  Council  of  Directive  2009/119/EC  (Council 
Directive  2009/119/EC  of  14  September  2009  imposing  an  obligation  on  Member  States  to 
maintain minimum stocks of crude oil and/or petroleum products; OJ L 265, 9.10.2009, p. 9).  

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Although  Directive  2009/119/EC  repeals  Directive  73/238/EEC,  Directive  2006/67/EC  and 
Decision 68/416/EEC it does so only with effect from 31 December 2012. Therefore currently 
applicable legislation still include Council  Directive 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), 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) as well as 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). 

In  2009,  tasks  were  also  executed  in  relation  to  Directive  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). 

As regards coal, regular monitoring of the coal sector and market continued as foreseen in the 
applicable legislation (namely Regulation 405/2003) and information on import price indexes 
as  well  as  coal  import,  production  and  consumption  volumes  were  collected,  analyzed  and 
discussed with stakeholders through the National Coal Experts committee and in the annual 
Coal Dialogue.  

The half-yearly price indexes and annual market report were published in 2009 as foreseen. In 
line  with  SER2,  the  issue  of  indigenous  coal  production  has  been  introduced  in  discussions 
with stakeholders in view of analyzing possible policy initiatives for making the best use of 
EU's coal resources.  

5.2.1.2.  Report of work done in 2009 

Infringements 

With  respect  to  Directive  94/22,  Commission  services  continued  to  welcome  publication 
demands  received  from  Member  States  pursuant  to  the  provisions  of  the  Directive  but  also 
followed  the  implementation  of  these  provisions  by  the  Member  States.  Infringements 
procedures were pursued in 2009: as regards the obligation of Member States to duly notify 
competent  authorities  and  on  the  basis  also  of  other  grievances,  Commission  services 
maintained contact with Belgium, following the issuance in 2008 of a letter of formal notice 
and of a reasoned opinion; in a file concerning Poland, which had also reached the stage of 
the  reasoned  opinion  in  2008  and  where  the  Commission  asked  Poland  to  correct  its 
procedures  for  granting  rights  over  oil  and  gas  resources,  contacts  were  also  maintained  in 
2009 ; however, no decision in favour of a referral to the Court of Justice had yet been taken 
for any of the 2 files by the end of the year. 

As regards Directive 2006/67, compliance became more and more actively monitored during 
expert  meetings  of  the  Oil  Supply  Group;  the  overall  situation  in  2009  with  respect  to  oil 
stock levels required under the Directive can be on considered as acceptable in spite of some 
situations  of  non-compliance  that  were  expected to  remain  occasional.  In  the  context  of  the 
legislative review and of improved national stock levels, the Commission decided to close the 
case of the Belgian oil stocks, without prejudice to the earlier ECJ decision in favour of the 
Commission (case C-510/07). 

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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. 

Consequently  and  with  respect  to  oil,  the  activities  of  the  unit  were  focused  in  2009  on  the 
collaboration with the Council and adoption of the new oil stocks directive; the Commission 
proposal of late 2008 was examined and modified in the Council under the Czech Presidency 
and a political agreement was reached by the Council in June. 

The  new  legislation  was  subsequently  adopted  in  September  as  Directive  2009/119.  The 
legislation foresees a transition period until 31/12/2012 by which date all Member States shall 
have to ensure compliance with the Directive and the currently applicable Directive 2006/67 
will – effectively - be repealed. Directive 2009/119 will significantly improve the system of 
emergency oil stocks by bringing EU rules much closer to IEA practices and providing better 
assurances of the availability and verifiability of the stocks. The legislation also reinforces the 
roles  of  the  EU  in  handling  possible  supply  disruptions  and  entrusts  the  Commission  with 
suitable roles on behalf of the EU. Finally, the legislation also foresees improved reporting on 
the levels of oil stocks in the EU, including commercial ones.  

5.2.2.  Evaluation of the current position 

Work has started on amending the current oil stocks reporting procedures and instruments in 
cooperation with Eurostat and the IEA to provide for the use of a single reporting tool by the 
end  of  the  transition  period.  Furthermore,  a  specific  analysis  of  the  feasibility  of  increasing 
the frequency of commercial oil stocks reporting to weekly has been launched in mid-2009, 
and should conclude in 2010.  

Besides the attention paid to emergency preparedness in oil and petroleum products supplies, 
a  study  has  been  completed  in  cooperation  with  external  consultants  on  the  competitive 
aspects  of  EU's  petroleum  products  market  and  sector.  While  the  study  has  not  identified 
specific  failures  of  competition  in  the  field  in  the  EU,  it  highlighted  the  importance  of 
continued  investments  in  refining  and  of  regular  monitoring  and  improvements  of  the 
transparency  of  operations  in  the  production,  sale  and  distribution  of  petroleum  products  in 
the EU.  

In oil upstream, compliance with Directive 94/22 on hydrocarbon licensing can be regarded as 
acceptable  despite  two  ongoing  infringement  processes  which  were  pursued  in  2009  with 
respect  to  the  inadequate  application  of  specific  provisions  of  the  directive  or  for  non-
conformity  of  the  national  transposition  measures.  Some  40  publications  of  notices  from 
Member States were arranged in 2009 under the provisions of the directive.  

5.2.3.  Evaluation results 

The Commission's resources will need to remain concentrated  on the implementation of the 
new oil stocks legislation, both at EU level and at the level of Member States. 

The main tasks that will deserve attention and follow-up in 2010 will be: 

–  the  revision  of  the  Monthly  Oil  Stock  (MOS)  questionnaire  to  serve  reporting:  this 
questionnaire  needs  some  update/streamlining  in  order  to  be  suitable  for  the  purposes  of 
the new Directive; on the other hand, using MOS, whose data are already available through 

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EMOS, would mean that no specific new reporting instruments/procedures would need to 
be established by ENER services; 

–  an  appraisal  concerning  the  reporting  frequency  of  commercial  stocks;  the  reporting 
frequency for commercial stocks was changed from weekly to monthly in the final version 
of the directive ; this implies as much as possible that data available through MOS should 
also  be  suitable  and  sufficient  to  ensure  the  implementation  of  the  relevant  article  of  the 
directive  ;  COM  should  also  complete  the  intended  assessment  of  the  possibilities  for 
weekly reporting in the EU; 

–  the examination of further Emergency Planning methodologies/procedures, given the more 
active  and  central  role  given  by  the  new  Directive  to  the  Commission  in  case  of  supply 
disruptions; 

–  the preparation of an electronic tool to allow systematic consultations within the Oil Study 

Coordination Group; 

–  the  examination  of  methodologies  and  standards  for  reviewing  emergency  preparedness 

and stockholdings of/in Member States. 

5.2.4.  Sector summary 

Analysis  of  the  current  system  for  the  security  of  supply  in  oil  and  petrol  revealed  some 
weaknesses that justified the review of the existing legislation. 

The newly adopted Directive will constitute a new stepping stone towards security of supply 
improvements  in  the  EU  and,  for  the  countries  concerned,  will  more  effectively  encourage 
compliances to both the EU stockholding system and the IEA system. The new Directive will 
replace  the  current  three  pieces  of  EU  legislation  on  emergency  stocks  and  pays  special 
attention  to  the  provisions  addressing  the  availability  of  stocks,  the  administrative 
arrangements  needed  for  proper  stocks  management  and  the  rules  setting  up  EU  crisis 
mechanisms that will be complementary to the IEA rules. Simultaneously, the new provisions 
should contribute to simplify some of the Member States’ administrative procedures. 

The Commission's efforts are consequently focussed on ensuring a proper implementation of 
the new legislation by: 

–  using to the fullest extent and improving all the necessary reporting tools; 

–  preparing actively its reinforced role in the coordination of emergency procedures as well 
as  concerning  the  reviews  of  emergency  preparedness,  and  related  stockholding,  of  the 
Member States. 

5.3. 

ENERGY - Renewable energy sources 

5.3.1.  Current position 

5.3.1.1.  General introduction 

Main pieces of Community acquis are: 

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–  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. 

5.3.1.2.  Report on the work done in 2009 

Following  the  publication  of  the  renewable  energy  progress  report  in  April  2009 
(COM(2009)192)  the  Commission  sent  six  letters  asking  Member  States  to  provide 
explanations  on  the  insufficient  measures  taken  to  reach  the  2010  targets  under  Directive 
2011/77/EC. new infringement cases under Directive 2001/77/EC  

Complaints  continued  to  be  received  and  one  of  these  has  resulted  in  the  Commission 
initiating infringement proceedings. Ten Member States failed to submit reports in accordance 
with  the  requirements  of  Directive  2003/30/EC.  Thus  the  Commission  also  launched 
infringements for non reporting against these Member States.  

Overall, currently 15 cases are still open as infringements (in NIF) and 4 cases as complaints 
(in CHAP). 

Directive  2009/28/EC  entered  into  force  on  June  25th  2009.  To  facilitate  Member  States' 
implementation of  Directive 2009/28/EC (required by December  5th 2010), the Commission 
has  published  a  template  for  the  renewable energy  national  action  plans  (C(2009)5174)  and 
has, in 2010, produced a number of Communications and guidelines on implementing certain 
aspects  of  the  Directive  related  to  biofuels  sustainability  scheme121.  The  Commission  has 
also launched several analytical studies to provide information that will help Member States 
take action to remove barriers to the growth of renewable energy, as required by the Directive.  

5.3.2.  Evaluation of the current position 

When  preparing  the  new  renewable  energy  framework  (establishing  particularly  the  2020 
targets) of Directive 2009/28/EC, the Commission insisted that it would continue to enforce 
rigorously the existing framework and the 2010 targets. The infringement cases launched for  
failure to submit reports will thus continue  to be pursued.  

The  new  legal  framework  of  Directive  2009/28/EC  will  eventually  replace  Directives 
2001/77/EC  and  2003/30/EC  which  have  been  partially  repealed  as  of  April  1st  2010.  The 
Commission is firmly committed to close monitoring and enforcement of this Directive. 

The  need  to  pursue  Member  States  for  non  reporting and the inflow of complaints received 
suggests  that  several  Member  States  are  not  implementing  the  relevant  Directives  in  a 
complete or appropriate manner. Continued failures of this nature would eventually put at risk 

121 OJ C 160, 19.6.2010, p. 1-7; OJ C 160, 19.6.2010, p. 8-16; OJ L151, 17.6.2010, p. 19-41 

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the  2020  targets  and  thus  the  Community's  whole  energy  and  climate  strategy.  Continued 
close monitoring and enforcement action by the Commission is therefore warranted. 

5.3.3.  Evaluation results 

5.3.3.1.  Priorities 

Strong and rapid measures to encourage Member States to properly implement and apply the 
acquis continue to be needed.  

5.3.3.2.  Planned action 

During  2010,  the  Commission  will  publish  the  Renewable  Energy  Progress  report,  required 
under  Directives  2003/30/EC  and  2001/77/EC,  assessing  the  measures  taken  by  Member 
States and the progress done in increasing their shares of renewable energy in electricity and 
transport.  

The  reporting  requirements  and  implementation  of  Directive  2009/28/EC  will  be  closely 
monitored in the course of 2010. 

The  Commission  continues  to  do  its  utmost  to  assist  Member  States  in  implementing  the 
Directive. In addition to the national action plan template published in 2009, in 2010 a range 
of  communications,  guidance  notes  and  studies  will  be  produced  to  help  ensure  Member 
States implement the Directive fully and appropriately. Steps have also been taken to launch a 
"Concerted  Action"  project  in  the  framework  of  the  Intelligent  Energy  for  Europe 
Programme. It is expected that this project will begin by fall 2010. 

Member States' reporting requirements for 2010 include submission of "forecast documents" 
and  national  renewable  energy  action  plans.  The  Commission  will  thoroughly  evaluate  all 
these  reports  and  take  action  against  those  Member  States  that  fail  to  provide  credible 
roadmaps or to take adequate measures  for reaching their 2020 targets under the renewable 
energy acquis. 

5.3.4.  Sector summary 

The Commission continues to enforce the existing and the new acquis on renewable energy. 
The Commission's progress reports over the years, the non reporting of several Member States 
and the complaints received from industry stakeholders all indicate that there continue to be 
problems  hampering  the  development  of  renewable  energy  and  failures  to  take  sufficient 
measures, in accordance with the acquis. Removing barriers  and encouraging the  growth of 
renewable  energy  by  the  Commission  will  continue  to  be  an  important  priority  of  the 
Commission,  as  renewable  energy  development  is  a  crucial  and  integral  element  of  the 
Community's whole energy and climate strategy. In 2010 it will continue to monitor and help 
Member States in implementing the acquis, notably the new Directive 2009/28/EC.  

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5.4. 

ENERGY - Energy efficiency of products 

5.4.1.  Current Position 

5.4.1.1.  General Introduction 

The main pieces of legislation in this field are the following: (i) Directive 2009/125/EC of 21 
October 2009 establishing a framework for the setting of ecodesign requirements for energy-
using products; (ii) 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, and (iii) Decision 2006/1005 on the coordination of energy-efficiency 
labelling programmes for office equipment in the EU and USA ("Energy Star"). 

5.4.1.2.  Report of work done in 2009 

The work covered four distinct areas: 

On  eco-design,  the  recast  of  framework  Directive  2005/32  was  adopted  as  Directive 
2009/125122. Furthermore eight detailed measures to implement the Directives were adopted 
in 2009 as regards: 

−  simple set-top boxes (Commission Regulation (EC) No 107/2009123). 
−  non-directional  household  lamps  (Commission  Regulation  (EC)  No  244/2009124); 

− 

and 
fluorescent lamps without integrated ballast, for high intensity discharge lamps and for 
ballasts and luminaires able to operate such l 
(Commission  Regulation 
(EC) No 245/2009125); 

amps 

−  efficiency  of  external  power  supplies 

(Commission  Regulation 

(EC)  No 

278/2009126); 

−  electric motors (Commission Regulation (EC) No 640/2009127); 
−  glandless  standalone  circulators  and  glandless  circulators  integrated  in  products 

(Commission Regulation (EC) No 641/2009128); 
televisions (Commission Regulation (EC) No 642/2009129); and 

− 
−  household refrigerating appliances (Commission Regulation (EC) No 643/2009130). 

122 OJ L285 of 21.10.2009, p.10 

123 OJ L36 of 5.2.2009, p.8 

124 OJ L76 of 24.3.2009, p.3 

125 OJ L76 of 24.3.2009, p.17 

126 OJ L93 of 7.4.2009, p.3 

127 OJ L191 of 23.7.2009, p.26 

128 OJ L191 of 23.7.2009, p.35 

129 OJ L191 of 23.7.2009, p.42 

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The  energy  savings  that  will  accrue  from  these  detailed  eight  measures,  which  are  directly 
applicable in Member States, is estimated to be 306 TWh per annum by 2020. In addition to 
the adoption of legislative requirements there was on-going work such as preparatory studies, 
impact  assessments,  stakeholder  meetings  for  the  preparation  of  additional  implementing 
measures for some 20 product groups.  

On labelling, the recasting of Framework Directive 92/75 made good progress through the co-
decision process. The measure aims at extending the scope to include labelling of commercial 
and  industrial  products,  as  well  as  simplifying  the  legislation  and  ensuring  a  uniform 
implementation  on  the  internal  market  by  using  (directly  applicable)  Regulations  instead  of 
Directives. It is expected that full agreement of the recast will be reached early in 2010. 

On  requirements  on  the  labelling  of  tyres  with  respect  to  fuel  efficiency  and  other  essential 
parameters  were  adopted  as  Regulation  1222/2009131.  This  measure  will  contribute 
significantly to a market shift towards more energy-efficient tyres. 

On  'Energy  Star',  specifications  for  the  granting  of  the  Energy  State  qualifications  were 
revised to cover the legislative initiatives taken upgraded for office equipment (Commission 
Decisions 2009/347/EC132, 2009/489/EC133, and 2009/789/EC134). 

5.4.2.  Evaluation of the current position 

The  activities  carried  out  in  2009  resulted  in  the  adoption  of  a  significant  number  of 
legislative acts together with considerable development of legislative proposals for additional 
legislative  activity  in  2010.  In  addition,  when  adopted  in  2010,  a  new  framework  Directive 
will extend the scope of ecodesign to energy-related products. 

5.4.3.  Evaluation results 

5.4.3.1.  Priorities 

The  twin  priorities  will  be  to  ensure  the  enforcement  of  the  existing  legislation  as  well  as 
adopting  further  implementing  measures  to  extend  the  scope  of  measures  to  products  not 
already covered by ecodesign and labelling requirements. 

5.4.3.2.  Planned action 

Work  will  be  concentrated  on  the  development  and,  where  appropriate,  adoption  of 
implementing acts or voluntary agreements for air conditioners, personal computers, imaging 
equipment, complex set-top boxes, fans, pumps, water heaters, boilers, dishwashers, washing 
machines and commercial refrigerators. 

130 OJ L191 of 23.7.2009, p.53 

131 OJ L 342 of 22.12.2009, p.46 

132 OJ L106 of 28.4.2009, p.25 

133 OJ L161 of 24.6.2006, p.16 

134 OJ L282 of 29.10.2009, p.23 

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5.4.4.  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 imminent adoption of the legislative proposal on 
energy labelling. It is also anticipated that the Commission will adopt several implementing 
measures  under  Directive  2009/125/EC  and  the  new  labelling  Directive  addressing  such 
products as washing machines, dishwashers and air conditioners. 

5.5. 

ENERGY - Energy performance of buildings 

5.5.1.  Current position 

5.5.1.1.  General introduction 

The main piece of the EU acquis is Directive 2002/91/EC of the European Parliament and of 
the Council of 16 December on the energy performance of buildings. A Commission proposal 
to recast this Directive was adopted in November 2008 (COM (2008) 780 final).   

5.5.1.2.  Report on the work done in 2009  

The main achievement in the field of energy efficiency in the building sector was the reaching 
of  a  first  reading  agreement  on  the  proposal  for  a  recast  of  the  Directive  on  the  energy 
performance of buildings (hereafter: "EPBD") as a part of the Commission's Second Strategic 
Energy  Review  'Securing  our  Energy  Future'  of  November  2008.  The  proposal  intended  to 
simplify and strengthen the provisions of the 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. The first reading agreement was reached on 17 November 2009 in less than 
one year of negotiation time with the co-legislators. The final adoption of the recast Directive 
took place on 19 May 2010, after an agreement was found on the changes to be introduced to 
adjust to the requirements of the Lisbon Treaty.  

Implementation  efforts  regarding  the  existing  Directive  continued  in  2009  with  another 
meeting of the 'Concerted Action' in Berlin in June 2009, hence continuing the work done in 
2007  and  2008.  This  instrument  is  intended  to  promote  dialogue  and  exchange  of  best 
practice. Being an active forum of national authorities from 29 countries, it focuses on finding 
common approaches to the most effective implementation of this piece of EU legislation. In 
the  meantime,  Concerted  Action  is  being  replicated  in  other  policy  areas  -  such  as  energy 
services and renewable energy sources - as it has proven to be a successful instrument.  

This effort in dissemination and consultation was continued with the launch of the 'Build up' 
Platform (www.buildup.eu) as an initiative to increase awareness of all parties in the building 
chain.  

Infringement  proceedings  continued,  with  11  open  cases  at  the  end  of  2009.    Out  of  these 
cases,  only  two  concern  Member  States  which  have  not  completed  the  transposition  of  the 
EPBD.  The  two  Member  States  concerned  have  been  condemned  for  this  by  the  Court  of 
Justice of the European Union by judgments in January 2008 and October 2009. 

The EPBD allowed Member States to delay the transposition of the provisions regarding the 
energy  performance  certificates  and  the  inspections  of  boilers  and  air-conditioning  systems 
until  4  January  2009  under  certain  conditions.  In  2009  the  Commission  started  the 

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examination of the notified national measures transposing these provisions. So far, two further 
non-conformity cases have been initiated.  

5.5.2.  Evaluation of the current position 

The Commission's ambitious recast proposal that strengthens the current legislation has been 
successfully  negotiated  and  concluded  very  speedily.  The  text  of  the  recast  Directive  will 
ensure consistency as it does not interrupt Member States' efforts in implementing the existing 
Directive  of  2002.  The  Commission  has  also  made  considerable  progress  in  enforcing  its 
existing legislation. 

5.5.3.  Evaluation results 

Attention will focus on the enforcement of the existing legislation and the preparation of the 
subsequent implementation of the new Directive. Moreover, the Commission will in 2010 be 
developing  a  methodology  framework  to  assist  Member  States  in  setting  cost-optimal 
minimum performance requirements, as well as adopting a voluntary certification scheme for 
the energy performance of non-residential buildings. 

5.6. 

ENERGY - Energy end-use efficiency and energy services 

5.6.1.  Current position 

5.6.1.1.  General introduction 

The  main  piece  of  the  EU  acquis  in  this  field  is  Directive  2006/32/EC  of  the  European 
Parliament and the Council of 5 April 2006 on energy end-use efficiency and energy services. 

5.6.1.2.  Report on the work done in 2009 

With  regard  to  energy  end-use  efficiency  and  energy  services,  the  efforts  on  the 
implementation of the existing legislation were continued. The focus was on the development 
of  a  methodology  and  indicators  for  energy  savings.  For  that  purpose  the  Commission 
organised two Energy Demand Management Committee meetings, two expert working groups 
and  a  number  of  bilateral  meetings  and  other  exchanges  with  relevant  Member  States.  The 
work  has  led  to  the  development  of  a  set  of  indicators  and  formulas  for  measurement  and 
verification of final energy savings. 

The  Commission  also  communicated  its  detailed  assessment  of  National  Energy  Efficiency 
Action  Plans  (NEEAPs)  in  a  Staff  Working  Document  (SEC(2009)889)  indicating  good 
practices,  strong  points  and  weaknesses  of  different  NEEAPs,  and  providing  some 
observations  and  recommendations  on  how  these  NEEAPs  should  be  strengthened  in  the 
future. Follow-up on the implementation of NEEAPs is carried out through regular exchanges 
supported  and  facilitated  by  the  Commission  in  the  framework  of  the  Concerted  Action  on 
Directive 2006/32/EC. 

Regarding  transposition  of  the  Directive,  the  Commission  started  infringement  proceedings 
for non-communication. In early 2009 the Commission sent reasoned opinions to 20 Member 
States concerning non-communication of full transposition of Directive 2006/32/EC. In order 
to    have  a  better  insight  on  how  the  transposition  had  been  made  in  each  case,  the 
Commission  sent  a  questionnaire  to  all  Member  States  and  engaged  on  regular  bilateral 
discussions with those Member States not having completed the transposition of the Directive. 

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By  the  end  of  2009,  the  number  of  Member  States  which  did  not  communicate  full 
transposition was reduced to eight. 

5.6.2.  Evaluation of the current position 

Despite  significant  efforts,  consensus  between  the  EU  Member  States  on  harmonisation  of 
methodologies for measurement and verification of energy savings on the basis of the Annex 
IV  of  Directive  2006/32/EC  could  not  be  reached.  As  such,  the  Commission  came  to  the 
conclusion that the methodology for the measurement of verification of energy savings should 
be extended beyond the current scope of Directive 2006/32/EC to all energy savings including 
measurement  of  the  progress  in  Member  States  towards  the  strategic  objective  of  20%  by 
2020. 

Concerning the establishment of the Second NEEAPs, the key issue is related to reporting on 
already  achieved  energy  savings.  As  indicated  in  various  Communications  from  the 
Commission,  the  NEEAPs  should  become  a  central  tool  for  Member  States  as  regards 
planning  and  reporting  on  national  measures  and  achieved  energy  savings.  This  has  been 
already  confirmed  in  recent  parallel  EU  legislation:  e.g.  the  recast  Energy  Performance  of 
Buildings  Directive  refers  to  NEEAPs  as  the  main  reporting  tool.  In  2010  the  Commission 
will propose a common template for the second NEEAP, due in 2011, which will extend the 
scope  of  reporting  beyond  the  scope  of  energy  savings  as  currently  defined  by  Directive 
2006/32/EC. 

In  order  to  speed  up  and  improve  the  quality  of  transposition  of  Directive  2006/32/EC,  the 
Commission will intensify its bilateral communication with the EU Member States, and also 
to assess the conformity of the notified legislation with the Directive. 

5.6.3.  Evaluation results 

5.6.3.1.  Priorities 

Primary attention will be paid to the enforcement of the existing legislation and the scoping 
work on how to strengthen the current EU framework legislation on energy savings. 

5.6.3.2.  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/EC into national law and that 
they are applied and enforced effectively. In parallel to that, the Commission will investigate 
possible strengthening of this legislation including investigating on the creation of a suitable 
legal basis for the 20% strategic objective for primary energy savings by 2020. 

In relation to the measurement and verification of energy savings, the Commission intends to 
present  a  recommendation  on  a  common  methodology  and  related  indicators.  In  order  to 
facilitate the establishment of the second NEEAPs due in 2011, the Commission will develop 
a common template and provide guidance on the reporting needs. 

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5.7. 

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

5.7.1.  Current position 

5.7.1.1.  General introduction 

The main piece of legislation is Directive 2004/8/EC of 11 February 2004 on the promotion of 
cogeneration based on a useful heat demand in the internal energy market, complemented by 
two  Commission  Decisions,  one  on  harmonised  efficiency  reference  values  for  the  separate 
production  of  electricity  and  heat  (2007/74/EC)  and  the  other  one  containing  detailed 
guidelines for the calculation of electricity from cogeneration (2008/952/EC). 

5.7.1.2.  Report on the work done in 2009 

The adoption of the guidelines has allowed the Commission to step up its efforts on enforcing 
the implementation of the Directive. Member States now dispose of all elements necessary for 
a complete transposition of EU law. In this context, most of the work done during 2009 with 
regard to cogeneration was focused on such transposition.  

Two committee meetings were held to discuss the current progress on the implementation of 
the Directive and on the reporting obligations. Discussions have started on how to increase the 
role of cogeneration in the future European Energy Efficiency Plan. Particular attention was 
given to the analysis of CHP national potential, and a template has been circulated to facilitate 
the submission of data and information on the national potential for cogeneration on the basis 
of Article 6 and Annex IV of the cogeneration Directive 2004/8/EC. 

Infringements  procedures  were  opened  in  2009  against  some  Member  States  for  failure  to 
implement the Directive's provisions (non-communication of transposition and no submission 
of the reports required).  

5.7.2.  Evaluation of the current position 

In general, the situation regarding cogeneration is evolving positively. Many Member States 
have  been  completing  the  transposition  of  the  Directive  and  are  providing  the  missing 
information.  However,  some  Member  States  still  encounter  difficulties  in  meeting  their 
obligations. 

5.7.3.  Evaluation results 

5.7.3.1.  Priorities 

Primary attention will be given to achieving full transposition of the Directive in all Member 
States.  This  should  allow  the  removal  of  existing  barriers  and  the  achievement  of  national 
potentials, and in general the further development of cogeneration in the EU. 

5.7.3.2.  Planned action 

The Commission will continue its efforts with regard to the follow-up and enforcement of the 
existing legislation, including an analysis of conformity of the notified legislation.  

The  Commission  will  review  the  reference  values  for  the  separate  production  of  electricity 
and heat. 

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The  Commission  will  also  prepare  a  report  on  the  implementation  of  the  Directive  and 
present,  if  appropriate,  further  proposals  to  foster  cogeneration,  in  relation  to  the  future 
Energy Efficiency Action Plan.  

5.7.4.  Sector summary 

Monitoring  of  the  implementation  continues.  Infringement  procedures  have  been  opened  to 
support this objective.  

The reference values for the separate production of electricity and heat will be reviewed. 

A  report  on  the  implementation  of  the  Directive  will  be  prepared  and  further  proposals  to 
foster cogeneration will be indicated if appropriate.  

5.8. 

ENERGY - Nuclear Energy 

5.8.1.  Current position 

5.8.1.1.  General introduction 

Most of the activities of DG ENER in the nuclear field are based on Chapter 3 (Health and 
Safety) and Chapter 7 (Safeguards) of the Euratom Treaty and on the acquis derived thereof. 

The  Lisbon  Treaty,  which  entered  into  force  on  1  December  2009,  amends  the  Euratom 
Treaty by its Protocol No 2. The Euratom provisions continue to have their full legal effect 
and  Euratom  keeps  its  own  legal  personality  outside  the  framework  of  the  EU.  The 
amendments are only intended to adapt the Euratom Treaty to the new rules laid down in the 
Lisbon Treaty, in particular in the institutional and financial fields. According to the Lisbon 
Treaty, Articles 141 to 143 of the Euratom Treaty shall be replaced by references to Articles 
258 to 260 respectively of the TFEU defining the infringement procedures. 

5.8.1.2.  Report of work done in 2009 

Management of the acquis, in particular through committees and expert groups: 

The  Group  of  Experts  (GoE)  provided  for  in  Article  31  met  twice  in  June  and  November 
2009.  The  main  topic  was  the  revision  and  recast  of  the  Euratom  Basic  Safety  Standards 
Directive. The Group developed a complete and advanced draft Directive text. The adoption 
of the Opinion of the Article 31 Group of Experts on this Directive is expected in February 
2010. In 2009, the Group adopted an Opinion on a Draft Proposal for a Council Regulation 
establishing a Community system for Registration of carriers of radioactive material135. 

The  European  High  Level  Group  on  nuclear  safety  and  waste  management  or  European 
Nuclear  Safety  Regulators  Group  (HLG  or  ENSREG)136:  met  4  times  during  2009.  In 

135   The text of the opinion is available at 
http://ec.europa.eu/energy/nuclear/radiation_protection/doc/art31/2009_11_3_opinion_on_tra
nsport_regulation.pdf 

136   More information on the ENSREG activity is available on the dedicated website 
www.ensreg.eu 

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particular,  ENSREG  made  a  valuable  contribution  to  the  preparation  of  the  Nuclear  Safety 
Directive. The Group's members provided the Commission with their comments on the draft 
Directive proposal, a consensus being reached on a number of key aspects raised. 

In July 2009, in line with the Group's founding Commission Decision, ENSREG submitted to 
the  Commission  its  first  Activity  Report.  According  to  the  procedure  established  in  the 
mentioned Decision, the Commission has transmitted the Report to the European Parliament 
and  to  the  Council.  The  Report  presents  the  Group's  discussions  and  recommendations 
covering nuclear safety, waste management and transparency aspects137.  

The  European  Nuclear  Energy  Forum  (ENEF)138  is  conceived  as  a  platform  to  promote  a 
broad  discussion  among  all  relevant  stakeholders  on  the  opportunities  and  risks  of  nuclear 
energy.  

In 2009, the fourth ENEF plenary meeting held in Prague on 28 and 29 May 2009, gathered 
more  than  250  high-ranking  participants  from  all  relevant  stakeholders  to  discuss  on risks, 
opportunities and transparency issues of nuclear energy. At the Prague meeting, the ENEF has 
been  dedicated  more  particularly  to  nuclear  safety,  nuclear  waste  policies,  and  possible 
initiatives  on  training  and  education  as  well  as  in  the  area  of  transparency.  ENEF  has  also 
completed a paper providing a roadmap towards the successful implementation of geological 
disposal in the EU. 

Chapter  7  (Safeguards)  of  the  Euratom  Treaty:  The  Commission  continued  to  satisfy  itself 
that  in  the  territories  of  the  Member  States  nuclear  materials  were  not  diverted  from  their 
intended  use  as  declared  by  the  users  and  that  the  international  safeguards  obligations 
assumed  by  Euratom  were  complied  with.  In  2009  the  efforts  made  by  the  IAEA  and  the 
Commission following the entry into force of the Additional Protocol in 2004, were crowned 
by the application of Integrated Safeguards across the EU's non-nuclear weapons states. 

In  particular  is  to  be  mentioned  the  adoption  of  the  Commission  Recommendation 
2009/120/Euratom  of  11  February  2009  on  the  implementation  of  a  nuclear  material 
accountancy and control system by operators of nuclear installations139. 

During  2009,  Bulgaria  and  the  Czech  Republic  acceded  to  INFCIRC/193,  the  trilateral 
safeguards agreement between the Euratom Community, the IAEA and the EU's non-nuclear 
weapons states. The only remaining Member State not yet to accede, Romania, modified its 
domestic  legislation  to  remove  the  impediment  which  had  prevented  its  accession,  thereby 
clearing the way for its accession during first half 2010.  

Regulation  (Euratom)  No  302/2005  set  a  deadline  of  March  2010  for  operators  of  nuclear 
facilities  to  make  their  regular  reports  of  nuclear  material  holdings  and  transactions  in  a 
manner  which  complies  fully  with  the  requirements  set  out  therein.  The  great  majority  of 

137   The full text of the Report was published under the Europa website and is available at  
http://ec.europa.eu/energy/nuclear/ensreg/doc/2009_ensreg_report.pdf. 

138   Detailed information on the ENEF activity is available at 
http://ec.europa.eu/energy/nuclear/forum/forum_en.htm 

139   OJ L 41, 12.2.2009, p. 17–23 

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operators, by the end of 2009 had already taken the necessary steps to comply, and DG ENER 
is closely monitoring the remaining operators. 

Management of the acquis (incl. enquiries, problems and complaints) 

The  submission  of  draft  texts  under  Article  33  Euratom  Treaty  allows  the  Commission  to 
make  appropriate  recommendations  or  remarks  before  the  finalisation  of  the  national 
procedure  for  the  adoption  of  transposition  measures,  so  that  possible  instances  of  non-
compliance  can  be  identified  even  before  the  texts  are  adopted.  In  2009,  we  dealt  with  12 
notifications  under  Article  33.  Most  of  them  concerned  still  the  implementation  of  Council 
Directive  2006/117/Euratom  of  20  November  2006  on  the  supervision  and  control  of 
shipments of radioactive waste and spent fuel. Likewise, other notifications aim at updating 
Member  States'  legislation  transposing  previous  Euratom  Directives,  e.g    BSS  and  HASS  
Directives. 

Under  Article  35  of  the  Euratom  Treaty,  Commission  services  conducted  8  verification 
missions. 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. 

Eleven  opinions  were  adopted  by  the  Commission  in  accordance  with  Article  37  of  the 
Euratom Treaty, concerning plans for the disposal of radioactive material. 

In 2009, the Council adopted Regulation (EC) No 1048/2009 amending Regulation (EC) No 
733/2008  on  the  conditions  governing  imports  of  agricultural  products  originating  in  third 
countries  as  a  consequence  of  the  accident  at  the  Chernobyl  nuclear  power  station140.  The 
Community system for checking compliance with the EC maximum permitted levels of radio-
caesium  in  imported  agricultural  products  is  now  extended  for  another  period  of  ten  years 
until 31 March 2020. 

Articles 41/43 Euratom Treaty notification procedure on nuclear investments: 10 notifications 
were  received  in  2009.  8  Viewpoints  of  the  Commission  under  Article  43  Euratom  Treaty 
have  been  issued.  To  be  mentioned  is  in  particular  its  opinion  on  the  project  of  Slovenské 
Elektrárne  to  complete  Units  3  and  4  of  Mochovce  Nuclear  Power  Plant  in  the  Slovak 
Republic, which focuses in particular on the safety and security aspects. 

Article  103  is  part  of  the  Euratom  Treaty  Chapter  on  external  relations.  It  establishes  a 
procedure  for  the  preliminary  examination  of  the  compatibility  with  the  Euratom  Treaty  of 
draft  agreements  or  contracts  which  are  about  to  be  concluded,  within  the  scope  of  the 
Euratom Treaty, between a Member State and a third party. In 2009, 16 notifications pursuant 
to Article 103 Euratom were dealt with. 

In February 2009 the Commission has been notified under Article 103 Euratom Treaty of the 
draft Agreement between the Government of Romania and the Government of the Hashemite 
Kingdom of Jordan on the development of the peaceful uses of nuclear energy. Article XIII of 
the notified draft agreement impeded the free movement of nuclear materials and equipment 
within the Community provided for in Title II, Chapter 9 of the Euratom Treaty. Therefore, 

140    OJ L 290, 6.11.2009, p. 4–4 

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on 25 of March 2009 the Commission adopted a Decision141 in the form of letter addressed 
to Romanian authorities raising objections to the conclusion of the notified draft agreement. 
In January 2010, Romania sent the new notification taking fully account of the Commission's 
objections.  Having  examined  the  new  draft  agreement  no  element  was  found  to  impede  the 
application of the Euratom Treaty in the meaning of its Article 103. 

Management of infringements 

Concerning  the  complaints  management,  the  new  application  CHAP  was  launched  on  28 
September 2009. There were two new complaints received in 2009 concerning the measures 
taken by the National Authority of Romania as to the interdiction of the salt imports from the 
Ukraine. 

In  2009,  Directorate  H  opened  a  large  number  of  infringements  cases  (21)  for  non-
communication  of  final  transposing  measures  concerning  the  implementation  of  Council 
Directive  2006/117/Euratom  of  20  November  2006  on  the  supervision  and  control  of 
shipments of radioactive waste and spent fuel.  Letters of formal notice were communicated to 
19  Member  States.    At  this  moment,  most  of  the  concerned  Member  States  have  already 
notified their pieces and their cases have been closed, except two.  

Likewise, long-standing cases have been closed in 2009. Thus, for instance, considering the 
reply  from  the  Portuguese  authorities  in  line  with  the  recommendations  issued  by  the 
Commission  and  recognizing  the  sustainable  improvements  made  in  recovering  and 
monitoring  the  former  uranium  mines  areas  in  the  framework  of  the  ongoing  national 
monitoring programme, the infringement case against Portugal was closed.  

Negotiations  were  satisfactorily  concluded  with  the  Sellafield  (UK)  operators  in  view  of 
rectifying  the  shortcomings  which  originated  the  warning  the  Commission  issued  on  15 
February  2007  (Decision  2006/626/Euratom),  in  accordance  with  Article  83  of  the  Treaty 
(failure of the operator of a nuclear installation to satisfactorily fulfil its obligations). On this 
basis,  the  2006  decision  was  repealed  by  Commission  decision  of  3  August  2009.  As  a 
consequence the case before the Court of Justice was closed in 2009. 

Monitoring of the safeguards situation continued in the case of a Commission Directive based 
on  Article  82  Euratom  Treaty,  concerning  another  installation  on  the  Sellafield  site.  To  this 
end,  a  detailed  work  programme  to  improve  the  situation  was  prepared  by  the  United 
Kingdom, under close scrutiny by the Commission, which is to be adopted in the first half of 
2010.  If  progress  continues  to  be  satisfactory,  the  suspension  of  the  Commision  decision  to 
seize the Court of Justice can be upheld. 

Petitions 

During  2009,  Directorate  H  dealt  with  10  petitions  in  total.  For  all  petitions,  an  adequate 
answer  was  provided;  however  the  European  Parliament's  Petitions  Committee  did  not 
analyse all answers yet and could therefore not accept the closure of these cases. Hence, most 
petitions take several years before being formally closed. 

New legislation. 

141   C(2009)2061 final 

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The  Council  Directive  2009/71/Euratom  of  25 June  2009  establishing  a  Community 
framework  for  the  nuclear  safety  of  nuclear  installations142  (Nuclear  Safety  Directive), 
adopted  with  the  agreement  of  all  the  27  EU  Member  States  following  widespread  support 
from the European Parliament, creates a solid and flexible legal framework that defines basic 
obligations and principles governing nuclear safety throughout the EU. The Directive builds 
on work that Member States have carried out already and transposes into Community law as a 
binding legislation the nuclear safety requirements of the Convention on Nuclear Safety and 
of the Safety Fundamentals established by the International Atomic Energy Agency (IAEA). 

The  underlying  principles  on  which  the  Directive  is  built  are:  national  responsibility  for 
nuclear  safety  and  continuous  improvement  of  nuclear  safety.  In  line  with  these  basic 
principles,  the  Directive  requires  Member  States  to  establish  and  maintain  a  national 
legislative,  regulatory  and  organisational  framework  governing  the  safety  of  nuclear 
installations. It also aims to reinforce the role and the independence of the competent national 
regulatory authorities by building on their competencies and acknowledging the fundamental 
prerequisite  that  only  independent  and  strong  regulators  can  guarantee  the  safe  operation  of 
nuclear installations in the EU. The prime responsibility of licence holders for nuclear safety 
is explicitly recognised.  

Commission  Decision  on  financing  for  the  decommissioning  programmes  for  Ignalina, 
Bohunice  and  Kozloduy  (C(2009)7614):  The  Commission  adopted  the  yearly  financial 
Community  contribution  to  the  decommissioning  assistance  programmes  for  Bohunice, 
Ignalina and Kozloduy for 2009. The basis for the Decision is the 2003 Treaty of Accession, 
in particular Protocol no. 4 “on the Ignalina Nuclear Power Plant in Lithuania” and no. 9 "on 
unit 1 and unit 2 of the Bohunice V1 nuclear power plant in Slovakia"; as well as the Act of 
Accession  of  Bulgaria  and  Romania,  in  particular  Article  30  of  the  Protocol  thereto.  The 
Protocols foresee additional assistance, following on from previous programmes until 2006, in 
the period from 2007 till 2013 (2009 for Bulgaria). Council Regulations (EC) 1990/2006 and 
(Euratom) 549/2007 specify the additional assistance to Lithuania and Slovakia. The Decision 
covers the 2009 commitment of € 255 million in total for all three funds. 

Also  it  has  to  be  mentioned  that  Lithuania  has  closed  the  Ignalina  power  plant  on  31 
December  2009  in  accordance  with  "Protocol  No  4  on  the  Ignalina  nuclear  power  plant  in 
Lithuania" according to the "Act concerning the conditions of accession of … the Republic of 
Lithuania ….".143 This was the last plant to be closed following the Accession Treaty. 

A new proposal for a Council Regulation for the extension of financial EU decommissioning 
support to Bulgaria (COM(2009)581 final) was elaborated and adopted by the Commission on 
27 October 2009. This concerns the decommissioning of units 1 to 4 of the Kozloduy Nuclear 
Power Plant and for the mitigation of the economical consequences. Financial support for the 
decommissioning  in  Bulgaria  was  limited  to  December  2009.  For  Lithuania  and  Slovakia, 
being in a comparable situation regarding decommissioning, Ignalina and Bohunice, financial 
support for decommissioning had already been safeguarded up to the end of 2013. The new 
Commission  proposal  covers  a  sum  of  €  300  million  for  the  time  period  2010  –  2013.  The 

142   OJ L 172, 2.7.2009, p. 18–22 

143 OJ L 236, 25.9.2003, p. 33, 933 

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adoption  of  the  Council  Regulation  is  foreseen  for  the  first  half  of  2010  to  guarantee  the 
seamless continuation of safe decommissioning. 

Co-sponsoring of the IAEA Basic Safety Standards: The Commission has taken a very active 
part in the revision of the international standards. 

Negotiating  mandate  for  a  revised  Euratom–Canada  cooperation  agreement:  The 
Council adopted on 27 July 2009 a Decision issuing directives to the Commission for the re-
negotiation  of  the  Agreement  between  the  European  Atomic  Energy  Agency  Community 
(Euratom)  and  the  Government  of  Canada  for  cooperation  in  the  peaceful  uses  of  atomic 
energy144.  The  initial  Agreement  between  Euratom  and  Canada  for  cooperation  in  the 
peaceful uses of atomic energy was signed in 1959 and, due to the continuous development of 
nuclear trade between the Parties, has been amended five times. 

In  order  to  enhance  mutual  cooperation  with  the  Russian  Federation  by  providing  a  stable 
legal framework for political and industrial relations in this field, the Commission adopted in 
April  2009  a  proposal  for  a  revised  mandate  for  negotiations  with  the  Russian  Federation, 
aiming at a broad cooperation agreement in the peaceful uses of nuclear energy, covering not 
only  nuclear  trade  but  also  nuclear  safety,  waste  management,  safeguards  and  physical 
protection,  nuclear  liability  etc,  and  thus  replacing  the  negotiating  directives  for  a  nuclear 
trade agreement adopted by the Council in 2003. Following discussions, the Council adopted 
the new mandate on 22 December 2009145. 

The  Commission  adopted  in  March  2009  a  Communication  on  nuclear  non-proliferation 
(COM  2009)  143  final),  detailing  how  the  EU  could  strengthen  its  contribution  to 
international  efforts  to  reduce  the  risk  of  nuclear  proliferation  while  providing  emerging 
nuclear  countries  assurances  of  fuel  supplies.  The  Communication  suggests  extended 
cooperation  with  key  nuclear  countries  and  active  Commission  involvement  in  the 
development  of  an  international  system  to  guarantee  nuclear  fuel  for  countries  willing  to 
develop nuclear energy without having their own nuclear fuel cycle facilities. 

Preventive measures being taken in relation to newly adopted new legislation 

The  most  important  measures  concerning  the  implementation  of  Council  Directive 
2006/117/Euratom  of  20  November  2006  on  the  supervision  and  control  of  shipments  of 
radioactive  waste  and  spent  fuel  were  adopted  in  2008  (e.g.  Decision  on  the  standard 
document, Recommendation establishing criteria for the export to third countries) before the 
expiry of the Member States' deadline for implementation.   

To complete this legislation and in accordance with the Directive provisions, on 7 July 2009 
the Commission established recommendations to the concerned competent authorities of the 
Member  States  for  a  secure  and  effective  system  of  transmission  of  documents  and 
information  relating  to  the  provisions  of  such  Directive.  The  Commission  Recommendation 
2009/527/Euratom was published in the Official Journal146. 

144  The final document is not public. 

145 The document is not public. 

146 OJ L 177 of 8 July 2009, pp. 5-6. 

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Implementation of EU energy policy priorities  

The  priorities  in  the  field  of  energy  were  defined  as  follows:  "Actions  having  a  significant 
impact  on  the  fight  against  climate  change  and  ensuring  secure  and  competitive  energy 
supplies". 

The implementation of the Euratom acquis generally benefits both objectives: It regulates the 
use  of  an  energy  source  which  has  virtually  no  carbon  emissions  and  which  contributes 
substantially to the security of supply.  

The Strategic Energy Technology Plan of the EU is the technology related "implementation 
tool" to meet the ambitious 3x20 Energy Policy Target. The SET Plan recommends to launch 
European  Industrial  Initiatives  to  develop  and  bring  to  the  market  innovative  low  carbon 
energy  technologies.  The  Nuclear  Initiative  under  the  SET  Plan  is  fostering  the  long  term 
sustainable  contribution  of  nuclear  energy  to  the  low  carbon  energy  mix,  by  proposing  the 
building  of  prototype  fast  breeder  reactors  and  closed  fuel  cycle.  The  first  prototypes  are 
foreseen to start operation in 2020. This is directly related to one of the axis of actions of the 
Sustainable  Nuclear  Energy  Technology  Platform,  the  two  other  ones  being  connected  with 
the plant lifetime management and waste management of existing installations, and with the 
production of nuclear heat via cogeneration and the potential of High Temperature Reactors. 

5.8.2.  Evaluation of the current situation 

a) The current situation for the control of the existing acquis is stable. Whereas in 2008 the 
focus was on resolving existing infringements cases, in 2009 it shifted to the management of 
the  cases  resulting  from  the    expiry  of  the  Member  States'  deadline  for  implementation  of 
Council Directive 2006/117/Euratom. This priority task looks at the time manageable. At the 
end of 2009, only two Member States had not fully transposed the Directive. 

b)  Prioritisation  was  not  fully  applied  yet,  as  the  cases  could  all  be  managed  in  the  normal 
timeframe and fell roughly under the same level of priority, i.e. normal. 

5.8.3.  Evaluation Results 

5.8.3.1.  Priorities and Planned Actions   

Assisting  Member  States  to  comply  with  their  legal  obligation  for  a  timely  and  correct 
transposition  of  the  Nuclear  Safety  Directive.  Depending  on  the  transposition  problematic 
aspects  identified  by  the  Member  States,  the  organisation  of  a  specific  workshop  could  be 
envisaged during the first half of 2010 to build a common understanding on how to proceed. 

5.8.4.  Summary by Sector 

Given  the  renewed  and  growing  interest  in  nuclear  energy,  in  the  nuclear  sector  the 
Commission  is  called  to  accompany  the  expected  massive  development  with  an  advanced 
legal framework for nuclear energy based on the Euratom Treaty that maintains and improves 
the high standard of regulation achieved in the EU Member States. Our priority must be to be 
up-to-date concerning the legislation for the protection of the health and for nuclear security 
and  to  fully  use  our  competences  in  the  field  of  nuclear  safety.  As  main  achievement  to  be 
mentioned is the adoption of the Nuclear Safety Directive. 

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The key action in the near future, for which a lot of work was already achieved during 2009, 
is therefore the proposal for a Council Directive (Euratom) on safe management of radioactive 
waste  and  spent  fuel.  The  Commission  proposal  is  expected  to  be  adopted  during  2010.  In 
2010 it could be adopted by the Council and will then have to be carefully implemented.  

On the other hand, the recast of the Basic Safety Standards, for which a Commission proposal 
is  expected  during  the  course  of  2010,  will  consolidate  the  legislation  in  the  field  and  set 
modern, unified standards for the protection of the health of the citizens in the EU.  

5.9.  MOBILITY and TRANSPORT - Passengers' rights 

5.9.1.  Current position 

5.9.1.1.   

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,  four  Regulations  entered  into  force  by  the  end  of  2009,  in  the  sectors  of 
aviation and rail transport: 

-  Regulation (EC) N° 889/2002, Regulation (EC) No 889/2002 of the European Parliament 
and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air 
carrier liability in the event of accidents 

-  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 1370/2007 on public passenger transport services by rail and by road, 

applicable as from December 2009 

-  Regulation  (EC)  Nº  1371/2007  on  rail  passengers’  rights  and  obligations,  applicable  as 

from December 2009. 

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. 

5.9.1.2.   

Report on the work done 

The  Commission  continued  its  efforts  to  guarantee  the  correct  implementation  of  the 
provisions protecting passengers' rights in the following modes of transport: 

Rail Transport  

Regulation (EC) Nº 1370/2007 on public passenger transport services by rail and by road and 
Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 

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2007  on  rail  passengers’  rights  and  obligations147  have  entered  into  force  on  3  December 
2009. 

Member  States  were  also  due  to  transpose  Directive  2007/58/EC  from  4  June  2009  and 
Directive 2007/59/EC from 4 December 2009. 

Maritime and inland waterways Transport  

On  4  December  2008,  the  Commission  proposed  a  Draft  Regulation  on  passenger  rights  in 
maritime  and  inland  waterway  transport.  Negotiations  on  the  proposal  in  EP  (positive  first 
reading in April 2009) and Council (political agreement in October 2009) are ongoing. 

On 21 January 2009 the European Commission adopted a Communication and an action plan 
on  the  establishment  of  a  European  maritime  transport  space  without  barriers  designed  to 
harmonise  and  simplify  administrative  procedures.  The  action  plan  contains  short  and 
medium term measures as well as recommendations to the Member States. 

For  the  short  term,  the  Commission  attached  a  legislative  proposal  to  streamline  reporting 
formalities  for  ships  arriving  at  or  leaving  European  ports.  It  launched  a  simplification  of 
customs  procedures  for  transporting  goods  exclusively  between  European  ports  and  started 
the drafting of guidelines to simplify the veterinary and phytosanitary controls. 

At  medium  term,  the  Commission  will  examine  possible  means  to  simplify  administrative 
formalities for intra-EU shipping routes including a stop in a third country, improve electronic 
data transmission and single windows. It will also assess the possibility to harmonise rules for 
intermodal transport of dangerous goods containing a maritime leg. 

At  last,  the  Commission  recommended  that  Member  States  co-ordinate  the  various 
administrative inspections in ports, facilitate administrative communication by using a shared 
neighbouring  language  or  English,  create  a  regulatory  framework  to  facilitate  "pilot 
exemption certificates" and if possible dedicate area for intra-EU transport in ports. 

Progress has been made for the three short term actions identified in the action plan. 

Work on the draft began in April 2009. The Council and the European Parliament reached a 
first reading agreement on the directive aimed at streamlining the formalities when entering 
and exiting ports (COM 2009(11) final) on 6 July 2010. 

The  Commission  adopted  on  2  March  2010  a  Regulation  revising  the  implementing 
provisions  of  the  Customs  Code  in  order  to  grant  the  presumption  status  to  EU  vessels 
operating in the European maritime transport area without barriers. 

General guidance procedures for checks on live animals and animal products arriving at EU 
points  of  entry  which  have  full  veterinary  clearance  for  the  EU  market  were  issued  on  4 
November  2009  as  a  follow-up  of  the  Commission  action  plan  for  the  establishment  of  a 
European Maritime Transport Space without Barriers. 

Coach and Bus Transport 

147   OJ L 315, 3.12.2007, p. 14–41. 

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On  4  December  2008,  the  Commission  proposed  a  Draft  Regulation  on  passenger  rights  in 
bus  and  coach  transport.  Negotiations  on  the  proposal  in  PE  (positive  first  reading  in  April 
2009) and Council (political agreement in December 2009) are ongoing. 

Air Transport  

-  Regarding Passengers with reduced mobility (PRM). Following the stakeholders conference 
organised  in  January  2008  to  ensure  a  successful  full  application  of  Regulation  (EC)  Nº 
1107/2006  and  to  make  each  category  of  operators  aware  of  the  specific  needs  and 
constraints  of  the  stakeholders  concerned,  a  meeting  with  all  the  National  Enforcement 
Bodies  (NEBs)  has  been  organized  in  Brussels  on  23  November  2009  to  have  a 
comprehensive  exchange  of  views  about  the  application  of  the  Regulation  in  Member 
States.  

In  2009,  2  studies  on  the  application  of  Regulation  1107/2006  were  launched  in  order  to 
prepare  the  report  to  the  European  Parliament  and  to  the  Council  foreseen  in  2010.  One  of 
these  studies  will  make  a  general  assessment  of  the  application  of  the  Regulation,  the  other 
will  focused  on  the  current  regime  of  sanctions  and  penalties  in  force  in  Member  States  in 
case of infringements of the Regulation. 

-  Regarding  Passengers  rights  in  case  of  denied  boarding,  delays  and  cancellations,  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. The Commission has been constantly in contact with Member States to ensure 
the good application of all legal developments in the matter, as the recent case law from the 
European Court of Justice (rulings C-402/07 and C-432/07, Sturgeon and Others and follow 
up of the case C-549/07, Wallentin-Hermann). 

-  Regarding  issues related to the lost  luggage (covered by  Regulation (EC) No 889/2002) a 
report  was  delivered  in  July  2009  which  has  shown  that  although  for  the  first  time  in  the 
most  recent  years  a  decrease  of  lost  luggage  has  been  detected  at  international  level,  the 
problem still remains extremely serious (the number of lost luggage has declined by 20%, 
from 42 millions in 2007 to 33 millions in 2008). 

5.9.2.  Evaluation of the current position 

The  Commission  works  actively  to  promote  the  enforcement  of  the  current  regime  of 
protection of passenger rights by monitoring national authorities. Meetings and workshops are 
organized  on  a  regular  basis  with  stakeholders  and  complaints  received  are  analysed.  In 
addition,  the  Commission  monitors  studies  and  consultations  to  have  a  better  view  of  the 
opinion of the public on these matters. 

However, the outcome of these actions show that full implementation and enforcement of the 
regulations  protecting  passenger  rights  is  not  yet  sufficiently  ensured  in  all  situations  and 
Member States and further efforts are requested both by national authorities and by airlines. 

5.9.3.  Evaluation results 

5.9.3.1.  Air transport 

In  December  2009,  the  Commission  services  launched  a  Public  consultation  on  the  set  of 
regulations covering Air Passenger Rights. 

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The  outcome  of  this  consultation  will  be  used  by  the  Commission  in  2010  to  assess  the 
implementation  of  the  legislation  covering  air  passengers’  rights.  The  results  of  the 
consultation  will  be  presented  at  a  stakeholder  conference  early  in  2010.  The  Commission 
will summarise the answers and publish the results and main conclusions of the consultation 
on its website. A Communication should be adopted in 2010. 

5.9.3.2.  Rail Transport 

The Commission will launch an information campaign (starting in spring 2010) with the aim 
of  informing  all  EU  passengers  on  the  rights  that  they  will  enjoy  pursuant  to  the  (EC) 
legislation  on  passengers'  rights.  In  particular  the  campaign  will  highlight  the  EU  rail 
passenger  rights  which  derive  from  Regulation  1371/2007  (entry  into  force  as  from  3 
December 2009). This will be done involving both the industry (in particular, rail operators 
and their business associations) and consumers' associations. 

The Commission will establish close contacts with the NEB ("National Enforcement Bodies") 
once such Authorities are designated by all the Member States in order to ensure an effective 
enforcement of rail passengers' rights as established by the Regulation. The first meeting of 
the Commission with the NEBs from the rail sector took place at the end of January 2010. 

5.9.3.3.  Maritime and inland waterways Transport  

The Council reached a political agreement in view of a Common Position on the Commission 
proposal on 9 October 2009. Negotiations with the EP in second reading will be held under 
the Spanish Presidency. 

5.9.3.4.  Coach and Bus Transport 

The  Council  has  intensified  the  reading  of  the  proposal  in  the  second  half  of  the  Swedish 
Presidency. 

One  of  the  Commission's  objectives  is  to  maintain  a  definition  of  the  scope  as  wide  as 
possible to take into account the needs of the population, in particular disabled persons and 
persons  with  reduced  mobility.  The  objective  is  to  at  least  preserve  the  application  of  some 
basic rights of the Regulation not only to long distance bus and coach service but also to local 
services and, therefore, to avoid the total exclusion of urban, suburban and regional bus and 
coach transport services (requested by a number of Member States in the Transport Council 
held in June 2009). 

5.9.4.  Sector summary 

The priority remains guaranteeing the full application of passenger rights.  

The Community legislative framework offers a more and more effective regime of protection 
to passengers within the EU. The main objectives for 2010 are to harmonise and to strengthen 
the  passenger  rights  for  all  modes  of  transport  and  to  define  a  comprehensive  and  coherent 
policy offering all passengers easily comprehensible and enforceable rights. 

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5.10.  MOBILITY and TRANSPORT -  Inland Waterway Transport 

5.10.1.  Current position 

5.10.1.1. 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 of the European Parliament and of the Council of 12 December 2006 
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 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.  

5.10.1.2.  

 Report on the work done in 2009 

In 2009, the Community acquis was further developed. 

A  follow-up  of  the  transposition  of  Directive  2005/44  was  performed  and  continuous 
monitoring  of  the  implementation  of  the  Directive  was  ensured  via  frequent  meetings  with 
Member States' authorities and stakeholders, expert group meetings and conformity checks. A 
Commission  Regulation  defining  technical  specifications  was  discussed  and  amendments  of 
existing  Commission  Regulations  defining  technical  specifications  were  prepared.  The 
process  of  ensuring  the  proper  implementation  of  the  Directive  in  2010  and  beyond  will 
continue along the same line. 

The  technical  Annexes  to  Directive  2006/87/EC  laying  down  technical  requirements  for 
inland  waterway  vessels  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  Joint  meeting  of  experts  from  EU  MS  and  the  Central  Commission  for 
Navigation  on  the  Rhine  were  held.  One  amending  Directive  was  adopted  (Commission's 
Directive 2009/46). 

For the proper implementation of the Directive, regular communication with Member States is 
maintained. Workshops have been attended in Member States and a number of questions from 
citizens and inspection bodies were answered. Good cooperation with the International River 
Commissions  and  the  UN-ECE  on  technical  requirements  for  inland  waterway  vessels  was 
kept.  

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5.10.2.  Evaluation of the current position 

The  situation  keeps  evolving,  and  an  increased  workload  is  foreseen  due  to  necessary 
legislative  developments.  Four  infringement  procedures  were  launched  (United  Kingdom, 
Poland,  Luxembourg  and  Germany)  due  to  the  fact  that  the  transposition  deadline  for  new 
directives has elapsed.  

5.10.3.  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  have  to  be  prepared  since  agreement  has  been  reached  on 
several subjects in the technical working party and will be launched after a positive advice of 
the Committee. A Corrigendum for several languages needs to be prepared and launched. The 
procedure for the recognition of classification societies has to be completed. A study has been 
launched and a consultant has been selected. The results are expected the first quarter of 2010. 
The  relation  with  the  River  Commissions,  and  especially  the  shared  secretary  of  the  Joint 
Working  Group,  should  be  reflected  upon.  The  description  of  the  role  of  the  classification 
societies needs reviewing. The role of classification societies in inland shipping is changing 
and seems not to be adequately covered by descriptions in the Annexes. Therefore, a seminar 
with  all  parties  involved  needs  to  be  organised.  Another  project  will  be  a  seminar  on  the 
interpretation of requirements in the annexes of directive 2006/87 EC. This was already the 
subject of the seminar in 2008 in Budapest to prepare Inspection Bodies from Member States. 
The Directive is been in force since the end of 2008 and experiences from inspection bodies 
with  difficulties  in  interpreting  the  requirements  are  appearing.  This  requires  again  a  Joint 
Seminar  of  Inspection  Bodies  from  the  MS  of  the  Danube  Commission,  the  CCNR  and  the 
EU. 

The above mentioned activities in the Maritime sector are carried out by an agency that also 
audits maritime organisations and inspection bodies. These task are more operational and do 
not  fit  in  adequately  in  the  work  of  the  Commission.  This  and  the  relation  with  River 
Commissions require attention in the near future. 

Infringement  procedures  have  been  launched  against  Member  States  not  having  transposed 
the newest Directives and in particular the Directives  2006/87 and 2008/87. Specific follow 
up  will  be  needed  in  particular  in  connection  with  national  additional  requirements  and 
derogations allowed by the Directive. 

5.10.4.  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  the 
individual implementation of Directive 2006/87, as amended, on the other hand.  

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5.11.  MOBILITY and TRANSPORT - Logistics and co-modality  

5.11.1.  Current position 

5.11.1.1.  

General introduction. 

The 2006 White paper revision introduced the concept of co-modality.  According to this new 
concept  each  mode  of  transport  shall  be  looked  individually  and  in  combinations  in  an 
integrated  logistics  chain  to  achieve  a  complementary  and  efficient  use  of  modes  in  an 
optimal European transport system.  In 2007 the EC Communication "Boosting the efficiency, 
integration  and  sustainability  of  freight  transport  in  Europe"  was  adopted.  The  aim  of  this 
document was to improve the efficiency and sustainability of freight transport in Europe by 
promoting  and  encouraging  the  performance  of  multimodal  transport  as  a  drive  for  a 
competitive and sustainable freight transport system in Europe.  

The main pieces of Community acquis in this field are the following:  

-  Council  Directive  96/53  on  the  maximum  authorised  weights  and  dimensions  for  heavy 
goods vehicles and buses circulating within the Community. It introduced common standards 
for  the  vehicles'  weights  and  dimensions  in  order  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. 

- Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules 
for certain types of combined transport of goods between Member States. It has established 
certain  rules  designed  to  encourage  the  development  of  combined  transport  as  it  is 
contributing  towards  road  traffic  safety,  reduced  congestion,  energy  savings,  and  hence  a 
better quality of life.  

5.11.1.2.  

Report on the work done in 2009 

Community acquis in the field is generally stable. The two Directives have been completely 
transposed,  and  no  infringement  procedures  have  been  started  until  now.  However,  the 
necessity of some adaptations and improvements was examined. A preliminary analysis of the 
need for launching an Impact assessment of possible improvements and updates of Directive 
92/106 with a view to further facilitate and foster the development of combined transport has 
thus been carried out. 

5.11.2.  Evaluation of the current position 

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 established common standards for the vehicles weights and dimensions 
to permit their improved use by creating a balance between their rational and economical use 
in traffic between MS. Several opportunities for a better performance of road haulage by an 
increased  efficiency  of  the  heavy  goods  vehicles  are  studied  in  line  with  the  co-modality 
concept for better use of the strengths of each transport mode, and combining them to build 
seamless, door-to-door transport chains. A study and several workshops have been performed 
in  2008  to  investigate  the  feasibility  for  possible  amendment  of  Directive  96/53  in  order  to 
increase  the  efficiency  of  heavy  goods  vehicles.  A  new  study  has  been  launched  at  the 
beginning  of  2010  that  will  assess  the  technical  effects  in  terms  of  road  safety  and 

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infrastructure effects, as well as the economic effects of operating the various types of larger 
and heavier vehicles. 

Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for 
certain  types  of  combined  transport  of  goods  between  Member  States  introduced  certain 
provisions  fostering  the  development  of  combined  transport.  Many  of  these  provisions  are 
however  nowadays  partially  outdated.  Improvements  and  updates  of  the  Directive  in  this 
respect  are  therefore  considered  in  order  to  better  achieve  the  desired  competitiveness  and 
market share of combined transport. An Impact assessment for possible updates of Directive 
92/106/EEC is envisaged.  

5.11.3.  Evaluation results 

Community  acquis  is  generally  stable  although  some  adaptations  and  improvements  are 
examined. A new study will continue to investigate the feasibility for possible amendment of 
Directive 96/53 and an Impact assessment will evaluate the effect of possible adaptations to 
Directive 92/106 in order to better achieve the objectives of these legislative acts.   

5.11.4.  Sector summary 

The  Commission  will  continue  to  study  the  necessities  and  possibilities  of  further 
development  of  the  existing  legislation,  in  order  to  facilitate  and  promote  the  use  of 
multimodal transport as a drive for a competitive and sustainable freight transport system in 
Europe.  

5.12.  MOBILITY and TRANSPORT - Inland Transport 

5.12.1.  Current position 

Road Transport 

In  road  transport  the  control  of  the  application  of  Community  law  centred  on  the  correct 
implementation  by  member  States  of  the  social  rules,  including  working  time  (Directive 

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2006/22/EC148 and Directive 2002/15/EC149) as well as of the EU road charging legislation 
(Directive 1999/62/EC as amended by Directive 2006/38/EC150).  

As regards the transposition of Directive 2006/22/EC the Commission pursued infringement 
proceedings  against  two  Member  States  whose  failure  to  implement  the  Directive  had  been 
declared  by  the  Court  in  2008.  The  Member  States  in  question  at  last  communicated  their 
transposition  in  the  course  of  the  year  and  the  cases  could  be  closed.  However,  new  cases 
were opened against seven Member States whose transposition was found to raise questions in 
relation to conformity with the provisions of the Directive. 

As  regards  working  time  in  road  transport,  the  Commission  continued  the  control  of 
implementation  concerning  Directive  2002/15151.  In  the  case  of  six  Member  States  the 
transposition measures had to be considered not to be in conformity leading to infringement 
proceedings. All but two cases have been assessed in-depth and could be closed. One of the 
still pending cases is awaiting the entry into force of the amending legislation rectifying the 
transposition error. 

Directive 2002/15 provides for a biannual report on the implementation of the Directive in the 
Member  States  which  is  to  be  submitted  to  the  Commission.  Against  eight  Member  States 
failing to do so the Commission had initiated infringement proceedings the previous year and 
all cases could be closed in 2009. 

In 2008 the Commission had adopted a proposal to modify Directive 2002/15/EC. The aim of 
this  proposal  was  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.  Discussion  of  the 
proposal continued in the EU institutions in 2009. 

148  Directive  2006/22/EC  of  15  March  2006  determines  the  minimum  level  of 
enforcement  required  to  ensure  compliance  with  the  rules  set  out  in  Regulation  (EC)  nº 
561/2006 (driving times and rest periods) and Regulation (EEC) 3821/85 (tachograph) 

149  Directive  2002/15/EC  of  the  European  Parliament  and  of  the  Council  of  11  March 
2002  on  the  organisation  of  the  working  time  of  persons  performing  mobile  road  transport 
activities (OJ L 080 , 23.3.2002, p. 35) 

150   Directive 2006/38/EC of the European Parliament and of the Council of 17 May 2006 
amending  Directive  1999/62/EC  on  the  charging  of  heavy  goods  vehicles  for  the  use  of 
certain infrastructures (OJ L 157, 9.6.2006, p.8) 

151  Directive  2002/15/EC  of  the  European  Parliament  and  of  the  Council  of  11  March 
2002  on  the  organisation  of  the  working  time  of  persons  performing  mobile  road  transport 
activities (OJ L 080 , 23.3.2002, p. 35) 

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In  2009  the  Commission  closed  another  two  infringement  proceedings  concerning  the  non-
conformity  of  national  measures  with  Directive  1999/62/EC  on  road  infrastructure  charging 
thus  having  successfully  ended  its  transposition  check  of  Directive  2006/38/EC  amending 
Directive  1999/62/EC  on  the  charging  of  heavy  goods  vehicles  for  the  use  of  certain 
infrastructures.  The  Commission  continued  its  case  against  one  Member  State  whose  road 
charging  system  for  passenger  cars  the  Commission  was  assessed  to  be  incompatible  with 
Article 12 TEC. The Member Sate took rectification measures to better comply with its Treaty 
obligations.  

As  regards  Directive  96/26/EC152  on  the  admission  to  the  occupation  the  Commission 
pursued further infringement cases against two Member States for incorrect application of the 
Directive's provision. Both cases could be successfully brought to an end. 

In  the  case  of  two  Member  States  the  rules  on  penalties  to  be  imposed  for  infringements 
pursuant to Regulation 561/2006 gave rise to infringement proceedings. These Member States 
had  failed  to  implement  a  penalty  system  corresponding  to  the  provision  of  the  Regulation. 
Both  Member  States  complied  once  the  Commission  had  initiated  the  proceedings  and  the 
cases were closed. 

The incorrect application of the rules on market access for international road haulage as laid 
down  in  Regulation  (EC)  No  881/92  was  subject  of  two  cases  against  one  Member  State. 
After the authorities had rectified their administrative practice the cases could be closed. 

Rail Transport 

In the rail sector, Member States had to transpose the Directives of the first railway package 
(91/440/EEC as amended, 95/18/EC as amended and 2001/14/EC) 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  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, DG TREN sent out questionnaires to Member States 

152   Council Directive 96/26/EC of 29 April 1996 on admission to the occupation of road 
haulage operator and road passenger transport operator and mutual recognition of diplomas, 
certificates  and  other  evidence  of  formal  qualifications  intended  to  facilitate  for  these 
operators  the  right  to  freedom  of  establishment  in  national  and  international  transport 
operations (OJ L 124, 23.5.1996, p. 1–10) 

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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. 

After  sending  these  letters,  the  Commission  services  met  with  representatives  from  all  24 
Member States to discuss possibilities to remedy the shortcomings identified in these letters. 
On the basis of these meetings, the replies of Member States to the letters and formal notice, 
and  after  changes  have  been  made  in  some  Member  States,  the  Commission  sent  reasoned 
opinions to 21 Member States on 6 October 2009. These reasoned opinions contained in many 
cases a reduced number of infringements in relation to the letters of formal notice. 

Directive 2004/49/EC on safety on the Community's railways requires the safety authority and 
the investigating body to be independent from railway undertakings. In Belgium, the Board of 
directors and the members of the national safety authority may work at the traditional railway 
undertaking. The same applies to the person responsible for the investigating body. Naturally, 
this  violates  the  obligation  of  independence  set  out  in  the  Directive.  The  Commission  has 
therefore addressed a supplementary letter of formal notice to Belgium.  

Directive 2001/16/EC on the interoperability of the trans-European conventional rail system 
provides that Member States may not hinder the use of rolling stock certified in other Member 
States,  in  accordance  with  the  rules  on  mutual  recognition.  Poland  requires  the  presence  of 
two people on board a type of locomotive exploited by a new operator, in spite of the fact that 
the same type of locomotive is already certified in other Member States as requiring only one 
driver. Moreover, only one driver is required for all other locomotives operating in the Polish 
railway  network.  The  Commission  has  thus  sent  a  letter  of  formal  notice  to  Poland  for 
violation  of  the  provisions  on  mutual  recognition  of  rolling  stock  set  out  in  Directive 
2001/16/EC and for violation of the safety rules of Directive 2004/49/CE. 

Road Safety 

The legislation on road safety covers the driving licence, the initial qualification and periodic 
training of professional drivers, roadworthiness testing, the compulsory use of safety belts, the 
registration  of  vehicle  documents  and  the  safety  of  tunnels  and  the  safety  of  road 
infrastructure. 

In  the  road  safety  sector,  most  past  infringement  proceedings,  which  were  open  for  non 
communication of the transposition of Directives, have been closed in 2009. Two proceedings 
are  currently  open  but  are  expected  to  be  closed  in  the  next  weeks.  One  relates  to  the  non-
communication of the transposition of an amendment to Directive 91/439/EEC153 on driving 
licences  introduced  by  Directive  2008/65/EC154,  which  needed  to  be  transposed  by  30 

153   Council  Directive  91/439/EEC  of  29  July  1991  on  driving  licences,  OJ  L  237, 
24.8.1991, p. 1–24 

154   Commission Directive 2008/65/EC of 27 June 2008 amending Directive 91/439/EEC 
on driving licences, OJ L 168, 28.6.2008, p. 36–37 

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September  2008.  The  remaining  one  concerns  the  application  of  Directive  2000/30/EC  of  6 
June 2000 on the technical roadside inspection.155 

Transport of dangerous goods 

The  transport  of  dangerous  goods  is  regulated  by  Directive  2008/68/EC  of  the  European 
Parliament  and  of  the  Council  of  24  September  2008  on  the  inland  transport  of  dangerous 
goods.  This  Directive  brings  into  force  three  international  agreements156  on  the  land 
transport of dangerous goods and extends the application of those rules to national transport.  
These rules are updated every two years; the next update will be in 2011. There are limited 
possibilities for Member States to apply derogations from the dangerous goods rules for local 
transport or small quantities.  These derogations are checked and updated regularly157.  

The application of the dangerous goods rules is checked through the uniform procedures for 
checks directive which requires Member States to perform ad-hoc checks on dangerous goods 
road vehicles158 and report on their findings annually.  The dangerous goods legislation also 
regulates the placing on the market and safe use of transportable pressure equipment through 
the Transportable Pressure Equipment Directive (TPED)159 .  The technical provisions of this 
TPED Directive have become somewhat outdated and the Directive is currently being revised 

155   Directive  2000/30/EC of the European Parliament and of the Council of 6 June 2000 
on the technical roadside inspection of the roadworthiness of commercial vehicles circulating 
in the Community, OJ, L203, 10.8.2000, p.1-8 

156  
European Agreement concerning the International Carriage of Dangerous Goods by Road, concluded at 
Geneva on 30 September 1957 (ADR), Regulations concerning the International Carriage of Dangerous Goods 
by Rail, appearing as Appendix C to the Convention concerning International Carriage by Rail (COTIF)  

concluded at Vilnius on 3 June 1999 (RID) and the European Agreement concerning the International Carriage 
of Dangerous Goods by Inland Waterways, concluded at Geneva on 26 May 2000 (ADN). 

157  
Directive 2008/68/EC (OJ L 71, 17.3.2009, p. 23–58). 

Commission decision was adopted to update the list of national derogations included in the annexes to 

158  
dangerous goods by road (OJ L 249, 17.10.1995, p. 35–40) 

Council  Directive  95/50/EC  of  6  October  1995  on  uniform  procedures  for  checks  on  the  transport  of 

159  
1.6.1999, p.20.) 

Council  Directive  1999/36/EC  of  29  April  1999  on  transportable  pressure  equipment  (OJ  L  138, 

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both  to  update  the  technical  requirements  and  to  strengthen  the  market  surveillance 
measures160.   

The  Commission  is  assisted  in  the  maintenance  of  the  dangerous  goods  legislation  by  its 
regulatory committee which meets every 6 months.   

5.12.2.  Evaluation 

Road Transport 

The reported year marked the successful completion of the revision of the Community's road 
transport legislation  with  the  adoption  of three new regulations consolidating and  amending 
the  legislation  currently  in  force.  Regulation  (EC)  No  1071/2009161  establishes  common 
rules  that  road  transport  operators  have  to  fulfil  in  order  to  be  allowed  to  engage  in  the 
profession.  Regulation  (EC)  No  1072/2009162  governs  the  rules  for  the  access  to  the 
international  road  haulage  market  and  in  particular  also  the  rules  on  cabotage.  Finally, 
Regulation  (EC)  No  1073/2009163  lays  down  the  rules  for  carrying  out  international 
passenger transport services by road. The new rules will apply as from December 2011 with 
the exception of the cabotage rules which become applicable in May 2010. 

As far as the enforcement of social rules and working time in road transport are 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-
employed drivers appeared to be ineffective, and out of proportion with the high cost related 
to it. Therefore, the Commission proposed that this specific category of drivers should remain 
excluded  from  the  scope  of  the  Directive.  Discussion  of  the  proposal  continued  in  the  EU 
institutions in 2009. 

Rail Transport 

160   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on 
transportable pressure equipment (COM(2009) 482) of 18 September 2009 

161   Regulation  (EC)  No  1071/2009  of  the  European  Parliament  and  of  the  Council  of  21  October  2009 
establishing  common  rules  concerning  the  conditions  to  be  complied  with  to  pursue  the  occupation  of  road 
transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p.51) 

162   Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on 
common rules for access to the international road haulage market (OJ L 300, 14.11.2009, p.72) 

163   Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 
October  2009  on  common  rules  for  access  to  the  international  market  for  coach  and  bus 
services, and amending Regulation (EC) No 561/2006 (OJ L 300, 14.11.2009, p.88) 

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In  the  railway  sector  the  reasoned  opinions  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. 

Road Safety 

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, in bilateral 
and multilateral meetings, to remind the Member States at an early stage of their transposition 
obligations within the agreed deadlines. This will concern the Directives, which still need to 
be  transposed,  namely  Directive  2008/96/EC  on  road  infrastructure  safety  management  and 
Directive 2006/126/EC on driving licences (the so-called third driving licence Directive). 

Apart from the infringement procedures, the Commission is requested to take position on the 
very  numerous  petitions  on  road  safety  addressed  by  citizens  to  the  European  Parliament. 
These petitions mainly concern the non recognition of driving licences and road traffic laws 
of the Member States. 

Transport of dangerous goods 

The  main  priority  of  publishing  a  proposal  for  a  revised  TPED  Directive  in  2009  was 
achieved.  

The transposition of Directive 2008/68/EC was not fully completed by the deadline of 1 July 
2009. It is likely that between 5 and 10 infringement cases will have to be opened during the 
course of 2010.       

5.12.3.  Evaluation results 

Road Transport 

For the road transport sector, following the adoption of the road package, in May 2010 new 
amended rules will become applicable in two areas: road cabotage and driving times and rest 
periods  for  passenger  transport.  In  both  areas  the  Commission  will  closely  monitor  the 
application of the new rules by Member States and assist Member States' authorities as well 
as operators in correctly applying these new regimes.  

In  addition,  as  regards  the  road  transport  Directives  special  attention  will  be  given  in  these 
three areas: 

- 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.  After  all 
Member  States  having  notified  their  implementation  measures  work  will  concentrate  on 

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checking  the  conformity  of  Member  States'  transposition;  in  addition  transposition  of 
Commission  Directives  2009/4/EC  and  2009/5/EC  amending  Directive  2006/22  will 
commence; 

- 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. 

Rail Transport 

In the rail sector and on the basis of the replies by Member States to the reasoned opinions the 
Commission will consider how to move forward in 2010.  

On the basis of the replies to the letters of formal notice notified to Belgium and Poland, the 
Commission will consider whether a reasoned opinion should be sent to these Member States.  

Transport of Dangerous Goods 

The  main  activity  for  2010  is  to  build  on  the  progress  made  in  2009  and  work  towards  the 
adoption by the European Parliament and the Council of the new TPED directive. A second 
priority  is  to  ensure  the  correct  transposition  of  Directive  2008/68/EC  by  opening 
infringement cases where necessary. 

5.12.4.  Summary by sector 

Road Transport  

The revision of the market access rules for the transport of goods and passengers by road has 
been finished in 2009. The majority of the new rules will become applicable in 2011. 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. 

Rail Transport  

In the rail sector and on the basis of the replies of Member States to the reasoned opinions (1st 
railway  package),  and  information  on  legislative  changes  or  commitments,  the  Commission 
will consider how to move forward in 2010 in order to bring about compliance with the EU 
directives. 

Transport of Dangerous Goods Sector 

The  main  priority  for  2010  is  the  adoption  of  the  new  directive  on  transportable  pressure 
equipment.  This  is  expected  in  summer  2010  for  full  implementation  by  1  July  2011.    The 
Commission  will  continue  its  participation  in  international  meetings  (UNECE  –  OTIF)  to 
ensure EU coordination on the rules regarding the safe transport of dangerous goods.  

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5.13.  MOBILITY and TRANSPORT - Air Transport 

5.13.1.  Current position 

5.13.1.1. General introduction 

Internal market and air transport agreements 

Two  main  lines  of  actions  can  be  highlighted:  one  focusing  on  the  EU  internal  market,  the 
second on the external relations in aviation. The sector is  essentially ruled by Treaty, Court 
judgements, regulations, international agreements and acts adopted through comitology. 

The first one related to the correct application of Regulation 1008/2008 on Air Services, and 
more specifically on the careful monitoring of provisions related to public services, licences, 
ownership and control and price transparency. 

The  sector  covers  areas  such  as  the  implementation  measures  necessary  following  the  so-
called 'Open skies' judgements of 5 November 2002 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. Existing bilateral agreements are being corrected either at 
individual Member State level in the context of Regulation 847/2004 on the negotiation and 
implementation  of  air  services  agreement  between  Member  States  and  third  countries,  or  at 
Community  level  through  the  so-called  'horizontal  agreements'  negotiated  by  the  European 
Commission. A horizontal agreement with a third country amends, through a single tool, all 
existing bilateral agreements of EU member States with that third country. 

Single Sky and modernisation of air traffic control 

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,  as  amended  by  Regulation  (EC)  No  1070/2009  of  21.10.2009,  referred  to  as  the 
"second  Single  European  Sky  package",  which  constituted  a  major  achievement  of  the  air 
transport policy in 2009. 

In  order  to  implement  the  basic  regulations,  a  number  of  implementing  rules,  mainly 
Commission regulations (15)  have been adopted. Only one Directive,  Directive 2006/23/EC 
on air traffic controllers licence is part of the legislative package. 

Infrastructures and airports 

This sector first 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 also 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; 

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- Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at 
Community airports; 

- 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.  A  list  of  applicable  legislation  is 
contained  in  the  Annex.  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.   

5.13.1.2. Report on the work done in 2009  

Internal market and air services agreements 

Regulation  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. According to the 
Regulation,  Member  States  must  respect  several  obligations  and  the  Commission  has  the 
power to carry on investigations in case if unjustified access restriction. 

The Commission produced  guidelines to improve the  implementation  of the Regulation and 
organised partnership with Member States in order to avoid infringement cases in this area. In 
order  to  harmonise  the  different  practices  of  the  Member  States,  a  meeting  of  the  national 
authorities  was  organised  in  June  2009.  In  addition,  databases  have  been  updated.  For 
example,  for  public  services  obligations,  a  functional  mailbox  has  been  created  for  the 
transmission  of  Member  States  requests  and  the  European  Commission  checked  their 
conformity  before  publication.  A  complete  inventory  of  public  service  obligations  in  force 
was set up, published on Europa and updated regularly. There were 257 public services routes 
at the end of 2009. For licences, a new database of all existing operating licences in the EU 
was set up and accessible by all EU Member States. 

With respect to international agreements, the Committee established by Regulation 847/2004 
met  once  in  2009.  This  committee  is  assessing  the  acceptance  by  third  countries  of 
Community clauses on a number of Community law matters (designation, environment, etc.). 
In 2009, the cooperation between the Commission and the Member States was reflected in the 
fact  that  Member  States  brought  22  bilateral  agreements  into  conformity  with  Community 
law, notably with key partners such as Japan.   

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Air safety 

The European Commission completed in 2009 the impact assessment related to amendment of 
Directive 94/56/EC on accident investigation, which resulted in the adoption, on 29 October, 
of  a  Commission  proposal  of  amendment  to  Directive  94/56/EC.  Following  analysis  of  a 
number  of  policy  options  ("Do  Nothing",  "Voluntary  Cooperation",  "European  Accident 
Investigation Agency") the Commission proposes a new Regulation which should replace the 
current  and  old  Directive  94/56/EC.  The  main  objectives  of  the  new  Regulation  are  to: 
enhance  the  investigating  capacity  of  the  EU  and  independence  of  accident  investigation; 
clarify  the  role  of  EASA  in  accident  investigation;  strengthen  implementation  of  safety 
recommendations;  alleviating  potential  tensions  between  accident  investigation  and  judicial 
proceedings, while maintaining separation and independence of investigation. 

A  public  consultation  on  the  imposition  by  the  Commission  of  fines  and  periodic  penalty 
payments in case of non-compliance with aviation safety rules by entities certified by EASA 
was launched on 7 December 2009. The aim is to gather suggestions for the preparation of a 
Commission  Regulation  on  this  topic,  as  mandated  by  Article  25  of  Regulation  (EC)  No 
216/2008. The objective of this legal text is to improve the Community enforcement powers 
as regards entities which are not acting under the direct oversight of the Member States and to 
give  a  more  flexible  answer  to  a  breach  of  the  rules,  compared  to  the  withdrawal  of  a 
certificate. 

In  September  2009,  EASA  and  the  European  Commission  presented  to  the  Agency's 
Management Board a common position setting out priorities in the areas of rulemaking for the 
extension  of  the  Agency’s  responsibilities  in  the  areas  of  Flight  Crew  Licensing,  Air 
Operations  and  Third  Country  Operators  (“first  extension”)  as  well  as  in  the  field  of  Air 
Traffic  Management/Navigation  Services  and  Aerodromes  (“second  extension”).  The 
principles  guiding  the  common  position  are  prioritization,  simplification  and  that  safety 
considerations should form the primary basis for any changes to existing rules. 

In  the  field  of  continuing  airworthiness,  the  European  Commission  prepared  and  finalised 
with the competent committee a draft Commission Regulation amending Regulation (EC) No 
2042/2003  on  continuing  airworthiness  of  aircraft.  This  draft  regulation  is  based  on  6 
technical opinions issued by the European Aviation Safety Agency in 2005, 2006, 2007 and 
2008 and its final adoption was done at the beginning of 2010. 

The  transposition  of  Directive  2008/49/EC  regarding  the  conduct  of  ramp  inspections  on 
aircraft using Community airports was followed in 2009 as regards 16 Member States but at 
the  end  of  2009  only  3  infringement  procedures  remained  open  due  to  the  efforts  of  the 
Commission services. 

The implementation of Directive 2004/36/EC (SAFA) by Member States is satisfactory and in 
constant  improvement,  mainly  due  to  a  number  of  supporting  activities  carried  out  by  the 
Commission  and  EASA:  in  2009  the  SAFA  steering  committee  met  three  times,  it  was  the 
first  full  year  of  implementation  of  Regulation  (EC)  No  351/2008  on  targeting  (with  the 
issuance  by  EASA  of  6  lists  for  prioritized  inspections),  EASA  adopted  and  published 
detailed  guidance  material  on  SAFA  procedures,  as  mandated  under  Directive  2008/48/EC, 
and initiated standardisation audits to competent authorities (4 Member States were visited). 

The Commission has worked together with the European Aviation Safety Agency to ensure a 
correct  and  harmonised  implementation  of  the  acquis  under  the  scope  of  the  Agency  with 

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special  attention  to  those  safety  areas  which  revealed  problematic.  As  explained  above,  the 
Agency carried out in 2009 a record number of inspection visits – 100 –, which allowed the 
Commission  to  identify  a  number  of  significant  non-compliances  to  the  safety  rules  and  to 
request urgent action from the Member States concerned. 

On  11  January  2010,  the  Commission  presented  a  report  on  the  application  of  Regulation 
(EC)  No  2111/2005  on  the  establishment  of  a  Community  list  of  air  carriers  subject  to  an 
operating ban within the Community over the past three years. The application of the EC list 
has demonstrated that it is a successful tool to contribute to ensuring a high level of safety in 
the Community. Furthermore, the report recommends to promote the exchange of verifiable 
and reliable information at the international level with a view to reaching common decisions 
on  the  safety  of  air  carriers  at  international  level  and  closer  cooperation  with  ICAO  with  a 
view  to  better  coordinating  efforts  to  grant  technical  assistance  to  those  States  where  it  is 
mostly needed. 

The  Commission  has  treated  in  2009  an  important  number  of  derogations  and  exemptions 
from  the  provisions  of  Regulations  (EEC)  No  3922/91  (22  cases  notified,  grouped  and 
conducting to 10 draft decisions - 4 adopted) and (EC) No 216/2008 (around 50 cases notified 
and assessed) notified by Member States. This has been possible partially due to the grouping 
of  some  cases  as  well  as  to  the  support  provided  by  the  European  Aviation  Safety  Agency. 
The  control  of  such  cases  is  essential  for  the  harmonised  implementation  of  the  common 
rules. 

The  measures  to  prohibit  or  to  restrict  the  operation  of  an  unsafe  airline  in  Europe  have 
continued  to  be  applied.  Three  updates  (Regulations  (EC)  No  298/2009,  619/2009  and 
1144/2009)  of  the  list  of  air  carriers  subject  to  an  operating  ban  in  the  EU  have  been 
conducted  with  the  assistance  of  EASA  and  of  the  competent  committee.  In  total,  during 
2009, more than 450 air carriers were examined, including a number of EU ones; concerning 
the  latter,  the  competent  national  authorities  took  the  necessary  actions  required  by  the 
Commission. 

The  Air  Safety  Committee  on  Regulation  (EC)  No  216/2008  met  3  times  in  2009  with  the 
following objectives: analysing and adopting amendments to current legislation in the fields 
of airworthiness (leading to the adoption of two Regulations amending Regulations (EC) No 
216/2008  and  1702/2003);  discussing  on  interpretation  issues  related  to  current  legislation; 
discussing on the strategy for rulemaking activities conducted by EASA. 

No formal complaints were registered in 2009 by the European Commission  but a number of 
queries related to the implementation of the acquis in the fields of air safety (mainly related to 
Flight  Time  limitations,  to  harmonisation  in  the  field  of  pilot  licences  and  to  transboundary 
private flights) and environmental (especially concerning noise around airports) requirements 
were treated. 

19  infringement  cases  were  dealt  with  during  2009  by  the  European  Commission,  out  of 
which  14  where  closed  successfully.  Most  of  them  related  to  the  delay  in  transposing 
Directive 2008/49/EC regarding the conduct of ramp inspections on aircraft using Community 
airports. 

One  letter  of  formal  notice  was  sent  regarding  implementation  of  the  Directive  on  accident 
investigation linked to the need to ensure appropriate access of technical investigating bodies 
to the evidences of an accident. 

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One  case  related  to  mutual  recognition  of  environmental  certificates  issued  by  the  Agency 
was successfully closed after acceptance by the Member State concerned to comply with the 
mandate enshrined in Regulation (EC) No 216/2008. 

The Commission dealt with one petition in relation to the establishment of minimum space for 
seating in commercial aircraft and contributed to a petition concerning the impact of noise and 
atmospheric  pollution  on  the  health  of  residents  in  the  vicinity  of  one  airport.  These  are 
recurrent topics coming from the Parliament 

Single Sky and modernisation of air traffic control 

The  Single  Sky  Committee  (Article  5  of  549/2004)  and  the  Industry  Consultation  Body 
(Article 6 of 549/2004) met five times each in 2009 to assist the Commission in developing 
the  implementing  rules  and  in  following-up  the  practical  implementation  of  existing 
legislation by Member States and relevant stakeholders. 

This work led in 2009 to the adoption of: 

-  2  Regulations  of  the  Parliament  and  the  Council,  No  1070/2009  amending  the  four  basic 
regulations and No 1108/2009 amending the EASA Regulation; 

-  4  Commission  Regulations  (on  data  link,  automatic  systems  for  exchange  of  flight  data, 
Mode S, and quality of aeronautical data), 

-  2  Commission  Communications  on  the  implementation  of  article  4  of  Reg.  (EC)  No 
552/2004. 

The legal instruments are completed by support from the European Aviation Safety Agency, 
the SESAR Joint Undertaking, and the Eurocontrol organisation. On the basis of a framework 
contract concluded end of 2009, the Eurocontrol CRCO (Central Route Charges Office) is for 
instance used for the reporting obligations under the charging Regulation (EC) N° 1794/2006; 
the  ESSIP  (European  Single  Sly  Implementation  Plan)  is  used  for  the  reporting  obligations 
under  Article  12  of  the  framework  Regulation  (EC)  N°  549/2004  and  under  Article  8  of 
Regulation 2150/2005 on the flexible use of airspace. 

Annual reports on the SES implementation in 2008 

In  application  of  Article  12  of  Regulation  (EC)  No  549/2004  and  Article  7  of  Commission 
Regulation  (EC)  No  2150/2005,  Member  States  have  the  obligation  to  submit  to  the 
Commission  annual  reports  on  the  implementation  of  the  actions  taken  pursuant  to  these 
regulations. 

The first reporting exercise covered an 18 month period (1 July 2007 - 31 December 2008) in 
order to allow the SES reporting cycle to follow a calendar year from 2009 onwards. The 27 
Member States as well as Norway and Switzerland were invited by a Commission letter of 5 
November  2008  to  provide  their  reports  on  the  basis  of  a  template.  The  reports  were 
consolidated  and  analysed  in  a  general  Report  on  the  SES  Legislation  Implementation 
prepared by Eurocontrol.  

After  having  assessed  the  individual  reports,  the  Commission  addressed  a  letter  to  each 
Member State in December 2009 highlighting progresses and shortcomings. All the Member 
States were asked to provide clarification as regards remaining concerns. 

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Overall this exercise has been deemed very useful to assess the exact stage of implementation 
of the SES legislation at national level as well as to raise awareness of the Member States on 
the importance given to this matter by the Commission.  

Infringement procedures 

Commission has pursued five infringement procedures against four member States.  

One case is a "non-conformity" infringement procedure against Greece (referral to the Court) 
for  non-compliance  with  basic  Single  Sky  legislation,  in  particular  for  the  absence  of 
establishment of an effective and independent national supervisory authority.  

The  four  other  cases  are  "non-communication"  infringement  procedures  against  Greece, 
Luxembourg,  Finland  and  the  Czech  Republic  for  the  absence  of  communication  of  the 
national measures transposing Directive 2006/23 on a Community air traffic controller licence 
(reasoned opinion).  

Three  cases  (two  "non-communication"  cases  against  Spain  and  United  Kingdom  and  one 
complaint  from  a  citizen  against  Spain)  have  been  closed  following  the  notification  of  the 
national measures transposing Directive 2006/23.   

Infrastructures and airports 

As regards the Action Plan for airport capacity, efficiency and safety:  

The  Community  Observatory  on  airport  capacity  inaugurated  on  4  November  2008  has 
produced  its  first  results  in  2009  (works  on  the  slot  allocation  process,  on  airport  capacity 
assessment  methodologies,  on  the  development  of  intermodality  at  airports;  launch  of  the 
inventory  of  European  airport  infrastructures).  This  work  will  be  used  to  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,  which  has  been 
approved  by  the  "Single  Sky  Committee"  in  December  and  will  be  adopted  by  the 
Commission  early  2010.  In  parallel,  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  continued,  and  the 
situation at several airports was assessed in depth. As a result, 2 reasoned opinion and 5 letters 
of  formal  notice  were  prepared.  At  the  same  time,  a  study  on  the  implementation  of  the 
Directive was completed. It focuses notably on the situation in the Newest Member States. In 
spite of these efforts, new complaints were made to the Commission. An impact assessment 
for a possible revision of the Directive was launched to identify if there is a need to revise the 
directive and if so, how.  

Concerning the Regulation on airport slots, the Commission responded to the unprecedented 
scope of the economic crisis by a proposal aiming at a temporary suspension of the "use it or 
lose it" rule. This short-time measure enabled air carriers to keep same slots for the summer 
season  2010  as  attributed  to  them  for  the  summer  season  2009  and  hence  allowed  for  an 

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immediate relief for the aviation industry.  As for the complaints management, 3 cases were 
closed.  

As regards the enhancement of economic regulation:  

Where they are applied in a discriminatory or un-transparent manner, airport charges can add 
to inefficiencies and distortions in the European Union's aviation market. With this in mind, a 
Directive  on  airport  charges  was  adopted  by  the  Council  and  European  Parliament  on  11 
March 2009. The Directive lays down minimum requirements in the calculation and levying 
of airport charges at all airports with more than 5 million passenger movements per year, in 
addition to the largest airport in each Member State. 

Concerning conformity of passenger departure taxes with European law, the unit dealt with 
one case in the Member States during the year. This complaint is ongoing. 

Concerning  conformity  of  airport  charges  with  European  law,  the  unit  dealt  with  one 
complaint during the year. This complaint is ongoing. 

Aviation security 

During  the  year  2009,  the  Commission  continued  to  fulfil  its  monitoring  obligations  and 
conducted inspections (including follow-up inspections) of 9 national administrations and 23 
airports.  

Three  letters  of  formal  notice  were  sent  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  rectification  of  the  identified  shortcomings.  Four  infringement  cases 
are  currently  still  open  and  being  closely  followed.  In  two  cases,  several  informal  contacts 
with the Member States have already taken place in order to assist them in a swift rectification 
of deficiencies and good progress has been observed.  

In order to encourage a reduction in the number and severity of deficiencies identified during 
Commission inspections the following measures have been taken in 2009: 

•  Continued  implementation  of  a  peer-review  system  with  an  increased  active 
participation of national auditors from all Member States in Commission inspections. 

•  The  Commission  regularly  informed  the  Member  States  of  non-compliances  found 
during  inspections  in  the  Regulatory  Committee  on  aviation  security,  which  met  6 
times during 2009. These updates on non-compliances identified during inspections 
help Member States to identify critical areas where deficiencies occur repeatedly.   

•  Detailed  implementing  rules  complementing  Regulation  (EC)  No  300/2008  of  the 
European Parliament and of the Council of 11 March 2008 were developed in close 
cooperation with all stakeholders. These new implementing rules will enter into force 
together with Regulation (EC) No 300/2008 in April 2010 thus replacing Regulation 
(EC) 2320/2002 and all current implementing rules. This major revision will improve 
clarity and consistency, thus paving the way for an even higher compliance level. 

5.13.2.  Evaluation of the current situation 

Internal market and air services agreements 

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The situation in this field is acceptable ad evolving according to the priorities. 

The  rules  governing  the  EU  internal  market  have  been  updated  in  2008  with  Regulation 
1008/2008. A lot of work has been carried out to ensure the proper application of Community 
law  on  key  subjects  such  as  public  services,  licences,  ownership  and  control  and  price 
transparency, but more needs to be carried out on price transparency. 

Much has been achieved in external relations since the Open skies judgement. Thus far, 841 
bilateral  agreements  with  103  countries  have  been  corrected  either  though  Member  States 
efforts  under  Regulation  847/2004  or  through  the  horizontal  agreements  negotiated  by  the 
European Commission (42 horizontal agreements). 

In  December  2009,  a  comprehensive  agreement  was  signed  with  Canada:  It  represents  a 
milestone  in  terms  of  international  aviation  both  on  the  market  access  and  regulatory 
convergence angles. Progress was achieved towards the EU-US 2nd stage with three rounds of 
negotiations  in  2009.  In  terms  of  neighbourhood  policy,  global  negotiations  with  Ukraine 
made significant progress in 2009 and negotiations started with Georgia and continued with 
Israel, Lebanon and Jordan. 

Air safety 

Overall, transposition of the acquis in the fields of air safety and environmental requirements 
is good at present, especially since the completion of the adoption process for the remaining 
three  Member  States  is  imminent  and  does  not  prevent  the  actual  implementation  of  the 
relevant rules. 

Concerning the day to day implementation of the legislation, the situation could be considered 
preoccupying  in  a  limited  number  of  Member  States  concerning  mainly  the  requirements 
related to air operations and continuing airworthiness. This has been identified and corrective 
actions have been requested. 

Some  potential  difficulties  have  also  been  reported  concerning  the  implementation  of 
Directive  94/56/EC  on  the  investigation  of  civil  aviation  accidents  and  incidents  in  relation 
with the access of the technical investigators to all the information held by the judiciary. 

In other cases, the degree of harmonisation seems insufficient (for example, in the fields of air 
operations, pilot licensing, or noise) to cover all cases and respond to all questions raised by 
stakeholders. 

The consequences of the non compliances with regard to technical safety requirements under 
the  scope  of  EASA  are  the  decline  of  the  safety  level,  which  can  be  corrected  through 
appropriate  measures  ranging  from  action  plans  to  revocation  of  certificates  or  even 
withdrawal  of  the  mutual  recognition  or  fines  imposed  by  Member  States.  In  case  of 
persistency,  an  infringement  procedure  against  the  Member  State  concerned  can  also  be 
initiated. The Commission is closely following any such potential safety threat but no formal 
infringement procedure has been required up to now. 

Concerning the Directive related to accident investigation, the quality of the final report on air 
accidents  mandated  under  this  Directive  might  be  lower  if  the  technical  investigators  don't 
have access to all the information held by the judiciary. As a consequence, the objective of the 
Directive (i.e. prevent future accidents based on lessons learned from previous ones) could not 
be fully met in some cases. 

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The main explanation of the cases related to technical safety requirements are linked with the 
insufficient  capacity  of  national  competent  authorities  to  oversee  the  entities  under  their 
responsibility,  either  due  to  lack  of  adequate  number  or  qualified  staff  or  to  deficient 
procedures. In some cases, the entities themselves are circumventing EU rules either due to 
incorrect understanding or on purpose, for administrative or commercial reasons. 

Concerning the Directive related to accident investigation, both the inadequate transposition 
and the power held by the judiciary can explain the difficulties. 

The  national  competent  authorities  are  always  the  ultimate  body  responsible  for  overseeing 
the entities under their jurisdiction as well as for taking the necessary corrective actions. The 
Commission and EASA should be able to detect some type of deficiencies with the different 
tools  for  oversight  on  their  hands  (inspections,  ramp  checks,  complaints,  etc)  and  when 
identifying  cases  of  concern,  get  in  contact  with  the  competent  authorities  and  take  any 
actions necessary in order to put an end to the potential breach, as explained under paragraph 
b) above. 

In some cases, the need to clarify or amend the EU rules is identified. 

As a general principle, as soon as the general safety is at stake, any corrective action shall be 
taken without delay and be considered as first priority. The following actions are proposed by 
Commission: 

•  The  existing  tools  and  procedures  in  place  within  commission  for  identifying  and 
managing  potential  safety  threats  linked  with  the  inappropriate  application  of  the  acquis 
explained  above  have  been  improved  recently  in  coordination  with  EASA  and  should  be 
maintained. 

Keeping or even increasing the number of officials dealing with such cases is essential in 
order  to  preserve  the  current  results  and  the  pressure  on  the  industry  and  authorities 
concerned. 

•  Some improvements on EASA standardisation visits could be reflected on the amendment 

of Regulation (EC) No 736/2006 (EASA standardization inspections). 

•  In  order  to  complete  the  current  strategy,  a  European  Aviation  Safety  Programme,  to  be 
carried  out  by  EASA,  was  launched.  It  should  be  adopted  by  mid  2010  and  describe  the 
regulations  and  activities  at  European  level  aimed  at  improving  safety.  Also,  EASA  will 
produce a  European Aviation Safety  Plan which will become an action plan at European 
level. 

•  TREN  F3  has  prepared  in  2009  a  draft  Regulation  regarding  the  imposition  of  fines  and 
periodic penalty payments in case of non-compliance with aviation safety rules by entities 
certified by EASA and launched a dedicated consultation therein. The adoption of the final 
text should take place by mid 2010. 

•  The necessary actions linked with the Directive on accident investigation are less linked to 
an  imminent  safety  threat  but  have  already  been  taken  though  the  adoption  by  the 
Commission of a legislative proposal aimed at substituting such Directive (see above). 

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In  the  fields  of  air  operations  and  pilot  licensing  the  situation  should  improve  with  the 
upcoming adoption of new harmonised rules. This is foreseen between 2010 and 2012, with 
the assistance of EASA 

Single Sky and modernisation of air traffic control 

Analysis of the reports showed an overall acceptable compliance with the requirements of the 
legislation. However this analysis was made on the basis of the reports provided by the States 
for the years 2007 and 2008. More steps should have been taken in the meantime by the States 
and  their  air  navigation  service  providers  and  will  be  monitored  through  a  second  reporting 
process.  

Despite  the  formal  compliance,  progress  towards  defragmentation  of  the  European  airspace 
and better performance of the air navigation services and European ATM network needs to be 
accelerated, particularly in view of the crisis affecting the aviation sector.  

To this effect, further actions are envisaged, on the basis of the second Single Sky legislative 
package adopted in 2009.  

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.   

The  implementation  of  the  Regulation  on  airport  slots  raises  a  number  of  questions.  The 
Observatory on airport capacity has already identified elements that need better application, 
clarification or amendment. The Commission will duly take into consideration conclusions of 
the Observatory in this matter and will evaluate the possible shortcomings in order to assess 
the need for a general revision. 

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  and  85%  in  2009.  However,  inspections  of  some  national 
administrations still showed that not all Member States 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  the  improved  aviation  security  legislation  and  clearer 
rules  on  national  quality  control  will  further  improve  compliance  levels  in  the  European 
Union. However, a continued effort in inspections, enforcement and advice will remain vital 
to ensure a positive evolution. 

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5.13.3.  Evaluation results 

5.13.3.1.  Priorities 

Internal market and air services agreements 

For this sector, priorities are: 

–  to ensure the correct application of Regulation 1008/2008; 

–  to maintain partnership with Member States, stakeholders and citizen representatives for a 

harmonised implementation of internal market regulations. 

–  to remove illegal provisions of existing bilateral air transport agreements between Member 

States and third countries. 

Single Sky and modernisation of air traffic control 

The priorities for the commission in the field of ATM do not change, the actions just need to 
be reinforced by a number of actions, with consist in developing a total system approach in 
line  with  the  gate-to  gate  concept  to  improve  the  performance  of  the  European  aviation 
system in key  areas  such as the environment,  capacity and  cost-efficiency, having regard to 
the overriding safety objectives.  

Air safety 

Two main new priorities  were  added  in  2009, in comparison with the ones identified in the 
26th Annual Report, and remain valid for 2010:  the amendment of Directive 94/56/EC on the 
investigation  of  civil  aviation  accidents  and  incidents  (due  to  the  completion  of  the  impact 
assessment) and the adoption of a Commission Regulation concerning the imposition of fines 
and periodic penalty payments in case of non-compliance with aviation safety rules by entities 
certified by EASA (we were then in a position to present a proposal)  

Additional actions for 2010 and beyond are: to amend Regulations (EC) No 736/2006 (EASA 
standardization inspections – need to adapt to new strategy and common rules) and 1356/2008 
(EASA fees and charges – requested by the industry), to complete the set of EU harmonised 
safety standards (legal mandate) and the adoption of a targeted management safety plan at EU 
level (in respond to ICAO requirements related to safety management system). 

Infrastructures and airports 

In 2010 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.  

Regarding  groundhandling,  the  impact  assessment  on  the  possible  revision  of  Directive 
96/67/EC will be continued. 

Aviation security 

The priorities for the Commission in the field of aviation security remain unchanged, namely 
to  further  develop  harmonised  rules  in  aviation  security  that  provide  an  adequate  level  of 

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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 300/2008 that 
will replace Regulation (EC) No 2320/2002 in April 2010.  

5.13.3.2.  Planned action (2010 and beyond) 

Internal market and air services agreements 

- Work with the Member States on the correct application of Regulation 1008/2008 notably 
on price transparency; 

-  Work  with  the  Member  States,  and  negotiations  with  third  countries,  to  remove  the 
remaining illegal clauses in bilateral agreements. 

Single Sky and modernisation of air traffic control 

The  second  package  of  the  Single  European  Sky  built  on  five  pillars  that  will  have  to  be 
developed within the next 2 years:  

-  a  regulatory  pillar,  requiring  the  adoption  of  implementing  rules  in  particular  on 
performance, network management and functional airspace blocks,  

- 
a safety pillar, based on the extension of EASA competences to ATM , and attributing 
tasks to the Agency with regard to the adoption of requirements and the reformulation of the 
ATCO licence Directive; 

-  a  technology  pillar,  related  to  the  development  and  deployment  of  the  ATM  Master  plan 

under the aegis of the SESAR JU; 

- an airport capacity pillar, integrating airports in the performance scheme and associating the 
Observatory on airport capacity to the adoption of measures coordinating ATM and airports 
slots; 

- a human factors pillar, aimed at associating more effectively the social partners.  

Air safety 

–  reinforced management of the acquis 

New  strategy  for  conducting  EASA  standardisation  inspections,  the  SAFA  checks,  the 
management of the list of banned aircraft and the assessment of derogations to the harmonised 
rules. New management safety plan at EU level. 

–  enforcement oriented actions (infringement procedures) 

New strategy for follow-up of EASA standardisation inspections.  

–  new legislation 

1.  amendment of Directive 94/56/EC on accident investigations; 

2.  adoption of a Commission Regulation concerning the imposition of fines and periodic 

penalty payments; 

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3.  adoption of a series of new harmonised rules in the fields of Flight Crew Licensing, 
Air  Operations,  Third  Country  Operators,  Air  Traffic  Management,  Air  Navigation 
Services and Aerodromes; and 

4.  amendment of current rules in the fields of initial and continuing airworthiness, EASA 

standardisation inspections and fees and charges. 

Infrastructures and airports 

Impact assessment  analysis  for the prospective revision of the Regulation on airport slots is 
planned  for  2010.  The  possible  revision  will  require  a  long-term  preparation,  which  will  in 
particular include a consultation of stakeholders on the principles of a new regime. 

Aviation security 

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 frequency comparable to 2009 although the change in legislation 
will inevitably lead to certain limitations in this respect. Particular emphasis will be given to 
ensuring that Member States have an adequate number of resources to fulfil their obligations.  

In order to ensure a smooth entry into force of the new implementing rules in the field of civil 
aviation security, the Commission will organise several training courses for national auditors 
nominated  to  participate  in  Commission  inspections  and  also  develop  a  new  inspection 
handbook to be made available to all Member States. 

5.13.4.  Summary by sector 

Internal market and air services agreements 

Following the entry into force of Regulation 1008/2008 in 2008, a lot has been achieved with 
the Member States and at Commission level to improve the functioning of the EU Aviation 
market,  notably  on  public  services  obligations,  licences,  ownership  and  control  and  price 
transparency. Efforts will be placed on price transparency given the importance it represents 
for consumers, while pursuing our efforts on the other aspects. 

On the basis of the progress achieved in external relations, the Commission, together with the 
Member States, will aim at correcting the remaining bilateral air services agreements which 
are not in line with Community law.  

Single Sky and modernisation of air traffic control 

The priorities for the  Commission in the field of air traffic management remain unchanged; 
the key objective is the implementation of the Single European Sky. Good progress has been 
made  so  far  by  States  and  the  various  stakeholders  concerned,  but  the  action  of  the  Union 
needs to be reinforced in order to speed up the progress.  

2009 has laid down additional foundations for further actions by the Commission which will 
be  challenged  in  2010  and  the  following  years  with  the  preparation  of  a  large  number  of 
measures within tight deadlines.  

Air safety 

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•  Immediate reaction to safety threats identified (recurrent) 

•  Follow-up of the correct transposition and implementation of the acquis through a number 

of different  tools, including inspections (recurrent); 

•  Updating and complement the acquis whenever necessary (recurrent); 

–  key actions (importance and urgency) 

Legislative proposals (some are more important/urgent than others), permanent assessment of 
correct implementation through different means and immediate reaction when required (very 
important and urgent). 

–  programming of work and timetable for achieving the objectives of the acquis 

a) avoid safety threats, immediate reaction to them and correct transposition/implementation 
are permanent objectives 

b) legislative proposals to be adopted between 2010 and 2013: 

•  2010:  amendment  to  Regulation  (EC)  2042/2003,  new  Regulations  for  accident 

investigation, fines and periodic penalty payments and for air controllers 

•  2011:  amendment  of  Regulations  (EC)  No  736/2006  (EASA  standardization  inspections) 
and  (EC)  No  1356/2008  (EASA  fees  and  charges)  as  well  as  new  Regulations  for  flight 
crew licensing, operations and operational suitability 

•  2012: Regulations for operations, third country operators and ATM/ANS 

•  2013: Regulations for aerodromes 

Aviation security 

The priorities for the Commission in the field of aviation security remain unchanged, namely 
to  further  develop  harmonised  rules  in  aviation  security  that  provide  an  adequate  level  of 
protection  and  to  ensure  the  application  by  all  Member  States  of  the  common  standards 
contained in Regulation (EC) No 300/2008 that will replace Regulation (EC) No 2320/2002 in 
April 2010.  

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  smooth  transition,  supported  by  training  and  guidance  material,  to  the 
implementation  of  the  revised  aviation  security  legislation  which  will  ensure  more 
consistency,  clarity  and  harmonisation  while  safeguarding  the  level  of  protection  for 
European citizens.  

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5.14. 

 MOBILITY and TRANSPORT - Maritime Safety 

5.14.1.  Current position 

5.14.1.1. 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: 

- 
Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 
on  common  rules  and  standards  for  ship  inspection  and  survey  organisations  and  for  the 
relevant activities of maritime administrations, (OJ L 131 of 28.5.2009, p. 47). 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), to be repealed and replaced by Directive 2009/16/EC of the European 
Parliament and of the Council of 23 April 2009 on port State control (OJ L 131 of 28.5.2009, 
p. 57). The 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), recently amended by Directive 2009/17/EC of the European Parliament and 
of the Council  of 23 April 2009  (OJ L 131 of 28.5.2009, p.101). The system established in 
accordance with this directive aims at improving the response of the authorities to incidents, 
accidents and potentially dangerous situations at 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),  relating  to  the  Agreement 
concluded by the European Community Shipowners' Associations (ECSA) and the European 
Transport  Workers'  Federation  (ETF)  on  the  Maritime  Labour  Convention,  (Directive 
2009/13/EC),  accident  investigation  (Directive  2009/18),  insurance  of  shipowners  for 
maritime claims (Directive 2009/20/EC), compliance with flag State requirements (Directive 
2009/21/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),  on  the  transfer  of  cargo  and  passenger  ships  between 
registers  within  the  Community    (Regulation  (EC)  n°  789/2004),  on  common  rules  and 
standards  for  ship  inspection  and  survey  organisations  (Regulation  (EC)  No  391/2009),  and 

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on  the  liability  of  carriers  of  passengers  by  sea  (Regulation  (EC)  No  392/2009).  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. 

5.14.1.2. Report of the work done in 2009 

The  Committee  on  Safe  Seas  (COSS)  set  up  under  Regulation  (EC)  no.  2099/2002  met  in 
February  (twice),  July  and  November.  The  meetings  provided  the  opportunity  for 
Commission services to discuss with representatives of Member States virtually all aspects of 
maritime safety. Opinions were issued on several proposed texts (marine equipment, phasing-
in  of  double-hull  ships,  recognition  of  classification  societies,  port  State  control  (expanded 
inspection of ships and company performance) and vessel traffic monitoring system. 

Regular meetings on maritime policy took place in 2009 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.  

On  29/30  September,  a  general  meeting  with  representatives  of  the  Member  States  was 
organised with the objective of discussing and clarifying the content of the recent legislative 
package (III Maritime Safety Package) in preparation of transposition by Member States.  

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,  port  reception  facilities  and  vessel  traffic  monitoring  and 
information systems (started 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  continued  to  decline  in  2009.  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 circa 30 procedures remained open. They concentrate 
essentially on port State control and port reception facilities issues.  

5.14.2.  Evaluation of the current position 

Maritime  safety  Community  law  is  relatively  young.  This  is  all  the  more  true  as  it  was 
significantly  completed  and  renewed  in  May  2009  with  the  publication  of  the  III  Maritime 
Safety  package  comprising  six  Directives  and  two  Regulations.  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. 

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The  situation  tends  to  become  more  complex  as  it  is  imperative  to  ensure  a  smooth 
transposition  and  applicability  of  the  III  Maritime  Safety  Package.  This  package  covers  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).  

5.14.3.  Evaluation results 

5.14.3.1. 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.  Particular 
attention  will  be  given  to  the  effort  by  Member  States  to  ensure  timely  and  adequate 
transposition and implementation of the III Maritime Safety Package. 

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.  

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). 

5.14.3.2. Planned action 

Contact with national administrations will be ensured through COSS meetings. As far as the 
newest  legislation  is  concerned,  the  Commission  services  will  ensure  the  follow-up  to  the 
2009  meeting  with  representatives  of  the  Member  States  (monitoring  of  the  transposition 
procedures, provision of advice). 

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. 

5.14.4.  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. Considerable effort is to be devoted to detailing and explaining the newest acquis 
(III  Maritime  Safety  Package  published  in  May  2009)  with  a  view  to  facilitate  its 
transposition by Member States. 

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5.15. 

  MOBILITY and TRANSPORT - Maritime Security 

5.15.1.  Current position 

5.15.1.1. 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 ILO164/IMO Code of Practice on Security in Ports. 

The main pieces of Community acquis in this field are the following: 

Regulation (EC) No 725/2004165 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/EC166 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. 

Regulation (EC) No 324/2008167 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 

164  

International Labour Organization 

165   Regulation  (EC)  No  725/2004  of  the  European  Parliament  and  of  the  Council  of  31 

March 2004 on enhancing ship and port facility security, OJ L 129, 29.4.2004, p. 6. 

166   Directive  2005/65/EC  of  the  European  Parliament  and  of  the  Council  of  26  October 

2005 on enhancing port security, OJ L 310, 25.11.2005, p. 28. 

167   Commission  Regulation  (EC)  No  324/2008  of  9  April  2008  laying  down  revised 
procedures  for  conducting  Commission  inspections  in  the  field  of  maritime  security, 
OJ L 98, 10.4.2008, p. 5. 

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Regulation  (EC)  No  884/2005168,  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. 

5.15.1.2. Report on the work done in 2009 

During the year 2009 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  6  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  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. Ten 
infringement procedures which were started by the Commission in the absence of notification 
of  national  transposition  measures  and  on  18  September  2008,  the  Commission  decided  to 
take action before the European Court of Justice, against the last two Member States who had 
not  yet  met  the  deadline.  By  3rd  September  2009,  the  Court  of  Justice  issued  its  judgments 
against  the  two  Member  States  (UK  and  Estonia).  Nowadays,  all  Member  States  have 
notified their National Implementing Measures. 

- 
The  Report  assessing  the  implementation  of  the  Directive  has  been  adopted  by  the 
Commission on 21 January 2009. 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. 

- 
In  2009,  the  Commission's  services  carried  out  189  inspections.  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. The inspections 
have been focused mainly on port facilities and ships in order to check that assessments and 
security plans have been drawn up in line with Regulation (EC) No 725/2004, that they have 
been effectively implemented on the ground, and that the national authorities are conducting 
the necessary inspections and checks.  

5.15.2.  Evaluation of the current position 

Considering  the  implementation  of  the  Port  Security  Directive,  it  should  be  noted  that  the 

168   Commission Regulation (EC) No 884/2005 of 10 June 2005 laying down procedures 
for  conducting  Commission  inspections  in  the  field  of  maritime  security,  OJ  L  148, 
11.6.2005, p. 25. 

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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. 

The  first  inspections  carried  out  into  2008  were  very  disappointing  because  the  first  eight 
visited ports did not lay out an assessment, nor a plan for security. In 2009, it has been noted 
an improvement of situation as regards port security assessments. Besides, the situation is not 
yet satisfactory in many Member States concerning the approval of port security plans. 

Regarding Regulation (EC) No 725/2004, 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 will remain a priority 
in 2010. 

In the absence of access control to Port Facilities and the credible action plan to rectify this 
situation following the Commission's inspections, an infringement procedure has been opened 
against a Member State with the sending of a letter of formal notice.  

Once  a  year,  the  Member  States  have  to  set  up  a  "monitoring  report"  in  order  to  record  a 
compiled  outcome  of  national  inspections  and  of  industry  compliance  with  security 
obligations.  These  reports  covering  the  previous  calendar  year  have  to  be  notified  to  the 
Commission before the end of March. One Member State - despite several reminders - did not 
notify its 2008 report and an infringement procedure had to be opened. 

5.15.3.  Evaluation results 

The EU inspections are mainly intended to verify whether the legal requirements are being 
properly and effectively implemented by the Member States.  

In 2009, the Commission conducted 189 inspections (92 port facilities, 35 ports, 55 ships and 
7 national administrations). 

The  inspections  have  a  double  benefit.  They  highlight  vulnerabilities  and  the  remedies 
required regarding the EU legislation on maritime security. It has been noted an improvement 
of the situation following the inspections carried out. For the first time, two inspections were 
conducted  in  2009  following  information  concerning  the  intrusion  of  illegal  immigrants  in 
port  facilities.  Both  of  them  aimed  to  verify  the  overwhelming  presence  of  unauthorised 
persons,  in  the  aforesaid  port  facility  areas,  attempting  to  stowaways  on  board  ships.  The 
main problems have been solved. On the one hand, it permitted to check implementation of 
corrective actions taking also into account to the illegal immigrants issue sensitivity and the 
effectiveness and consistency of the actions taken by the authorities. On the other hand it has 
allowed  to  clarify  the  stowaways  issue  following  a  complaint  received  on  behalf  of  a 
shipping company. These inspections have allowed to increase the surveillance systems and 
the efficiency for access control within the port facilities. 

Furthermore,  the  working  program  for  the  performance  of  maritime  security  inspections 
carried  out  by  the  Commission  systematically  includes  a  section  for  verifying  that  the 
procedures for monitoring the application of the Directive have been correctly applied. 

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5.15.4.  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  with  the  Directive  and  Regulation  will  be  the  basis  for 
initiating different actions, including infringement proceedings as necessary. 

6. 

ENVIRONMENT 

6.1. 

Nature Conservation 

6.1.1.  Current position 

6.1.1.1.  General introduction 

The  most  important  pieces  of  nature  conservation  legislation  are  the  Birds  Directive, 
2009/147/EC  (codified  version  replacing  Directive79/409/EEC169)  and  Habitats  Directive, 
92/43/EEC170. 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  Union  is  at  present  very  close  to  the  completion  of  the  Natura  2000 
network and regulatory stability is required.  

169  Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds OJ L 
103, 25.4.1979, p. 1-18. 

170  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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6.1.1.2.  Report of work done in 2009 

Designation of Special Protection Areas and Special Areas of Conservation 

Further  progress  was  made  in  2009  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. On 22 December 2009, the Commission adopted 
six  Decisions  updating  existing  Biogeographical  Lists  of  Sites  of  Community  Importance 
(SCIs). The additions include 59 new sites and a total area of 30,000 km2. Most of the new 
sites  are  situated  in  marine  areas.  This  means  that  for  the  first  time  significant  progress  has 
also  been  made  as  regards  the  designation  of  marine  areas.  Substantial  designations  of  off-
shore marine sites are, however, still expected in 2010 and 2011.  Natura 2000 now includes 
nearly  26,000  sites,  covering  17,6%  of  the  EU’s  landmass  and  more  than  160.000  km²  of 
marine areas, 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 several of these procedures have been 
closed  in  2009.  Two  Marine  Biogeographical  Seminars  were  organized  in  2009  for  the 
Atlantic  and  the  Baltic  Sea  and  the  proposals  of  marine  sites  in  these  regions  have  been 
evaluated. 

Most Member States are still 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. That deadline was 28 December 2007 for most sites 
of  the  Macaronesian  biogeographical  region  and  22  December  2009  for  most  sites  of  the 
Alpine biogographical region. For most sites of the Atlantic and Continental regions it will be 
7  December  2010.  An  infringement  procedure  was  launched  in  2008  against  Portugal  and 
Spain for not having designated sites in that region as SACs. The Commission will consider 
launching new infringement procedures against Member States which still have not provided 
sufficient designations or which have not designated their SACs within the deadline required 
by the Habitats Directive. 

Reporting 

In  2009  the  Commission  published  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  concluded  that 
only 17 % of species and habitat types of Community interest are in a favourable conservation 
status EU wide and that substantial efforts are still necessary towards achieving the objectives 
of the Habitats Directive. Furthermore, the assessment revealed significant knowledge gaps in 
certain countries. 

Non-conformity with the Birds and Habitats Directive 

In  2009,  the  Commission  pursued  infringements  dealing  with  non-conformity  of  national 
transposing legislation with the Birds and Habitats Directive. 

In 2009, as regards the Birds Directive, a Reasoned Opinion under Article 258 of the Treaty 
on Functioning of the EU (TFEU) was sent to Slovakia and Denmark, while Greece received 

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a Letter of Formal Notice under Article 260 concerning the implementation of the judgement 
in  case  C-259/08.  As  regards  the  Habitats  Directive,  a  Reasoned  Opinion  under  Article 
258was sent to Slovakia.  

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 2009, the Commission sent a Reasoned Opinion under Article 258 to Slovakia, Lithuania, 
Latvia, Czech Republic and Cyprus for failing to designate enough Special Protection Areas 
(SPAs) on their territory. It also made an application to the Court in the case of Romania, for 
failure to designate sufficient SPAs.  

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 has prepared 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  2009  no  further  legislation  permitting  spring  hunting  was 
adopted by the Maltese authorities. On 10 September 2009 the Court gave its judgment in the 
main  case.  The  Court  found  that,  although  autumn  hunting  did  not  in  the  specific  case  of 
Malta  provide  a  satisfactory  alternative  solution  to  spring  hunting,  Malta  had  nonetheless 
breached  the  specific  conditions  for  derogation  under  Art  9  of  the  Birds  Directive  and  the 
principle of proportionality in permitting spring hunting. This Commission action was closely 
followed  by  the  EP  Petitions  Committee  which  had  carried  out  a  fact-finding  mission  in 
2006171.  

171  This  was  followed  by  European  Parliament  Resolution  P6_TA(2007)0074  of  15  March 
2007 on the hunting and trapping of migratory birds in spring in Malta. 

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In  2009,  the  Commission  decided  to  take  Italy  to  the  Court  of  Justice  in  relation  to  certain 
regional hunting legislation. The relevant cases (C-164/09 concerning the Veneto Region, and 
C-508/09  concerning  the  Sardinia  Region)  are  currently  pending  decision.  Moreover,  in 
response to a request by the Commission for the adoption of interim measures under Articles 
278  and  279  TFEU  on  10  December  2009,  the  Court  issued  an  order  requiring  that  Italy 
suspend  the  application  of  Article  4(1)  of  Lombardy's  Regional  Law  30  July  2008,  n.24,  as 
amended. This law allowed hunting derogations which, in the Commission's opinion, did not 
to comply with the conditions of Article 9 of the Birds Directive. A decision by the Court in 
the main case (ref. C-573/08) which raises a number of issues regarding the non-conformity 
of Italian national and regional legislation with the Birds Directive is still awaited. 

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  new  or  revised  action  plans  for  globally 
threatened bird species. 

In  order  to  reduce  the  conflicts  between  Cormorants  and  fisheries,  the  Commission  is 
currently  preparing  guidance  on  the  appropriate  use  of  derogations  under  Article  9  of  the 
Birds Directive. 

Further judgments of the Court of Justice in 2009 

In  relation  to  the  protection  of  SPAs  to  be  designated  under  the  Birds  Directive 
in  case  C-293/07, 
(1979/409/EEC),  on  11  December  2008 
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. 

the  Court 

ruled 

In case C-362/06 Sahlstedt, on 23 April 2009 the Court of Justice dismissed the appeal against 
an  order  in  case  T-150/05  by  which  the  Court  of  First  Instance  (CFI)  had  dismissed  as 
unfounded  and  action  by  Mr.  Sahlstedt  (a  Finnish  landowner)  seeking  annulment  of  the 
Commission's  decision  adopting  the  list  of  sites  of  Community  importance  for  the  Boreal 
biogeographical region (designation of Natura 2000 sites).  

The action for annulment was declared inadmissible due to lack of direct concern (the CFI did 
not  study  the  possible  individual  concern).  Advocate  General  Bot  in  his  opinion,  dated  23 
October  2008,  had  considered  that  the  appellants  were  both  directly  and  individually 
concerned and that the substance of the appeal therefore should have been dealt with in the 

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CFI.  However,  the  Court  of  Justice  dismissed  the  appeal  as  inadmissible  due  to  the  lack  of 
individual concern (paras. 32-33). Since there was no individual concern, the plea concerning 
direct concern was considered no longer relevant. 

Petitions 

In 2009, the Commission received 50 petitions related to the issue of nature protection. The 
subjects raised in these petitions ranged from the measures for the protection of Natura 2000 
sites themselves to the environmental effects of infrastructure projects on designated sites. A 
large proportion of the nature protection petitions concerned projects with a potential impact 
on designated sites in Spain, France and Bulgaria. The ongoing close interest of the Petitions 
Committee  in  the  issue  of  spring  hunting  in  Malta  should  be  mentioned.  In  2009,  four 
petitions concerning nature protection were closed. Responding to concerns raised within the 
Petitions Committee, DG ENV committed itself to organising a nature conservation seminar 
for Bulgarian officials in Sofia in 2010. 

6.1.2.  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 26, 
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). 

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Those  measures  have  had  a  significant  effect,  as  they  resulted  in  the  reduction  of  the 
implementation deficit. 

6.1.3.  Evaluation results  

6.1.3.1.  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  took  place  in  2009  for  the  Atlantic  and  the  Baltic  Seas.  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 further 
promote  best  practice  within  specific  economic  sectors,  such  as  European  ports,  wind 
energy, non-extractive industries, inland waterway transport and agriculture. 

•  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.  In  2009  a  new  expert  group  on  the  management  of  Natura  2000  was 
established. This group will be used to develop and exchange information on best practice 
in Natura 2000 management, focusing in particular on integrated management approaches 
and reconciling nature conservation and economic development objectives. 

•  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), including lack of 
designation of SCIs as SACs where the deadline has expired and the lack of adequate legal 
protection  and  management  regimes  for  the  Natura  2000  sites.  Focus  will  also  be  on 

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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,  where  appropriate,  seek  interim  measures  from  the  European  Court  of  Justice172. 
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)173. 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)174. 

Planned action (2010 and beyond)In addition to planned actions described under the previous 
point, the Commission will publish in 2010 a Communication on the implementation of the 
Biodiversity Action Plan and the perspectives for biodiversity conservation post-2010. 

6.1.4.  Sector summary 

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 2009. In December 
2009, the Commission adopted six decisions updating existing Biogeographic Lists of Sites of 
Community Importance (SCIs). The additions include 59 new sites and a total area of 30,000 
km2.  Most  of  the  new  sites  are  situated  in  marine  areas.  This  means  that  for  the  first  time 
significant progress has also been made as regards the designation of off-shore marine areas, 
although substantial efforts are still needed.  

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 was 28 
December 2007 for most sites of the Macaronesian biogeographical region and 22 December 
2009  for  most  sites  of  the  Alpine  biogographical  region.  For  most  sites  of  the  Atlantic  and 

172 
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-

173 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0502:FIN:EN:PDF 

http://eur-

174 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0773:FIN:EN:PDF 

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Continental regions it will be 7 December 2010. Infringement procedures had been launched 
in 2008 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 
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,  including  the  lack  of 
designation of SCIs as SACs where the deadline has expired. 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,  where 
appropriate,  seek  interim  measures  from  the  European  Court  of  Justice175.  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. 

6.2.  Waste Management  

175  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. 

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6.2.1.  Current position 

6.2.1.1.  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.  

The  basic  requirements  are  laid  down  by  the  Waste  Framework  Directive176  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    legislation 
setting  targets  for  collection,  re-use,  recovery  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.177 

6.2.1.2.  Report of work done in 2009 

The Commission adopted during 2009 three reports providing information about the situation 
in  Member  States  as  regards  their  implementation  of  EU  waste  legislation.  A  general 
implementation report178 covers Directives 2006/12/EC on waste (the EU waste framework 
directive), 91/689/EC on hazardous waste, 75/439/EEC on waste oils, 86/278/EEC on sewage 
sludge, 94/62/EC on packaging and packaging waste, 1999/31/EC on the landfill of waste and 
2002/96/EC  on  waste  electrical  and  electronic  equipment  (period  2004-2006).  Two  specific 
reports  were  adopted  covering  the  Regulation  (EC)  1013/2006  on  shipments  of  waste179 
(period 2001-2006) and Directive 2000/53/EC on end-of-life vehicles180 (period 2005-2008). 

176  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. 

177  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.  

178 20.11.2009, COM(2009)633 final. 

179 24.06.2009, COM(2009)282 final. 

180 20.11.2009, COM(2009)635 final. 

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The reports show that implementation and enforcement of EU waste legislation remain poor, 
particularly  as  regards  the  waste  framework  directive,  the  landfill  directive  and  the  waste 
shipment regulation. In many cases, it is clear that waste treatment infrastructure is missing 
and waste is not collected separately. This results in reuse, recycling and recovery targets for 
waste streams such as end-of-life vehicles or packaging being missed. 

A  series  of  over  40  awareness-raising  events  organised  by  the  Commission  was  completed 
during 2009. The Commission visited Member States in order to stress the need to strengthen 
implementation  and  enforcement  of  key  requirements  of  EU  waste  legislation.  The  events 
covered  all  Member  States  and  focused  particularly  on  the  waste  shipment  regulation,  the 
Landfill  directive  and  the  Waste  Framework  directive.  These  events  intended  to  promote 
better  implementation,  enforcement  and  application  'on  the  ground'  of  key  EU  waste 
legislation requirements. The events proved to be valuable tools to exchange and discuss good 
practice  and  practical  problems  with  implementation  and  enforcement.  They  gave  a 
comprehensive 
specific  problems  with 
into  national  characteristics  and 
implementation. The conclusions showed large disparities in how Member States implement 
EU  waste  legislation  requirements  and  significant  deficiencies  in  large  parts  of  the  EU.  An 
important need to strengthen implementation and enforcement of these EU requirements was 
clearly  identified.  Reports  on  the  awareness-raising  events  were  published  by  the 
Commission. 

insight 

The  Commission  supported  during  2009  in  co-operation  with  the  IMPEL  network  a  large 
number of co-ordinated inspections, spot-checks and controls of waste shipments in Member 
States. These actions were part of a project to strengthen Member States' inspections, build up 
their  capacity  and  improve  co-operation  between  all  relevant  authorities.  Over  10,000 
inspections  of  transports  were  checked,  including  inspections  of  containers,  vehicles  and 
storage locations. Several hundreds of company inspections were also carried out. In total, 22 
Member  States  and  several  neighbouring  countries  participated  in  the  joint  enforcement 
actions. A specific report of these actions was published by the Commission.  

In 2009, the Commission received 26 petitions related to waste sector which covered a wide 
range of waste legislation. In 2009, seven petitions have been closed. A large part of petitions 
concerned Spain, Italy and Greece. The petitions proved valuable in drawing Member States' 
attention to the need for good landfill management.  Particular mention may be made of the 
Petitions Committee's close interest in the waste situation in Campania in Italy and its view 
that the Commission should prioritise good implementation of waste rules across the EU. The 
Commission plans to take further action in 2010 to respond to this concern. 

With regard to WEEE Directive, conformity is achieved for eight Member States. In 2009 the 
Commission  continued  legal  enforcement  actions  opened  in  2007  horizontally  against  a 
number of Member States. As of end of 2009, infringement cases were open for 14 Member 
States  (Czech  Republic,  Denmark,  Estonia,  Spain,  Finland,  France,  Ireland,  Romania,  Italy, 
Lithuania, Latvia, Portugal, Sweden and Slovakia). In 2010, the Commission in cooperation 
with the remaining Member States (Malta, UK, Belgium, Bulgaria and Romania) will assess 
their national legislation.  Legal enforcement action will be taken in 2010 where necessary.   

With regard to RoHS Directive, correct transposition is achieved by 20 Member States, for 11 
of them after legal enforcement actions were launched. As of end of 2009, infringement cases 
were open for 7 Member States (Czech Republic, Spain, France, Italy, Romania, Sweden and 
Slovakia). 

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With regard to the Directive 2006/66/EC on batteries and accumulators, full transposition has 
been  achieved  for  23  Member  States.  As  of  end  of  2009,  infringement  cases  for  failure  to 
communicate  measures  of  transposition  of  the  Directive  were  open  for  4  Member  States 
(Belgium, Czech Republic, Greece and France). The deadline for Member States to transpose 
Directive  2008/103/EC  amending  the  Directive  2006/66/EC  on  batteries  and  accumulators 
expired in January 2009. Full transposition has been achieved for all Member States except 
for  Greece.  In  2009  infringement  cases  were  open  for  15  Member  States  for  failure  to 
communicate    measures  of  transposition  of  the  Directive  and  all  of  them  closed  except  for 
Greece. The Commission launched a conformity study to assess Member States transposition 
measures. 

With regard to the Packaging waste Directive, in 2010 the Commission in cooperation with 
the  Member  States  will  assess  the  conformity  of  national  legislation  and  take  legal 
enforcement action where necessary. 

Concerning the Directive on the management of waste from extractive industries (hereafter: 
the Mining waste Directive) full transposition has been achieved for 19 Member States. As of 
end of 2009, infringement cases for failure to communicate their transposition measures of the 
Directive were open for 8 Member States (Austria, Czech Republic, Estonia, France, Greece, 
Ireland, Portugal and the United Kingdom). In 2010, as a horizontal exercise for 10 Member 
States  for  which  conformity  studies  are  available,  the  Commission  will  assess  the  national 
legislation  in  cooperation  with  the  relevant  Member  States  and  take  legal  action  where 
necessary.  The  Member  States  concerned  are  Denmark,  Hungary,  Italy,  Latvia,  the 
Netherlands, Poland, Romania, Slovenia and Sweden. 

With regard to ELV Directive, conformity has been achieved for 12 Member States. In 2009 
the  Commission  has  opened  or  continued  enforcement  actions  concerning  non-conform 
national  legislation.  As  of  December  2009,  13  infringement  procedures  were  ongoing 
(Belgium,  Czech  Republic,  Denmark,  France,  Italy,  Cyprus,  Lithuania,  Poland,  Romania, 
Slovenia,  Slovakia,  Sweden  and  the  United  Kingdom.  In  2009,  infringements  were  opened 
against 7 Member States concerning obligation to provide, at three-year intervals, a report on 
implementation of the ELV Directive (Article 9 of the Directive). As of end 2009, one case 
remained open (Ireland). 

With  regard  to  transposition  of  the  Landfill  Directive  1999/31/EC,  legal  action  was  taken 
against 15 Member States for inadequate transposition. As of December 2009 cases are still 
open for 8 Member States (Belgium, Czech Republic, Estonia, France, Italy, Poland, Slovakia 
and the United Kingdom). Reasoned Opinions have been sent to 3 Member States (Slovakia, 
Poland and France) and in 2009 2 Member States (Czech Republic and Estonia) were referred 
to  the  European  Court  of  Justice.  The  assessment  of  Bulgaria's  and  Romania's  legislation  is 
ongoing. 

In 2009, there has been one judgment related to illegal landfills (C-120/09 against Belgium). 
The  three  horizontal  cases  against  France  (C-423/05),  Italy  (C-135/05)  and  Belgium  (C-
120/09)  are  followed  up  in  the  Article  260  TFEU  procedure  by  either  a  LFN  Article  260 
TFEU  or  Court  application  Article  260  TFEU  where  a  Reasoned  Opinion  under  ex  Article 
228 EC (now Article 260 TFEU) had already been sent. A Letter of Formal Notice was sent to 
Italy  and  to  France  in  2009.  In  a  horizontal  case  against  Spain  concerning  a  significant 
number of illegal and uncontrolled landfills, the Commission referred the case to the Court in 
2009.  

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With regard to the serious situations in Italy, Campania region and Bulgaria, Sofia concerning 
deficient  implementation,  in  2009  the  Commission  has  worked  very  closely  with  both 
Member States. With regard to Bulgaria, the Commission decided to refer the case failure to 
provide an adequate and integrated system for the disposal of household waste in Sofia to the 
European  Court  of  Justice.  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  and  the  judgment  is  expected  in  early 
2010. 

Judgments of the Court of Justice in 2009 

A number of important ECJ judgments were delivered in 2009. Belgium was condemned for 
failure  to  transpose  the  Directive  1999/31/EC  on  landfill  of  waste  (17  December  2009,  C-
120/09  Commission  v  Belgium).  Greece  was  condemned  for  failure  to  draw  up  hazardous-
waste  management  plan  and  to  establish  an  integrated  and  adequate  network  of  disposal 
installations  for  hazardous  waste  (10  September  2009,  C-286/08  Commission  v  Greece). 
Ireland  was  condemned  for  failure  to  fulfil  its  obligations  under  the  Council  Directive 
75/442/EEC on waste with regard to disposal of domestic waste waters through septic tanks in 
the  countryside  and  other  individual  waste  water  treatment  systems  (29  October  2009,  C-
188/08 Commission v Ireland). In addition, the Court judged on a preliminary reference of an 
Italian  court  on  the  interpretation  of  the  polluter  pays  principle  in  the  framework  of  Article 
15(a)  of  the  Directive  2006/12  on  waste  (16  July  2009,  C-254/08  Futura  Immobiliare  and 
Others). 

6.2.2.  Evaluation based on the current situation 

The implementation reports, awareness-raising events and studies carried out showed that the 
implementation  gaps  are  very  serious  throughout  a  large  part  of  the  EU,  in  particular  as 
regards  the  waste  framework  directive,  the  landfill  directive  and  the  waste  shipment 
regulation. 

In  some  Member  States  which  joined  the  EU  after  2004,  the  situation  is  particularly 
problematic with heavy reliance on landfilling, inadequate waste treatment infrastructure and 
no societal habits to separate and recycle waste. The situation is, however, not much better in 
many of the other Member States which continue to breach EU rules on waste management 
and where inefficient diversion of biodegradable waste from landfills continues to contribute 
to climate change. 

Probably  the  most  serious  and  wide-spread  gaps  in  implementation  are  the  extensive  illegal 
waste  dumping  prohibited  by  the  waste  framework  directive  and  the  high  numbers  of 
substandard  landfills  still  occurring  in  the  EU.  All  landfills  must  comply  with  the  landfill 
directive  and  related  Council  decision  on  waste  acceptance  criteria  for  landfills,  the  "WAC 
Decision".  The  environmental  and  health  impacts  for  citizens  are  significant.  The 
Commission monitors the correct implementation of both the landfill directive and the WAC 
Decision.  A  large  number  of  infringements  of  the  waste  framework  directive  and  its 

EN 

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prohibition  of  illegal  dumping  have  been  addressed  by  horizontal  cases  grouping  many 
individual illegal dumps. 

On 16 July 2009, two important targets kicked in under the EU landfill directive: the closure 
of  existing  illegal  landfills  (Article  14)  and  the  2009  biodegradable  diversion  target,  that  is, 
diversion  from  landfills  of  50%  biodegradable  waste  of  1995  values  (Article  5).  The 
Commission  is  currently  evaluating  information  received  from  Member  States  on  their 
compliance with these provisions. 

The joint enforcement actions showed that illegal waste shipments remain a serious problem 
for  the  EU.  Around  19%  of  transports  containing  waste  were  illegal.  Most  of  the  cases 
concerned illegal exports from the EU to countries in Africa and Asia in contravention of, for 
example,  the  export  ban  on  hazardous  waste  or  information  requirements  for  exports  of 
"green", non-hazardous waste. 

On 31 December 2006, the two quantitative targets of the WEEE Directive became due. This 
implies that starting with the reporting year 2007, the targets for separate collection, recycling 
and  recovery  have  to  be  met  by  the  EU-15.  Slovenia  must  be  compliant  starting  with  the 
reporting year 2008, and the other EU-12 with the reporting year 2009. The Commission is to 
receive reports on the years 2007 and 2008 from the Member States by the end of June 2010, 
and will then be in the position to assess compliance by the EU-15 and Slovenia. 

6.2.3.  Evaluation results 

6.2.3.1.  Priorities 

If properly implemented and enforced EU waste legislation could, in addition to waste-related 
benefits,  reduce  greenhouse  gas  emission  by  between  19-31%  and  at  almost  200  million 
tonnes of CO2 a year. This would save €2.5 billion annually at today's carbon price of €13 per 
tonne.  Waste  legislation  offers  also  significant  opportunities  for  EU  companies  to  innovate 
and access valuable secondary raw materials. A level playing field for companies as well as 
better opportunities for innovation could be ensured by strengthening implementation of the 
EU  waste  acquis.  The  significant  costs  of  having  to  clean  up  after  illegal  dumping  and  its 
negative  impacts  on  air  and  water  could  be  avoided.  Poor  implementation  of  EU  waste 
legislation  is  therefore  a  missed  economic,  social  and  environmental  opportunity  which  the 
EU cannot afford. 

The most serious case of non-compliance, in particular illegal waste dumping, missing waste 
infrastructure and substandard landfills need to be addressed through consistent legal actions 
as well as continued measures in support of better implementation and enforcement. 

The currently high rate of illegal waste shipments must be brought down. 

EN 

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6.2.3.2.  Planned action (2010 and beyond) 

The  IMPEL  network  continues  to  address  the  issues  of  illegal  waste.  The  IMPEL  network 
carries  out  joint  inspections  of  waste  shipments  and  seeks  to  extend  these  to  all  Member 
States. The Commission has also addressed this problem by proposing reinforced legislation. 
The recently proposed recast of the WEEE Directive aims to obtain fully documented control 
over  85%  of  the  e-waste  stream.  In  addition,  it  includes  rules  to  avoid  illegal  shipments  of 
electrical  and  electronic  waste,  especially  when  falsely  declared  as  used  products.  The 
Commission  is  also  assessing  the  feasibility  of  strengthening  the  inspection  requirements 
under the EU waste shipment regulation. 

In addition to planned actions described under the previous point, 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, the Mining Waste Directive. 

•  Monitor  the  implementation  of  the  targets  associated  to  waste  policies,  in  particular, 
the collection target for WEEE to be achieved by Member States will be assessed in 
2010 on the basis of reporting obligations. Subsequent infringement cases will be open 
in case of non-compliance. 

•  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 
illegal  waste 
shipments  and  the  lack  of  adequate  waste  management  infrastructure  existing  in 
several  Member  States.  The  deadline  for  Member  States  to  transpose  the  Waste 
Framework  Directive  (2008/98/EC)  expires    on  12  December  2010;  therefore  the 
Commission  will  ensure  that  Member  States  communicate  their  transposition 
measures and will timely initiate legal enforcement actions  for failure to do so. 

implementation  deficits, 

including 

landfills, 

illegal 

•  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. 

6.2.4.  Sector summary 

Reports and studies during 2009 demonstrate that significant deficits in the implementation of 
EU  waste  legislation  remain  in  large  parts  of  the  EU,  particularly  as  regards  illegal  waste 
dumping,  inadequate  waste  treatment  infrastructure  and  illegal  waste  shipments.  The 
Commission stepped up its efforts to support Member States in better implementation through 
awareness  raising,  information  exchange  and  guidance  as  well  as  participation  in  joint 
enforcement  actions.  Studies  were  carried  out  to  explore  new  initiatives  for  coming  years, 

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including  a  study  on  the  feasibility  of  an  EU  waste  implementation  body  and  inspection 
requirements for waste shipments. 

6.3. 

Environmental Impact Assessment & Strategic Environmental Assessment 

6.3.1.  Current position 

6.3.1.1.  General introduction 

There are two important pieces of legislation in this sector: Council Directive 85/337/EEC181 
on the assessment of the effects of certain public and private projects on the environment, as 
amended  by  Directives  97/11/EC182,  2003/35/EC183  and  2009/31/EC184  (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 
Directive185). 

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  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. 

6.3.1.2.  Report of work done in 2009 

The EIA Directive 

 The EIA Directive was amended three times, in 1997, in 2003 and in 2009: 

(cid:131)  Directive 97/11/EC widened the scope of the EIA Directive by increasing the types of 
projects  covered,  and  the  number  of  projects  requiring  mandatory  environmental 
impact  assessment  (Annex  I).  It  also  strengthened  the  procedural  basis  of  the  EIA 

181  OJ L 175, 05.07.1985, p.40. 

182  OJ L 073, 14.03.1997, p.5. 

183  OJ L 156, 25.06.2003, p.17. 

184   OJ L 140, 5.6.2009, p.114. 

185  OJ L 197, 21.7.2001, p. 30. 

EN 

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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. 

(cid:131)  Directive 2009/31/EC amended the Annexes I and II of the EIA Directive, by adding 
projects related to the transport, capture and storage of carbon dioxide (CO2). A new 
project was added in Annex I.16: "pipelines with a diameter of more than 800 mm and 
a length of more than 40 km… for the transport of carbon dioxide (CO2) streams for 
the purposes of geological storage, including associated booster stations"; this type of 
project must shall be made subject to an assessment in accordance with Articles 5 to 
10 of the EIA Directive. Furthermore, two new project categories were introduced in 
Annex  II:  storage  sites  of  carbon  dioxide  pursuant  to  Directive  2009/31/EC  (Annex 
II.23) and installations for the capture of carbon dioxide streams for the purposes of 
geological storage pursuant to Directive 2009/31/EC from installations covered by this 
Annex, or where the total yearly capture of carbon dioxide is 1,5 megatonnes or more 
(Annex II.24); this type of projects is subject to a screening with a view to determining 
whether an EIA is required.  

The  Commission  is  continuously  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 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 2009, the Commission opened in total eight new infringement procedures on the basis of 
the  EIA  Directive.  Five  cases  were  opened  against  Belgium,  Italy  and  Romania  concerning 
bad application of the EIA Directive, three of which were based on a complaint. Three cases 
were launched against Hungary, Italy and Bulgaria for non-conform transposition of the EIA 
Directive. One case out of those opened in 2009 has already been closed, due to satisfactory 
amendments of the Bulgarian EIA legislation.  

Article  2(3)  of  the  EIA  Directive  allows  Member  States  to  exempt  specific  projects  in 
exceptional circumstances (e.g. for unforeseen civil emergencies; threats to human health and 
the environment; security risks) from the provisions of the Directive in whole or in part, and 
to notify the Commission. In 2009, this provision has been used by Italy and Greece. 

(cid:131)  On 29 July 2009, the Region of Umbria informed the Commission of their intention to 
exempt  a  temporary  waste  facility  at  San  Carlo,  Terni  from  the  EIA  procedure. 
According  to  the  information  received  from  the  Region  of  Umbria,  the  request  is 
justified  by  an  exceptional  circumstance  –  the  emergency  situation  arising  from  the 
leakage of polluted waters containing chromium from an overlying contaminated site 
into the water table during the construction of a road tunnel. The polluted waters need 
to be immediately removed from the tunnel and treated in a waste facility to protect 
human health and the surrounding environment. The Region of Umbria has indicated 
that it does not intend to carry out an EIA for the waste treatment facility either in full 
or in part, as: i) there is no time to do so, and ii) the waste facility is a temporary one 

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that  will  be  removed  in  around  6  months  time  once  the  impermeabilisation  of  the 
tunnel is completed.  

(cid:131)  On 28 December 2009, the Greek Ministry of the Environment, Energy and Climate 
Change)  informed  the  Commission  of  their  intention  to  partially  exempt  the  project 
entitled  'PATHE  (Patras-Athens-Thessaloniki)  main  highway:  Tempi  interchange–
Rapsani  interchange  section  and  Platamonas–Skotina  junction  subsection  (Neos 
Panteleimonas diversion), roadworks to protect the existing road from rainfall' from 
the  EIA  procedure.  According  to  the  Greek  authorities,  the  continuous  rainfall  that 
occurred  on  17  December  2007  constitutes  the  exceptional  circumstance  justifying 
their  exemption  request.  The  rainfall  caused  the  death  of  one  person  and  led  to  the 
interruption  of  traffic  on  this  road,  which  is  the  main  road  link  to  Northern  Greece. 
The aim of this exemption request is to guarantee road and transport safety, to protect 
the environment and safeguard the road link with Northern Greece. 

It should be stressed that, in both cases, the recommendations of the Guidance document on 
the "Clarification of the Application of Article 2(3) of the EIA Directive" have been followed. 

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. This is why the Commission's action 
initially  focused  on  launching  non-communication  infringement  proceedings  against  many 
Member  States.  After  having  ensured  that  the  Directive  had  been  transposed  in  all  Member 
States,  the  Commission  started  a  systematic  assessment  of  the  conformity  of  the  national 
transposition  measures  communicated  and 
infringement 
procedures. 

initiated,  when  necessary, 

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. 
This  action  continued  in  2009  and  infringement  proceedings  for  non-conform  transposition 
were  opened  against  twelve  Member  States:  Spain,  Belgium,  Germany,  Greece,  Finland, 
France, Netherlands, Sweden, Slovakia, Austria, Italy and Portugal. Some of these 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,  Poland,  Czech  Republic  and  Slovenia).  In  three  cases  (Estonia,  Ireland  and 
Denmark),  the  Commission  continued  the  infringement  procedure  in  2009  by  issuing 
reasoned opinions.  

In addition, one infringement procedure, based on a complaint, was launched in 2009 against 
Bulgaria for bad application of the SEA Directive.  

Judgments of the Court of Justice in 2009 

The EIA Directive has been the subject of several cases brought before the European Court of 
Justice.  The  case-law  of  the  Court  of  Justice  has  contributed  to  a  better  understanding  of 
certain  provisions  of  the  Directive.  In  2009,  the  ECJ  delivered,  inter  alia,  the  following 
rulings: 

In Case C-75/08 (Judgment of 30/4/2009), the Court replied to the reference for a preliminary 
ruling  from  the  Court  of  Appeal  (England  &  Wales)  and  clarified  the  requirements  under 

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Article 4 of the EIA Directive. The reference for a preliminary ruling was related to whether 
or  not  it  is  necessary  to  give  reasons  for  the  determination  made  by  the  competent  national 
authority not to proceed to an environmental impact assessment. The Court ruled that Article 
4  of  the  EIA  Directive,  as  amended,  "must  be  interpreted  as  not  requiring  that  a 
determination,  that  it  is  unnecessary  to  subject  a  project  falling  within  Annex  II  to  that 
directive  to  an  environmental  impact  assessment,  should  itself  contain  the  reasons  for  the 
competent  authority’s  decision  that  the  latter  was  unnecessary.  However,  if  an  interested 
party  so  requests,  the  competent  administrative  authority  is  obliged  to  communicate  to  him 
the reasons for the determination or the relevant information and documents in response to 
the request made". The Court added that "if a determination of a Member State not to subject 
a project, falling within Annex II to Directive 85/337 as amended by Directive 2003/35, to an 
environmental impact assessment in accordance with Articles 5 to 10 of that directive, states 
the reasons on which it is based, that determination is sufficiently reasoned where the reasons 
which  it  contains,  added  to  factors  which  have  already  been  brought  to  the  attention  of 
interested  parties,  and  supplemented  by  any  necessary  additional  information  which  the 
competent  national  administration  is  required  to  provide  to  those  interested  parties  at  their 
request, can enable them to decide whether to appeal against that decision". 

In Case C-427/07 (Judgement of 16/7/2009), the Court dealt with two issues: the conformity 
of  Irish  legislation  in  relation  to  private  road  construction  development,  and  the  incomplete 
transposition of Directive 2003/35/EC.  

•  As  regards  the  first  issue,  the  Court  recalled  that  a  Member  State  which  established 
criteria or thresholds at a level such that, in practice, an entire class of projects would 
be exempted in advance from the requirement of an impact assessment would exceed 
the limits of its discretion under Articles 2(1) and 4(2) of the EIA directive unless all 
projects excluded could, when viewed as a whole, be regarded as not being likely to 
have significant effects on the environment. The Court concluded that "by subjecting 
private road construction development to an environmental impact assessment only if 
that  development  formed  part  of  other  developments  coming  within  the  scope  of 
Directive  85/337…  and  themselves  subject  to  the  assessment  obligation,  the  Irish 
legislation,  as  applicable  when  the  time-limit  set  in  the  reasoned  opinion  expired, 
meant that any private road construction development  carried out  in isolation could 
avoid an environmental impact assessment, even if the development was likely to have 
significant effects on the environment." 

•  As regards the second issue, the Court ruled that Ireland had failed to adopt the laws, 
regulations and administrative provisions necessary to comply with Article 3(3) to (7) 
and  Article  4(2)  to  (4)  of  Directive  2003/35/EC,  and  had  failed  to  adequately  notify 
such  provisions  to  the  Commission  of  the  European  Communities.  This  part  of  the 
ruling is interesting because it is the first time that the Court interprets Article 10a of 
the EIA Directive.   

In  Case  C-263/08  (Judgment  of  15/10/2009),  the  Court  ruled  that  a  project  concerning 
abstraction of water leaking into a tunnel which houses electric cables and its recharging into 
the ground or rock in order to compensate for any reduction in the amount of  groundwater, 
and  the  construction  and  maintenance  of  facilities  for  the  abstraction  and  recharging,  are 
covered  by  point  10(l)  in  Annex  II  to  the  EIA  Directive,  irrespective  of  the  ultimate 
destination of the groundwater and, in particular, of whether or not it is put to a subsequent 
use. This reference for a preliminary ruling is also interesting because the Court clarified the 
concept  of  public  concerned.  According  to  the  Court,  "members  of  the  ‘public  concerned’ 
within  the  meaning  of  Article  1(2)  and  10a  of  Directive  85/337,  as  amended  by  Directive 

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2003/35,  must  be  able  to  have  access  to  a  review  procedure  to  challenge  the  decision  by 
which a body attached to a court of law of a Member State has given a ruling on a request for 
development consent, regardless of the role they might have played in the examination of that 
request by taking part in the procedure before that body and by expressing their views". The 
Court  also  added  that  "Article  10a  of  Directive  85/337,  as  amended  by  Directive  2003/35, 
precludes a provision of national law which reserves the right to bring an appeal against a 
decision  on  projects  which  fall  within  the  scope  of  that  directive,  as  amended,  solely  to 
environmental protection associations which have at least 2.000 members". 

In Case C-205/08 (Judgment of 10/12/2009), the question of application of the EIA Directive 
to  a  transboundary  power  line  was  raised  in  a  reference  for  a  preliminary  ruling  from  an 
Austrian Court (Umweltsenat). In his opinion, the AG Ruiz-Jarabo Colomer had stressed that 
"given  that  individuals,  goods,  services  and  capital  are  able  to  move  around  the  European 
Union without restrictions, it would be paradoxical to restore those barriers in the case of a 
phenomenon  like  pollution  which,  by  its  very  nature,  disregards  countries  and  continents. 
Accordingly,  since  Community  environmental  policy  entails  the  tackling  of  pollution  in 
different  States  and  since  that  campaign  cannot  be  waged  from  one  location,  it  would  be 
inconsistent to split projects subject to an EIA by reference to the territory in which they take 
place".  Based  on  its  previous  rulings  in  Cases  C-142/07  and  C227/01,  the  Court  explained 
that "projects listed in Annex I to Directive 85/337 which extend to the territory of a number 
of  Member  States  cannot  be  exempted  from  the  application  of  the  Directive  solely  on  the 
ground that it does not contain any express provision in regard to them. Such an exemption 
would  seriously  interfere  with  the  objective  of  Directive  85/337.  Its  effectiveness  would  be 
seriously compromised if the competent authorities of a Member State could, when deciding 
whether  a  project  must  be  the  subject  of  an  environmental  impact  assessment,  leave  out  of 
consideration that part of the project which is located in another Member State". The Court 
concluded that Articles 2(1) and 4(1) of the EIA Directive, as amended, "are to be interpreted 
as meaning that the competent authorities of a Member State must make a project referred to 
in point 20 of Annex I to the Directive, such as the construction of overhead electrical power 
lines  with  a  voltage  of  220  kV  or  more  and  a  length  of  more  than  15  km,  subject  to  the 
environmental  impact  assessment  procedure  even  where  the  project  is  transboundary  in 
nature and less than 15 km of it is situated on the territory of that Member State".  

Petitions 

In  2009,  the  Commission  received  52  petitions  related  to  a  wide  variety  of  projects  and 
compliance with the EIA Directive. Five petitions were closed during 2009. A large part of 
petitions concerned Spain, Bulgaria, Germany, Italy. 

6.3.2.  Evaluation based on the current situation 

6.3.2.1.  Implementation of the EIA-SEA Directives 

In July 2009, the Commission adopted the fourth Report on the application and effectiveness 
of the EIA Directive (COM(2009)378). In September 2009, the Commission adopted the first 

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Report on the application and effectiveness of the SEA Directive (COM(2009)469)186. Both 
reports address and evaluate the status of the application and effectiveness of the Directives 
and their implementation by the Member States.  

The  Commission's  report  on  the  EIA  confirms  that  the  objectives  of  the  Directive  have 
generally  been  achieved.  The  principles  of  environmental  assessment  have  been  integrated 
into the national EIA systems. All Member States have established comprehensive regulatory 
frameworks and implement the EIA in a manner which is largely in line with the Directive’s 
requirements; in many cases, Member States have built on the minimum requirements of the 
Directive  and  have  gone  beyond  them.  As  a  result,  environmental  considerations  are  taken 
into account in the decision-making process, which has become more transparent. However, 
the  development  of  EIA  is  an  evolving  process.  While  ensuring  that  the  EIA  Directive  is 
effectively  implemented  across  an  enlarged  EU,  it  is  also  necessary  to  ensure  that  the 
Directive is adapted to the Community and international policy and legal contexts. Thus, the 
Commission's  report  indicates  areas  where  improvements  are  needed  (e.g.  screening,  public 
participation,  quality  of  the  EIA,  EIA  transboundary  procedures,  coordination  between  the 
EIA and other environmental directives and policies, such as climate change and biodiversity) 
and presents possible recommendations for action. 

According to the Commission's Report on the SEA, it appears that the overall picture of the 
application and effectiveness of the SEA Directive across all Member States is a varied one, 
in terms of the institutional and legal arrangements of the SEA procedure, and in terms of how 
Member  States  perceive  its  role.  This  diverse  picture  also  determines  the  way  in  which 
Member States view the benefits and drawbacks and what measures are likely to improve the 
implementation  and  effectiveness  of  the  Directive.  The  Commission's  report  showed  that, 
overall,  the  SEA  Directive  contributes  to  the  systematic  and  structured  consideration  of 
environmental  concerns  in  planning  processes  and  better  integration  of  environmental 
considerations  upstream.  In  addition,  by  means  of  its  requirements  (environmental  report, 
consultation and information of the authorities and public concerned etc.) it ensures better and 
harmonized  planning  procedures,  and  contributes  to  transparent  and  participatory  decision 
making processes. 

The  guidance  documents  developed  by  the  Commission  services  in  previous  years  on 
important  aspects  of  both  directives187  were  often  used  as  a  reference  in  contacts  with 
national authorities. 

6.3.2.2.  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. 

186   Both reports can be found at http://ec.europa.eu/environment/eia/home.htm.  

187 

http://ec.europa.eu/environment/eia/home.htm  

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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 correctly (Article 4(2) and Annex III of the EIA Directive). 

With  regard  to  the  SEA  Directive,  it  is  relatively  recent  and  there  is  still  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.  In  addition,  there  are  similar  concerns  as  regards  the  definition  of  "plans  and 
programmes". 

6.3.3.  Evaluation results 

6.3.3.1.  Priorities 

In 2009, the Commission services continued applying the priorities188 which were identified 
in the previous reports and which were highlighted by the Commission in its communication 
COM/2008/773  and 
the 
communication.  Individual  breaches  of  certain  provisions  of  the  environmental  impact 
assessment  legislation,  which  are  not  covered  by  the  abovementioned  priorities,  should 
primarily be addressed through the existing review mechanisms at Member State level. 

the  Commission  staff  working  document  accompanying 

On  the  basis  of  the  implementation  experience,  it  is  not  necessary  to  modify  the  priorities 
already  identified  regarding  the  enforcement  of  the  EIA  and  SEA  Directives.  The 
Commission  services  will  therefore  continue  implementing  the  priorities  identified  in  the 

188  

It should be recalled that those priorities 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. 

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sectoral  communication  COM/2008/773  and  the  Commission  staff  working  document 
accompanying the communication.  

6.3.3.2.  Planned action (2010 and beyond) 

EIA Directive 

The  EIA  Directive  has  been  identified  as  a  potential  instrument  for  a  future  simplification 
exercise189, the aim being to identify overlaps, gaps and potential for reducing regulatory and 
administrative burdens, in particular regarding transboundary projects.  

The findings of the Commission's implementation report will be relevant in the framework of 
a  simplification  exercise.  The  Commission  will  consider  all  simplification  methods 
(codification, codification combined with the introduction of comitology, recasting, merging, 
use of regulation).  

Any  simplification  initiative  will  aim  to  improve  environmental  protection,  increase  the 
degree of harmonisation and simplify existing procedures. Regardless of the approach chosen, 
the  Commission  will  ensure  that  any  major  modification  will  be  subjected  to  a  consultation 
with all stakeholders and will undergo a legislative impact assessment. 

SEA Directive 

The findings of this first Commission's implementation report suggest that the application of 
the  SEA  in  Member  States  is  in  its  infancy,  and  that  further  experience  is  needed  before 
deciding  on  whether  the  Directive  should  be  amended  and,  if  so,  how  this  should  be  done. 
Member States seem to prefer stability in the legislative requirements, to allow SEA systems 
and  processes  to  settle  down  and  provide  the  opportunity  to  establish  robust  ways  of  using 
SEAs  to  improve  the  planning  process.  The  next  evaluation  report  should  be  prepared  in 
2013. 

6.3.4.  Sector summary  

The EIA Directive has achieved its objectives. 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  findings  of  the  recent 
Commission's  implementation  report  will  be  relevant  in  the  framework  of  a  simplification 
exercise. Any simplification initiative will aim to improve environmental protection, increase 
the degree of harmonisation and simplify existing procedures. All simplification methods will 
be  considered  (codification,  codification  combined  with  the  introduction  of  comitology, 
recasting,  merging,  use  of  regulation).  Regardless  of  the  approach  chosen,  the  Commission 
will  ensure  that  any  major  modification  will  be  subjected  to  a  consultation  with  all 
stakeholders and will undergo a legislative impact assessment. 

189   COM(2009)15. 

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The  SEA  Directive  is  still  in  its  infancy.  Further  experience  is  needed  before  deciding  on 
whether the Directive should be amended and, if so, how this should be done.   

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. 

6.4. 

Protecting Water Resources  

6.4.1.  Current position 

6.4.1.1.  General introduction  

Water  legislation  in  the  European  Union  entered  a  new  era  following  the  adoption  of  the 
Water Framework Directive190 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 this 
end, 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  were    to  be 
submitted  to  the  public  for  consultation  by  December  2008  at  the  latest.  They  should  have 
been adopted by 22 December 2009 and reported to the Commission 3 months thereafter.  

The  Water  Framework  Directive  (WFD)  will  repeal  several  pre-existing  EU  water  acts  by 
December 2013, except  the Urban Waste  Water,191 Drinking Water,192 Bathing Water193 
and Nitrates Directives.194 The implementation of the Water Framework Directive must not 

190  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). 

191  Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ L 
135, 30.5.1991). 

192  Directive 98/83/EC of 3 November 1998 on the quality of water intended for human 
consumption (OJ L330, 5.12.1998). 

193  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). 

194  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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jeopardise the achievement of the objectives of these EU water acts and vice-versa. Under the 
WFD,  complementary  Directives  have  been  adopted  on  the  protection  of  Groundwater 
against pollution and deterioration195  and on Environmental Quality Standards (EQS)  196 
establishing  the  standards  which  constitute  the  chemical  status  criteria  for  the  Water 
Framework Directive.  

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 cities discharging in 
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  monitor 
waters,    designate  so  called  nitrate  vulnerable  zones  and  then  adopt  and  implement  action 
programs  and  codes  of  good  agricultural  practices    with  the  aim  of  improving  fertiliser 
management and reducing nitrate leaching towards waters. Monitoring programs are required 
to be set up to assess the efficiency of these action programs.  

The Floods Directive197 requires Member States to assess flood risks and to establish flood 
risk management plans by 2015, with the aim to reduce flood risk for human health, economic 
the  environment  and  cultural  heritage.  The  Marine  Strategy  Framework 
activity, 
Directive198   established a strategic framework for the protection of the marine environment 

195  Directive  2006/118/EC  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).  

the  European  Parliament  and  of 

196  Directive  2008/105/EC  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). 

the  European  Parliament  and  of 

197  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). 

198  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). 

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in  a  highly  integrated  manner.  It  provides  that  all  marine  waters  must  meet  the  standard  of 
“good environmental status” as a rule by 2020, and that coordination and cooperation between 
Member States has to take place in shared marine regions. To this end, Member States must 
draw up the necessary programmes of measures by 2015 

6.4.1.2.  Report of the work done in 2009 

Management of the acquis, new legislation and preventive measures 

The  Common  Implementation  Strategy,  an  informal  process  set  up  in  2001,  has  delivered 
extensive guidance to promote the implementation of the Water Framework Directive.  The 
objective  of  the  strategy  is  to  provide  a  forum  for  Member  States,  stakeholders  and 
Commission's experts to work together towards a successful implementation of the core water 
law  at  EU  level.  In  this  context  a  number  of  expert  groups  comprising  Member  States  and 
stakeholders'  experts  have  contributed  to  the  development  of  various  implementation  tools 
and measures.  

The  implementation  of  the  Water  Framework  Directive  in  2009  was  characterised  by  the 
following main developments. Most Member States conducted consultations of the public and 
interested parties on draft River Basin Management Plans (RBMPs) in the first semester. The 
Commission  monitored  this  process  closely  and  further  developed  the  concept  of  and 
methodology for compliance-checking in consultation with Member States in expert groups. 
This will form the basis on which the Commission will start assessing the content of the final 
RBMPs  in  2010,  with  a  view  to  publishing  a  third  Commission  implementation  report  in 
2012.The  development  of  reporting  structure  and  procedures  via  WISE,  the  Water 
Information  System  for  Europe,  further  helps  to  simplify  the  reporting  process  for  Member 
States, thus reducing administrative burden. 

The second Water Framework Directive implementation report199 was published focusing on 
the implementation of the monitoring networks. In general, there is a good monitoring effort 
across  the  EU,  although  some  shortcomings  were  identified,  including  some  of  a  serious 
nature. For the first time all Member States who reported, did so electronically through WISE. 

Preparatory  work  continued  for  the  next  proposal,  based  on  article  16  of  the  Water 
Framework Directive, on the identification of new priority substances and the development of 
environmental quality standards for them. This proposal is planned for early 2011.  

The  deadlines  for  notification  of  national  transposing  legislation  for  the  Groundwater 
Directive expired on 15 January 2009 and the Floods  Directive on 26 November  2009. For 
the Floods Directive, compliance promotion took place in the form of the development of a 
transposition  checklist,  which  was  circulated  to  Member  States.  A  transposition  checklist  is 

199   COM(2009)156  final,  of  01.04.2009,  Report  from  the  Commission  to  the  European 
Parliament and the Council in accordance with article 18.3 of the Water Framework Directive 
2000/60/EC  on  programmes  for  monitoring  of  water  status,  and  the  accompanying 
Commission Staff Working Document  SEC(2009)415 of 01.4.2009. 

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also in development for the EQS Directive. The Commission furthermore adopted a Directive 
on technical specifications for chemical analysis and monitoring of water status200.   

The  Commission  continued  the  stakeholder  consultation  process  on  the  future  eventual 
revision  of  the  Drinking  Water  Directive  which  was  commenced  in  2008.  Based  on  the 
results  of  this  consultation  exercise,  the  Commission  in  2009  commenced  the  impact 
assessment  process  to  accompany  the  drafting  of  a  new  legislative  proposal  amending 
elements  of  the  existing  legislative  framework.  In  2009,  the  Commission  also  drew  up  two 
documents  to  support  the  implementation  of  the  new  Bathing  Water  Directive:  Decision 
2009/64/EC  on  the  equivalence  on  microbiological  monitoring  data  allowing  the  use  of 
alternative monitoring methods201 and a guidance document that provides advice to Member 
States  for  the  establishment  of  the  bathing  water  profiles  by  the  2011  deadline  which  was 
published in December 2009202. In 2009, the Commission also published its 5th report on the 
implementation of the Urban Waste Water Directive.203 

in 

As  to  the  implementation  of  the  Nitrates  Directive,  the  Nitrates  committee  made  up  of 
Commission  and  Member  State  representatives  was  convened  four  times  in  2009  mainly  to 
discuss derogations requested by Germany, The Netherlands and the United Kingdom. These 
meetings  resulted 
the  adoption  of  Decision  2009/753/EC  (Germany),  Decision 
2009/431/EC (United Kingdom) and Decision 2010/65/EU (The Netherlands) allowing those 
Member  States  to  apply  higher  amounts  of  livestock  manure  to  land..  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, Spain, Portugal, 
Sweden,  Denmark  Poland,  Latvia,  Lithuania,  Slovakia,  Czech  Republic,  Bulgaria  and 
Romania. 

Management of complaints and of infringements 

Despite  the  close  cooperation  with  the  Member  States,  certain  infringement  actions  were 
necessary in 2009.  

•  Assessment  of  conformity  of  national  legislation:  The  Commission  continued  the 
assessment of conformity of the transposition of the Water Framework Directive. At the 
end  of  2009,  the  Commission  still  had  to  pursue  17  cases  of  non-conformity  which  had 
been  opened  from  2007  onwards.  The  Commission  sent  new  letters  of  formal  notice  to 
Spain in February 2009, to Belgium and the Netherlands in September 2009 and Bulgaria 

200   Commission Directive 2009/90/EC of 31 July 2009 laying down, pursuant to Directive 
2000/60/EC  of  the  European  Parliament  and  of  the  Council,  technical  specifications  for 
chemical analysis and monitoring of water status. OJ L  201, 1.8.2009, p 36. 

201  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). 

202   http://ec.europa.eu/environment/water/water-bathing/pdf/profiles_dec_2009.pdf 

203   Commission  Staff  Working  Document  SEC(2009)  1114  final,  3.8.2009  "5th 
Commission  Summary  on  the  Implementation  of  the  Urban  Waste  Water  Treatment 
Directive". 

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in November 2009. Additional letters of formal notice were sent to Denmark and Estonia 
in  November  2009.  Reasoned  opinions  were  sent  to  Romania,  France  and  the  Czech 
Republic in October 2009. The Commission was however in a position to close the cases 
started against Slovenia and Latvia in 2009.  

•  Non-communication  of  transposing  national  measures:  On  the  Groundwater  Directive, 
letters  of  formal  notice  on  non-communication  were  sent  to  20  Member  States  in  April 
2009.  By  the  end  of  2009  Belgium,  Denmark,  Estonia  and  the  Netherlands  had  only 
submitted incomplete transposing acts. Reasoned opinions were sent to Belgium, Greece, 
Spain,  the  United  Kingdom,  the  Czech  Republic  and  Estonia  in  October  2009  and  to 
Denmark,  Luxemburg,  Finland  and  Ireland  in  November  2009.  The  Netherlands  and 
Ireland communicated their transposing acts early 2010.    

•  Bad  implementation:  there  were  two  cases  of  bad  application  related  to  the  Water 
Framework Directive decided in 2009 concerning the absence of a report on monitoring 
networks. Whereas the case against Greece was closed, the case against Malta had to be 
referred to the Court of Justice.  

•  Complaints: A horizontal complaint submitted in 2006 against 11 Member States, on the 
scope  of  the  term  "water  services"  was  pursued  during  the  year  in  the  context  of 
conformity cases concerning the relevant Member States. The Commission addressed this 
issue  in  the  letters  of  formal  notice  relating  to  the  non-conformity  cases.  A  complaint 
against Austria on the basis of article 4.7 of the Water Framework Directive was closed in 
2009 after the project was cancelled.  

•  Court  ruling:  The  Court  ruled  against  Spain  on  7.5.2009  (Case  C-516-07)  on  the 

implementation of article 3 of the Water Framework Directive. 

Regarding  the  Urban  Waste  Water  Directive,  the  Commission's  enforcement  work  has 
focused  firstly  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  for  the  EU  15  Member  States.  In  June  2009,  the 
Commission sent Belgium a reasoned opinion under the former Article 228 of the EC Treaty 
for its failure to ensure compliance with the earlier judgment of the Court of Justice in case C-
27/03. In May 2009 the Commission decided to refer Portugal to the Court of Justice for its 
failure to ensure compliance with its more stringent treatment obligations for sensitive areas. 
The Court of Justice also gave its judgments against Sweden in case C-438/07 and Finland in 
Case C-335/07 on 6 October 2009. The judgment from the Court of Justice in case C-390/07 
against the United Kingdom was given on 10 December 2009. The Commission largely lost 
these three cases on the basis of the adoption by the Court of a strict approach to the burden of 
proof.  

The  Commission  secondly  continued  to  follow  up  compliance  with  the  31  December  2000 
deadline  in  the  Urban  Waste  Water  Directive  requiring  collecting  systems  and  appropriate 
treatment  to  be  provided  for  urban  waste  waters  discharges  emanating  from  larger 
agglomerations  of  over  15,000  population  equivalent.  In  December  2009,  the  Commission 
decided to refer France to the Court of Justice for its failure to comply with these obligations. 
Furthermore, a reasoned opinion was sent to Italy in February 2009 for the same failures. The 
Court of Justice gave its judgment against Portugal on 7 May 2009 in case C-530/07 for its 
failure to ensure compliance with these requirements for a number of agglomerations.  

The  year  2009  also  saw  the  launching  of  legal  action  by  the  Commission  with  regard  to 
ensuring compliance with the collecting and treatment obligations for smaller agglomerations 

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of  2,000  to  15,000  population  equivalent  for  which  the  deadline  of  compliance  was  31 
December 2005. Letters for formal notice were sent to Belgium, France, Portugal, Germany 
and Luxembourg. This was the first wave of infringement action to follow up on this deadline 
for the EU 15 Member States.  

In addition to this, a reasoned opinion was sent to Greece on 23 March 2009 for its failure to 
provide  the  Commission  with  a  timely  report  on  its  implementation  of  the  Urban  Waste 
Water Directive. A reasoned opinion was sent under the former Article 228 of the EC Treaty 
to  Greece  in  February  2009  with  regard  to  its  failure  to  ensure  compliance  with  the  first 
judgment  of  Court  of  Justice  in  case  C-119/02.  A  reasoned  opinion  was  also  sent  to  Spain 
under  the  former  Article  228  of  the  EC  Treaty  for  its  failure  to  ensure  compliance  with  the 
earlier  judgment  of  the  Court  of  Justice  in  Case  C-219/05.  Finally,  the  Court  of  Justice 
provided clarification in a case against Ireland, Case C-188/08, in a judgment of 29 October 
22009  that  domestic  waste  water  discharged  through  septic  tanks  in  the  countryside  was 
covered by Community waste legislation.  

For  the  Drinking  Water  Directive,  letters  of  formal  notice  were  sent  in  2009  to  Lithuania, 
Bulgaria  and  Romania  on  the  ground  that  their  national  law  did  not  fully  and  correctly 
transpose the Directive. Furthermore, reasoned opinions were sent to Belgium and the United 
Kingdom  and  an  additional  reasoned  opinion  was  addressed  to  Luxembourg.  These 
infringement letters concerned the continued failure by these Member States to ensure that the 
Drinking Water Directive has been correctly transposed. In the same year, the Commission 
was able to close the cases that had been launched against Hungary, Slovenia, Malta, Latvia 
and Estonia in the light of these Member States' replies and initiatives. The Commission also 
decided to send a letter of formal notice to Spain in 2009 for its failure to correctly apply the 
Directive in Alicante. Furthermore, in 2009 the Commission decided to close its case against 
France after it was satisfied that the Member State had sufficiently implemented Court ruling 
C-147/07 for the violation of the "old" Drinking Water Directive (80/778/EEC).204  

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:  Member  States  were  required  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. At the end of 2009, only 
two  Member  States,  the  Czech  Republic  and  Poland  had  still  not  notified  full  transposing 
measures.  As  a  consequence,  at  the  end  of  November  2009,  the  Commission  referred  these 
two Member States to the Court of Justice.  

204  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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As to the Nitrates Directive, in December 2008 the Commission decided to refer Luxembourg 
to the Court of Justice for having in place a non-compliant nitrate action programme (case C-
526/08). A hearing took place on 2 December 2009 and the case was still pending judgment in 
Court of Justice at the end of 2009. In 2008 the Commission services held meetings with the 
United  Kingdom  authorities  to  ensure  the  adequate  amendment  of  its  nitrate  action 
programmes and as a result the United Kingdom adopted new compliant programmes, which 
led the case being closed in 2009. The same year administrative pre-action letters for having 
in place non-compliant nitrate action programmes were addressed to France and Greece. As a 
result a case was initiated against France for having in place the non-compliant nitrate action 
programmes.  In  addition  a  request  for  information  was  addressed  to  France  for  clarification 
regarding the designation of vulnerable zones. Discussions with Spain in order to ensure the 
adequate amendment of its nitrate action programmes continued in 2009. By the end of 2009 
the required amendments to legal texts were not yet completed to ensure compliance with the 
Directive. 

Petitions 

In  2009,  the  Commission  received  17  petitions  related  to  water  quality  management  and 
resource protection. Two petitions were closed during 2009. Most of the petitions concerned 
Spain, Germany and the United Kingdom. 

6.4.2.  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.  Much  progress  on  integrated  water 
management  has  been  made  with  the  gradual  implementation  of  the  Water  Framework 
Directive  and  the  publication  of  River  Basin  Management  Plans.  However,  considerable 
challenges  remain.    These  include  addressing  issues  of  water  scarcity,  droughts  and  floods, 
ensuring that waste water in the EU 12 and also originating from small towns in the EU 15 is 
properly  collected  and  treated  and  bringing  about  the    achievement  of  good  chemical, 
ecological and quantitative status by 2015 as required by the Water Framework Directive.  

On the implementation of the Water Framework Directive, the situation as regards the main 
2009 milestone, i.e. the delivery of the 1st River Basin Management Plans, can be summed up 
as follows: 1/3 of the Member States published their Plans by the deadline, 1/3 are likely to 
publish  them  before  the  reporting  deadline  in  March  2010,  and  the  remaining  1/3  have 
accumulated  significant  delays  in  consultation  procedures,  which  are  likely  to  lead  to 
substantial delays in the adoption and implementation of the plans. The Commission will start 
a comprehensive assessment of all available plans after the 22 March 2010 reporting deadline. 

The conformity of the transposition of the Water Framework Directive has improved during 
the  year  as  a  result  of  the  prioritised  actions  set  for  2009,  although  a  number  of  non-
conformity  cases  still  remain  open.  Late,  incomplete  and  non-conform  transposition  of  the 
main legal act is still an obstacle to the implementation of the Directive.   

One  key  implementation  challenge  was  identified  in  the  2nd  implementation  report  on  the 
Water Framework Directive in relation to monitoring, i.e. the absence of exhaustive national 
methods for assessing the ecological status of surface water bodies or  the existence of non-
compliant monitoring networks. This is an obstacle to the assessment of the ecological status. 

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The  non-communication  cases  brought  forward  on  the  Groundwater  Directive,  have 
prompted the notification of the majority of transposition measures to the Commission. These 
will be subject to conformity assessment starting in 2010. Delays in transposing this act could 
in a few cases lead to delays in the implementation of certain groundwater related aspects of 
the Water Framework Directive. The implementation of the Groundwater Directive will be 
assessed in relation to the River Basin Management Plans referred to above. 

Water  quality  has  improved  following  EU  15  Member  States'  encouraging  progress  in 
implementing the Urban Waste Water Directive. Yet, there are still many agglomerations, for 
instance, in Belgium, 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  2009,  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 
are  still  major  concerns  in  some  intensively  farmed  areas.  The  Commission  published  on  9 
February 2010 its report205 to the European Parliament and Council on the implementation of 
the Directive for the period 2003-2007. 

6.4.3.  Evaluation results 

6.4.3.1.  Priorities 

The Commission will prepare the third and major report on the implementation of the Water 
Framework Directive in 2012 (as required by article 18 of the Directive), including a review 
of how Member States have tackled their river basin management planning.  

This review will consider issues such as Member States' implementation of river basin based 
management approaches, water pricing policies, including full account and internalisation of 
environmental and resource costs, cooperation on trans-boundary rivers, public consultations, 
land  use  changes,  setting  of  ecologically  based  objectives,  protected  areas,  analysis  of  all 
pressures  on  water  resources,  integration  of  water  concerns  into  sector  policies,  degree  of 

205  Report  from  the  Commission  to  the  Council  and  the  European  Parliament  on 
implementation of Council Directive 91/676/EEC concerning the protection of waters against 
pollution caused by nitrates from agricultural sources based on Member States reports for the 
period 2004-2007 

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achievement  of  good  ecological  and  chemical  status,  good  ecological  potential  and  good 
groundwater, chemical and quantitative status by 2015,  and the establishment of programmes 
of measures to reach the targets.  

The  Commission  plans  also  to  carry  out  a  policy  review  on  water  scarcity  and  droughts  in 
2012,  which  will  focus  on  assessing  what  is  being  achieved  and  whether  more  action  is 
needed  on  water  efficiency,  policy  integration,  land  use,  use  of  unconventional  water 
resources, drought management and stakeholders' mobilisation. 

Regarding the Drinking Water Directive, the Commission will consider drafting, in 2010, a 
legislative proposal aimed at 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 
in 2010. 

6.4.3.2.  Planned action (2010 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  River  Basin  Management  Plans  and 
programmes  of  measures  for  each  river  basin  district  and  the  development  of  national 
methods for assessing the ecological status of surface water bodies.  Therefore, and in view of 
the above mentioned third report on the implementation of the Water Framework Directive, 
the following actions are planned: 

–  Enforcing  the  adoption  of  the  1st  River  Basin  Management  Plans  and  starting  the 
compliance assessments of these plans in 2010, including checking the implementation of 
the Groundwater and the Environmental Quality Standards Directives. 

–  Supporting and enforcing the transposition of the Directives on Groundwater, Floods and 

Environmental Quality Standards, including starting conformity assessments.  

–  Continuing  the  development,  together  with  the  European  Environmental  Agency,  of  the 
Water  Information  System  for  Europe  (WISE)  in  2010  as  a  single  platform  for  water 
information  and  reporting  to  simplify  and  reduce  the  overall  administrative  burden 
involved in reporting. 

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. 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. 

Planned  new  legislation  includes  the  preparation  of  a  proposal  on  priority  substances 
(amending  annex  X  of  the  Water  Framework  Directive)  and  the  establishment  of  related 
environmental quality standards. 

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 

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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 2010 and also in 2010 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 2010 on the basis of detailed assessments of the information provided by Member 
States in their 4-year implementation reports and via bilateral contacts. The assessments 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  will  continue  to  organise  meetings  of  the 
Nitrates  Committee  on  Member  States'  derogation  requests  and  to  give  Member  States  the 
opportunity  to  exchange  information  on  implementation.  The  Commission  published  its  4 
yearly report on implementation in February 2010. 

The  Commission  will  also  focus  on  the  transposition  and  implementation  of  the  following 
new EU water Directives: 

-  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 establishment 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-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.  In  2010,  the  Commission  will  need  to  continue  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. Enforcement action will need to be taken where necessary. 

6.4.4.  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 the new EU 12 Member States and in smaller towns for all 
27  Member  States.  The  implementation  of  EU  water  legislation  and  the  enhancement, 

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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  European 
water  legislation,  including  of  the  new  Floods  and  Marine  Strategy  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. 

6.5. 

Air quality and environmental noise 

6.5.1.  Current position 

6.5.1.1.  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 
sector206. The Directive entered into force on 11 June 2008 and merges four Directives207 
and one Council Decision208 into a single 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 

206 

. OJ L 152, 11.6.2008, p. 1–44. 

207  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 

208  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. 

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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 fuels209, 
Directive 1999/32/EC relating to a reduction in the sulphur content of certain liquid fuels210 
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 Directive211 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 
assessment and mapping of ambient noise in large agglomerations and in the vicinity of major 
roads, railways and airports. 

6.5.1.2.  Report of work done in 2009 

Ambient air quality 

Since 2005 when the PM10 limit values entered into force, a majority of Member States have 
reported as being in non-compliance. In 2008, 288 zones in 21 Member States did not comply 
with  these  limits212.  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  situations  which  have  not  been  the  subject  of  a  notification 
from the Member States or where the Commission has raised objections following a Member 
State  notification.  There  are  currently  open  infringement  proceedings  against  22  Member 
States in respect of PM10.  

209  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). 

210  Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in t he sulphur 
content  of  certain  liquid  fuels  and  amending  Directive  93/12/EEC  (OJ  L  121,  11.5.1999,  p. 
13–18). 

211  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). 

212   Provisional data; to date information from Malta and some Italian regions is missing 

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Up until December 2009, notifications concerning PM10 had been received from 18 Member 
States covering 295 air quality management zones. For around 16% of these, the Commission 
did  not  raise  any  objection,  a  further  15%  or  so  of  the  zones  were  already  in  compliance 
whilst  objections  were  raised  for  approximately  70%  of  the  zones  covered  by  the 
notifications. Member States are free to re-notify for zones where objections have been raised 
but any exemption must expire before the end of June 2011. 

Whilst  closing  some  infringement  cases  in  2009,  the  Commission  also  continued  to  pursue 
infringement procedures it had launched in previous years (France and Spain) and has started 
some others against several Member States (Bulgaria, Czech Republic, Poland, Portugal and 
Romania) that have shown exceedances of sulphur-dioxide (SO2) limit values that have been 
in force since 1 January 2005. New exceedances were discovered in 2008 and reported to the 
Commission in 2009 as part of the formal reporting requirements. These excesses may also be 
the subject of further infringement proceedings in due course. 

Air emissions 

There has been a significant degree of non-preparedness by ships visiting EU ports to be able 
to  comply  with  the  stricter  fuel  sulphur requirements whilst at berth (0.1% max  w/w).  These 
requirements  entered  into  force  on  1  January  2010  but  many  ships  have  not  undergone  the 
necessary adaptation to their boilers despite the requirements having been known since 2005 
and  the  relatively  minor  nature  of  the  adaptations  required.  Given  the  volume  of  ships 
requiring  technical  modification  and  the  limited  number  of  suppliers,  the  Commission 
recommended  that  Member  State  competent  authorities  take  into  account  the  demonstrable 
conduct  of  ship  owners  to  ensure  that  the  necessary  adaptation  is  completed  in  the  shortest 
possible time when considering the infringement of the provisions of national law transposing 
the Directive. 

There  were  also  in  2009  ongoing  infringement  proceedings  against  two  Member  States 
(Czech Republic and UK) for a failure to communicate their national legislation transposing 
Directive  2005/33/EC  which  amends  the  sulphur  in  fuels  directive.  The  CZ  case  has 
meanwhile been closed. 

Environmental noise 

Under the Noise Directive, the Member States had to send to the Commission by 18 January 
2009 summary information about their noise action plans based upon noise maps prepared in 
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.  

Approximately half of the Member States have so far failed to submit information about their 
noise  action  plans.  A  further  Member  State  (Malta)  has  failed  to  report  information  about 
noise maps and is the subject of ongoing infringement procedures. 

Petitions  

In 2009 the Commission received 13 petitions related to air quality and environmental noise. 
Five  petitions  were  closed  during  2009.  Half  of  the  petitions  concerned  Germany;  others 
raised issues of air pollution in Ireland, Netherlands, Spain and Austria.  

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6.5.2.  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. 
The limits for nitrogen dioxide enter into force in 2010 and it is likely that there will also be 
widespread  non-compliance  for  this  pollutant  as  well.  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. The Commission will also host a workshop to 
assist  the  Member  States  in  preparing  plans  and  programmes  and  notifications  for  time 
extensions in the spring of 2010.    Community  measures  such as those adopted  on  light  and 
heavy duty vehicles will also help improve compliance. In addition, 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. The non-respect by ship owners with 
the fuel sulphur requirements whilst at berth in EU ports is likely to be a short-term problem 
that ought to be resolved by the autumn of 2010 by which time all ship owners should have 
undertaken the necessary adaptation of their ships. However, there is sufficient information in 
the public domain that there are other 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.  

Environmental noise 

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) which then leads to delays in the preparation of noise action plans given the 
quite  short  time  permitted  between  the  two.  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. 

6.5.3.  Evaluation results 

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6.5.3.1.  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. 

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. 

6.5.3.2.  Planned action (2010 and beyond) 

Ambient air quality 

Infringement  procedures  are  to  be  envisaged  against  Member  States  in  breach  of  the  limit 
values  for  PM10  which  do  not  apply  for  a  time  extension  or  do  not  meet  the  conditions  for 
obtaining such extension. In addition, the Commission will start monitoring more closely the 
implementation  of  the  limit  values  for  NO2  which  entered  into  effect  in  2010.  As  regards 
excessive  SO2,  the  Commission  will  continue  to  pursue  the  legal  enforcement  action  it  has 
already launched against several Member States.  

Air emissions 

There are reviews of the sulphur in fuels and the Paints 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  intends  to  propose  harmonised 
assessment methods in 2010 by committee procedure and to consider streamlined electronic 
reporting  procedures  for  a  future  revision  of  the  Directive.  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. 

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6.5.4.  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 
(primarily  for  NO2)  or  re-notifications  (for  PM10)  as  well  as  to  follow-up  on  the  decisions 
adopted  by  the  Commission.  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. 

6.6. 

Industrial installations 

6.6.1.  Current position 

6.6.1.1.  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). 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  October  1999  (for  new  installations)  or  before  October  2007  (for  existing 
installations). 

The Large Combustion Plants (or LCP) Directive, 2001/80/EC, 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  contributes 
significantly to the Union's efforts to protect the health of EU citizens and the environment by 
combatting acidification, eutrophication and ground-level ozone as part of the overall strategy 
to reduce air pollution (see also NEC Directive).  

Further  important  legislation  relating  to  industrial  emissions  (other  than  greenhouse  gases) 
includes  the  Waste  Incineration  (WI)  Directive,  2000/76/EC,  the  VOC  Solvent  Emissions 
(SE) Directive, 1999/13/EC and the E-PRTR Regulation (EC) No 166/2006.  

In  addition  to  the  sectoral  directives,  the  National  Emission  Ceilings  (NEC)  Directive, 
2001/81/EC, plays an important role in defining and limiting the total national emissions of 

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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  and  sources  within  the  national 
territories.  

The  Seveso  II  or  Major  Accident  Hazards  Directive213  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. 

6.6.1.2.  Report of work done in 2009 

Revision of the existing legal framework 

In June 2009, a political agreement was reached in first reading on a proposal for a directive 
on industrial emissions (IED), which is a recast of seven directives, including the IPPC, LCP, 
WI  and  VOC  SE  Directives.  The  Council's  Position  at  first  reading  is  subject  to  second 
reading in the first half of 2010, with the aim of adopting the Directive in by the end of 2010. 

Work in relation to the revision of the NEC Directive could not continue in 2009 but has been 
put back on the new Commission's agenda in 2010.  

Work on a review of the Seveso II Directive, including a number of studies and consultations 
with  Member  States  and  stakeholders  continued  in  2009,  with  a  view  to  a  Commission 
legislative proposal in 2010. 

Compliance promotion and legal enforcement work 

In  the  course  of  2009  the  Commission  continued  to  carry  out  implementation  work 
concerning the IPPC Directive in line with the actions specified in its action plan which forms 
part  of  the  2007  Commission  Communication  "Towards  an  improved  policy  on  industrial 
emissions"214 Transposition of the IPPC Directive 

In 2009 out of the ongoing three non-conformity infringement procedures regarding the non-
conform transposition of the IPPC Directive, the one against the Czech Republic was closed. 
A Reasoned Opinion was addressed to Estonia, while in case of Lithuania it is expected that 
the  adoption  of  the  foreseen  legislative  amendments  will  solve  the  remaining  shortcomings. 
Concerning  the  Article  260  (ex  228)  procedure  against  Belgium,  having  received  the 
necessary  clarification  from  the  Walloon  Region,  the  Commission  closed  the  case  in  May 
2009.  

Transposition of the LCP and WI Directives 

After the technical assessment of the conformity studies on the LCP Directive, Member States 
(except Cyprus, Greece, Luxembourg and Portugal, where the transposition has been found to 

213  Council  Directive  96/82/EC  on  the  control  of  major-accident  hazards  involving 
dangerous substances OJ L 10, 14.1.1997, p. 13–33. 

214  COM(2007) 843 final 

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be correct and complete) were addressed by pre-258 (ex 226) letters in July 2009. An analysis 
of the responses is being carried out by the Commission.  

Similar letters about the WI Directive were sent out in January 2010 to Member States (except 
Bulgaria  which  was  subject  to  an  individual  exercise  at  an  earlier  stage,  and  Greece, 
Luxembourg and Spain, where the transposition has been found to be correct and complete). 

IPPC permits for existing installations under Article 5(1) of the Directive  

By  30  October  2007,  all  existing  IPPC  installations  had  to  obtain  a  permit  issued  in 
accordance  with  the  requirements  of  the  Directive.  After  the  expiry  of  this  deadline,  the 
Commission  launched  eleven  infringement  procedures  in  2008  against  Belgium,  Bulgaria, 
Denmark, Estonia, Greece, Spain, Ireland, Italy, The Netherlands, Portugal and Slovenia. Out 
of these, the one against Estonia was closed in October 2009 and the one against Bulgaria is 
expected to be closed in 2010 since both Member States reached 100% in terms of permitting. 
Eight of the remaining nine Member States have been referred to the Court of Justice of the 
European Union. In addition, the Commission launched new procedures in the course of 2009 
against Austria, France, Malta and Sweden.  

Implementation of the IPPC and WI Directives  

Three-yearly implementation reports were to be sent by Member States to the Commission by 
30 September 2009 (covering the period 2006-2008). The Commission has sent pre-258 (ex 
226) letters to those Member States who have not fulfilled this reporting obligation even after 
several  reminders  (to  Greece  and  Luxembourg  concerning  both  Directives,  and  to  Slovenia 
concerning  the  WI  Directive).  The  Commission  will  carry out the assessment of the  reports 
provided by Member States during the course of 2010. 

Implementation of the LCP Directive  

For  implementing  the  LCP  Directive  provisions  for  certain  existing  plants,  eight  Member 
States  have  chosen  to  apply  a  national  emission  reduction  plan  (NERP)  instead  of  setting 
individual  emission  limit  values:  the  Czech  Republic,  Greece,  Finland,  France,  Ireland, 
Portugal, Spain and the United Kingdom. 

In 2009, the Commission has checked the compliance of these MS with the NERP provisions 
but  further  communications  with  MS  will  be  necessary  in  order  to  validate  the  assessment. 
For those MS where breaches have been found, infringement procedures will be launched in 
the course of 2010. 

The  Accession  Treaties  of  four  Member  States  (LT,  RO,  BG  and  PL)  include  transitional 
derogations  for  some  provisions  of  the  LCP  Directive,  which  are  conditional  to  meeting 
emission ceilings for all of the large combustion plants in the MS in certain specified years 
(including 2008 in all cases). The Commission has assessed the 2008 LCP emissions in these 
MS against the Accession Treaty ceilings and has identified potential breaches for Poland and 
Bulgaria.  Further  communication  with  these  MS  will  be  carried  out  in  2010  to  evaluate  the 
situation in view of possible infringement procedures. 

Implementation of the VOC Solvents Directive  

In  2009,  the  Commission  has  received  the  reports  from  all  Member  States  on  the 
implementation  of  the  Directive  during  the  period  2005-2007.  As  the  deadline  for  the 

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application  of  the  provisions  for  existing  installations  was  30  October  2007,  no  final 
conclusions on the implementation could be drawn, but progress has been noted regarding the 
authorisation or registration of installations and regarding the application of the measures to 
ensure  compliance.  A  summary  report  will  be  drawn  up  by  the  end  of  2010  in  conjunction 
with the implementation report on the IPPC Directive 2008/1/EC. 

Implementation of the E-PRTR Regulation  

On 9 November 2009, the Commission and the European Environment Agency launched the 
new  European  pollutant  release  and  transfer  register  (E-PRTR).  The  register  contains 
information  about  the  quantity  and  location  of  pollutants  released  to  air,  water  and  land  by 
industrial  facilities  throughout  Europe.  It  includes  annual  data  for  91  substances  and  covers 
more than 24 000 facilities in 65 economic activities. It also provides additional information, 
such as the amount and types of waste transferred from facilities to waste handlers both inside 
and outside each country.  

The  Commission  has  been  working  on  a  questionnaire  for  the  three-yearly  implementation 
reports to be sent by Member States to the Commission, together with the information to be 
reported to the E-PRTR pursuant article 7 of the Regulation by 31 March 2011.  

Implementation of the NEC Directive  

According  to  the  NEC  Directive,  Member  States  shall  prepare  emission  inventories  and 
emission  projections  for  certain  air  pollutants  and  shall  submit  this  information  to  the 
Commission  and  the  EEA  annually.  The  report  due  by  31  December  2009  had  to  include 
emission inventories for 2007 (final) and 2008 (provisional) and updated emission projections 
for 2010.  

The analysis of the latest reports shows that a number of Member States are still projected to 
be above the ceilings for 2010. In a few cases the transgression is small and it is likely that the 
ceiling can be met in the course of the next years.  

For  eight  Member  States  (Austria,  Belgium,  France,  Germany,  Ireland,  Luxemburg,  Malta, 
Spain)  the  transgression  is  substantial,  ranging  from  10  to  58%  and  these  Member  States 
would have to make significant additional efforts to comply with their ceilings.  

The Commission is considering the most appropriate way to address these shortcomings and 
to ensure proper implementation of the Directive by the deadline of end 2010. 

Transposition of the Seveso II Directive 

In  2009  the  Commission  pursued  infringement  procedures  against  a  number  of  EU-12 
Member  States  for  non-conform  transposition  of  Directive  96/82/EC  and  the  amending 
Directive  2003/105/EC  (the  Seveso  II  Directive).  During  the  course  of  the  year  3  of  those 
cases were closed (Estonia, Latvia and Romania). At the end  of  2009, cases remained  open 
against  Bulgaria,  Czech  Republic,  Lithuania  and  Poland.  The  Commission  also  pursued  an 
infringement procedure against Belgium for non-conform transposition of Directive 96/2/EC. 
It  also  closed  infringement  procedures  previously  initiated  against  4  EU-15  Member  States 
(Denmark,  Finland,  France  and  Sweden)  for  non-conform  transposition  of  amending 
Directive 2003/105/EC. 

External Emergency Plans under the Seveso II Directive 

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The  Commission  also  continued  legal  action  before  the  Court  against  6  Member  States 
(Austria,  Belgium,  Germany,  Luxembourg,  Portugal  and  Spain)  where  external  emergency 
plans  for  so-called  upper-tier  establishments  were  lacking  in  breach  of  the  Seveso  II 
Directive.  During  2009  the  Court  issued  rulings against  Austria,  Belgium,  Luxembourg  and 
Portugal  (see  below).  The  cases  against  Germany  and  Luxembourg  were  closed  since  the 
Member States concerned had taken steps to ensure that the necessary plans were in place.  

Petitions 

In  2009,  the  Commission  received  6  new  petitions  related  to  industrial  emissions.  These 
petitions raised issues concerning the  United Kingdom, Lithuania and Italy. In addition, the 
Commission has been dealing with those petitions which were received in earlier years, but 
follow-up  with  the  national  authorities  has  proved  necessary  to  enable  sending  updated 
information  to  the  Parliament.  Particular  attention  has  been  paid  on  cases  where  potential 
serious  or  persistent  breach  of  EU  law  could  have  been  identified  (e.g.  alleged  huge 
exceedance of emission limit values by ILVA steel plant in Taranto, Italy). 

Judgements of the Court of Justice of the European Union in 2009 

In a judgement of 7 May 2009 (Case C-443/08) the Court found that France had not adopted 
laws  and  regulations  to  transpose  several  provisions  of  Directive  1999/13/EC,  in  particular, 
the concepts of 'small installation' and 'substantial change'. 

In a judgement of 1 October 2009 (Case C-252/08) the Court concluded that Malta has failed 
to fulfil its obligations under the Large Combustion Plant Directive, 2001/80/EC, in relation 
to the operation of the Phase One steam plant of the Delimara and Marsa power stations. 

The  Court  also  declared  that  Belgium  (Case  C-342/08),  Luxembourg  (Case  C-289/08), 
Austria (Case C-401/08) and Portugal (Case C-30/09) were in breach of their obligations in 
relation  to  the  drawing  up  of  external  emergency  plans  pursuant  to  Article  11.1  (c)  of  the 
Seveso II Directive (cf. judgements of 12 March 2009, 2 April 2009 and 15 October 2009). 

6.6.2.  Evaluation based on the current situation 

IPPC Directive 

The IPPC Directive still falls 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  main  problems  relate  to  the 
important  delays  in  issuing  the  IPPC  permits,  shortcomings  in  the  implementation  (in 
particular  BAT),  a  need  for  increased  clarity  in  the  legislation,  restrictions  in  its  scope  and 
insufficient  enforcement  of  its  application.  While  the  currently  negotiated  IED  proposal 
addresses the majority of these shortcomings, significant progress has been achieved in terms 
of  permitting,  due  to  increased  support  to  Member  States,  and  due  to  the  infringement 
procedures  where  necessary.  The  Commission  is  also  continuing  its  in-depth  assessment  of 
the implementation by Member States through the investigation of the permits and operational 
conditions of some specific installations (new study launched in 2010).  

LCP Directive 

EN 

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   EN 

As a result of pre-258 (ex 226) letters concerning transposition, several Member States have 
made  commitments  in  terms  of  adopting  new  legislation  to  ensure  full  compliance  with  the 
Directive's provisions.  

As  set  out  under  point  1.1.1.2,  the  Commission  has  identified  issues  concerning  the 
application  of  the  Directive  in  a  number  of  Member  States,  in  particular  concerning 
compliance of the emissions with the ceilings defined under the NERP and with the ceilings 
under  the  Accession  Treaty.  In  case  of  confirmation  of  the  identified  breaches,  the 
Commission will launch infringement procedures in the course of 2010. 

In  addition,  the  correct  application  of  the  Directive  at  individual  installations  will  be 
considered in the framework of a study in the course of 2010. 

Waste Incineration Directive and VOC Solvents Directive 

The correct application of these Directives at individual installations will be considered in the 
framework of a study in the course of 2010. 

NEC directive 

As described above under point 1.1.1.2, some  Member States will probably fail to meet the 
national  emission  ceilings  for  2010  mainly  due  to  insufficient  measures  taken  in  order  to 
reach compliance.  

The  NEC  Directive  has  not  yet  been  subject  to  conformity  checking  (exercise  launched  in 
2009,  results  expected  in  2010).  Therefore,  no  assessment  of  the  transposing  national 
measures could be carried out, and potential deficiencies have not yet been addressed.  

Seveso II Directive 

The  basic  provisions  of  the  Seveso  II  Directive  have  remained  essentially  unchanged  since 
1996. Overall,  the  Directive appears to be fit for  purpose and is  being satisfactorily applied 
and  complied  with.  The  level  of  transposition  and  implementation  of  the  Directive  has 
continued to improve, and the number of outstanding legal proceedings has steadily reduced.  
As noted above, a review of the Directive is ongoing. This is expected to lead to Commission 
proposals  in  2010.  No  major  overhaul  of  the  Directive  appears  to  be  necessary.  The  main 
change that is foreseen is the adaptation of Annex to the Directive to the Globally Harmonised 
System of classification of dangerous substances. Certain other provisions are expected to be 
updated and clarified to improve implementation and enforceability. 

6.6.3.  Evaluation results 

6.6.3.1.  Priorities 

Industrial emissions 

Continued attention needs to be paid to improved respect for the existing provisions and to a 
strong follow-up on their full implementation.  

Priority is therefore attached to: 

•  Finalization  of  the  on-going  co-decision  procedure  with  the  adoption  of  a  new 

industrial emissions Directive 

EN 

210 

   EN 

•  Ensuring  full  transposition  of  the  relevant  Community  legislation  by  Member  States 
(assessment of conformity studies on the VOC is foreseen for 2010, while on the NEC 
Directive for 2011)  
• 
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 as 
part  of  the  next  Commission's  report  on  IPPC  implementation  (around  end  2010  or 
beginning 2011) (see further information below). 

•  Development of transposition checklist and interpretative guidance documents on the 
new  IED  to  provide  early  support  to  Member  States  in  transposition  and 
implementation. 

On  the  basis  of  these  priorities  and  the  work  programming  set  out  below,  it  is  hoped  to 
improve substantially compliance with the existing provisions at the latest by 2012, by which 
time the focus of attention will move to the implementation of the new legislative framework. 

Seveso II Directive 

Regarding  the  Seveso  II  Directive,  the  main  priority  at  present  is  the  development  of 
proposals  for  a  revised  Directive  in  the  light  of  the  results  of  the  review  process.  However 
importance also continues to be attached to ensuring the full transposition and implementation 
of the existing Directive. 

6.6.3.2.  Planned action (2010 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. 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  2009,  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. 

EN 

211 

   EN 

 
•  Enhanced monitoring and compliance checks  

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 II Directive 

The Commission will continue to monitor implementation of the Seveso II Directive and take 
action  as  appropriate.  The  ongoing  work  in  relation  to  the  review  of  the  Directive  will  also 
continue  in  2010  with  Commission  proposals  for  possible  amendments  to  the  Directive 
expected later in the year. 

6.6.4.  Sector summary 

Both  the  transposition  and  the  implementation  of  the  legislation  related  to  industrial 
installations  and  diffuse  sources  (in  particular  the  IPPC,  the  LCP  and  the  NEC  Directives) 
pose  difficulties  for  Member  States.  The  Commission,  while  supporting  Member  States  in 
different ways (interpretational guidance, studies, workshops), carries out enforcement actions 
to ensure full compliance.  

The capacity and awareness of competent authorities of the need to tackle air pollution should 
be increased throughout the EU. 

In  the  coming  years,  the  Commission  will  continue  to  monitor  closely  the  implementation, 
while  at  the  same  time  giving  priority  to  the  adoption  of  the  new  Directive  on  Industrial 
Emissions. 

6.7. 

Chemicals and Biocides  

6.7.1.  Current position 

6.7.1.1.  General introduction 

Chemicals 

EN 

212 

   EN 

  
The  REACH  Regulation  (1907/2006)215,  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. 

Regulation  (EC)  No  1272/2008216  on  the  Classification,  Labelling  and  Packaging  of 
Substances and Mixtures was adopted in 2008 and 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/EEC217)  and  preparations  (Directive 
1999/45/EC218).  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,  was  repealed  by  the  REACH  Regulation  on  1  June  2009,  the  work 
having been fully integrated into REACH (through Title VIII and Annex XVII)   

Two other pieces of legislation should be mentioned here. First, persistent organic pollutants 
(“POPs“) are governed by Regulation (EC) No 850/2004219. 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. 

215  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. 

216  OJ L 353, 31.12.2008, p. 1 

217  OJ L 196, 16.08.1967, p. 1. 

218  OJ L 200, 30.07.1999, p. 1. 

219 

OJ L 158, 30.4.2004, p. 7. 

EN 

213 

   EN 

                                                 
Second, basic provisions concerning the protection of laboratory animals used in experiments 
are contained in Directive 86/609/EEC220. 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. 

 Biocides  

Directive 98/8/EC of the European Parliament and of the Council concerning the placing of 
biocidal  products  on  the  market221  (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.  

By 10 February 2010, 33 active substances were included in Annex I and 1 active substance 
in Annex IA. 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. The 
first  product  authorisations  in  accordance  with  the  Biocides  Directive  were  also  granted  in 
2009. 

Regulation  (EC)  689/2008  of  the  European  Parliament  and  the  Council  of  17  June  2008 
concerning  the  export  and  import  of  dangerous  chemicals  implements  the  Rotterdam 
Convention on the Prior Informed Consent Procedure (PIC) for certain hazardous chemicals 
and  pesticides  in  international  trade.  It  establishes  special  rules  for  the  trade  in  certain 
chemicals  with  third  countries  with  a  view  to  protecting  human  health  and  the  environment 
from potential harm and contributing to the environmentally sound use of such chemicals. By 
10 February 2010 around 140 substances (pesticides and industrial chemicals) were listed on 
the Annex I to the Regulation, including 40 substances that are subject to the PIC procedure 
under the Convention. 

6.7.1.2.  Report of work done in 2009 

This  sector  of  EC  environmental  law  is  characterised  by  substantial  new  developments; 
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 
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. In 
2008, 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 

220 

OJ L 358 , 18.12.1986 p. 1. 

221 

OJ L 123, 24.4.1998, p. 1. 

EN 

214 

   EN 

 
 
                                                 
until it has completed registration. With the first registration deadline for phase-in substances 
set  for  1  December  2010,  most  of  the  work  undertaken  under  registration  in  2009  has 
addressed  industry´s  preparedness  for  the  submission  of  registration  dossiers  and  their 
compliance  with  data  sharing  provisions.  In  this  context  a  number  of  events  took  place  in 
2009  aimed  at  raising  awareness  of  industry´s  obligations  and  role  in  the  Substance 
Information Exchange Fora (SIEFs). In addition to this a lot of effort has been put into further 
clarifying  obligations  under  the  registration  and  evaluation  chapters,  mostly  turning  into 
updates of ECHA´s guidance documents. 

2009  saw  the  first  judgement  of  the  ECJ  on  REACH,  which  pertained  to  the  obligation  to 
register monomers and other substances used to manufacture polymers, in which the legality 
of the REACH provision was upheld by the Court.  

Within  the  process  of  authorisation,  ECHA  identified  in  2008  15  substances  of  very  high 
concern  (SVHC)  for  the  candidate  list  subject  to  eventual  authorisation.  This  list  was 
increased  in  2009  with  14  substances.  Out  of  the  first  batch  of  15  substances,  7  were 
prioritised  for  authorisation  in  2009,  though  the  Commission  is  still  working  on  the 
amendment of Annex XIV which will effectively subject them to the authorisation regime in 
REACH.  Once  the  Commission  takes  the  decision  to  make  a  substance  subject  to 
authorisation  (by  including  them  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.  A  number  of  Member 
States did not fulfil that obligations and therefore by March 2009 legal enforcement action was 
launched against 8 Member States. Of these Member States, 7 adopted national provisions for 
penalties applicable for REACH infringements and notified them to the Commission, with the 
result  that  the  infringement  processes  were  closed.  Only  one  country  has  still  to  adopt  these 
national rules. The Commission launched a study to assess the national laws setting penalties for 
the  infringement  of  the  REACH  provisions,  which  was  performed  and  finalised  in  2009.  The 
study  has  identified  a  number  of  differences  between  Member  States´  approach  to  adopting 
penalties  which  are  effective,  proportionate  and  dissuasive.  The  Commission  is  currently 
studying  the  possible  steps  ahead  further  to  the  findings  and  conclusions  of  this  study,  with  a 
view to achieving a higher level of harmonisation and a better functioning of the internal market 
in this respect.  

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. 

In  2009  an  additional  9  substances  were  included  within  the  framework  of  the  Stockholm 
Convention on POPS and an additional 7 in the UN ECE protocol on POPs,   

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 

EN 

215 

   EN 

deadline of 20 May 2008 several Member States had not fulfilled these obligations. Despite 
repeated requests four Member States did not provide their three yearly report in 2009. 

The  co-decision  process  for  the  revision  of  Directive  86/609/EEC  on  the  protection  of 
laboratory  animals  saw  great  advancement  in  2009,  where  the  Swedish  Presidency  took  an 
active role to reach an agreement with the European Parliament for a final text.  

In 2009, the Commission undertook and finalised a study on mixture toxicity which aimed at 
providing  a  ‘state  of  the  art’  overview  of  the  science  and  methodologies  for  assessing  the 
hazardous  effects  arising  from  exposures  to  several  chemicals  simultaneously.  This  work 
coincided  with  an  initiative  taken  in  the  Council  requesting  the  commission  to  assess  how 
such effects arising from multiple exposures are covered in current legislation. 

In 2009, the Commission received two petitions related to animal experiments in Malta and 
the United Kingdom and compliance with the Directive 86/609/EEC the protection of animals 
used for experimental and other scientific purposes. 

 Biocides  

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 all of the open infringement cases. 

The  Commission  also  opened  11  horizontal  non-communication  cases  concerning 
Commission  Directive  2007/20/EC222  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 2008, and the last two 
were closed in 2009.  

A similar situation followed the implementation of Commission Directive 2006/50/EC223 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.  All  but  one  cases  were 
closed during 2008, and the last was closed in 2009. 

In  2008  three  non-communication  cases  were  registered  concerning  Commission  Directive 
2007/69/EC224  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/EC225  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 the cases were closed during 2009. 

222 

OJ L 94, 4.4.2007, p. 23. 

223 

OJ L 142, 30.5.2006, p. 6. 

224 

OJ L 312, 30.11.2007, p. 23. 

225 

OJ L 312, 30.11.2007, p. 26. 

EN 

216 

   EN 

 
                                                 
The  Commission  adopted  Decision  2009/244/EC  concerning  the  placing  on  the  market  of  a 
carnation (Dianthus caryophyllus L., line 123.8.12) genetically modified for flower colour, for 
the purpose of import, retailing and ornamental uses (not for cultivation or food/feed uses). 

On  biocides,  as  set  out  in  the  implementation  report  following  Article  18  of  the  Directive 
published  in  2008,  the  current  progress  rate  of  the  review  programme  will  not  permit  its 
completion by 14 May 2010 as planned. This is mainly due to the fact that, before any review 
could start (the second phase), it was necessary to establish an inventory of active substances 
used  in  biocidal  products  placed  on  the  European  market  of  biocidal  products.  Considering 
these  findings,  an  extension  to  the  review  was  proposed  by  the  Commission.  On  16 
September 2009 the Commission adopted Directive 2009/107/EC extending the deadline for 
completion of the review programme until 14 May 2014226.  

The Commission presented its proposal for a revision of the Biocides Directive in 2009. The 
proposal  will  take  the  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 proposal is currently discussed in the Council and in 
the European Parliament. 

6.7.2.  Evaluation based on the current situation 

 Chemicals 

The  REACH  Regulation  entered  into  force  on  1  June  2007.  Its  main  obligations  started 
applying  on  1  June  2008.However,  as  1  December  2010  is  the  first  deadline  for  the 
registration of a large number of substances (CMRs and substances above 1000 tonnes), 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.  

With  regard  to  POPs  Regulation,  the  reason  for  the  delay  in  submitting  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.  

Biocides 

226   Directive 2009/107/EC of 16 September 2009 amending Directive 98/8/EC, OJ L262, 6.10.2009, p40 

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In the biocides  area the Commission undertook  to  monitor  the  progress  made  in  the  second 
phase of the Review Programme for biocides regulated by Commission Regulation (EC) No 
1451/2007.227 Serious delays and significant variations were found in the performance at all 
stages of the procedure between the Member States.  

The reasons for the delays are, for example, the technical complexity of the work, insufficient 
human resources and lack of experience with dossier preparation (by participants) and dossier 
evaluation  (by  Member  States).  However  also  considerable  time  was  needed  to  develop 
appropriate  testing  methodologies  and  exposure  scenarios  or  for  defining  harmonised 
approaches for the evaluations. 

The  revised  PIC  Regulation  was  adopted  in  2008  and  requires  the  Commission  to  regularly 
compile a report on the operation of the procedures, which shall include reports from Member 
States. The Commission foresees to compile this report in the course of 2012. 

6.7.3.  Evaluation results 

6.7.3.1.  Priorities 

 Chemicals 

Effective  implementation  of  REACH  and  CLP  Regulations  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.  

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. 

The priorities for POPs will be firstly to transpose the agreements reached in 2009 under the 
Stockholm  Convention  and  the  UNECE  Protocol  into  the  POPs  regulation  and  secondly  to 
develop proposals for new additions to the Convention.  

. Biocides 

The  first  applications  for  authorisations  in  accordance  with  the  Biocides  Directive  were 
received in 2009. In view of this, further action is needed to facilitate the implementation of 
the legal and practical requirements related to these procedures. Estimations showed that the 
number  of  applications  for  product  authorisation  and  mutual  recognition  will  exponentially 
increase in 2010 and beyond.  

In  addition  the  speeding  up  of  the  evaluation  of  biocidal  active  substances  in  the  Review 
programme will be a main priority. 

As  concerns  the  PIC  Regulation,  it  is  planned  to  draft  a  proposal  for  an  amendment  that 
addresses changes resulting from Regulation (EC) 1272/2008 on classification, labelling and 

227 Commission Regulation (EC) No 1451/2007 of 4 December 2007 on the second phase of the 10-year work programme referred to in 
Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, 
OJ L 325, 11.12. 2007, p3 

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packaging  of  chemicals  and  to  finalise  the  guidance  documents  for  implementation  of  the 
Regulation. 

6.7.3.2.   Planned action (2010 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  and  CLP  Regulations 
can operate effectively. The Commission will work closely with the Forum for Exchange of 
Information on Enforcement in this regard. 

Most guidance documents necessary for industry preparedness for registration under REACH 
and notification to the Classification and Labelling inventory under the CLP Regulation have 
been adopted, with some necessary updates being on their way. The staggered deadlines for 
registration are 2010, 2013 and 2018 and the deadline for CLP notification is 1 January 2011. 
Equally  a  lot  of  work  will  be  developed  in  2010  to  ensure  the  proper  functioning  of  the 
evaluation  and  authorisation  titles  in  REACH  for  which  ECHA  and  Member  States  are 
responsible.  

REACH calls for the Commission to carry out a review of the scope of the Regulation by June 
2012 to avoid overlaps with other relevant Community provisions, and on the basis of which 
it  could  present  if  appropriate a  legislative  proposal.  The  work  to  be  undertaken  has  started 
and for this purpose the Commission has launched a study which will be developed in 2010 
and 2011 with the view to assess overlaps and gaps between REACH and other community 
legislation when regulating chemicals, but also identify ways of increasing synergies between 
all relevant pieces of legislation.   

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 
(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. 

Biocides 

In the biocides area, the Commission will continue to carefully monitor that the obligations of 
the Member States under the biocides review programme, including the delivery of competent 
authority reports, are adequately met, and will take action where this is not the case. During 
the meetings of the competent authorities for biocides, which are held four times a year, the 
Commission  will  asks  for  an  update  on  significantly  delayed  dossiers.  Member  States  are 
invited to explain the reasons in order to solve outstanding issues or collect expert views. 

In view of the acceleration in the product authorisation stage, the Commission in consultation 
with the Member States will focus on the smooth implementation of the process and ensure 
the operation of the Register for Biocidal Products to be in line with the requirements. 

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The  fifth  Conference  of  the  Parties  of  the  Rotterdam  Convention  will  be  held  in  June  2011 
and requires a thorough preparation by the Commission, which will start in 2010 and become 
a priority in 2011. The administrative work as well as the software of the European Database 
on Export and Import of dangerous chemicals, which is the central tool for implementation of 
the PIC Regulation, will undergo major changes that need to be implemented smoothly. 

6.7.4.  Sector summary 

Chemicals and Biocides sector of EC environmental law is characterised by substantial new 
developments. In the chemicals sector, though REACH main obligations started applying on 
June  2008,  the  first  big  lot  of  registrations  will  come  in  by  December  2010.  Similarly,  the 
Industry  Classification  and  Labelling  inventory  will  be  established  in  2011.  Consequently, 
sufficient  information  on  the  implementation  is  not  yet  available.  Although  almost  full 
compliance  has  been  achieved  concerning  introduction  of  penalties,  the  Commission  is 
looking at the way forward for a more harmonised approach in relation to these penalties.  

As  regards  biocides,  firstly,  the  revision  of  the  current  legislative  framework  is  expected  to 
bring  important  improvements  to  implementation.  Secondly,  the  review  programme  for 
biocides requires close monitoring in order to avoid excessive delays. Thirdly, the start of the 
product  authorisation  stage  is  a  key  challenge  which  will  require  attention  in  forthcoming 
years. 

6.8. 

Governance and Environmental Liability 

6.8.1.  Current position 

6.8.1.1.  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 Convention. Directive 2003/4/EC228 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.  The 

228 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 
on public access to environmental information and repealing Council Directive 90/313/EEC, 
OJ L 41, 14.2.2003, p. 26–32 

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Directive  makes  provision  for  both  administrative  and  judicial  review.  Directive  2003/4/EC 
had to be transposed by 14 February 2005. 

Public  access  to  environmental  information  is  complemented  by  the  second  pillar  of  the 
Convention.  This  was  implemented  by  Directive  2003/35/EC229  in  respect  of  certain  plans 
and programmes relating to the environment, as provided for in Article 2. This Directive had 
to be transposed by 25 June 2005. 

The  third  pillar  of  the  Aarhus  Convention  is  access  to  justice,  which  guarantees  the 
effectiveness  of  the  previous  two  pillars  was  partially  implemented  by  the  previously 
mentioned two Directives and Directive 2004/35/EC and by Regulation 1367/2006230. 

Other activities pursued by the Commission to enhance access to justice can be summarised 
as compliance promotion, which ensures a dialogue with Member States on possible problems 
of  implementing  EU  law  at  national  level.  Amongst  others,  access  to  justice  constitutes  an 
integrated element of the Cooperation with Judges programme that was started in 2008. 

 Environmental Liability 

Directive  2004/35/EC  of  the  European  Parliament  and  of  the  Council  on  environmental 
the  prevention  and  remedying  of  environmental  damage 
liability  with  regard 
(Environmental  Liability  Directive)231  establishes  a  framework  for  environmental  liability 
based  on  the  "polluter  pays"  principle,  with  a  view  to  preventing  and  remedying 
environmental damage. 

to 

6.8.1.2.  Report of work done in 2009 

Governance 

Despite  some  delays,  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.  Further  to  the 
finalisation of these studies in 2008 and their examination, in 2009, letters were sent to most 
Member States inviting them to comment on the findings of the studies. 

Only few petitions submitted to the European Parliament raised problems of the application of 
Directive  2003/4/EC  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. 

229 Directive 2003/35/EC of 26 May 2003, OJ L 156, 25.06.2003, p. 17. Public participation 
and  access  to  justice  concerning  Directives  85/337/EEC  and  96/61/EC  are  dealt  with  the 
relevant sections of this Report. 

230  See Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 
September 2006 on the application of the provisions of the Aarhus Convention on Access to 
Information, Public Participation in Decision-making and Access to Justice in Environmental 
Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13). 

231 

OJ L 143, 30.4.2004, p. 56. 

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Despite  some  delays,  all  the  Member  States  have  transposed  Article  2  of  the  Directive 
2003/35/EC.  By  25  June  2009  the  Commission  had  to  send  a  report  on  the  application  and 
effectiveness of the Directive to other institutions. National reports were not provided for by 
the Directive, however the Commission considered it important to have information from the 
Member  States.  The  requested  contributions  were  forwarded,  in  certain  cases,  with  an 
important delay, preventing from the elaboration of the report by the deadline. On the basis of 
the received information, it appears that the effective application of Article 2 in the Member 
States  was  limited,  notably  due  to  the  fact  that  in  most  cases  the  SEA  procedure  (see  the 
section on the SEA) was followed. There is no evidence that it was applied incorrectly. 

The  Czech  Presidency  of  the  EU  Council  of  Ministers  organised  a  Conference  on  the 
Application  of  the  Aarhus  Convention  in  Practice  in  Brno,  16-17  April,  2009,  where  the 
Commission was represented and access to justice was discussed by the participants.  

The  Cooperation  with  Judges  programme  continued  during  the  year  2009,  starting  with  a 
seminar in Sofia on EIA and Nature, followed by a Lithuanian seminar discussing EU waste 
legislation  in  December  and  in  February  2010  Paris  seminar  on  Nature  which  all  had  the 
integrated element of access to justice.    

Concerning access to justice, the Commission places a particular emphasis on implementing 
and monitoring the Member States application of already adopted EU law, namely the Access 
to Information and Public Participation Directives' provisions on access to justice.  

The role of the ECJ in interpreting access to justice  provisions  is  becoming  more  and  more 
important  in  furthering  the  objective  of  wide  access  to  justice.  The  Court  delivered  a 
judgement  in  2009  stating  that  Ireland  has  failed  to  transpose  certain  elements  of  Directive 
2003/35, (C-427/2007). By requiring the notion of prohibitive costs in judicial environmental 
cases to be explicitly transposed, the Court provided a better guarantee of effective access to 
justice for the public and NGOs. In a preliminary ruling concerning the Swedish national rules 
(C-263/08)  the  Court  ruled  on  NGOs  standing,  stipulating  that  the  national  rule  setting  a 
requirement that only an association with at least 2 000 members may bring an appeal against 
a decision adopted on an environmental matter is against the provisions and the objective of 
wide access to justice set out in Directive 85/337/EEC. 

Environmental Liability 

The Environmental Liability  Directive (ELD) 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 the Commission had to open an infringement procedure 
in 2007 through a Letter of Formal Notice addressed to 23 Member States. This infringement 
procedure  for  non-communication  of  the  transposing  measures  was  continued  in  2008  and 
2009 by Reasoned Opinions to 16 Member States And eventually a Court application against 
9  Member  States  which  still  failed  to  transpose  the  Directive.  After  having  issued  two 
judgements  for  failure  to  transpose  the  ELD  in  2008  (Finland  and  France),  the  European 
Court  of  Justice  rendered  further  five  judgements  in  2009  (Austria,  Greece,  Luxemburg, 
Slovenia and the United Kingdom) for failure to transpose the Directive. By the end of 2009 
one Member State still had not fully completed the transposition into domestic law.  

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After the exploratory study of 2008, the Commission launched and obtained a comprehensive 
study  in  2009232  in  view  of  the  reporting  obligation  in  Article  14  of  the  Directive  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 for the activities covered by the scope of strict liability of the ELD. Within the second 
study, questionnaires were addressed to Member States' experts, the insurance sector, and the 
industrial sector, interviews were carried out and a workshop was held with all stakeholders in 
July 2009. The study was finalised in November 2009233. 

6.8.2.  Evaluation based on the current situation 

Governance 

According  to  Directive  2003/4/EC,  no  later  than  14  August  2009  Member  States  had  to 
communicate  to  the  Commission  their  national  reports  on  the  experience  gained  in  its 
application to enable it to submit a report to other EU institutions. A Guidance Document for 
these reports was drawn up by the Commission, in co-operation with Member State experts, 
in 2007.  

During 2009, the Commission reminded Member States of the need to submit these reports. 
By  the  end  of  2009,  the  majority  of  the  Member  States had responded  to  the Commission's 
reminder,  but  it  proved  nonetheless  necessary  to  prepare  action  under  Article  258  of  the 
Treaty for those Member States who had failed to submit a report.  

Although the national reports had yet to be analysed at the end of the year, it appeared that, in 
general,  public  authorities  at  national  and  regional  level  have  applied  Directive  2003/4/EC 
correctly. However, given the Directive's wide scope, it was 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, 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.  This  right  includes  the  right  to  make  an  administrative  or  judicial  challenge  at 
national level to a refusal by a public authority to provide requested information. In general, 
the Commission considers that that these rights should be exhausted before the Commission 
itself examines the justification for an individual instance of refusal of access to information. 
Moreover,  it  appears  that  public  authorities  need  to  pay  further  attention  to  the  active 
dissemination of environmental information to the public, in particular, through the Internet.   

On the basis of information available and national contributions, there was no evidence that 
public  participation  concerning  plans  and  programmes,  provided  for  in  Article  2,  was 
incorrectly applied by Member States. 

232   Accessible 
http://ec.europa.eu/environment/enveco/liability/index.htm#financial_security 

at: 

233   Study  on  the  implementation  effectiveness  of  the  Environmental  Liability  Directive 
(ELD) and related financial security issues, November 2009.  

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The implementation of public participation provisions related to EIA and IPPC is still under 
assessment by the Commission, further action shall be taken in light of the findings.  

The  Cooperation  with  Judges  programme  is  considered  to  be  a  useful  tool  in  raising 
awareness of access to justice requirements at EU level amongst judges.  

Regarding the case-law of the ECJ, there is a growing number of cases on the most important 
issues  related  to  access  to  justice  (such  as  the  admissibility  rules  of  the  public  in  review 
procedures, and the issue of prohibitive costs that can be regarded as barring effective access 
to justice) which has an indisputable positive effect on access to justice. 

Environmental Liability 

The Directive is relatively new and at present still not completely transposed by all Member 
States. 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 the 
successful implementation of the ELD in the Member States in particular as regards effective 
remediation of environmental damage. Furthermore, the Commission has given support to the 
Member States through interpretation of open questions in expert meetings and in particular 
through an EU supported research project developing a tool-kit on the remediation methods. 
The results of the research programme REMEDE were made available in 2008234.  

According  to  the  results  of  the  comprehensive  study  of  2009  referred  above,  further  work 
needs to be done to raise the awareness of the ELD and its implications among operators and 
other  stakeholders  (local  administrators,  financial  and  insurance  industry)  which  could  be 
done  through  information,  workshops  and  other  means  of  awareness  raising.  The  study 
showed also a need for improving communication and exchange of information between the 
different  stakeholders  in  order  to  create  and  stabilise  a  sustainable  and  well  performing 
implementation  infrastructure.  Further,  the  promotion  of  a  common  understanding  and  of  a 
more harmonised approach of the most important practical issues (significance, measurement 
and  remediation  methods  of  environmental  damage)  for  instance  through  guidance  and 
through  continued  information  exchange  would  appear  useful.  In  order  to  broaden  financial 
security,  an  increased  focus  on  alternative  financial  security  instruments  should  also  be 
promoted. Finally, following the example of some Member States, all Member States should 
be encouraged to draw up information on ELD cases and to exchange information about such 
cases of environmental damage in order to better cooperate in the implementation of the ELD 
across  the  EU  and  to  evaluate  its  effectiveness  in  terms  of  actual  remediation  of 
environmental damage. 

234 
EU (REMEDE): <http://www.envliability.eu/>. 

Available on the Internet at the official Website of Resource Equivalency Methods for Assessing Environmental Damage in the 

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6.8.3.  Evaluation results 

6.8.3.1.  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.  In  2010,  the  Commission  will  analyse  Member 
State responses to the enquiries it sent in 2009 and will ensure the necessary further follow-
up.  The Commission will present in the first part of 2010 the report on the application and 
effectiveness of Directive 2003/35/EC. 

By  monitoring  Member  States'  implementation  of  existing  provisions,  drawing  attention  to 
possible  non-compliance  and  engaging  in  interactive  discussions  with  national  judges  as  a 
part  of  the  Cooperation  Programme  with  Judges,  the  compliance  promotion  pursued  by  the 
Commission in access to justice issues is considered very effective.  

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 continued in 2009 
and  shall  be  concluded  in  2010  until  the  last  Member  State  would  transpose  the  Directive 
completely.  The  next  priority  for  the  Commission  is  to  ensure  that  the  Environmental 
Liability  Directive  is  correctly  transposed  in  all  Member  States.  Therefore  the  Commission 
started to assess the conformity of the domestic legislation with the ELD and has to conclude 
this  exercise  in  cooperation  with  Member  States  in  2010  and  where  necessary  launch  legal 
enforcement  actions.  Another  priority  for  2010  results  from  the  mentioned  reporting 
obligation before April 2010. 

6.8.3.2.  Planned action (2010 and beyond) 

Governance 

As  mentioned  above,  in  2010  the  Commission  will  ensure  an  appropriate  follow-up  to  the 
dialogue  it  initiated  with  Member  States  in  2009  in  order  to  address  transposition  of  the 
Directive or concrete difficulties encountered by public authorities in enforcement. 

Based on the national contributions, the report on the experience gained in the application and 
effectiveness of the Directive, as provided for by its Article 9 will be drawn up. 

Compliance promotion in access to justice issues is envisaged to continue beyond 2010.The 
on-going Cooperation with Judges Programme shall ensure a constant dialogue with national 
judges on access to justice. 

It  is  envisaged  to  include  environmental  access  to  justice  provisions  in  the  e-Justice  portal 
described above. 

Environmental Liability 

The  Commission's  efforts  need  to  continue  to  ensure  that  the  ELD  is  fully  and  correctly 
transposed. Apart from continuing and completing the horizontal non communication action, 

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the  Commission  will  therefore  in  2010  conclude  the  examination  of  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  adopt  and  publish  the  report  on  the  effectiveness  of  the  ELD  and 
availability of financial security and will present it to the Council and Parliament in the first 
semester  2010.  The  Commission  will  also  draw  the  conclusions  from  the  report  and  input 
from its discussion in the Council and Parliament and start implementing them in 2010 as far 
as possible. 

6.8.4.  Sector summary 

Overall, Member States appear to 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. 

Fully  correct  transposition  of  the  Directive  in  the  Member  States  is  a  priority  for  the 
Commission  and  in  2010  the  Commission  will  pursue  the  exchanges  opened  with  Member 
States in 2009.  

Based on the reports submitted by Member States, the Commission will also prepare a report 
on implementation for both Directives 2003/4/EC and 2003/35/EC. 

The ELD is relatively new and was still not fully transposed by one Member State at the end 
of  2009;  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 which will be available 
in the first half of 2010. 

6.9. 

Climate change  

6.9.1.  Current position 

6.9.1.1.  General introduction 

Climate change stands at the top of the international political agenda. This is confirmed both 
by the  attention given to the 15th Conference of the Parties to the United Nations Framework 
Convention  on  Climate  Change  (UNFCCC)  in  December  2009  in  Copenhagen,  and  by  the 
swift adoption of the climate and energy package in early 2009. This package, which entered 
into  force  in  June  2009,  implements  the  EU's  greenhouse  gas  emission  reduction 
commitments for 2020, prepares the EU's greenhouse gas emissions trading system (EU ETS) 
for the future and provides the framework to meet reduction targets in sectors other than those 
covered  by  the  EU  ETS.  The  high  political  priority  the  EU  gives  to  climate  change  is  also 
confirmed by the decision to appoint a Commissioner and create a new Directorate General 
for Climate Action.  

ETS 

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The  EU  ETS  was  established  with  the  adoption  of  the  Emissions  Trading  (Directive 
2003/87/EC235).  It  is  a  market-based  instrument  aimed  at  gradually  reducing  emissions  in 
selected sectors. It should help the Union and the Member States meet their Kyoto Protocol 
commitments  to  reduce  greenhouse  gas  emissions  in  a  cost-efficient  manner.  The  EU  ETS 
started operating in January 2005. A revision of the ETS Directive (Directive 2009/29/EC236) 
was  prepared  and  negociated  in  2008  and  entered  into  force  in  June  2009.  This  revision 
broadly amends the EU ETS design  as from 1 January 2013 (i.e. the beginning of the third 
trading  period  2013-2020).  In  addition,  Directive  2008/101/EC237,  which  provides  for  the 
inclusion of the aviation sector in the EU ETS, entered into force in February 2009 and will 
take effect as from 1 January 2012. 

Monitoring mechanism 

Together  with 
the  Emissions  Trading  Directive,  Decisions  280/2004/EC238  and 
2005/166/EC239 are among the most important cross-cutting measures in this area of climate 
change. With the adoption of these decisions, the EU established a mechanism for monitoring 
and  reporting  greenhouse  gas  emissions.  This  mechanism  has  enabled  the  Commission  to 
more  accurately,  rigorously  and  regularly  evaluate  the  progress  made  in  reducing  emissions 
under  the  UNFCCC  and  the  Kyoto  Protocol.  As  a  result,  Member  States  have  increased 
timeliness and quality in the submission of their data. 

EU Effort Sharing Decision  

235  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). 

236   Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 
amending  Directive  2003/87/EC  so  as  to  improve  and  extend  the  greenhouse  gas  emission 
allowance trading scheme of the Community (OJ L 140, 05.06.2009, p.63-87) 

237   Directive  2008/101/EC  of  the  European  Parliament  and  of  the  Council  of  19 
November  2008  amending  Directive  2003/87/EC  so  as  to  include  aviation  activities  in  the 
scheme  for  greenhouse  gas  emission  allowance  trading  with  the  Community  (OJ  L  8, 
13.01.2009, p.3-21) 

238   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). 

239   Commission  Decision  2005/166/EC  of  10  February  2005  laying  down  rules 
implementing  Decision  No  280/2004/EC  of 
the 
Councilconcerning  a  mechanism  for  monitoring  Community  greenhouse  gas  emissions  and 
for implementing the Kyoto Protocol (OJ L 55, 1.3.2005, p. 57–91). 

the  European  Parliament  and  of 

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Decision 406/2009/EC240 (Effort Sharing Decision, ESD) lays down binding annual targets 
for greenhouse gas emissions outside the scope of the ETS, for the period 2013-2020, for each 
Member  State.  It  entered  into  force  on  25  June  2009.  About  60%  of  the  total  EU-27 
greenhouse gas emissions are covered by the ESD. The most important emitting sectors are 
transport  (about  30%  of  total  ESD  emissions),  private  households  and  services  (25%),  and 
agriculture (15%). By way of contrast with the EU ETS, which is a Union-wide market-based 
instrument  already  in  place  with  well  established  rules  and  procedures  for  installations  and 
Member  States,  the  Effort  Sharing  Decision  is  a  new  legal  instrument  with  far-reaching 
consequences for Member States' obligations to reduce greenhouse gas emissions. Though the 
ESD  will  rely  on  both  Union-wide  and  national  measures,  the  lion's  share  of  mitigation 
actions will have to be prepared and implemented at Member State level. 

By 2013, the following key actions will be necessary to implement the ESD and prepare for 
the 2013-2020 compliance period: 

a)  Determining  the  exact  targets  for  Member  States  for  the  period  between  2013  and 

2020 (comitology decision); 

b)  Amending the Monitoring Mechanism Decision ( ordinary legislative procedure); 
c)  Establish  modalities  for  transfers  of  emission  allocations  between  Member  States 

(comitology decision); 

d)  Prepare for the inclusion of land use, land-use change and forestry (LULUCF) in the 
Uniion  reduction  commitment  (co-decision,  this  point  is  explained  in  more  detail 
below). 

In addition, the ESD invites the Commission to make an amending proposal as appropriate in 
the  case    an  international  agreement  leading  to  mandatory  reductions  of  GHG  emissions 
exceeding 20 percent compared to 1990 levels materialises. The ESD also sets out the criteria 
to be assessed in a report that is to be presented within 3 months of the signature of such an 
agreement by the Union.  

On the basis of this report, the Commission will, if appropriate, submit a legislative proposal 
amending Decision 406/2009/EC and Directive 2009/29/EC in view of the emission reduction 
commitment  to  be  implemented  under  the  international  agreement  on  climate  change.  The 
Commission will act with a view to entry into force of the amending act upon the approval of  
that agreement by the Union. The proposal would be based on the principles of transparency, 
economic  efficiency  and  cost-effectiveness,  as  well  as  fairness  and  solidarity  in  the 
distribution of efforts between Member States.  

LULUCF (Land use, land-use change and forestry) 

Articles  8(1)  and  8(6)  of  the  ESD  and  Article  28(1)  of  the  ETS  Directive  require  the 
Commission to consider, in its assessment of an international agreement, a number of issues 
consequent  to  including  LULUCF-related  emissions  and  removals    in  the  Union  reduction 
commitment.  

If  an  international  agreement  is  reached,  the  Commission  intends  to  propose  to  include 
emissions  and  removals  related  to  LULUCF  in  the  Community  reduction  commitment,  as 

240  Decision  No.  406/2009/EC  of  the  European  Parliament  and  of  the  Council  of  23  April 
2009  on  the  effort  of  Member  States  to  reduce  their  greenhouse  gas  emissions  to  meet  the 
Community's greenhouse gas emission reduction commitment up to 2020. 

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appropriate  on  the  basis  of  rules  forming  part  of  the  agreement,  according  to  harmonised 
modalities  ensuring  the  permanence  and  environmental  integrity  of  the  contribution  of  the 
sector  as  well  as  accurate  monitoring  and  accounting.  The  Commission  would  also  assess 
whether  the  distribution  of  individual  Member  States'  efforts  should  be  adjusted.  The  legal 
proposal is to enter into force at the same time as the international agreement.  

In the event that no international agreement on climate change is approved by the Union by 
end 2010, Article 9 of the ESD provides that Member States may specify their intentions for 
the  inclusion  of  LULUCF  in  the  Union  reduction  commitment  taking  into  account 
methodologies  within  the  work  carried  out  in  the  context  of  the  UNFCCC.  In  view  of  such 
specification by Member States, the Commission will, by 30 June 2011, assess options for the 
inclusion  of  emissions  and  removals  from  activities  related  to  LULUCF  in  the  Community 
reduction  commitment,  ensuring  the  permanence  and  environmental  integrity  of  the 
contribution  of  the  sector  as  well  as  accurate  monitoring  and  accounting,  and  make  a 
proposal, if and as appropriate, with the aim of the proposed act entering into force from 2013 
onwards.  The  Commission  would  also  consider  whether  the  distribution  of  individual 
Member States' efforts should be adjusted accordingly. 

 CCS Directive 

Directive 2009/31/EC on the geological storage of carbon dioxide (CCS Directive) is one of 
the world's first comprehensive legal frameworks for the regulation of the environmental risks 
of  carbon  capture,  transport  and  storage.  It  entered  into  force  on  25  June  2009.  Although  it 
covers the full chain of activities arising in CCS, carbon capture and transport are comparable 
to other activities already regulated at EU level. The CCS Directive therefore regulates these 
activities  by  introducing  them  into  the  scope  of  the  existing  legislation.  Carbon  capture  is 
regulated under Directive 2008/1/EC  (IPPC  Directive) and under Directive 85/337/EC  (EIA 
Directive', and pipeline transport is regulated under the EIA Directive. 

As there is no suitable existing legal framework for the management of carbon storage sites, 
the  CCS  Directive  applies  here  as  a  free-standing  instrument.    The  Directive  establishes  an 
authorisation regime for geological storage sites and covers site exploration, characterisation, 
selection,  monitoring,  closure  and  post-closure  management,  as  well  as  composition  of  the 
CO2  stream.  One  notable  provision  included  is  that  draft  permit  decisions  for  storage  sites 
(and  also  decisions  on  transfers  of  responsibility,  see  below)  are  to  be  submitted  to  the 
Commission,  which  is  to  issue  -  within  4  months  -  an  opinion  on  whether  the  draft  permit 
decisions meet the requirements of the Directive. The Commission will establish a Scientific 
Panel to assist it in its assessment. 

Liability  arrangements  for  storage  sites  are  of  concern  both  to  operators  and  public 
administrations,  and  are  organised  by  a  number  of  provisions  within  the  Directive.  The 
operator is responsible for taking corrective measures in the case of significant irregularities 
(events  implying  the  risk  of  leakage  or  damage  to  human  health  or  the  environment).  As  a 
consequence of the inclusion of geological storage of CO2 within Annex I of the EU ETS, the 
operator  must  also  surrender  EU  allowances  to  cover  any  leaked  emissions.  Operators  must 
also  put  in  place  financial  security  before  the  start  of  operation,  so  as  to  ensure  that  all 
obligations  under  the  permit  can  be  met.  Damage  to  the  local  environment  is  covered  by 
including  geological  storage  within  Directive  2004/35/EC  (Environmental  Liability 
Directive),  which  has  its  own  provisions  on  financial  security.  There  are  also  provisions  on 
transfer  of  responsibility  of  the  site  to  the  state,  upon  the  operator's  payment  of  a  financial 
contribution covering at least the anticipated cost of monitoring for a period of 30 years, when 

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a  number  of  conditions  that  indicate  that  the  site  presents  a  low  risk  of  leakage  or  other 
adverse impacts are met,. 

There are further provisions ensuring that all new power plants above a particular threshold 
are subject to an assessment of the feasibility of CCS retrofit, as well as on market access to 
CO2 transport networks and storage sites to avoid distortions of competition. 

There are no implementing provisions required under the CCS Directive, but the Commission 
is  invited  to  provide  guidance  on  a  number  of  issues  (composition  of  the  CO2  stream, 
conditions for transfer of responsibility to Member States, and financial contributions required 
of  the  operator  at  the  point  of  transfer  of  responsibility).    The  Commission  also  intends  to 
produce guidance on a number of other issues. 

6.9.1.2.  Report of work done in 2009 

In 2009 the EU ETS-related work was focused on two main sets of activities: (a) ensuring that 
the current ETS works properly and that its rules are correctly applied by Member States and 
(b)  preparing  the  implementing  measures  for  the  revised  ETS  Directive  to  be  implemented 
from 2013. 

In  relation  to  the  implementation  of  the  monitoring  and  reporting  mechanism,  the 
Commission focussed on ensuring the complete and timely submission of data by the Member 
States.  Under  Article  3  (1)  and  (2)  of  Decision  280/2004/EC,  read  in  conjunction  with 
Decision 2005/166/EC, Member States must submit to the Commission an annual report on 
national greenhouse gas (GHG) emissions (due by the 15 January 2009) and a biennial report 
on national policies and programmes aimed at reducing these emissions (due by the 15 March 
2009). These reports are required by the Commission so it can draft its annual reports on the 
EU's  actual  and  future  predicted  GHG  emissions  in  compliance  with  the  UN  Framework 
Convention on Climate Change and the Kyoto Protocol. 

There are no implementing provisions required under the CCS Directive, but the Commission 
is  invited  to  provide  guidance  on  a  number  of  issues  (composition  of  the  CO2  stream, 
conditions  for  transfer  of  responsibility  to  the  Member  State,  and  the  financial  contribution 
required  of  the  operator  at  the  point  of  transfer  of  responsibility).    In  addition,  the 
Commission will also provide support to Member States in the transposition process. 

(a) Ensuring that the current ETS works properly 

Conformity assessments  

On  the  basis  of  conformity  assessment  initiatives  related  to  the  ETS  Directive,  the 
Commission services indentified various issues requiring clarification  in respect of national 
legislation  transposing  the  Directive.  Consequently,  the  services  sent  informal  letters  of 
inquiry to 24 Member Sates in the course of 2009, asking for clarifications of their national 
legislation. As of January 2010, 21 Member States had replied: while many issues have been 
solved, some replies agree that legislative amendment would be useful, whereas other replies 
indicate a difference of opinion between the Member State and the Commission. On the basis 
of the explanations given by the Member States, the Commission will decide on further action 
in 2010. 

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Implementation and legal enforcement  

Cases related to the ETS Directive - National Allocation Plans: 

The  individual  national  allocation  plans  (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  between  2008  and  2012  are  thus  an 
important  element  in  the  Member  States'  strategies  for  achieving  their  relevant  emission 
reduction targets under the Kyoto Protocol. 

In 2007 several MS opposed the Commission decision on their respective NAP. In essence, 
they claimed that the upper limit set by the Commission on the total quantity of allowances 
they  may  allocate  was  too  low,  and  that  the  Commission  had  exceeded  the  limits  of  its 
discretion when assessing the proposed NAPs by using its own methodology.  

Consequently,  9  Member  States  brought  annulment  actions  on  the  basis  of  Article  230  EC 
before  the  European  Court  of  Justice.  The  Slovak  Republic  subsequently  withdrew  its  case, 
and  in  early  2010  the  following  cases  were  pending  before  the  General  Court:  T-221/07 
Hungary,  T-194/07  Czech  Republic,  T-369/07  Latvia,  T-368/07  Lithuania,  T-499-500/07 
Bulgaria, T-483-484/07 Romania. For each of these cases, the written procedure has ended. 

In Cases T-183/07 and T-263/07, the General Court delivered its judgments on 23 September 
2009.  The  General  Court  annulled  the  Commission's  decisions  rejecting  the  Estonian  and 
Polish NAPs. It considered that the Commission had exceeded its powers by relying on  data 
that  in  its  view  were  more  robust  than  the  data  contained  in  the  two  NAPs    without  giving 
sufficient reasons as to why the data in the NAP were considered to be of insufficient quality, 
and by fixing a maximum level for the total quantity of allowances to be allocated by Poland 
and  Estonia.  Moreover,  in  the  Polish  case  (T-183/07),  the  General  Court  found  that  the 
Commission  infringed  the  obligation  to  state  reasons,  and  in  the  Estonian  case  (T-263/07), 
that the Commission infringed the principle of sound administration.   

The  Commission  lodged  appeals  to  Cases  T-183/07  and  T-263/07  on  3  December  2009. 
Those  appeals  are  based  on  several  legal  grounds.  Most  importantly,  the  Commission 
considers  that  the  General  Court  interpreted  the  powers  of  the  Commission  in  the  NAP 
assessment  process  too  narrowly.  The  Commission  also  submits  that  General  Court  did  not 
sufficiently taken into account the fundamental purpose of the EU ETS – to reduce overall EU 
emissions of greenhouse gases – and the need to ensure the equal treatment of Member States 
during the NAP assessment process. 

Some  companies  covered  by  the  EU  ETS  also  brought  actions.  The  only  such  case  still 
pending concerns a direct action (T-16/04) brought before the General Court by Arcelor. In 
essence, Arcelor argues that the EU ETS Directive breaches the principle of equal treatment. 
The Court of Justice has already ruled on similar issues in another case also related to Arcelor. 
All  the  other  cases  against  the  EU  ETS  brought  by  companies  have  been  found  to  be 
inadmissible. 

Other cases related to the ETS Directive  

American  Airlines,  United  Airlines,  Continental  Airlines  and  the  American  Air  Transport 
Association  are  seeking  to  annul  the  EU  ETS  before  the  UK  High  Court  in  respect  of  its 
application to aviation. The Commission will intervene in support of the EU ETS if this issue 
comes before the Court of Justice. 

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EU ETS NAP  Implementation: 

During  2009,  the  remaining  four  NAPs,  relating  to  Bulgaria,  Hungary,  Poland  and  Cyprus, 
have  been  approved.  As  a  result  of  the  judgements  in  Cases  T-183/07  and  T-263/07  (see 
above), the Commission adopted new decisions on the originally notified Estonian and Polish 
NAPs  on  11  December  2009.  As  the  NAPs  were  rejected,  Estonia  and  Poland  will  have  to 
submit new NAPs, which will be subject to further assessment by the Commission. 

Use  of  credits  generated  under  the  mechanisms  of  the  Kyoto  Protocol  (i.e.  hydroelectric 
power production projects) 

According  to the  ETS  Directive  as  amended  by  Directive  2004/101/EC  (the  Linking 
Directive),  "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)). 

Since  the  interpretation  of  this requirement  varied  among  Member  States,  a  voluntary 
harmonisation process on the application of Article 11b (6) was carried out in 2008 and 2009. 
It has resulted in uniform guidelines and a questionnaire template to guide project proponents 
through  the  preparation  of  the  compliance  report.  The  guidelines  and  the  template  are  the 
output  of  one  year's  work  of  an  informal  working  group  set  up  by  Member  States  and  the 
Commission.  The  final  version  of  the  documents  was  presented  to  Climate  Change 
Committee  on  29  January  2009.  Following  a  transitional  period,  as  of  1  July  2009  all  large 
hydroelectric projects are to be approved by all Member States only if they have submitted to 
Member States' DNA, together with other required documents, also a verified Article 11b(6) 
compliance report.   

(b) Preparing the implementation of the revised EU ETS 

Before  2013  15  comitology  procedures,  7  legislative  proposals  and  a  variety  of  reporting 
requirements are foreseen to implement the EU ETS. 

During  2009,  the  Commission  held  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 revised ETS Directive 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  (benchmarks)  was  advanced  by  6  months  to  31 
December 2010. Due to the importance of providing regulatory certainty and predictability to 

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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.  

In  2009,  implementing  measures  and  further  guidance  for  the  revised  EU  ETS  from  2013 
were prepared in the following areas: 

Benchmarking and carbon leakage 

During  2009  the  Commission  held  a  number  of  broad  stakeholder  meetings  and  bilateral 
consultations  with  industry  and  NGOs  as  well  as  expert  meetings  with  Member  States' 
representatives  on  the  topics  of  a  list  of  sectors  and  subsectors  deemed  to  be  exposed  to  a 
significant  risk  of  carbon  leakage  and  on  transitional  Union-wide  rules  for  harmonised  free 
allocation  (benchmarks).  Both  measures  are  to  be  adopted  through  comitology.  A  list  of 
sectors and subsectors deemed to be exposed to a significant risk of carbon leakage, the first 
implementing  measure  under  the  revised  Directive,  was  adopted  by  the  Commission  on  24 
December 2009 as Commission Decision 2010/2/EU. 

Preparations for large-scale auctioning as from the 3rd trading period 

Article 10(4) of the revised EU ETS Directive invites the Commission to adopt a Regulation 
on  the  auctioning  of  allowances  by  30  June  2010.  In  2009,  the  Commission  continued  its 
preparatory  work  to  this  end.  Stakeholders  were  invited  to  participate  in  a  written  public 
consultation  which  was  open  from  3  June  to  3  August  2009  and  which  was  based  on  a 
detailed  consultation  document.  The  responses  and  a  draft  outline  of  the  Regulation  were 
discussed  in  stakeholder  meetings  in  September  and  October  respectively.  Throughout  the 
year,  many  further  meetings  with  specific  stakeholders  and  Member  States  took  place  to 
ensure a thorough and correct understanding of the various technical issues to be addressed in 
the Regulation. A proposal is to be submitted to the Climate Change Committee in early 2010. 

Protection from insider dealing and market manipulation 

Article  12(1a)  of  the  revised  EU  ETS  Directive  provides  that  the  Commission,  by  31 
December  2010,  shall  examine  whether  the  market  is  sufficiently  protected  from  insider 
dealing  or  market  manipulation  and,  if  appropriate,  bring  forward  proposals  to  ensure  such 
protection. Due to the cross-cutting nature of the topic, DG Environment, DG Transport and 
Energy and DG Internal Market and Services worked together to get a first overview of the 
level of protection of the EU ETS carbon market. A Task Force looked into the nature of the 
carbon market, on the  one  hand,  and  the scope of relevant financial markets legislation and 
energy  markets  legislation,  on  the  other  hand.  This  preliminary  work  was  followed  up  by 
preparations for a more in-depth external study to be launched in 2010.  

Registries 

During  the  first  half  of  2009  the  Commission  finalised  the  implementation  of  Regulation 
916/2007/EC (the Registry Regulation) and Regulation 994/2008/EC that provides amended 
rules for the compliance calculation, the national allocation plan tables' management and the 
connection of the registries of Cyprus and Malta through the Community Registry 

The  revised  EU  ETS  Directive  provides  that  all  allowances  will  be  held  in  the  Community 
Registry  as  from  2012.  This  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. 

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During  the  second  semester  of  2009,  the  Commission  held  meetings  with  Member  States 
registry Administrators to elaborate the rules and the technical modalities deemed necessary 
to  adapt  the  registries  system  and  particularly  the  European  Union  Registry  to  Directive 
2008/101/EC  (Aviation),  Directive  2009/29/EC  (ETS  Review)  and  Decision  406/2009/EC 
(Effort  Sharing).  The  new  provisions  render  necessary  an  amendment  of  the  Registry 
Regulation to be adopted through comitology in early 2010. 

(c) Implementation and legal enforcement of ESD and CCS 

ESD 

Although  no  comitology  procedures  were  initiated  with  regard  to  the  ESD  in  2009,  the 
Commission  services  have  started  preparations  for  a  number  of  implementing  provisions. 
Similarly,  preparatory  work  on  the  revision  of  the  Monitoring  Mechanism  (Decision 
280/2004/EC) is ongoing. 

EU CCS Directive 

The main implementation and legal work related to CCS so far in fact took place in ancillary 
legal contexts.  The first item was Community ratification of amendments to the Convention 
for  the  Protection  of  the  marine  Environment  of  the  North-East  Atlantic  ('OSPAR 
Convention')  to  allow  geological  storage  of  CO2  under  the  seabed  (adopted  30  November 
2009).  The second was the development of monitoring and reporting guidelines (MRGs) for 
CCS under the Emissions Trading Directive for the purposes of quantifying the emissions for 
which allowances must be surrendered for capture, transport and storage activities, including 
in the case of leakage (comitology, EP and Council scrutiny completed, adoption pending). 

Member States have to transpose the provisions of the Directive by 25 June 2011. By way of 
exception, the provision regarding the assessment of the feasibility of CCS retrofit (see above) 
applies from 25 June 2009 and had to be transposed by that date. 

(d) Ensuring complete and timely reporting by the Member States 

In  early  2010,  the  Commission  was  able  to  close  all    pending  cases  against  Member 
States(EE,  HU,  LUX,  MT)    that  had  failed  to  submit  their  2008  annual  and  2007  biennial 
reports.  

New cases were launched in 2009 against several Member States on the ground that they had 
communicated to the Commission no or incomplete 2009 annual reports on GHG emissions 
or 2009 biannual report on policies and measures. This concerned : 

BE, BG, CY, CZ, DK, DE, EE, EL, ES, FI, FR, HU, IRE, IT, LUX, LT, LV,  MT, NL, PL, 
PT, SI, SK and the UK for the 2009 annual reports; 

HU, PL, LV, RO for the 2009 biannual reports. 

In view of the Copenhagen Climate Change Conference the Commission found it important to 
take a strict approach in this regard. In early 2010 the Commission was able to close all cases, 
except the cases against BG and MT concerning the 2009 annual report and the cases against 
PL and RO concerning the 2009 biannual report.  

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Still, it is the Commission's view that the emphasis of its enforcement action should not be on 
the start of new infringement proceedings, but rather on a constructive collaboration with the 
Member States resulting in the Member States submitting their complete reports on time. This 
is  the  approach  that  the  Commission  will  continue  to  follow  concerning  the  2010  annual 
reports due for 15 January 2010. 

6.9.2.  Evaluation based on the current situation 

 (a) Ensuring that the current ETS works properly 

For the current ETS, the following problems and corrective actions were identified: 

Conformity assessments  

The  conformity  studies  on  the  transposition  by  Member  States  of  the  ETS  directive  as 
amended  by  Directive  2004/101/EC  of  the  European  Parliament  and  of  the  Council  of  27 
October 2004 and the informal letters of inquiry that were issued focussed on those provisions 
of the ETS Directive that were not likely to be modified as a consequences of the adoption of 
the revision of the ETS Directive in 2008 and 2009. The assessment of the replies received so 
far reveals both minor and major issues of concern to the services such as on the scope of the 
implementing legislation or the absence of verification of actual emissions. The Commission 
services will take the appropriate steps to ensure full compliance.   

Implementation and legal enforcement  

Cases related to the ETS Directive - National Allocation Plans: 

EU ETS NAP Implementation 

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.  

During 2009, all the NAPs have been assessed in accordance with the EU ETS Directive. The 
market price since 2008 shows that there is the scarcity of allowances on the market. 

Use  of  credits  generated  under  the  mechanisms  of  the  Kyoto  Protocol  (i.e.  hydroelectric 
power production projects) 

The  application  of  harmonised  guidelines  and  compliance  report  template  has  led  to  a 
harmonised  approval  of  large  hydroelectric  project  activities  but  it  does  not  harmonise 
certified  emission  reductions'  (known  as  CERs)  acceptance.  Whereas  Member  States  have 
been  applying  the  requirements  of  Article  11b  (6)  to  the  approval  of  project  activities,  a 
majority  of  Member  States  are  reluctant  to  check  already  certified  CERs  surrendered  for 
compliance against the approved project criteria. Partial harmonisation has been achieved in 
so  far  that  CERs  from  projects  approved  in  line  with  Article  11b(6)  guidelines  will  be 
accepted for compliance in the ETS by all Member States. 

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The Commission has set up a website devoted to the co-ordinated approach to Article 11b (6) 
of  the  amended  ETS  directive  in  2009  and  will  continue  monitoring  the  implementation  of 
voluntary guidelines by Member States.  

(b) Preparing the implementation of the revised EU ETS 

The  revised  EU  ETS  was  adopted  to  improve  some  specific  areas  of  the  current  EU  ETS. 
These  areas  for  improvement  were  identified  through  a  review  and  extensive  stakeholder 
consultations during the first trading period (2005-2007), as follow:  

•  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) 
combined  with  over-optimistic  projections  of  emissions  led  to  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 required of the 
sectors  included  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 pass the market value of the allowances through to their customers in their 

product prices and received significant free allocations. 

The issues identified during the review of the EU ETS justified a revision of the ETS design 
itself.  They  have  been  largely  addressed  in  the  revised  ETS  Directive.  The  Commission 
proposed a fully harmonised approach including an EU-wide and annually shrinking cap on 
allowances  -  to  replace  the  prevailing  bottom-up  approach  based  on  NAPs  -  leading  to  an 
emission reduction of 21% by 2020 as compared to 2005 levels, with reductions continuing 
thereafter. 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.  

Thus, the ETS revised Directive sets up the general framework for the corrective action to the 
problems identified with the current ETS. In 2009, the European Commission has started the 
preparatory  work  to  define  all  the  detailed  implementing  measures  and  further  guidance  to 
enable the revised ETS to work from 2013. Specific problems raised during the preparatory 
work  have  been  intensely  discussed  with  Member  States  (via  informal  meetings  and 
Comitology)  and  stakeholders  throughout  the  year.  The  Commission  will  endeavour  to 
address these problems in the measures and guidance that it will propose in 2010 and 2011. 

Examples  of  specific  issues  raised  by  the  implementing  measures'  preparation  are  given 
below: 

Benchmarking and carbon leakage 

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The publication of a comprehensive study carried out by a consortium of consultants on the 
general  benchmarking  methodology  together  with  specific  sector  reports  in  November  2009 
was a major step in the ongoing work on the allocation of free allowances. The consultants' 
proposal  provides  a  solid  basis  in  support  of  the  Commission's  benchmarking  exercise. 
Throughout the work carried out, the Commission has maintained a transparent approach with 
frequent and in-depth consultation of relevant stakeholders. The same degree of transparency 
was  followed  in  determining  a  list  of  sectors  and  subsectors  deemed  to  be  exposed  to  a 
significant  risk  of  carbon  leakage,  which  the  Commission  was  able  to  adopt  in  a  timely 
manner and in compliance with the provisions set out in the revised Directive. 

Protection from insider dealing and market manipulation 

Based on the current situation, the Commission sees four main options.  

The  first  option  would  be  to  consider  that  the  existing  financial  market  and  energy  market 
legislation as well as planned legislation in these fields offer a sufficient level of protection of 
the carbon market, i.e. that the risks associated with any "gaps" in the coverage of the carbon 
market are not significant enough to warrant legislative action at this stage. 

The  second  option  would  be  to  include  the  EU  ETS  carbon  market  under  financial  markets 
legislation,  e.g.  by  defining  EUAs  as  financial  instruments,  or  by  replacing  the  currently 
existing spot trade by trade in "spot futures" not for immediate delivery, which would then also 
be considered as trade in financial instruments under current legislation.  

In  case  the  trading  of  spot  EUAs  for  immediate  delivery  is  required  by  the  carbon  market,  a 
third  option  would  be  for  spot  EUAs  to  be  brought  under  the  ambit  of  financial  markets  type 
legislation without actually defining  the EUAs as financial instruments. This would amount to 
creating a tailor-made regime for the carbon market.  

Finally,  the  EU  ETS  carbon  market  could  be  included  in  a  future  market  transparency  and 
integrity  framework  for  wholesale  electricity  and  gas  markets  to  be  developed  by  the 
Commission.  

(c) Ensuring provision of climate-relevant data 

Accurate,  up-to-date  information  is  an  essential  basis  for  fighting  climate  change.    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 biennial reports on domestic 
climate change policies and measures and emission projections, so that the Commission can 
accurately report on the progress made by the EU as a whole. .To that end the Commission 
has rigorously checked whether national reports are submitted on time and whether the data 
are  correct  and  complete.  As  a  result  of  the  enforcement  action,  reporting  continues  to 
improve in terms of timing and content. 

One  of  the  challenges  for  the  Commission  will  therefore  be  to  ensure  that  reporting  of 
national  greenhouse  gas  emissions  improves  still  further,  so  that  all  Member  States 
communicate  complete  reports  to  deadline  to  ensure  an  effective  follow-up  to  the  United 
Nations Convention on Climate Change and its Kyoto Protocol. 

In  line  with  the  above,  further  studies  are  being  carried  out  to  examine  the  revision  of 
Decisions  280/2004/EC  and  2005/166/EC  in  the  light  of  the  adopted  Climate  and  Energy 
Package and the developments at international level. 

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6.9.3.  Evaluation results 

6.9.3.1.  Priorities 

Implementation and legal enforcement  

Cases related to the ETS Directive: National Allocation Plans 

The  Commission  will  continue  to  defend  its  decisions  and  the  integrity  of  the  EU  ETS 
Directive in ongoing court proceedings. 

EU ETS NAP Implementation 

As  mentioned  above,  Estonia  and  Poland  will  have  to  submit  a  new  NAP  in  2010.  The 
Commission  will  assess  these  NAPs  in  conformity  with  the  Directive  and  the  case  law 
developed by the  courts. 

Benchmarking 

The adoption of transitional Union-wide rules for harmonised free allocation (benchmarks) by 
the  end  of  2010  remains  a  high  priority  in  implementing  the  revised  ETS.  In  this  context, 
securing political agreement with the EU institutions in comitology is essential. 

Protection from insider dealing and market manipulation 

Whether  the  existing  financial  markets  legislation  applies  to  transactions  in  the  EU  ETS 
carbon market depends on who is trading what and where. Transactions in the EU ETS carbon 
market  relate  both  to  the  allowances  themselves  and  to  derivative  products  based  on 
allowances, e.g. futures. In general, such derivatives qualify as financial instruments and are 
usually traded on one of a number of specialised exchanges. Some of these exchanges qualify 
as  regulated  markets.  This  means  that  a  significant  part  of  the  trade  in  the  EU  ETS  carbon 
market is already covered by the applicable financial markets legislation. However, financial 
market legislation does not apply to the spot market, and for some of the provisions there are 
exemptions for non-investment firms.  

The  Commission's  ongoing  work  in  the  field  of  energy  markets  regulation  and  financial 
markets regulation will also affect the level of protection of the EU ETS carbon market.  

The focus of the work going forward will be to assess whether additional measures are needed 
to  protect  the  types  of  transactions  in  the  EU  ETS  carbon  market  that  are  not  covered  by 
existing legislation or legislation in the pipeline in the field of energy and financial markets. 

Improving and enforcing national reporting 

Constructive  collaboration  with  the  Member  States  is  essential.  The  Commission  will 
continue to work closely with Member States to improve the quality and timeliness of their 
reporting.  Nevertheless,  in  the  coming  years  the  Commission  will  continue  to  pursue  legal 
enforcement action against Member States that fail to comply with their reporting obligations 
under the climate change legislation, including in relation to timely reporting and monitoring 
the Union’s greenhouse gas emissions and implementing the Kyoto Protocol. 

EU ETS Directive 

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Transposition and implementation processes are well under way and according to plan. 

6.9.3.2.  Planned action (2010 and beyond) 

During  2010,  the  auctioning  regulation,  the  harmonised  rules  for  transitional  free  allocation 
and the amended registries regulation are to be adopted:  

•  A  proposal  for  the  auctioning  regulation  is  to  be  submitted  to  the  Climate  Change 

Committee in early 2010. 

•  During 2010 the Commission plans to continue holding a number of broad stakeholder 
meetings and further bilateral consultations with industry and NGOs as well as expert 
meetings with Member States' representatives on the topic of transitional Union-wide 
rules  for  harmonised  free  allocation  (benchmarks).  The  work  on  benchmarks  is  to 
conclude, in case of a positive comitology vote, with the adoption of the decision by 
the Commission by 31 December 2010. 

•  The registries regulation needs to be amended to take account of both the revised EU 
ETS  and  the  Effort  sharing  decision.  The  Regulation  for  a  standardised  and  secured 
system of registries  should be approved by the Climate Change Committee in the 1st 
quarter of 2010. 

Concerning  the  list  of  sectors  and  subsectors  deemed  to  be  exposed  to  a  significant  risk  of 
carbon leakage, the Commission will analyse further sectors and subsectors during 2010 and 
can, subject to the outcome of the analysis and following a comitology procedure, add them to 
the  list.  With  a  view  to  the  international  negotiations  in  Copenhagen  at  the  COP15  in 
December 2009, the Commission will report by 30 June 2010 on the situation with regard to 
energy-intensive sectors or subsectors that have been deemed to be exposed to a significant 
risk of carbon leakage. This may be accompanied by any appropriate proposals. 

If further examination shows 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. A study will be launched in the course of 2010, the aim 
of which is to ascertain how a sufficient level of protection from market abuse, as well as a 
sufficient level of market integrity and efficiency, can be ensured in the parts of the EU ETS 
carbon  market  which  fall  outside  the  remit  of  the  financial  markets  supervisory  framework. 
This study will include wide stakeholder consultation and an impact assessment report.  

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  Commission  also  plans  to  adopt  guidance  on  free 
allocation to the power sector in 2010. 

ESD 

During  2010  the  Commission  will  prepare  for  a  decision  to  be  adopted  through  comitology 
procedure  (including  a  vote  in  the  Climate  Change  Committee  in  order  to  determine  the 
annual  emission  allocations  expressed  in  absolute  tonnes  of  CO2  equivalents  for  the  period 
between 2013 and 2020 in accordance with Article 3.2 of the Decision. The Commission will 
also  prepare  for  a  comitology  decision  to  establish  "modalities"  for  transfers  of  emission 
allocations between Member States and increase their transparency under the ESD as required 
by Article 3.6 of the Decision. 

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As  stated  in  the  introduction,  the  ESD  is  a  new  legal  instrument  with  far-reaching 
consequences  for  Member  States,  including  annual  monitoring  and  reporting  of  greenhouse 
gas  emissions  in  2013-2020.  It  also  gives  new  and  challenging  responsibilities  to  the 
Commission.  The  ESD  will  rely  on  both  Union-wide  and  national  measures  for  reducing 
emissions,  of  which  the  bulk  of  actions  will  have  to  be  taken  at  Member  States  level.  The 
Decision  requires  the  Commission  to  establish  a  new  EU-wide  monitoring  and  reporting 
system  and  to  monitor  Member  States'  annual  compliance  and  progress  in  meeting  their 
national targets under the Decision. 

 CCS Directive 

During  2010  the  Commission  will  establish  by  Commission  Decision  a  Scientific  Panel  to 
provide technical input into the Commission opinions on draft permit decisions and decisions 
on transfer of responsibility.  The MRGs for CCS under the Emissions Trading Directive will 
be formally adopted, and guidance documents finalised on the key aspects of implementation. 
In addition, the Information Exchange process with the Member States will be continued. 

The CCS Directive is one of the first and most comprehensive legal frameworks for CCS in 
the  world.  Together  with  the  associated  amendments  to  the  OSPAR  Convention  and  the 
MRGs  developed  under  the  Emissions  Trading  Directive,  it  provides  clarity  and  confidence 
both for operators and regulators for the implementation of CCS in Europe. Priorities over the 
coming years will focus on the development and updating of guidance on implementation, the 
establishment of the Scientific Panel to provide technical advice, the sharing of experience on 
practical demonstration of CCS from the range of initiatives in the EU and Member States as 
well  as  the  monitoring  of  the  transposition  and  implementation  of  the  Directive  in  the 
Member States. 

6.10.  Ozone-depleting substances and Fluorinated greenhouse gases 

6.10.1.  Current position 

6.10.1.1. General introduction 

The Regulation on Ozone Depleting Substances sets out controls on production, importation, 
exportation,  supply,  use  leakage,  recovery  and  lays  down  the  phasing-out  in  line  with  the 
obligations under the Montreal Protocol. Regulation (EC) No 1005/2009 recast and replaced 
Regulation (EC) No 2037/2000 as of 1 January 2010, clarifying, simplifying and streamlining 
the previous provisions and procedures to the extent possible. 

Finally,  Regulation  (EC)  No  842/2006  on  certain  fluorinated  greenhouse  gases  aims  at 
reducing  emissions  of  three  groups  of  fluorinated  greenhouse  gases:  hydrofluorocarbons 
(HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6) through a series of targeted 
sector-specific measures such as systematic checks for leakage and recovery from equipment 
by certified personnel; labelling of products and equipment ; the prohibition of placing on the 
market  of  certain  products  containing  such  gases  and  of  the  use  of  those  gases  in  certain 
applications241. 

241 The F-Gas Regulation is complemented by 10 Commission Regulations adopted between 
2007 and 2008: see Annex. 

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6.10.1.2.  Report of work done in 2009 

Revision of the existing legal framework 

The recast of the Regulation on Ozone Depleting Substances was adopted in September 2009 
and  the  new  provisions  apply  from  1  January  2010  (Regulation  (EC)  No  2037/2000  having 
been repealed from the same date).  

The  Commission  conducted  particular  studies  in  the  context  of  the  preparatory  phase  for  a 
comprehensive review of Regulation (EC) No 842/2006 (F-Gas Regulation), which is due by 
July 2011.  

Compliance promotion and legal enforcement work 

Implementation of the Regulation on Ozone Depleting Substances 

During  2009  no  new  infringement  cases  relating  to  the  Regulation  on  Ozone  Depleting 
Substances were launched. A number of cases against Cyprus, Denmark, Greece, Malta and 
Italy  however  remained  open  from  previous  years  and  were  further  pursued  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 and already closed for cases in 2009. 

Implementation of the F-Gas Regulation 

The Commission monitored attentively the implementation by the Member States of certain 
requirements  of  the  Regulation.  Some  delays  observed  in  the  establishment  of  national 
certification  systems  and  in  the  adoption  of  rules  on  penalties  by  the  Member  States  have 
required appropriate follow-up action from the Commission.  

Petitions 

In  2009  the  Commission  has  received  a  number  of  new  petitions  concerning  industrial 
emissions. In addition, it has been dealing with those which were received in earlier years, but 
follow-up  with  the  national  authorities  has  proved  necessary  to  enable  sending  updated 
information  to  the  Parliament.  Particular  attention  has  been  paid  on  cases  where  potential 
serious  or  persistent  breach  of  EU  law  could  have  been  identified  (e.g.  alleged  huge 
exceedance of emission limit values by ILVA steel plant in Taranto, Italy). 

6.10.1.3.  

Evaluation based on the current situation 

Regulation on Ozone Depleting Substances 

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. 

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7. 

INFORMATION SOCIETY AND MEDIA 

7.1. 

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 (NRA's) 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,  remained  another  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. 2009 
amendments  to  the  existing  framework,  as  well  as  Commission  guidance  on  e.g.  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  was  undertaken  with  Member  States  with  a  view  to  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. 

7.2. 

Electronic communications 

7.2.1.  Current position 

7.2.1.1.  Existing measures in force 

The EU regulatory framework for electronic communications came into force in 2002. Its 
five  Directives  are  transposed  into  the  national  law  of  all  27  Member  States242.  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-
to  networks  and  services  and 
in  particular,  access 
carrier  marketplace,  ensuring, 
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.  Amendments  to  this 
regulatory  framework  for  electronic  communications  were  adopted  in  November  2009  (see 
section 1.2.2.1). 

242  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). 

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The  Roaming  Regulation243,  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)244  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.  

243  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’ 

244 
which makes it the standard default tariff in Europe. 

EN 

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While  most  of  the  radio  spectrum  harmonisation  decisions  adopted  until  2008245  on  the 
basis of the Radio Spectrum Decision 626/2002/EC246 were implemented by the majority of 
Member  States  for  some  Decisions  this  was  not  yet  the  case.  Regarding  two  Decisions  that 
concern spectrum suitable for wireless broadband services247 the Commission services sought 

245   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; 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; Commission Decision 2006/771/EC of 9 November 
2006  on  the  harmonisation  of  the  radio  spectrum  for  use  by  short-range  devices  (SRD); 
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);  Commission  Decision2007/344/EC  of  16  May  2007  on  harmonised 
availability  of  information  regarding  spectrum  use  within  the  Community;  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 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.  

246   Decision  of  the  European  Parliament  and  of  the  Council  of  7  March  2002  on  a 
regulatory framework for radio spectrum policy in the European Community (Radio Spectrum 
Decision), OJ L 108, 24.4.2002, p.1. 

247   Decision 2008/411/EC on the harmonisation of the 3400 - 3800 MHz frequency band 
for  terrestrial  systems  capable  of  providing  electronic  communications  services  in  the 
Community  and  Decision  2008/477/EC  on  the  harmonisation  of  the  2500-2690  MHz 
frequency  band  for  terrestrial  systems  capable  of  providing  electronic  communications 
services in the Community. 

EN 

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clarifications  and  additional  information  as  regards  completeness  and  correctness  of 
implementation  from  several  Member  States.  Such  information  is  being  assessed  by  the 
Commission  services.  Moreover,  in  October  2009  an  infringement  procedure  was  launched 
against Germany due to its failure to correctly implement Decision 2008/477/EC by including 
restrictions  in  the  national  frequency  allocation  ordinance  with  respect  to  the  use  of  fixed 
wireless services in the 2500-2690 MHz frequency band. 

7.2.1.2.  Report of work done in 2009 

the 

regulatory 

framework 

implementation  of 

for  electronic 
Enforcing  effective 
communications  continued  to  be  a  priority  in  2009.  In  line  with  the  Commission 
Communication  on  better  monitoring  of  the  application  of  Community  law248,  the 
Commission  services  have  continued  to  avoid  the  need  for  recourse  to  infringement 
proceedings by making use of bilateral contacts with the relevant national authorities and also 
providing  general  guidance  on  implementation  requirements  via  the  Communications 
Committee  (COCOM)  and  the  Radio  Spectrum  Committee  (RSC).  During  2009,  the 
Commission in particular discussed with the Member States in COCOM the implementation 
of  the  European  emergency  number  '112'  and  of  the  reserved  '116'  numbers  for  harmonised 
services of social value and the market review procedure for consolidating the internal market 
for electronic communications. 

In  2009,  infringement  priorities  continued  to  focus  on  structural  issues  and  consumer 
protection. Structural issues included in particular the functioning and the independence of the 
national regulatory authorities; increasing attention was also 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 concerned the protection of consumer rights, with a 
special focus on the functioning of the European emergency number 112, and, increasingly, 
consumer  privacy.  Finally,  compliance  with  judgments  of  the  Court  of  Justice  was  another 
priority this year.  

In particular, the Commission has systematically monitored the requirement for independence 
of NRAs, and has taken action when necessary. Member States should ensure that NRAs are 
legally distinct from and functionally independent of electronic communications networks and 
services providers. This requirement for structural separation between the regulatory function 
and  activities  associated  with  ownership  and  control  is  particularly  relevant  when  Member 
States  retain  ownership  or  control  of  electronic  communications  undertakings.  Concerns 
continue  to  exist  in  this  regard  in  several  Member  States  (e.g.  Romania,  Latvia,  Lithuania). 
Clear  rules  regarding  the  formal  establishment  of  the  NRA  structures  should  enhance  the 
impartiality and the transparency of the NRA's functioning. The rules for dismissal of NRA 
management  are  fundamental  in  this  regard.  Infringements  are  pending  in  several  Member 
States (e.g. Romania, Slovakia). 

A  key  principle  of  the  regulatory  framework  for  electronic  communications  is  that 
undertakings  should  not  be  subject  to  economic  ex  ante  regulation  unless  they  have  been 
found to be dominant in a relevant market, on the basis of a thorough market analysis by their 
national  regulatory  authority  (NRA).  The  absence  of  communication  of  mobile  termination 

248  COM(2002) 725, of 11 December 2002. 

EN 

245 

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rates  and  their  methodology  for  comments  to  the  Commission  led  the  latter  to  open  an 
infringement case against Germany in 2009.  

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,  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. 

The general state of implementation of the regulatory framework, monitored in close contact 
with the national authorities and other stakeholders, is reflected inter alia in 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  Regions249.  The 
Commission continued to monitor implementation of the Roaming Regulation, in particular of 
the new provisions introduced in June 2009, which in general ran 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.  

The  Commission  monitors  the  correct  application  of  the  provisions  contained  in  the  EU 
regulatory framework, also via contacts with stakeholders and complaints received from EU 
citizens.  The  online  web  tool  '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, since the launching of the project in April 2008, 11 cases 
concerning electronic communications have been opened in the EU Pilot, out of which 9 new 
cases were opened in 2009. Four cases have been closed in 2009, leading in three cases to the 
launch of an infringement. 

As regards infringement proceedings, during 2009, the Commission opened eight new cases, 
while three pending cases were taken to the second phase with a reasoned opinion being sent 
to the Member States concerned. The Commission decided to refer two cases to the Court of 
Justice in 2009. At the same time, the Commission decided to close 14 proceedings following 
action by the Member States.  

New  proceedings  opened  in  2009  concerned  the  independence  of  the  national  regulatory 
authorities  (Romania  and  Slovakia),  administrative  charges  for  controlling  the  usage  of  the 
radio  spectrum  (Latvia),  fixed  number  portability  (Bulgaria),  lack  of  notification  of  mobile 
termination rates (Germany), non-implementation of the Commission Decision 2008/477/EC 
on  2.6  GHz  spectrum  harmonisation  (Germany)  and  confidentiality  of  electronic 
communications (United Kingdom). With regard to the latter case, the Commission decided to 
proceed  with  the  second  phase  of  the  procedure  and  sent  a  reasoned  opinion  to  the  United 
Kingdom.  Two  other  reasoned  opinions,  concerning  structural  separation  of  regulatory 

“Towards  a  Single  European  Telecoms  Market 

249 
COM(2009) 140 of 24 March 2009. The report covering 2009 is not yet available.  

(14th  Progress  Report)”, 

EN 

246 

   EN 

                                                 
functions 
from  activities  associated  with  ownership  and  control 
communications and network providers, were sent to Latvia and Lithuania. 

in  state-owned 

Two cases which the Commission decided to refer to the Court of Justice in 2009 concerned 
the designation of the universal service provider in Portugal250 and must-carry rules on cable 
networks in Belgium251. 

The Commission welcomed the progress made by Member States, even after the initiation of 
infringement  proceedings,  and  continued  to  apply  its  policy  of  closing  cases  as  soon  as  the 
problems  were  resolved.  In  2009,  thus,  a  total  of  fourteen  cases  were  closed  following 
progress  in  the  implementation  process.  As  the  European  emergency  number  112  became 
available  in  Bulgaria  at  the  end  of  2008,  the  relevant  case  was  closed  by  the  Commission. 
Four cases regarding the availability of caller location information for 112 calls were closed 
following  the  adoption  of  corrective  measures  in  Romania,  Slovakia,  the  Netherlands  and 
Lithuania.    The  Commission  also  closed  two  cases  relating  to  must-carry  rules  (the 
Netherlands,  Germany).  A  case  against  Luxembourg  concerning  structural  separation  of 
regulatory and managements functions was closed, as well as a case against Sweden relating 
to  the  right  to  appeal  decisions  of  the  telecoms  regulator,  as  the  issues  raised  by  the 
Commission  were  resolved.  As  the  appropriate  steps  were  taken  by  national  authorities,  the 
Commission  closed  a  case  against  Cyprus  relating  to  rights  of  way.  Finally,  following  the 
changes made in national law, the Commission was able to close four cases against Poland. 
These concerned the independence of the Polish regulator, consumer contracts, the obligation 
for operators to negotiate interconnection and the obligation to carry out market reviews. 

On the other hand, not all the Member States have complied with the regulatory framework 
following  infringement  proceedings,  and  in  2009  the  Court  of  Justice  ruled  on  four  cases 
[Poland  (C-492/07),  Portugal  (C-458/07),  Italy  (C-539/07),  Germany  (C-424/07)].  The 
Commission was closely following whether the judgments of the Court of Justice were fully 
complied  with.  In  several  instances  the  Commission  had  to  take  the  procedure  to  the  next 
phase under Article 260 TFEU which allows imposing financial sanctions on Member States 
that  have  not  complied  with  a  judgement  of  the  Court  of  Justice.  In  particular,  letters  of 
formal notice under Article 260 TFEU were sent to Poland, Portugal, Italy with regard to the 
above indicated judgments, and to Lithuania (with regard to a judgment delivered in 2008). 
Whereas the case against Italy was taken to the next phase with sending a reasoned opinion 
under Article 260, the Commission was able to close the case against Lithuania as the issues 
were resolved. 

As regards spectrum harmonisation Decisions, the implementation of Decision 2007/131/EC 
was not yet ensured in Romania, Decision 2008/294/EC in Belgium and Spain and Decisions 
2008/432/EC  and  2008/673/EC  in  Spain.  Moreover,  the  implementation  of  Decision 
2007/344/EC is still under way in a number of Member States and Decision 2008/671/EC was 
yet  to  be  implemented  in  Austria  (temporary  derogation  granted  until  31  December  2011), 
Belgium, Spain, Netherlands, Poland and Sweden.  

250   C-154/09. 

251  C-134/10 

EN 

247 

   EN 

                                                 
In  addition  to  the  pending  infringement  proceedings,  there  were  nine  complaints  pending  at 
the  end  of  2009.  These  complaints  concerned  issues  across  all  five  Directives  of  the 
regulatory framework for electronic communications.  

In addition to closely monitoring the implementation of the EU provisions related to 112 in 
the  Member  States,  the  Commission  has  actively  contributed  to  raising  awareness  of  the 
European  emergency  number.  In  February  2009,  the  Commission,  the  European  Parliament 
and  the  Council  declared  11  February  as  the  'European  112  Day'.  On  that  day,  different 
awareness  and  networking  activities  will  be  organised  every  year  in  order  to  promote  the 
existence  and  use  of  112  throughout  the  EU.  Furthermore,  the  Commission  launched  a 
website252 in several languages dedicated to the European emergency number that provides 
information on when to call 112 and how 112 works across the EU.  

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 sector253 together with overview tables 
for all cases, which are updated regularly. 

In  November  2009,  the  European  Law  Academy  ERA  and  the  Commission  organised  a 
seminar for national judges and the NRAs on legal issues related to the implementation of the 
regulatory  framework.  The  principle  aim  was  to  raise  awareness  on  (i)  the  impact  of  the 
review  of  the  regulatory  framework  and  the  regulatory  and  economic  challenges  the  review 
may entail and (ii) on the role of national courts in furthering consistency and legal certainty 
on the telecommunications markets. 

Petitions 

Nine  petitions  on  the  regulatory  framework  were  registered  in  2009.  These  petitions 
concerned Germany and Italy and involved mainly consumer protection issues e.g. the quality 
of  service,  telecom  prices  including  of  national  and  international  SMS  services,  as  well  as 
transparency issues. All were answered without opening an infringement proceeding. 

European Court of Justice 

Finally, the European Court of Justice issued several important judgments on substance in the 
electronic communication area in 2009, in the context of infringement proceedings as well as 
on  request  for  preliminary  ruling  by  a  national  court  or  tribunal  under  Article  267  of  the 
TFEU  Treaty  (formerly  Article  234  of  the  EC  Treaty).  These  covered  among  others  caller 
location  for  112  (C-539/07  –  Commission  v  Italy),  regulation  of  new  markets  (C-424/07 
Commission v Germany), directory services (C-458/07 Commission v Portugal), definition of 
subscriber (C-492/07 Commission v Poland) or the obligation to negotiate on interconnection 
(C-192/08 TeliaSonera Finland).  

http://ec.europa.eu/112  

252  

253

http://ec.europa.eu./information_society/policy/ecomm/implementation_enforcement/i

ndex_en.htm 

EN 

248 

   EN 

                                                 
 
 
7.2.2.  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. 

7.2.2.1.  New measures recently adopted 

In  accordance  with  Article  25  of  the  Framework  Directive,  the  Commission  proposed  a 
review of the regulatory framework in November 2007254. The review aims 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 2009255. The Member States have to implement them by 25 May 2011. 

Building on the Commission's proposal to the European Parliament and Council to extend the 
regulation  by  a  further  three  years  up  to  June  2012  and  to  include  SMS  and  data  roaming 
services (at wholesale level only) in addition to voice, the European Parliament and Council 
adopted  the  Regulation  modifiying  the  Roaming  Regulation  on  18  June  2009256.  These 
measures  became  applicable  as  of  the  1  July  2009.  The  Commission  will  report  on  the 
functioning of the Regulation to the Council and European Parliament by 30 June 2011.  

In September 2009, a Directive amending the GSM Directive257 on the frequency bands to 
be  reserved  for  the  coordinated  introduction  of  public  pan-European  cellular  digital  land-
based  mobile  communications  in  the  Community  was  adopted258.  It  provides  for  the 
introduction in the 900 MHz band of new wireless services, starting with UMTS services, and 
should be implemented by Member States by 9 May 2010. 

In 2009, three spectrum harmonisation Decisions were adopted by the Commission: Decision 
2009/343/EC  of  21  April  2009  amending  Decision  2007/131/EC  on  allowing  the  use  of  the 
radio spectrum for equipment using ultra-wideband technology in a harmonised manner in the 

254  Commission proposal for a directive of the European Parliament and of the Council, 
SEC(2007)  1472  and  SEC(2007)  1473  and  Proposal  for  a  regulation  of  the  European 
Parliament and of the Council establishing the European Electronic Communications Market 
Authority  COM(2007)699,  for  an  overview,  see  website  of  DG  Information  Society:  
http://www.ec.europa.eu/information_society/policy/ecomm/library/proposals/index_en.htm 

255   OJ L 337, 18.12.2009, p. 37; OJ L 337, 18.12.2009, p. 11 

256   Regulation  (EC)  No  544/2009  of  the  European  Parliament  and  of  the  Council  of  18 
June 2009 amending  Regulation (EC) No  717/2007 on roaming on public mobile telephone 
networks  within  the  Community  and  Directive  2002/22/EC  on  a  common  regulatory 
framework for electronic communications networks and services, OJ L167, 29.6.2009, p. 12. 

257  OJ L 196, 17.7.1987, p.85. 

258   OJ L 274, 20.10.2009, p. 25. 

EN 

249 

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Community,  Decision  2009/381/EC  of  13  May  2009  amending  Decision  2006/771/EC  on 
harmonisation  of  the  radio  spectrum  for  use  by  short-range  devices  and  Decision 
2009/766/EC  of  16  October  2009  on  the  harmonisation  of  the  900  MHz  and  1800  MHz 
frequency  bands  for  terrestrial  systems  capable  of  providing  pan-European  electronic 
communications  services  in  the  Community.  The  process  of  verification  of  the  state  of 
implementation of the Decisions adopted in 2009 is on-going in the framework of the Radio 
Spectrum Committee. 

Following  the  adoption  by  the  European  Parliament  and  the  Council  on  30  June  2008  of 
Decision  No 626/2008/EC  on  the  selection  and  authorisation  of  systems  providing  mobile 
satellite services (MSS)259, a Community procedure for the common selection of operators of 
mobile  satellite  systems  that  use  the  2  GHz  frequency  band  was  launched  in  August  of  the 
same year and was completed on 13 May 2009 by Commission Decision 2009/449/EC on the 
selection of operators of pan-European systems providing mobile satellite services (MSS)260. 
This Decision led to the selection of two operators and the identification of two times 15MHz 
to each of them. Implementation of the pan-European MSS framework has now been taken-
over by the Member States. The Commission services will closely monitor measures taken at 
national  level  and  will  assist  relevant  authorities  of  Member  States  as  appropriate,  notably 
thanks 
the 
implementation of Decision 2009/449/EC. 

the  Communications  Committee  on 

to  a  dedicated  working  group  of 

7.2.2.2.  Volume of enquiries and priorities 

While  the  27  Member  States  have  completed  the  formal  transposition  of  the  regulatory 
framework in 2007, there were still 23 proceedings for incorrect implementation pending at 
the end of 2009. The number of cases of infringements, complaints, enquiries and petitions is 
expected to stay at a level similar to previous years. 

In  the  light  of  complaints  and  issues  raised  by  market  players  and  national  regulatory 
authorities,  the  priorities  remained  the  same  as  in  the  previous  year:  the  functioning  of  the 
national  regulatory  authorities,  the  application  of  the  Community  consultation  (Article  7) 
procedure, and consumer protection rights, including privacy. Compliance with judgments of 
the Court of Justice continued to be an issue as case law developed in the area. 

7.2.3.  Evaluation based on the current situation 

Overall, the implementation of the regulatory framework is working to bring competition to 
electronic  communications  markets,  to  the  benefit  of  consumers  in  terms  of  prices  and 
innovation. While examples of best practice are available across the range of regulatory and 
market issues, there is considerable scope for further benefits to flow from a reinforced single 
market, strengthened competition and a reduction in the regulatory burden. 

A  significant  number  of  non-conformity  and  incorrect  application  issues  remains,  which 
require attention and appropriate follow-up with a continued focus on the functioning of the 
national regulatory authorities and consumer protection rights.   

259   OJ L 172, 2.7.2008, p. 15. 

260   OJ L 149, 12.6.2009, p. 65. 

EN 

250 

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7.2.4.  Evaluation: priorities and planned action (2010 and beyond) 

Priorities for 2010 and beyond 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.  As 
independence  of  regulators  is  essential  for  the  proper  functioning  of  the  electronic 
communications  markets,  attention  is  expected,  in  the  run-up  to  the  implementation  of  the 
revised regulatory framework, to continue to focus its attention on this issue. 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. This issue is expected to remain 
a priority, if only as a result of the reinforcement of several consumer protection provisions in 
the  revised  regulatory  framework.  The  Commission  will  continue  to  closely  monitor  the 
implementation of the Roaming Regulation which has ensured that consumers benefited from 
significant cost savings using mobile phones while in another Member State. 

Priorities  will  evolve  in  accordance  with  the  amendments  to  the  regulatory  framework. 
Preventive work, such as guidelines and technical meetings, is expected to start in early 2010. 
It is expected that prevention work in particular will focus in particular on new issues raised 
by the amendments to the currently applicable rules which require transposition into national 
law. 

7.3. 

The Audiovisual and Media 

7.3.1.  Current position 

7.3.1.1.  Measures in force in 2009 

The main instrument is the Audiovisual Media Services Directive261 (hereafter the “AVMS 
Directive”). It combines the country of origin principle with a minimum harmonisation of the 
laws  applicable  to  all  audiovisual  media  services  (television  and  video  on-demand).  Non-
the 
binding  measures 

the  Recommendation  on  Film  Heritage262  and 

include 

261  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 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. 

262  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. 

EN 

251 

   EN 

                                                 
Recommendation  on  the  protection  of  minors  and  human  dignity  in  audiovisual  and 
information services263. 

7.3.1.2.  Report of completed work in 2009 

For the first time, the monitoring carried out by independent experts of advertising restrictions 
took  account  of  not  only  quantitative  restrictions,  but  also  of  qualitative  aspects  of  TV 
advertising, e.g. the rules on protection of minors. 

Five cases were closed (two about excessive advertising, another two about broadcasting of 
programmes of apparent pornographic nature during day time, one about alleged incitement to 
hatred); in another case concerning the incorrect application of the quantitative rules on TV 
advertising  in  Spain  the  Court  of  Justice  of  the  European  Union  was  seized.In  a  judgment 
adopted on 5 March 2009 (C-222/07), the Court of Justice of the European Union ruled that 
the Spanish measure requiring television operators to earmark 5% of their operating revenue 
for European films, 60% of that funding being reserved for the production of original works 
in official languages of Spain, was compatible with Directive 89/552/EC ('Television without 
Frontiers Directive', the predecessor of the AVMS Directive) and the fundamental freedoms 
and that this measure did not constitute State aid. 

On  26  June  2009,  the  Commission  adopted  the  Seventh  Report  on  the  application  of  the 
"Television  without  Frontiers  Directive"  for  the  period  2007  –  2008;  the  report  also  adds 
analysis to the ongoing evolution of the television market. 

One  new  case  was  opened  referring  to  a  national  transposition  of  the  AVMS  Directive 
allegedly being disproportionately restrictive (the national law foresees a limit of three hours 
per day for teleshopping while the AVMSD does not include such a limit). 

7.3.2.  Changes Underway 

7.3.2.1.  Recently adopted measures 

Member  States  had  until  19  December  2009  to  transpose  the  AVMS  Directive.  Questions 
faced by all Member States in the transposition process were continued to be clarified at two 
meetings of the Contact Committee set up under Article 23a of the Directive as well as at one 
meeting of the Working Group of EU Regulatory Authorities. By the end of the transposition 
period,  only  three  Member  States  had  notified  the  Commission  of  full  implementation.  In 
2010, priority will be given to a thorough examination of national implementing measures. 

The  AVMS  Directive  changed  the  number  and  order  of  subsidiary  jurisdiction  criteria  for 
satellite  (re)transmissions.  Therefore,  the  Contact  Committee  carried  out  an  exercise  to 
identify  those audiovisual  media services which would change jurisdiction at the end of the 
transposition period as a consequence of that reversal of criteria. The exercise will continue in 
2010 due to some Member States' difficulties to identify all relevant media service providers 

263  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. 

EN 

252 

   EN 

                                                 
The Commission proposed a codified version of the AVMS Directive which consolidates the 
original Directive with the two amending Directives. It was adopted on 10 March 2010264;  

7.3.2.2.  Volume of enquiries and priorities 

In the light of complaints and parliamentary questions received so far, priority will most likely 
be  on  the  following  areas:  television  advertising,  protection  of  minors,  prohibition  of 
incitement to hatred, and freedom of expression. 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. The number of complaints 
on  alleged  pornographic  content  transmitted  during  daytime  and  without  encryption  via 
satellite broadcasts remained high. Cooperation between regulators, in particular with regard 
to transborder broadcasters where jurisdiction issues may arise, was improved with the help of 
the Commission. Complaints about alleged pornographic content can be addressed directly to 
the  regulator  of  the  complainant's  country  for  appropriate  follow-up.  The  monitoring  of 
audiovisual commercial communication rules will continue at a high intensity.  

7.3.3.  Evaluation based on the current situation 

The  application  of  the  provisions  of  the  present  regulatory  framework  in  force  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.  Due  to  the  high 
number of complaints with regard to alleged hate speech and pornographic content, it might 
become  necessary  to  extend  the  monitoring  by  independent  experts  to  these  areas. 
Cooperation  between  national  regulators  and  with  the  Commission  should  be  further 
improved. 

7.3.4.  Evaluation results: priorities and planned action (2010 and beyond) 

Priorities for 2010 and beyond 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. 

Since the transposition period of the AVMS Directive has elapsed the national laws will be 
examined very closely to ensure that they are compatible with the Directive. An interpretative 
communication  by  the  Commission  to  provide  more  legal  certainty  on  new  terms  and 
concepts of the AVMS Directive is envisaged for 2011. 

264  Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March 
2010 on the coordination of certain provisions laid down by law, regulation or administrative 
action in Member States concerning the provision of audiovisual media services (Audiovisual 
Media Services Directive), OJ L 95, 15.4.2010, p.1. 

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7.4. 

Public Sector Information 

7.4.1.  Current Position 

7.4.1.1.  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.  

7.4.1.2.  Report of work done in 2009 

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.  

The  Commission  pursued  in  2009  infringement  procedures  for  incomplete  and  incorrect 
implementation regarding Sweden and Poland, and opened one new case regarding Italy for 
failing to correctly transpose and implement the Directive. The evaluation of the conformity 
of the notified national transposition measures continued in parallel with the management of 
complaints.  A  complaint  filed  in  2009  against  Denmark  for  non-compliancy  with  the 
Directive provisions on charges is being dealt with under the EU PILOT system.   

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  2009.  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 
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 

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(ePSIplus, 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 series  of  studies  assessing  the  situation  in  Member  States  regarding  the  existence  of 
possible exclusive agreements for PSI re-use were launched in 2009.  

The Commission also carried out a review of 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  addressed,  in  particular,  the  scope  and  impact  of  the 
Directive. 

7.4.2.  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 2009 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. 

7.4.3.  Evaluation results 

7.4.3.1.  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 
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.  

7.4.3.2.  Planned action (2010 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. 

EN 

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Enforcement  action  through  the  launch  of  new  infringement  procedures  for  incorrect 
implementation  and/or  application  of  the  Directive  is  likely  in  2010  and  beyond.  One  area 
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  was  launched  in  2009  and  results  will  become  available  in  the  second  half  of 
2010.  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  is  planned  to  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 would be considered at that stage, taking into consideration progress 
made in the meantime. 

7.4.4.  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. 

7.4.5.  Measures in force 

More information on the re-use of public sector information: 

http://ec.europa.eu/information_society/policy/psi/index_en.htm  

7.5. 

Electronic Signatures 

7.5.1.  Current Position 

7.5.1.1.  Existing measures in force 

The  principal  instrument  is  Directive  1999/93/EC  on  a  community  framework  for 
electronic signatures265. The implementing measures include the Commission Decision on 
the  minimum  criteria  for  the  designated  bodies266  and  the  Commission  Decision  on  the 
generally recognised standards for some electronic signatures products267. 

265  OJ L 13, 19.01.200, p.12 

266  OJ L 298, 16.11.2000, p.42 

267  OJ L 45, 15.07.2003, p.45 

EN 

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The  general  principles  of  the  Directive  were  indeed  transposed  by  all  Member  States. 
Currently there is no open infringement procedure. One complaint lodged in 2009 regarding 
the implementation of Directive 1999/93/EC in German law is currently being investigated.  

Lastly,  indirect  aspects  pertaining  to  electronic  signature  were  identified  in  two  additional 
complaints  handled  by  other  Commission  services.  The  first  complaint268  concerns  the 
implementation of Directives 90/385/EC and 93/45/EC on the registration of medical devices 
in  Italy.  The  Italian  authorities  amended  the  technical  rules  for  on-line  registration  in 
compliance with the electronic signature Directive thus there is no infringement to Directive 
1999/93/EC  anymore.  The  second  complaint269  concerns  Directive  2003/96/EC  and 
implementing  Spanish  legislation  governing  the  refund  of  excise  duties.  This  case  is  still 
under investigation. 

7.5.1.2.  Report of work done in 2009 

Building on the Commission Action Plan on e-signatures and e-identification to facilitate the 
provision of cross-border public services in the Single Market270, whose main objective is to 
promote  the  implementation  of  mutually  recognised  and  interoperable  electronic  signatures 
and  e-authentication  solutions  in  Europe,  a  Decision  2009/767/EC  was  adopted  in  2009, 
which  sets  out  measures  facilitating  the  use  of  procedures  by  electronic  means  through  the 
‘points of single contact’ under Directive 2006/123/EC. 

7.5.2.  Evaluation 

In 2006 the Commission acknowledged271 problems of mutual recognition and cross-border 
interoperability of electronic signature. The Commission's position is that it intends to address 
the  legal,  technical,  and  standardisation  causes  of  these  issues.  Therefore  a  revision  and 
update  of  Decision  2003/511/EC  is  foreseen  and  standardisation  work  is  currently  being 
planned by the relevant European Standardisation Organisation. 

8. 

MARITIME AFFAIRS AND FISHERIES 

The Common Fisheries Policy is  based on the provisions of Article 3, 4 and 38 through 43 
TFEU.  The  full  set  of  rules  adopted  under  the  Common  Fisheries  Policy  as  well  as  new 
following  website: 
measures 
http://ec.europa.eu/fisheries/index_en.htm. 

proposed 

already 

found 

can 

the 

on 

be 

268 

2007/4516 

269 

2007/4715 

270  COM(2008)798 

271  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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8.1. 

Current situation 

8.1.1.  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 
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  Sea272  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 stocks273. 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  Lisbon  Treaty  entered  into  force  on  1  December  2009.  Under  Article  4(2)(d)  of  the 
Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  fisheries  is  one  of  the  areas  of 
shared  competence  between  the  Union  and  the  Member  States.  However,  Article  3(1)(d) 
TFEU attributes exclusive competence to the Union for the conservation of marine biological 
resources under the common fisheries policy. This means that only the Union can legislate in 
this  field  unless  Member  States  have  been  explicitly  empowered  to  do  so  by  the  Union 
according to Article 2(1) TFEU. By virtue of the provisions of Articles 38 to 43 TFEU, the 
Union shall define and implement a common fisheries policy.  

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  Policy274,  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  Articles  1  and  2  of 
Council  Regulation  (EC)  No  1224/2009  establishing  a  Community  control  system  for 
ensuring compliance with the rules of the common fisheries policy.275 

272  OJ L 179, 23.06.1998, p. 1 

273  OJ L 189, 03.07.1998, p.14 

274  OJ L 358, 31.12.2002, p. 59 

275             OJ L 343,22.12.2009, p.1. 

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8.1.2.  Work done in 2009 

As a priority issue, the Commission had prepared and presented a legislative proposal276 for 
a radical overhaul of the existing control and enforcement framework as laid down on Council 
Regulation  (EEC)  No  2847/93.  The  Council  adopted  on  20  November  2009  the  new 
Regulation establishing a Community control system for ensuring compliance with the rules 
of  the  Common  Fisheries  Policy.277  The  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. 

The Commission initiated a full review of the entire policy in order to prepare the ground for 
a root-and-branch reform. 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 Policy278. 

The  Council  adopted  Regulation  (EC)  No  1010/2009  laying  down  detailed  rules  for  the 
implementation of Council Regulation (EC) No 1005/2008 establishing a Community system 
to prevent, deter and eliminate illegal, unreported and unregulated fishing.279  

In  proceedings  instituted  on  grounds  of  lack  of  an  effective  system  of  monitoring  to  ensure 
respect of the Community prohibition of drift nets of a length greater or equal to 2.5 km, the 
Court of Justice rendered a judgment on 5 March 2009280 declaring that France has failed to 
fulfil  its  obligations  under  Regulation  (EC)  No  2847/93  establishing  a  control  system 
applicable  to  the  common  fisheries  policy  and  Regulation  (EC)  No  2371/2002  on  the 
conservation  and  sustainable  exploitation  of  fisheries  resources  under  this  policy,  by  failing 
sufficiently  to  monitor,  inspect  and  supervise  fishing  activities  in  the  light  of  prohibition  of 
drift  nets  for  the  capture  of  certain  species  and  by  not  ensuring  that  appropriate  measures 
against  those  responsible  for  infringements  of  the  Community  legislation  on  the  use  of  this 
kind of fishing gear were taken. 

In proceedings instituted on grounds of non respect of the rules on conservation of fisheries 
resources through technical measures, the Court of Justice rendered a judgment on 15 October 
2009 281 declaring that the Netherlands, by allowing fishing vessels to have a higher engine 
power  than  permitted  under  Regulation  (EC)  No  850/98  for  the  conservation  of  fishing 
resources through technical measures for the protection of juveniles of marine organisms, has 
failed to fulfil its obligations under Regulation (EC) No 2371/2002 on the conservation and 
sustainable  exploitation  of  fisheries  resources  under  the  common  fisheries  policy  and 
Regulation (EC) No 2847/93 establishing a control system applicable to this policy. 

276 

 COM(2008) 721 final of 14.11.2008 

277              OJ L 343,22.12.2009, p.1. 

278   COM(2009) 163 final, 22.4.2009 

279              OJ L 280, 27.10.2009, p.5. 

280              Case C-556/07, Commission v. France. 

281              Case C-232/08, Commission v. The Netherlands. 

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In  proceedings  instituted  on  grounds  of  failure  to  ensure  compliance  with  the  drift  nets  ban  
under applicable Community rules, the Court of Justice rendered a judgment on 29 October 
2009282  declaring  that  Italy  has  failed  to  fulfil  its  obligations  under  Regulations  (EC)  No 
2241/87  and  No  2847/93  by  failing  to  control,  inspect  and  survey  in  a  satisfactory  manner 
fishing  activities  within  its  territory  and  within  the  waters  subject  to  its  sovereignty  or 
jurisdiction,  in  particular  with  regard  to  compliance  with  provisions  governing the  retention 
on board and use of drift nets, and by not ensuring in a satisfactory manner that appropriate 
measures are taken against those responsible for infringements to the Community rules on the 
retention  on  board  and  use  of  this  kind  of  fishing  gear,  in  particular  by  the  imposition  of 
dissuasive penalties on those persons. 

The  Commission  adopted,  on  2  April  2009283,  a  proposal  for  a  Council  Regulation  laying 
down a Scheme of control and enforcement in the area covered by the Convention on future 
multilateral  cooperation  in  the  North-East  Atlantic  fisheries.  This  proposal  contains  the 
transposition  of  the  new  scheme  of  control  adopted  by  the  Northeast  Atlantic  Commission 
(NEAFC) with full support of the Community. The new Scheme is designed to improve the 
control and enforcement of the recommendations of NEAFC. The main change is the merge 
of  the  former  Scheme  and  the  Program  to  promote  compliance  by  non  contracting  Parties 
vessels.  The  other  change  is  the  inclusion  of  a  new  Port  State  Control  system  which 
effectively closes European ports to landings of foreign fish which have not been verified to 
be  legal  by  the  flag  State  of  the  foreign  vessel.  The  Scheme  also  provides  new  measures 
considering control of vessels engaged in illegal, unreported and unregulated fisheries. 

The  Council  adopted,  on  7  July  2009,  Regulation  (EC)  No  679/2009284,  amending 
Regulation  (EC)  No  1386/2007  laying  down  conservation  and  enforcement  measures 
applicable  in  the  Regulatory  Area  of  the  Northwest  Atlantic  Fisheries  Organisation.  This 
Regulation takes into account the modifications to conservation and enforcement adopted by 
this organisation at its 30th annual meeting hold in September 2008. The amendments relate to 
provisions  on  bottom  fishing,  closed  areas  ensuring  seamounts  protection,  labelling 
requirements and additional port sate measures. 

8.2. 

Evaluation 

Fishery-related infringement cases are important because all of them, in varying degrees, do 
touch  upon  the  conservation  objectives  of  the  Common  Fisheries  Policy.  The  success  of  a 
policy of sustainable  management of  fishery resources depends on effective implementation 
of  the  applicable  EU  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 records lack coherence and somewhat move in cycles. 

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 

282             Case C-249/08, Commission v. Italy. 

283            COM (2009) 151 final of 2.4.2009. 

284            OJ L 197, 29.7.2009, p.1. 

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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.  The  new  control  regulation  will  provide  the  European  Union 
with  the  level  playing  field  which  has  been  so  far  lacking  in  the  fisheries  sector.  The  new 
system will encourage a culture of compliance among operators. It aims to ensure that, in a 
single  market,  operators  cannot  take  advantage  of  the  different  sanction  systems  present  at 
national  level  as  means  of  undermining  a  common  policy,  and  that  the  same  offences  are 
subject to the same sanctions, wherever an infringement occurs or whatever the nationality of 
the  fishermen  or  the  flag  he  flies.  Furthermore,  the  new  regulation  introduces  a  new  and 
common approach to control, covering every stage in the process that sees fish caught, landed, 
brought  to  market  and  sold.  Harmonised  standards  for  inspection  activities  and  procedures 
will bring uniform implementation. 

The new control regulation will also ensure that the Commission adheres to its core activity of 
controlling and verifying the implementation of the rules of the common fisheries policy by 
Member States, as it reinforces its capacity to intervene proportionately to the level of non-
compliance by the Member States. 

8.3. 

Evaluation results 

8.3.1.  Priorities 

Based  on  the  experience  gained  with  infringement  cases  so  far,  the  Directorate-General  for 
Maritime Affairs and Fisheries continued to handle infringement cases on the basis of a new 
more focussed and systematic approach to infringement proceedings. 

The  corner  stones  of  this  new  approach  are  priority-setting  and  anticipatory  planning.  The 
ultimate goal is to handle infringement cases in harmony with other novel control instruments, 
to focus on cases that can make a difference in terms of policy priorities and thus to cement a 
"culture of compliance" in the field of fisheries. 

The new approach has been implemented trough administrative guidelines, regular sessions of 
a steering group and regular reporting to senior management. The handling of pre-contentious 
letters has largely resulted in a return to normal conditions in the respective areas of activity. 
The new approach also permitted closing a series of older infringement cases. 

The new approach also reflects one particularity of infringement proceedings in the fields of 
fisheries, namely the absence of a notable number of complaints and the presence of instances 
of violations of regulatory requirements on the side of Member States, which require not only 
direct  contacts  with  the  respective  authorities  of  the  Member  States  concerned  but  also 
contacts at a certain level of representation. 

Improvements  shall  still  be  sought  in  terms  of  more  transparent  and  better  synchronising 
between priority-setting for control and inspection activities and the particularities of ongoing 
and/or planned infringement proceedings. 

8.3.2.  Planned action (for 2010 and beyond) 

The Commission will continue to handle the infringement proceedings according to the new 
approach,  which  is  capable  of  securing  a  strengthened  infringement  policy  and  a  genuine 

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compliance  culture  in  the  fields  of  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  sum  up  the  results  of  the  public  consultation  on  the  reform  of  the 
Common Fisheries Policy in the first semester of 2010 and develop a proposal for a new basic 
regulation in the further course of 2010. 

8.4. 

Summary 

In  the  fields  of  fisheries,  the  finality  of  all  preventive  and  repressive  action  is  to  ensure  the 
effectiveness  of  conservation  and  management  measures  adopted  under  the  Common 
Fisheries  Policy.  Yet,  Member  States  much  too  often  favours  short-term  solutions  when  it 
comes to compliance with and the enforcement of applicable rules. The Commission thus has 
proposed  a  complete  overhaul  of  the  control  and  enforcement  framework.  The  Commission 
initiated a full review of the entire policy in order to prepare the ground for a root-and-branch 
reform.  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. 

9. 

INTERNAL MARKET AND SERVICES 

9.1. 

General overview  

9.1.1.  Efficient and effective enforcement of Community law – achievements in 2009  

1. 

The prioritisation of infringements 

Priority  attention  has  been  paid  in  the  Internal  Market  and  Services  Directorate  General  to 
working within the benchmarks set by the Commission in its 2007 Communication "A Europe 
of results"285.  These efforts have met with success, resulting in accelerated progress of cases 
concerning  the  non-communication  of  measures  transposing  directives.  This  Directorate 
General can also confirm its contribution to the continuing reduction in the average time taken 
to conclude infringement cases by a decision either to close or refer the matter to the Court of 
Justice. 

Alongside  the  horizontal  priorities  set  in  the  2007  communication,  the  sector-specific 
priorities identified by the Internal Market and Services Directorate General in 2009 concern 
some key policy sectors, such as the freedom of establishment in the retail sector; important 
violations of public procurement rules in work related to relevant infrastructures; and special 
rights in privatised companies restricting investments and therefore capital movement. 

Many  priority  cases  require  a  significant  investment  of  effort  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. They also usually concern politically sensitive issues. The 
policy  of  prioritisation  has  not  yet  produced  an  immediate  impact  on  the  length  of 
proceedings on such cases. 

285  Ref COM(2007)502 

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Part of the reason for this is the time needed by national authorities to implement the solution 
identified by the Member State as capable of correcting the infringement in a way compatible 
with EU law. Member States are requested to respect a clear and reasonable timeframe for the 
adoption  of  the  necessary  measures.  The  identification  of  solutions  and  the  organisation  of 
their implementation require informal contacts with Member States between formal steps in 
the  proceeding,  which  can  be  suspended  pending  the  introduction  of  satisfactory  measures 
within  a  reasonable  timeframe.  Further  formal  steps  in  the  proceeding  are  then  taken  if  the 
Member State fails to maintain the promised progress. 

Priority-setting  does  ensure  the  identification  of  the  major  problems  and  allowed  a  more 
thorough analysis of the underlying structural problems. There is room for further progress in 
the management of these cases is planned. 

2. 

Preventive action: risk-based approach, pro-active guidance to MS and partnership 

In  2009  substantial  work  has  been  devoted  to  accompany  the  transposition  of  remedies, 
payment services and services directives. More detailed figures on the intense activity carried 
out to accompany transposition are included in the sectoral description. Due to the importance 
of these directives, whose deadline for transposition expired at the end of 2009, 2010 will also 
be devoted to evaluate the results of transposition plans and take any appropriate measure to 
adapt them to future legislative initiatives.  

The  most  effective  initiatives  within  the  transposition  plans  were  handbooks  for  national 
authorities,  the  publication  of  specific  scoreboards  pending  the  transposition  period  to 
measure  progress  in  member  states,  bilateral  contacts  to  find  targeted  solutions  to  specific 
difficulties and workshops intended to achieve a convergent interpretation of EU provisions. 

Transposition package meetings have been organised in 6 Member States: BE, EL, FR, PT; 
LU  and  ES.  The  choice  of  destination  has  been  made  looking  at  those  showing  more 
difficulties  in  terms  of  timely  transposition  in  the  area  of  internal  market  and  services  and 
where a package meeting had not been organised in the previous year. The major benefit of 
these  package  meetings  has  been  to  add  visibility  for  Internal  market  legislation  within  the 
respective  administrations,  get  more  insight  on  the  reasons  of  delay,  learn  about  legislative 
process in member States, constitutional constraints and get some consensus on how to speed 
up compliance. 

A  Recommendation  for  a  better  functioning  of  the  Internal  market  has  been  adopted  on  29 
June  2009286.  Suggested  actions  range  from  market  monitoring  to  better  information  to 
citizens; from training for officials to detailed follow up at national level on the application of 
EU  law.  This  recommendation  confirms  that  a well  functioning  Internal  market  needs  more 
ownership  of  member  States,  more  cooperation  at  national  and  EU  level  between  national 
authorities and more focus on proper daily application of EU law. 

3. 

As for Petitions  

Regarding  the  number  of  petitions,  in  2009  we  sent  113  communications  to  the  European 
Parliament and we  received  82  new petitions. The recognition  of professional qualifications 
remains the first field (33%), followed by services (26%), financial services and institutions 

286  Ref. OJ 

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(17%),  company  law  (12%)  and  public  procurements  (9%).  The  petitions  related  to  the 
infringements have decreased in number and concern approximately a quarter of the petition 
files.  The  questions  raised  mainly  individual  situations  for  which  there  is  no  incorrect 
application of the Community law and which are governed by national law. 

Regarding  the  recognition  of  professional  qualifications,  the  number  of  petitions  related  to 
infringements  is  lower  than  in  the  past.  Most  of  them  concern  individual  situations  - 
sometimes  complex  -  for  which  petitioners  cannot  benefit  from  the  rights  to  have  their 
qualifications  recognised  or  did  not  carry  out  the  necessary  formalities.  Sometimes  they 
concern a request for information on their legal situation.  

In  the  field  of  the  services,  several  questions  are  without  any  reference  to  infringements. 
Many  are  directly  related  to  an  ongoing  Spanish  infringement  (2001/5261)  on  pharmacies. 
Sometimes they concern more in general restrictions on the activity of the pharmacists. The 
closure  of  the  infringement  related  to  the  German  legislation  on  chimney  sweepers  allowed 
the  closure  of  the  petitions  related  to  this  file.  Some  petitions  concern  the  still  ongoing 
infringements files related to the problematic of gambling and sports betting in the Member 
States.  

As  for  financial  services  area,  petitions  mainly  touch  upon  the  questions  of  company  law, 
credit  institutions,  securities,  free  movement  capital  and  payments.  Also  in  these  areas 
questions  mainly  refer  to  individual  or  collective  situations  outside  the  scope  of  the 
Community law (particularly in the field of company law and means of payment). 

Finally,  in  public  procurement  cases,  the  vast  majority  of  the  answers  concern  alleged 
infringements.  Only  a  small  percentage  of  infringements  are  opened  following  petitions. 
Numerous  petitions  connected  to  a  Spanish  infringement  case  which  is  currently  before  the 
European Court (C-306/08 Commission against Spain) concerning the urban law in Valencia 
were closed in 2009. 

4. 

Informal problem solving mechanisms (SOLVIT and EU-Pilot) 

In the area of Internal market and Services the use of informal problem solving mechanisms is 
strongly encouraged. They represent a valid complement to the prioritisation policy and serve 
the purpose of choosing the most suitable approach for each case. 

Both  SOLVIT  and  the  EU  Pilot  are  complementary  instruments  to  the  formal  infringement 
procedure and apply to different situations. 

SOLVIT provides fast and pragmatic solutions to citizens and businesses encountering cross-
border problems caused by the incorrect application of EU-rules by public authorities.  

The  number  of  SOLVIT  cases  is  constantly  increasing:  in  2008  it  increased  by  22%  and 
reached 1,000cases, in 2009 it further increased by 50 % to 1540 cases. The resolution rate 
remained high at 86%. As in 2008, in 2009 the number of SOLVIT cases exceeds the number 
of registered complaints and opened infringement cases 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 

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businesses and helps to identify structural issues which may still need to be resolved in order 
to improve the operation of the Internal Market. 

In 2009 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. 

Concerning  the  areas  of  Internal  market  and  services,  SOLVIT  has  played  a  useful  role  in 
particular to deal with regulated professions and freedom to provide services. However, while 
the  rate  of  success  is  very  high  as  for  difficulties  related  to  the  recognition  of  processional 
qualification, more problematic appeared to solve cases where the exercise of the freedom to 
provide services was at stake. The situation will be closely monitored in 2010 following the 
application of the services directive 

The  EU-Pilot  project  has  been  introduced  in  2008  as  a  working  method  for  enquiries  and 
complaints  not  involving  cross-border  problems  in  the  internal  market  and  services.  In  the 
area of internal market and services this instrument has been used for a very relevant number 
of potential infringements. About 75% of them could be closed without the need for further 
action  (i.e.  solution  found  or  satisfactory  clarification  provided  or  assessment  that  no  actual 
breach of EU law could be detected). Some others were transferred to the formal infringement 
procedure.  This  instrument  has  been  frequently  used  in  the  public  procurement  area,  where 
many  complaints  are  of  domestic  nature.  Although  progress  is  difficult  to  measure,  given 
annual circumstantial variations in the volume of issues arising, there are clear indications that 
the use of the EU-Pilot in this area determined a significant decrease in the need for recourse 
to formal procedures. 

5. 

The Internal Market Scoreboard: transposition deficit and infringements reduction 

Since  2004,  the  EU  average  transposition  deficit  decrease  from  3.6%  to  0.7%  in  November 
2009.  This  remarkable  improvement  suggests  that  Member  States  made  real  structural 
improvements in the way they ensure timely transposition. In this context the Internal market 
Scoreboard  proved  to  be  a  very  effective  instrument  of  peer  pressure  and  an  essential 
instrument to set commonly agreed moving targets to improve the implementation of EU law. 

However,  it  appears  that  in  some  areas  a  renewed  political  commitment  is  needed  from 
Member States. This applies in particular to the area of long overdue directives. Despite the 
'zero tolerance' target set by the European Heads of State and Government there are still too 
many Member States write directives into their national law only two years or later after the 
deadline  expired..  The  new  Treaty  on  the  Functioning  of  the  European  Union  (TFEU) 
provides the possibility for the Court of Justice to impose financial penalties at an earlier stage 
of  the  infringement  procedure  compared  to  the  provisions  of  the  EC  Treaty.  The  Internal 
Market  Scoreboard  will  introduce  an  additional  challenge  calling  on  all  Member  States  to 
reduce transposition delays.  

More  efforts  are  also  needed  to  ensure  correct  transposition.  The  number  of  directives  not 
correctly transposed is significant for most Member States. The time needed to comply with 
Court rulings, for instance, is still considerable. Once the Court of Justice has ruled Member 
States' failure to fulfil its obligation under EU legislation, Member States must immediately 
take  the  necessary  measures.  Member  States  must  therefore  multiply  efforts  to  provide  fast 
remedies to breaches. 

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9.1.2.  Enforcement priorities and key challenges for 2010 - 2011 

1. 

Shortening the duration of infringement procedures 

The duration of infringement procedures, in particular of cases identified as sectoral priorities 
remains  of  serious  concern  as  too  much  time  is  still  needed  for  a  structural  solution.  The 
monthly decision making process provides a useful tool to manage the infringement caseload 
across the year. On the other hand, a number of factors tend to slow down the achievement of 
the  objective.  One  of  these  is  the  way  negotiations  with  Member  states  to  develop  and 
implement  appropriate  solutions  influence  the  length  of  the  procedure.  This  needs  to  be 
monitored and addressed. Unjustified delays should immediately lead quickly to the following 
step of the infringement procedure. 

The  complementary  and  informal  problem-solving  methods  such  as  EU  Pilot  and  SOLVIT 
could be more and better exploited. They have a natural vocation to satisfy the needs of non-
priority cases and non-structural issues, particularly where the solution can be rapidly found at 
national level and where the citizen or business looks for pragmatic and fast answers to their 
problems. The key challenges for SOLVIT and EU Pilot in 2010/2011 will be to develop their 
full potential and ensure appropriate resources and political backing.   

2. 

Ensuring timely transposition and proper conformity checking 

Despite results achieved for Internal market directives in general, transposition deficit rate in 
the area of Internal market and Services is at the end of 2009 3.1% against 0.7% registered in 
Scoreboard  n.  20  for  overall  Internal  market  legislation.  The  essential  reason  of  this 
discrepancy is the entry into force of three major and very complex directives at the end of 
2009. The objective is therefore to catch up the delay as quickly as possible and ideally within 
the first semester of 2010. In order to achieve the objective, infringement procedures will be 
pursued vigorously in parallel with technical assistance to member states – namely informal 
advice on transposing measures. 

Focus  will  be  not  only  on  transposition  delays,  but  also  on  good  quality  of  transposing 
legislation, as well as on member States taking too much time to comply with EU law (e.g. 
excessive delay in transposing directives, time needed to comply with ECJ rulings). 

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 several areas. The transposition of the services directive – and the related mutual 
evaluation  exercise  –  will  constitute  a  complex  and  time  consuming  task,  in  addition  to  the 
remaining difficulties in particular in the area of company law but also in the area of mutual 
recognition of professional qualifications. A risk-based approach allows checking first those 
measures  which  correspond  to  key  provisions  or  provisions  likely  to  trigger  interpretation 
problems, incorrect transposition or gold plating. This approach has already been used in the 
conformity  assessment  of  measures  transposing  MIFID  with  satisfactory  results.  However, 
this  approach  is  not  sufficient  to  ensure  complete  and  quick  analysis  as  well  as  daily 
monitoring of  measures adopted at national level in relation to EU directives.  Transposition 
tables are often absent or of limited help due to excessively summarised information and do 
not allow monitoring of possible future modifications of the national legislation. Furthermore, 
in  a  EU-27  context,  it  is  difficult  to  cover  all  measures  and  translation  needs  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.  

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3. 

Empowering citizens and businesses  

Citizens  and  business  need  to  be  enabled  to  make  effectively  use  of  their  internal  market 
rights.  Practical  information  about  these  rights  and  possibilities  is  a  first  step  to  empower 
citizens and businesses. Secondly they need to be able to quickly find the right service if they 
need  a  more  individualised  advice  or  if  they  need  assistance  to  solve  a  problem  they 
encountered.  

Over the years the Commission has created a multitude of web portals and information and 
assistance services. In this web it is not always easy for citizens and businesses to find their 
way. In addition too few citizens and businesses know of their existence and potential.  

In order to facilitate the access to these services and help citizens and businesses to exercise 
their internal market rights, the Commission is streamlining and reinforcing the cooperation 
between all these services.  In this context also the Your Europe portal for citizens (existing 
alongside the Your Europe business portal) is undergoing a wholesale revision. The aim is to 
provide citizens & businesses with practical information enabling them to make effective use 
of the rights and opportunities offered by the Single Market. At the same time, the revamped 
portal will also act as a 'one stop shop portal' directing citizens & businesses to more specific 
assistance or problem-solving when there is a need for it.  

Besides helping citizens and businesses directly, improving coordination amongst assistance 
services will also provide valuable feedback on how the Single Market works in practice. All 
assistance  services  collect  information  on  questions,  queries,  problems  and  complaints 
submitted by citizens and businesses. It is intended to use this material in a more systematic 
manner to provide input for the way the Commission develops its policies. 

The different actions are outlined in the Single Market Assistance Services action plan, which 
the Commission adopted in 2008.  

4. 

More  Partnership  with  Member  States:  extending  the  use  of  the  Internal  Market 
Information System (IMI) 

The  Internal  Market  Information  System  (IMI),  an  IT-based  information  network,  is  being 
used in the context of the Professional Qualifications Directive287 since February 2008 and 
for the implementation of the Services Directive288 since 28 December 2009. In both areas, it 
has shown great benefits in facilitating administrative cooperation across borders. 

IMI's  multilingual  search  function  helps  competent  authorities  identify  their  counterparts  in 
other  countries.  Using  pre-translated  questions  and  answers,  they  can  exchange  information 
across language barriers. A tracking mechanism enables them to follow the progress of their 
request. In the event of problems, IMI coordinators at national or regional level can intervene. 

287  Directive 2005/36/EC of the European Parliament and of the Council of 7 September 
2005 on the recognition of professional qualifications (OJ L255 of 30.9.2005, p. 22).  

288   Directive  2006/123/EC  of  the  European  Parliament  and  of  the  Council  of  12 
December 2006 on services in the internal market (OJ L376 of 27.12.2006, p. 36). 

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Around 800 authorities are now using IMI for the purposes of the Professional Qualifications 
Directive, and more than 3000 are already registered for the IMI services module. 2009 has 
seen  a  sharp  increase  in  the  usage  of  the  system.  In  December  2009,  on  average  180  users 
logged on to IMI per day, compared to 40 per day in January. 

Given  the  success  of  IMI,  interest  for  using  it  in  other  areas  is  great.  The  Commission  is 
examining for which further legislative areas IMI would be suitable. 

9.2. 

Analysis by sector 

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

Services) 

9.2.1.1.  General Introduction 

The relevant legal framework consists of Article 49 of the Treaty on the Functioning of the 
European Union on the freedom of establishment as well as of Article 56 of the Treaty on the 
Functioning of the European Union 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 aspects (Postal Services 
Directive289, the Directive on the legal protection of conditional access services290 and the 
E-commerce Directive291 ).  

It is also complemented  by  Directive  2006/123/CE on services in the Internal Market292, a 
horizontal  instrument  adopted  in  December  2006  which  had  to  be  implemented  by  the 
Member States by the end of 2009. In addition two Comitology decision have been adopted in 
2009, one on the use of the Internal Market Information System ("IMI") for the exchange of 
information between administrations as foreseen in the Services Directive293 and another one 
on practical arrangements concerning the use of electronic procedures through the Points of 
Single Contact.294 

289  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 

290  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. 

291  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. 

292  O.J. L 376/36 of 27.12.2006 

293  Commission Decision 2009/739/EC of 2 October 2009, OJ L 263 of 7 October 2009 

294  Commission  Decision  2009/767/EC  of  16  October  2009,  OJ  L  299  of  14  November 
2009  

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9.2.1.2.  Report of work done in 2009 

(1)  Management of legislation, including in committees and working groups 

The  Services  Directive  sets  out  a  comprehensive  modernisation  programme  for  national 
administrations and is more than just a piece of European legislation to be implemented into 
national  law.  The  Commission’s  commitment,  taken  in  2007  and  following  a  request 
formulated by the Council, to provide guidance and assistance to Member States throughout 
the  whole  implementation  process,  continued  in  2009.  As  concrete  examples  of  the 
implementation  strategy  put  in  place,  20  bilateral  meetings  with  Member  States  and  9 
meetings of the “Expert Group on the implementation of the Services Directive” on specific 
questions of the implementation have to be mentioned. The main aim of those meetings was to 
ensure  a  similar  level  of  understanding  by  all  Member  States  of  the  work  required  and  the 
priorities for action. 

•  As  regards  the  Points  of  Single  Contact,  work  continued  to  focus  on  the  practical 
implementation  work  and  on  the  exchange  of  best  practices  between  Member  States. 
Substantive  work  has  been  undertaken  with  Member  States  to  facilitate  the  cross  border 
use of electronic procedures through the Points of Single Contact (PSC). This includes the 
adoption of a Comitology decision295 obliging Member States to establish "trusted lists" 
with common information required for the cross border validation of e-signatures. Thanks 
to  the  work  undertaken  during  the  implementation  period,  a  close  cooperation  amongst 
many Member States has emerged. They have developed a "common branding" and logo 
(which  the  Commission  will  register  as  a  trademark)  and  have  engaged  into  "mutual 
testing" of their PSCs (to check if they are easy to use for businesses from other countries). 
Also  with  this  aim,  a  large  number  of  Member  States  have  decided  to  make  information 
content  on  their  PSC  websites  available  in  languages  other  than  their  own  (which  goes 
beyond  the  requirements  of  the  Directive).  In  addition  to  that  the  Netherlands  took  the 
initiative in 2008 to bring together people working on the practical implementation of the 
PSC's  for  an  informal  meeting  at  EU  level,  a  so  called  "Jamboree"  gathering.  A  second 
meeting  was  organised  by  other  Member  States  in  June  2009  allowing  experts  from  all 
Member States to discuss informally and to attend a series of practical workshops. 

•  Concerning the use of IMI, a pilot project was launched in January 2009 giving Member 
States  the  possibility  to  try  and  test  the  system  during  a  year  before  the  end  of  the 
implementation period. By the end of 2009 more than 3000 authorities had been registered 
in  the  system  and  were  ready  to  use  it  when  needed  to  comply  with  their  administrative 
cooperation obligations under the Directive. In addition, a Comitology decision confirming 
the compulsory use of the Internal Market Information System ("IMI") for the purposes of 
administrative  cooperation  between  Member  States  under  the  Services  Directive  and 
setting  out  some  practical  arrangements  related  to  the  exchange  of  information  between 
Member  States  through  IMI  for  the  specific purposes  of  the  administrative  cooperation 
obligations under the Services Directive, was adopted in October 2009296. 

295  Commission  Decision  2009/767/EC  of  16  October  2009,  OJ  L  299  of  14  November 
2009 

296  Commission Decision 2009/739/EC of 2 October 2009, OJ L 263 of 7 October 2009 

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•  At  the  end  of  2008,  the  Commission  had  commissioned  a  study  on  business  practices 
which  may  fall  within  the  non-discrimination  clause  in  Article  20(2)  of  the  Services 
Directive.  According  to  this  article,  Member  States  shall  ensure  that  the  recipient  of 
services  is  not  made  subject  to  discriminatory  requirements  based  on  his  nationality  or 
place  of  residence.  Looking  specifically,  although  not  exclusively,  at  services  provided 
over the internet, the study focuses on four main sectors (car rental, tourism, on-line sale of 
electronic goods and download of music) with the objective not only of finding evidence of 
potentially discriminatory practices but also of exploring (mainly through interviews with 
businesses)  possible  reasons  behind  different  treatment  applied  to  consumers  resident  in 
different Member States. The results of the study will be used in 2010 to provide guidance 
to  Member  States  in  their  implementation  work  as  well  as  in  the  enforcement  of  this 
prohibition by national authorities. 

•  Concerning  the  assistance  for  recipients  of  services  as  foreseen  in  Article  21  of  the 
Services  Directive,  a  network  of  national  bodies  has  been  set  up  to  assist  recipients  of 
services, business as well as consumers, when they want to have access to services from 
another Member State. 

(2)  Management of Infringements 

The  control  of  the  application  of  articles  49  and  56  of  the  Treaty  of  the  Functioning  of  the 
European  Union  remains  an  important  task.  Infringement  proceedings  in  2009  concerned 
restrictions in various areas of the Internal Market.  

As  in  2008,  a  number  of  procedures  concerned  health  services,  in  particular  the 
reimbursement of medical costs incurred in another Member State (the so-called mobility of 
patients).  The  Commission  referred  Portugal297  to  the  Court  of  Justice  and  sent  a 
supplementary reasoned opinion to Spain298 recalling to both Member States that the Court 
had  issued  several  judgments  on  the  reimbursement  of  the  costs  of  medical  treatment  in 
another  Member  States  and  that  the  right  conferred  to  patients  by  the  TFEU  were  not 
recognised in Spain. Luxemburg was referred to the Court of Justice299 over cases of refusal 
to reimburse the costs of biomedical tests carried out in other Member States. And finally a 
supplementary  reasoned  opinion  was  sent  to  the  United  Kingdom300  concerning  its 
legislation  on  the  recognition  of  medical  prescriptions.  The  Commission  considered  in 
particular  that  the  United  Kingdom  has  failed  to  guarantee  the  recognition  of  medical 
prescriptions issued by health professionals established in other Member States in accordance 
with Article 56 TFUE. Even if the United Kingdom had undertaken some amendments to its 
legislation as a result of the infringement procedure, the Commission still considered that the 
recognition should be guaranteed also to so called “controlled drugs” not subject to a specific 
medical  prescription.  In  addition  the  Commission  insisted  that  the  requirement  to  have  the 
address  and  the  age  of  the  patient  indicated  on  the  medical  prescription  in  order  for  the 
prescription  to  be  recognized  in  the  United  Kingdom  was  not  compatible  with  article  56 

297  C-255/09 

298 

IP/09/1474 

299  C-490/09 

300 

IP/09/1763 

EN 

270 

   EN 

                                                 
TFUE  as  it  was  disproportionate  in  relation  to  the  objective  of  protecting  public  health.  In 
another  case,  also  related  to  health  services,  the  Commission  has  referred  France  to  the 
Court301  concerning  the  incompatibility  of  French  legal  restrictions  on  the  ownership  of 
capital in biomedical laboratories with the freedom of establishment as guaranteed in Article 
49 TFUE. According to French legislation a non-biomedical firm may hold no more than one 
quarter of the shares of a company operating biomedical laboratories and any natural or legal 
person  is  prohibited  from  holding  shares  in  more  than  two  firms  set  up  in  order  to  jointly 
operate  one  or  more  biomedical  laboratories.  The  Commission  considered  that  the  aim  of 
protecting  public  health  can  be  achieved  with  measures  that  impose  less  restriction  on  the 
freedom of establishment of natural and legal persons in France. For the protection of public 
health,  the  Commission  considered  that  it  is  important  that  the  biomedical  tests  are  being 
carried  out  by  competent  staff  with  necessary  qualifications.  However,  the  Commission 
questions  whether  such  qualifications  are  necessary  to  own  or  to  have  the  right  to  operate 
biomedical laboratories.  

In other areas, the Commission sent a reasoned opinion to Luxembourg302 on account of its 
regulations  which  require  persons  wishing  to  provide  services  temporarily  to  obtain  an 
authorisation for establishment. The Commission considered that the legislation at stake made 
a  too  restrictive  and  inadequately  precise  distinction  between  the  establishment  of  an 
economic  operator  in  Luxembourg  and  the  temporary  provision  of  services.  Following 
changes in the legislation the Commission was able to close this case at the end of 2009. In a 
similar case, Portugal has been taken to Court303 because the Portuguese rules on estate agent 
services  and  property  mediation  companies  do  not  distinguish  between  establishment  and 
temporary  service  provision.  Requiring  services  providers  from  other  Member  States  to 
comply  with  all  requirements  regarding  establishment  even  if  they  are  only  providing  their 
services  on  a  temporary  basis,  and  to  operate  solely  as  a  property  estate  agent  or  mediation 
company is considered disproportionate in view of Articles 49 and 56 TFUE.  

The  Commission  sent  a  letter  of  formal  notice  and  a  reasoned  opinion  to  Bulgaria304 
concerning restrictions on the free movement  of  lawyers and law firms. The  Commission 
considered in particular that some provisions of Bulgarian legislation constitute a violation of 
the freedom of establishment of lawyers and law firms in Bulgaria as enshrined in Article 49 
TFUE and also infringe Directive 98/5/EC, which aims to facilitate practice of the profession 
of lawyer on a permanent basis in a Member State other than that in which the qualification 
was obtained. The requirement of Bulgarian nationality for a person to obtain the qualification 
of Bulgarian lawyer is not justified, nor is the fact that EU lawyers do not benefit from the 
same  rights  as  Bulgarian  lawyers  for  the  exercise  of  their  activity.  Furthermore,  the 
Commission  believes  that  the  current  inability  of  EU  law  firms  to  establish  a  branch  in 
Bulgaria or use their own company name there breaches Article 49 TFUE. 

301  C-89/09 

302 

IP/09/153 

303   C-518/09 

304  

IP/09/281 and IP/09/1625 

EN 

271 

   EN 

                                                 
A reasoned opinion was sent to the Kingdom of Belgium305 for applying its regulations on 
the technical inspection of lifting equipment to undertakings established in another Member 
State. The Belgian regulations stipulate that such equipment (including lorry mounted cranes) 
must be inspected by an approved Belgian body before being put into service in Belgium and 
again  at  periodic  intervals  thereafter.  The  Commission  considered  that  those  rules  infringe 
Article  56  TFUE  since  such  inspections  duplicate  unnecessarily  the  inspections  already 
carried out in the Member State where the service provider is established.  

The  Portuguese  rules  on  patent  agents  require  any  European  patent  agent  established  in 
another  Member  State  who  wishes  to  exercise  his  or  her  activities  before  the  Portuguese 
trademark and patent office as a temporary service provider to be registered in advance with 
and  be  accredited  by  the  Portuguese  authorities.  As  these  requirements  breach  Article  56 
TFUE  as  well  as  Title  II  of  Directive  2005/36/EC  on  the  recognition  of  professional 
qualifications, a letter of formal notice and a reasoned opinion were sent to Portugal.306 

The Commission has also decided to send a reasoned opinion to Belgium307 because of its 
rules  requiring  self-employed  persons  established  in  another  Member  State  to  provide 
advance  notification  (so  called  “Limosa  declaration”)  if  they  wish  to  pursue  professional 
activities  on  a  temporary  basis  in  Belgium.  The  Commission  considers  that  the  systematic 
requirement  for  services  providers  established  in  another  Member  State  to  provide  advance 
notification  before  they  can  pursue  a  professional  activity  constitutes  a  disproportionate 
obstacle  and  breaches  the  basic  freedom  to  provide  services  as  guaranteed  by  article  56 
TFUE.  

The  Commission  has  also  sent  a  reasoned  opinion  to  Cyprus308  in  relation  to  certain 
provisions  of  the  law  regulating  the  establishment  and  operation  of  institutions  of  tertiary 
education and to Portugal concerning its legislation on construction services.309 

The  Commission  could  also  close,  among  others,  two  important  infringement  proceedings. 
One against Austria which after a Court decision in 2008 stating that Austria has violated EU 
law  because  of  the  lengthy  procedural  rules  imposed  on  nationals  from  Member  States  that 
joined the EU in 2004, changed its rules so that nationals from those Member States can now 
freely establish a company in Austria.310 The other case concerned the requirement for patent 
agents established in another Member State to have an address in Germany for any action at 
the  German  office  of  trademarks  and  patents.  Germany  has  changed  its  rules  so  that  patent 

305  

IP/09/440 

306  

IP/09/1474 

307  

IP/09/1474 

308  

IP/09/1761 

309  

IP/09/1763 

310  

IP/09/1639 

EN 

272 

   EN 

                                                 
agents  from  other  Member  States  can  provide  their  services  without  any  unjustified 
restrictions. 311 

On  25  June  2009  the  Commission  decided  to  send  to  Greece  a  reasoned  opinion  concerning 
national  provisions  on  establishment  of  petrol  stations312.  The  Commission  challenged  in 
particular the incoherence of the provisions relating to the location of new oil installations; the 
need to provide a fire safety study certified by a sworn expert registered in Greece in order to be 
authorized  to  open  an  oil  station;  the  lack  of  legal  certainty  and  transparency  for  opening  oil 
stations  during  the  night,  Sunday  and  public  holidays;  constraints  regarding  opening  hours. 
These  restrictions  do  not  appear  to  be  proportionate  to  relevant  overriding  reasons  of  general 
interest (public safety, protection of health). Greece replied in September 2009. 

The Commission decided on 29 January 2009313 to withdraw from pending Case C-369/08, 
Commission  v  Germany,  and  close  definitively  the  infringement  proceedings  against 
Germany relating to restrictions on freedom of establishment of motor vehicles inspection 
centres,  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. The 
Commission opened the infringement proceedings following written and oral questions of the 
European  Parliament.  In  August  2008  the  Commission  referred  the  case  to  the  Court  of 
Justice, but in September 2008 the German authorities amended their legislation and repealed 
the restrictions. Inspection service providers form other Member States will now find it easier 
to establish their services in Germany. 

The  Court  of  Justice  by  its  Judgment  of  22  October  2009  in  Case  C-438/08,  Commission  v 
Portuguese Republic, declared that by imposing restrictions on the freedom of establishment 
of  bodies  of  other  Member  States  intending  to  carry  on  in  Portugal  the  activity  of  vehicle 
inspection, namely, the making of the grant of authorisations subject to the public interest, the 
requirement  of  a  minimum  share  capital  of  EUR  100  000,  the  limiting  of  the  undertakings’ 
company  objects  and  the  imposition  of  incompatibility  rules  on  members,  managers  and 
directors, the Portuguese Republic has failed to fulfil its obligations under Article 49 TFEU. 

The  Commission  decided  on  8  October  2009  to  close  infringement  proceedings  against 
Portugal  concerning  restrictions  on  the  establishment  of  retail  stores  which  were 
incompatible  with  Article  49  TFEU,  following  the  adoption  of  a  new  legislation  on 
commercial  establishments314.  The  Portuguese  legislation  in  question  subjected  the 
establishment of retail stores to an authorisation procedure based on economic criteria, such 
as the contribution of the new establishment to 'competitive conditions in the retail sector' or 
'regional  sector-specific  integration'.  Moreover,  the  law  provided  for  the  consultation  of 
competitors  on  a  planned  establishment  and  was  not  transparent  on  how  exactly  certain 
criteria  applied.  The  new  Portuguese  regulatory  framework  for  the  establishment  of  retail 
stores still subjects planned establishments to an authorisation procedure. The new procedure, 
however,  is  based  on  non-economic  criteria  (such  as  those  related  to  environmental  and 

311  

IP/09/1639 

312  

IP/09/1002 

313  

IP/09/187 

314  

IP/09/1479 

EN 

273 

   EN 

                                                 
territorial  planning),  which  have  been  made  transparent  in  the  implementing  decree. 
Moreover, the new procedure does not provide for the consultation of competitors. 

The  Commission  decided  on  25  June315  to  send  a  letter  of  formal  notice  to  Germany 
concerning  legislation  that  may  restrict  the  establishment  of  retail  facilities  in  Germany,  in 
particular planning requirements for large-scale retail facilities laid down in the planning laws 
of  Nordrhein-Westfalen  and  the  region  of  Stuttgart,  which  limit  the  establishment  of  shops 
with a certain product range outside dedicated central supply areas and make it subject to the 
assessment of its economic effects. The Commission's objective was to verify whether these 
measures  are  compatible  with  Article  49  TFEU,  and  to  draw  attention  to  potential 
infringement of the Directive on services in the internal market, which had to be transposed 
by the end of 2009. 

The  Commission  decided  on  19  March316  to  close  infringement  proceedings  against 
Belgium,  following  the  adoption  of  the  Royal  Decree  introducing  instructions  to 
pharmacists, published on 30 January 2009, which removes the restrictions contested by the 
Commission under Articles 49, 56 and 34 of the TFUE. The contested legislation essentially 
prohibited pharmacists to deliver medicines to an agent acting on behalf of the patients of a 
community if the latter was not located in the same commune as the pharmacy in question or 
in a neighbouring commune.  

The  Commission  decided  on  25  June317to  close  infringement  proceedings  against  Austria 
concerning  restrictions  on  the  free  movement  of  bovine  artificial  insemination  services, 
following the adoption of new legislation in the Federal States of Salzburg and Tyrol which 
repealed the restrictions in question. The Commission also decided on 8 October318to close 
infringement proceedings against France concerning restrictions on freedom of establishment 
and freedom to provide services for artificial insemination of bovines. 

In  2004  the  Commission  decided  to  bring  France  before  the  Court  of  Justice319  on  the 
grounds that its legislation on artificial insemination services for bovines interferes with two 
basic  freedoms  laid  down  in  the  Treaty  –  the  freedom  of  establishment  and  the  freedom  to 
provide  services  (Articles  49  and  56  TFEU).  At  that  time,  French  law  required  an 
authorisation system for the centres responsible for the storage, distribution and use of bovine 
semen,  and  these  authorisations  specified  exclusive  geographical  areas  in  which  only  the 
approved centres may conduct these activities. Consequently, distributors and users of bovine 
semen  legally  established  in  other  Member  States  were  not  able  to  set  up  permanently  in 
France or provide their services on a temporary or occasional basis. Following the decision of 
the  Court  of  Justice  issued  July  17,  2008  (Case  C-389/05),  France  has  now  brought  its 
legislation in conformity by repealing the restrictions in question. 

315  

IP/2009/1002 

316  

IP/09/438 

317  

IP/09/1002 

318  

IP/09/1479 

319  

IP/04/1319 

EN 

274 

   EN 

                                                 
Following infringement proceedings against Germany, the Court of Justice on 29 November 
2007  (Case  C-404/05,  Commission  v  Germany)  declared  that  Germany  was  in  breach  of 
Article  56  TFEU,  by  requiring  private  inspection  bodies  of  organically-farmed  products 
approved  in  another  Member  State  to  maintain  an  establishment  in  Germany  in  order  to  be 
able to provide inspection services there. Germany complied with the Judgment of the Court 
by amending its legislation so that private inspection bodies in the field of organic production 
of agricultural products registered in other Member States are no longer obliged to establish 
themselves  in  Germany  in  order  to  be  able  to  provide  inspection  services  there.  This  will 
allow for cross-border provision of such services. As a result, the Commission decided on 29 
January 2009 to close the infringement proceedings320. 

The  Commission  sent  on  9  October  2009321  a  reasoned  opinion  to  Cyprus  concerning  its 
national  legislation  restricting  the  activities  of  real  estate  agents,  by  applying  conditions 
upon the recognition of the qualifications of professionals established in other Member States, 
an obligation to collaborate with a real estate agent established in Cyprus for the provision of 
services, and the requirements that legal persons active in this area to exercise this activity as 
their sole corporate purpose and that the person(s) exercising the activity of real estate agent 
in a company exercise this activity exclusively  in  the  company  that  employs  them  and  may 
not act independently of their employer either for other persons or companies, or on their own 
account. 

On  19  March  the  Commission  decided322  to  close  the  infringement  proceedings  against 
Austria, following the amendment in August 2008 of § 25 (3) of the Austrian Gaming Act 
which extended the protection offered by the Austrian legislation to casino players to all EU 
citizens  and  citizens  of  a  Member  State  of  the  European  Economic  Area  (EEA).  On  8 
October323  it  decided  to  close  the  infringement  proceedings  against  Austria  relating  to  the 
prohibition of advertising of foreign casinos in Austria. Under Austrian legislation on games 
of  chance,  advertising  of  foreign  casinos  was  prohibited  in  Austria,  while  Austrian  casinos 
were  not  hindered  by  a  similar  restriction  on  how  they  should  advertise  nationally.  This 
provision  restricted  not  only  the  promotion  and  provision  of  casino  services  offered  by 
operators established in other Member States but also the possibility for recipients of services 
located  in  Austria  to  receive  such  cross-border  services.  Following  a  letter  of  formal  notice 
sent by the Commission, Austria amended its legislation on games of chance by introducing 
the possibility for casinos from the EU or the European Economic Area (EEA) to be granted 
an  authorisation  to  be  advertised  in  Austria,  provided  that  they  offer  the  same  or  similar 
standards of protection of players as those applying in Austria. 

The  European  Court  of  justice  issued  some  preliminary  rulings  or  opinions  in  the  area  of 
establishment and provision of services. 

320  

IP/09/187 

321  

IP/09/1476 

322  

IP/09/438 

323  

IP/09/1479 

EN 

275 

   EN 

                                                 
In its Judgment of 8 September 2009324, the Court of justice ruled that Article 56 TFEU does 
not  preclude  legislation  of  a  Member  State,  such  as  that  at  issue  in  the  main  proceedings, 
which  prohibits  operators  such  as  Bwin  International  Ltd,  which  are  established  in  other 
Member  States,  in  which  they  lawfully  provide  similar  services,  from  offering  games  of 
chance via the internet within the territory of that Member State. 

On  19  May  the  Court  of  justice  ruled  that  prohibitions  on  non-pharmacist  ownership  of 
pharmacies in Germany and in Italy are compatible with freedom of establishment325. In two 
separate  rulings  (following  infringement  proceedings  initiated  by  the  Commission  against 
Italy and in a request for preliminary ruling respectively), the Court ruled that the prohibitions 
at  issue  constitute  a  restriction  on  freedom  of  establishment  which,  however,  is  justified  by 
and proportionate to the overriding reason in the general interest of protecting public health. 
In  Case  C-531/06,  the  Court  of  Justice  dismissed  the  action  of  the  Commission,  while  in 
Joined Cases C-171/07 and C-172/07, it ruled that Articles 43 EC and 48 EC (now 49 and 56 
TFEU) do not preclude national legislation, such as that at issue in the main actions, which 
prevents persons not having the status of pharmacist from owning and operating pharmacies. 

.On  1  June  2010  the  Court  of  Justice  ruled  that  Article  49  TFEU,  in  principle,  does  not 
preclude national legislation that provides for a minimum distance between pharmacies of 250 
metres  and  for  a  minimum  number  of  2800  inhabitants  per  pharmacy.  Nevertheless  it 
considered  that  Article  49  TFEU  precludes  such  national  legislation  in  so  far  as  the  basic 
‘2 800 inhabitants’ and ‘250 metres’ rules prevent, in any geographical area which has special 
demographic  features,  the  establishment  of  a  sufficient  number  of  pharmacies  to  ensure 
adequate pharmaceutical services. It left it to the national court to ascertain this. Finally, the 
Court ruled that the Asturias provisions that benefited those applicants for a pharmacy licence 
with experience in Asturias are incompatible with Article 49 TFEU. 

9.2.1.3.  Evaluation based on the current position 

The implementation of the Services Directive requires an unprecedented effort from all Member 
States.  It  necessitates  the  reviewing  of  the  national  legislation,  implies  important  legislative 
changes  in  all  Member  States  and  the  undertaking  of  a  number  of  ambitious  projects  as  the 
setting up of "Points of Single Contact" for businesses. As described in the section above a lot 
has been achieved. The Commission will first of all have to follow-up with the Member States 
not only on the timely transposition of the Directive, but will also have to assess the quality of  
the work done by the Member States.  

9.2.1.4.  Evaluation results 

(a) 

Priorities 

The main priority for 2009, as for previous years, was the timely and correct implementation 
of  the  Services  Directive  by  the  end  of  2009.  Even  if  the  efforts  undertaken  by  both  the 

324   Case  C-42/07,  Liga  Portuguesa  de  Futebol  Profissional/  Bwin  International  Ltd  v 
Departamento de Jogos da Santa Casa da Misericórdia de Lisboa 

325   Ruling  of  19  May  in  Case  C-531/06,  Commission  v.  Italian  Republic,  and  in  Joined 
Cases  C-171/07  and  C-172/07,  Apothekerkammer  des  Saarlandes  and  Others,  concerning 
prohibitions of non-pharmacist ownership of pharmacies 

EN 

276 

   EN 

                                                 
Member  States  and  the  Commission  have  been  considerable  it  is  clear  that  a  lot  of  work 
remains to be done and that important progress needs to be achieved in 2010 as well. Having 
reached  the  end  of  the  implementation  period,  the  main  focus  will  shift  to  the  so  called 
“mutual  evaluation  process”  as  foreseen  by  the  Directive,  and  to  the  control  of  the  correct 
implementation of the Services Directive by Member States.  

Enforcement  of  the  Treaty  rules  on  the  freedom  to  provide  services  and  the  freedom  of 
establishment will continue to focus in particular on those areas which are not covered by the 
Services Directive, such as health services, as well as on all restrictions caused by the failure 
to  distinguish  between  those  two  fundamental  freedoms.  Clear  discriminations  or  cases 
concerning entire categories of services providers will also continue to be treated as priority.  

(b) 

Planned actions (2010 and beyond) 

The Services Directive foresees for 2010 a so called "mutual evaluation" exercise, in which 
Member  States  and  the  Commission  will  assess  the  results  of  the  review  of  the  regulatory 
framework  undertaken  to  implement  the  Directive.  The  objective  is  to  create  transparency 
amongst Member States, exchange best practices and assess the resulting state of the Internal 
Market  for  services.  During  this  "peer  review"  exercise,  the  Member  States  and  the 
Commission will examine and discuss Member States' reports. At the end of the process at the 
end  of  2010,  the  Commission  will  submit  a  report  with  the  results  of  the  exercise  (with 
proposals  for  additional  initiatives  when  required)  to  the  Council  and  the  European 
Parliament. 

Work in 2010 will also continue  

• 

• 

• 

• 

to improve the functioning of the Points of Single Contact and develop them into fully 
fledged e-government centres (covering also aspects which are not under the services 
directive such as taxation)  
to  further  facilitate  the  use  of  electronic  procedures  across  borders  (to  avoid  the 
emergence of e-barriers);  
to monitor and improve the use of IMI for the administrative cooperation obligations 
under the Directive;  
to  support  the  network  of  assistance  to  recipients  of  services  and  all  other  measures 
contained  in  the  Directive  to  benefit  consumers  (e.g.  obligation  for  business  not  to 
discriminate  consumers  because  of  their  residence)  and  to  improve  the  quality  of 
services.  

Concerning 
infringement  proceedings  and  enquiries,  alternative  problem  solutions 
mechanisms  such  as  SOLVIT  or  EU-PILOT  will  be  used  according  to  set  priorities.  The 
efficient  use  of  resources  has  to  be  taken  in  account,  notably  due  to  the  vast  variety  of 
restrictions concerning the Internal Market.  

In the area of postal services: 

9.2.1.5.  Current position 

With the adoption of the 3rd Postal Directive in 2008 (2008/6/EC), the main focus in 2009 was 
continued market  monitoring, the provision of assistance to Member States in the run up to 
full implementation of the postal acquis and proposing ways to enhance the operation of the 
current  postal regulatory framework.   

EN 

277 

   EN 

In  keeping  with  the  spirit  of  Commission's  Recommendations  on  measures  to  improve  the 
functioning  of  the  Single  Market,  work  on  a  wide  range  of  transposition  issues  was  taken 
forward in the framework of a series of Working Groups convened under the auspices of the 
Postal Directive Committee. In addition to promoting best practice and benefiting from input 
from sector experts, the Working Groups agreed on a set of operational conclusions notably 
on the provision of universal postal service, the functioning of national postal regulators and 
the calculation of the net costs of universal service.  

As  part  of  its  ongoing  activity  of  directly  assisting  Member  States  in  the  process  of 
transposing  the  3rd  Directive,  13  bilateral  meetings  were  held  with  ministries  and  national 
regulatory authorities. These meetings focused on delivering advice and guidance as well as 
providing  preliminary  evaluations  of  draft  legislation  under  preparation  by  national 
authorities.  In  some  instances,  these  meetings  were  the  catalysts  in  persuading  national 
authorities to amend and withdraw draft legislative texts. 

9.2.1.6.  Evaluation based on the current position 

Two sector studies delivered at the end of 2008 and August 2009 respectively provided a clear 
overview  of  the  adaptations  underway  in  the  postal  sector,  the  impact  of  the  Community's 
postal  reform  over  the  last  ten  years  and  identified  shortcomings  and  persistent  problems 
which need to be resolved in the run up to full market opening over the next two years. The 
key  findings  of  these  studies,  combined  with  complaints  from  stakeholders  focusing  on  an 
incorrect  interpretation  and  uneven  application  of  the  Community  acquis  by  some  Member 
reserved  area, 
States,  are  being  used 
predatory/excessive  pricing),  remove  barriers  to  entry  (excessive  and  burdensome  licence 
conditions,  access  to  the  postal  infrastructure)  and  ensure  the  correct  implementation  of  the 
postal acquis (ensuring national regulators are fully operational/ timely transposition). 

to  curtail  bad  practices 

(expanding 

the 

Market  monitoring  is  being  enhanced  through  the  provision  and  publication  of  more 
comprehensive key data (in close co-operation with Eurostat) on the postal sector. 

9.2.1.7.  Evaluation results 

1)  Priorities:  Enhancing  the  operation  of  the  Postal  Regulatory  Model  (Priority 
project) 

Building  on  the  conclusions  of  the  2009  Study  on  the  Role  of  Regulators  in  a  More 
Competitive  Postal  Market  and  after  informally  consulting  key  stakeholders,  the  service  in 
charge  has  proposed  the  creation  of  a  new  entity  to  promote  better  market  oversight.  The 
grouping  would  be  known  as  the  European  Regulatory  Group  for  Posts  (ERGP).  The  main 
tasks  proposed  for  this  Group  are  expected  to  include  ensuring  greater  coherence  in  the 
operation of the postal regulatory model, exchanging best practice and "regulatory know how" 
notably with less well resourced national regulators and aiding and encouraging the growth of 
competition across the postal sector. 

2) Planned actions 

1.  DG  Markt  proposed  a  High  Level  Conference  of  Postal  Policy  during  the  Swedish 
Presidency  in  2009.  The  conference  could  not  take  place  mainly  due  to  organisational 
difficulties  and  was  postponed  to  2010.  It  will  now  go  ahead  in  April,  during  the  Spanish 
Presidency and will take place in Valencia.    

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2. The decision to go ahead with the proposal to create the Group of E.P regulators has not yet 
be presented to the incoming Commissioner and awaits his endorsement.    

9.2.2.  Financial Services 

9.2.2.1.  General introduction 

The financial services sector includes three major areas for which similar European policies 
apply:  banking326,  insurance327  and  securities328.  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 pensions329 
and payment services330.  

BANKING 

9.2.2.2.  Current position  

In  the  banking  sector,  the  Commission  mainly  dealt  with  non-communication  cases.  As 
regards  the  transposition  of  Directive  2007/44/EC  which  lays  down  the  procedures  and 
criteria for the prudential assessment of acquisitions and increase of holdings in the financial 
sector331,  seven  infringement  cases  against  Greece,  Spain,  Italy,  the  Netherlands,  Poland, 
Portugal  and  the  United  Kingdom  due  to  non-communication  of  the  national  transposition 
measures  before  the  deadline  of  21  March  2009  were  initiated  in  June  2009  and  were  still 
pending at the end of 2009.  

The  Commission  also  launched  infringement  proceedings  against  seventeen  Member  States 
for  non-communication  of  the  implementing  measures  of  Directive  2009/14/EC  which  has 
amended the EU rules on deposit guarantee schemes332. In the course of 2009, it was possible 

326 

http://ec.europa.eu/internal_market/bank/legislation/index_en.htm 

327 

http://ec.europa.eu/internal_market/insurance/legis-inforce_en.htm 

328 

http://ec.europa.eu/internal_market/securities/index_en.htm 

329 

http://ec.europa.eu/internal_market/pensions/directive_en.htm 

330 

http://ec.europa.eu/internal_market/payments/legislation_en.htm 

331   Directive 2007/44/EC of the European Parliament and of the Council of 5 September 
2007  amending  Council  Directive  92/49/EEC  and  Directives  2002/83/EC,  2004/39/EC, 
2005/68/EC  and  2006/48/EC  as  regards  procedural  rules  and  evaluation  criteria  for  the 
prudential  assessment  of  acquisitions  and  increase  of  holdings  in  the  financial  sector  (OJ  L 
247, 21.9.2007, p. 1–16) 

332   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. 3–7) 

EN 

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to  close  fourteen  of  these  cases  following  the  notification  of  the  implementing  measures  by 
the  Member  States  concerned,  while  three  cases  -  against  Slovenia,  Finland  and  Greece  - 
remained open at the end of 2009.  

The  case  against  Hungary  for  non-transposition  of  Directive  2006/48/EC  (the  so  called 
'Capital Requirement Directive', CRD)333 pending before the Court was settled in 2009 further 
to the complete implementation of the Directive.   

In  2009,  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 provisions334.  

Building  on  the  work  of  this  group,  the  Commission  adopted  two  comitology  directives 
clarifying  and  completing  technical  provisions  of  the  CRD335.  A  more  extensive  review 
refining  and  updating  certain  provisions  of  the  CRD  was  adopted  by  the  Council  and 
European Parliament in 2009336. The whole package of amendments must be implemented in 
national  law  by  the  end  of  2010.  The  CRDTG  will  continue  to  assist  Member  States  in  the 
transposition process via the on-line Q&As service and meetings, if there is a need to discuss 
more extensively specific issues.   

In  July  2009,  the  Commission  proposed  further  changes  to  the  CRD  to  strengthen  rules  on 
bank  capital  and  on  remuneration  policies  in  the  banking  sector337.    The  Council  found  a 
political  agreement  on  this  proposal  in  November  2009.  Negotiations  with  the  European 
Parliament will continue in 2010.  

333   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)  

334   http://ec.europa.eu/internal_market/bank/regcapital/transposition_en.htm 

335    Commission  Directive  2009/27/EC  of  7  April  2009  amending  certain  Annexes  to 
Directive 2006/49/EC of the European Parliament and of the Council as regards technical 
provisions concerning risk management (OJ L 94, 8.4.2009) and Commission Directive 
2009/83/EC of 27 July 2009 amending certain Annexes to Directive 2006/48/EC of the 
European Parliament and of the Council as regards technical provisions concerning risk 
management (OJ L 196, 28.7.2009)  

336   Directive  2009/111/EC  of  the  European  Parliament  and  of  the  Council  of  16 
September  2009  amending  Directives  2006/48/EC,  2006/49/EC  and  2007/64/EC  as  regards 
banks affiliated to central institutions, certain own funds items, large exposures, supervisory 
arrangements, and crisis management  

337   Poposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending 
Directives 2006/48/EC and 2006/49/EC as regards capital requirements for the trading book 
and for re-securitisations, and the supervisory review of remuneration policies SEC(2009) 974 
final SEC(2009) 975 final 

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A Directive improving depositor protection was proposed at the end of 2008 and adopted in 
March  2009338.  It  increased  the  level  of  covered  deposits,  reduced  the  payout  delay  and 
abolished co-insurance (a part of losses to be borne by depositors).   

In  preparation  of  future  legislative  proposals,  the  Commission  launched  two  public 
consultations  in  2009,  concerning  further  amendments  to  the  CRD  and  a  possible  EU 
framework for cross-border crisis management in the banking sector.   

The report on the conformity of the national measures implementing the CRD was finalized 
and published in 2009339.  

9.2.2.3.  Evaluation based on the current position 

In the banking sector, the CRDGT has proved to be a useful cooperation tool with Member States 
with a view to ensure coherent implementation. The work of this group has also resulted in the 
amendments to the CRD proposed by the Commission in July 2009 on the prudential treatment 
of re-securitization operations.    

The first package of amendments to the CRD covering both legislative and technical provisions 
was adopted in 2009. It represented a first response to the financial crisis by reinforcing rules on 
liquidity, large exposures and the quality of capital. The amendments to the Directive on Deposit 
Guarantee Schemes were an emergency quick-fix measure which helped maintain the confidence 
of depositors when the crisis aggravated.  

The report on the implementation of the CRD provided a comprehensive and detailed overview 
of the implementation of this Directive in the 27 EU Member States and a preliminary check of 
the  transposition.  The  main  finding  of  the  study  is  that  most  Member  States  have  correctly 
transposed the Capital Requirements Directive.  

(1) 

Priorities  

The main priorities in the banking area concern the preparation of legislative proposals aimed at 
improving regulation, strengthening supervision and developing a crisis management regime and 
the  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.  

338   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. 3–7) 

339   Study  on  the  implementation  of  the  Capital  Requirements  Directive  (Directive 
2006/48/EC 
at 
http://ec.europa.eu/internal_market/bank/studies/index_en.htm 

2006/49/EC), 

published 

Directive 

and 

EN 

281 

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(2) 

Planned actions  

The Commission will continue to monitor the implementation and application of the CRD on the 
basis of the findings of the study and other available sources. 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.  

The recent crisis has demonstrated a number of critical shortcomings in both the risk assessment 
and  management  of  financial  institutions  and  the  relevant  regulation.  The  Commission  must 
propose adequate remedies. The Commission has to prevent recent and present problems from re-
occurring and ensure that risks posed by the financial sector to financial stability and to the real 
economy are kept under control. 

In this context, in 2009, G-20 leaders committed in London and Pittsburgh to a set of important 
measures.  These  would  build  high  quality  capital,  strengthen  liquidity  risk  requirements, 
discourage  excessive  leverage,  mitigate  pro-cyclicality  of  capital  requirements  andrequire 
forward-looking  provisioning  for  credit  losses.  All  these  measures,  including  a  proposal  to 
remove the exceptions, derogations and discretions provided for by the CRD which give rise to 
differences  in  national  implementing  legislation,  will  be  part  of  a  comprehensive  package 
amending the CRD ('CRDIV'), expected to be adopted by end 2010. 

A  more  comprehensive  review  of  the  Directive  on  Deposit  Guarantee  Schemes  is  planned  in 
2010.  In  addition,  the  Commission  will  propose  a  revision  of  the  Financial  Conglomerates 
Directive340 designed to reinforce supervision of these institutions.   

Other substantial preparatory and legislative work is envisaged in 2010 in the banking area. This 
work will focus on building up a EU framework for managing bank crises, including a regime for 
the resolution of banks in financial difficulties, in order to improve the ability of governments to 
deal with problems in cross-border banks. 

INSURANCE AND OCCUPATIONAL PENSIONS 

9.2.2.4.  Current position 

(1) 

Report of work done in 2009 

In total 30 complaints and infringement cases were handled in 2009, a high number of them 
being  for  non-communication  of 
transposition  measures  concerning  Directive 
2005/68/EC. 3 cases were referred to the new EU Pilot tool and no cases were referred to the 
SOLVIT tool. 10 cases were closed (around 33% of the total of cases handled) and only 1 was 
referred  to  the  ECJ  (3%  of  the  total  approximately).  Bilateral  contacts  were  held  with  the 
Member States either through package meetings or in the relevant sector committees. Package 

the 

340   Directive 2002/87/EC of the European Parliament and of the Council of 16 December 
2002  on  the  supplementary  supervision  of  credit  institutions,  insurance  undertakings  and 
investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 
79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 
2000/12/EC of the European Parliament and of the Council (OJ L 35, 11.2.2003, p. 1–27) 

EN 

282 

   EN 

                                                                                                                                                         
meetings sometimes led to the closing of the infringement case within 6 to 9 months of being 
held. 

As  regards  the  transposition  of  Directives  by  the  Member  States,  non-communication  cases 
launched in the insurance sector against several Member States with regard to the failure to 
transpose Directive 2005/68/EC (the reinsurance Directive341) by 10 December 2007 which 
were still outstanding, were settled in 2009 (Belgium, Czech Republic, Greece and Portugal). 
The  only  case  still  under  examination  is  the  one  concerning  Poland  (ECJ  judgement  of 
29.10.2009  in  Case  C-2008/511).Some  infringements  were  also  launched  concerning 
Directive  2002/92/EC  (the  insurance  mediation  Directive342),  namely  against  Italy.  As 
regards  motor  insurance,  the  ECJ  found  that  the  UK  had  not  fully  communicated  the 
transposition  of  Directive  2005/14/EC  (judgement  of  3.9.2009  in  Case  C-2008/457).  This 
infringement is still pending. 

An  important  case  highlighting  non  conformity  of  national  legislation  was  lodged  with  the 
ECJ.  It  concerned  the  Belgian  sickness  funds  ("mutualités/ziekenfondsen"),  which  offer 
complementary  health  insurance  without  respecting  the  solvency  rules  of  directives 
73/239/EEC and 92/49/EEC (1st and 3rd non-life insurance Directives), which the Commission 
decided to take to the ECJ on 19.11.2009343 

By a judgement delivered on 28.4.2009 the ECJ dismissed a case brought by the Commission 
in 2006 (C-518/06) against Italy. The Court ruled that by having legislation pursuant to which 
premiums for insurance against civil liability in respect of the use of motor vehicles must be 
calculated  on  the  basis  of  specific  parameters,  by  controlling  the  detailed  rules  on  the 
calculation  of  insurance  premiums  for  insurance  undertakings  having  their  head  office  in 
another MS but doing business in Italy and by maintaining an obligation to provide coverage 
for third-party motor insurance for those undertakings, Italy had not breached Articles 43 and 
49 EC (49 and 56 TFEU) or Directive 92/49/EC, the provisions in question being justified by 
an  overriding  requirement  of  public  interest  in  the  first  head  of  count  and  not  against  the 
Directive in question in the two remaining ones.  

As  regards  petitions  a  total  of  17  petitions  were  handled  on  insurance  and  pensions.  They 
dealt  inter  alia  with  motor  insurance,  life  assurance  and  pension  funds.  Of  course,  petitions 
that  show  a  breach  of  EU  law  have  their  facts  "converted"  in  to  infringements.  About  165 
queries of other nature concerned the insurance and pensions sector. 

(2) 

Changes underway  

341  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) 

342  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) 

343   Ref to press release 

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The  key  change  and  challenge  ahead  is  the  proposal  for  a  directive  called  "Solvency  II" 
Directive which was adopted in 2009344 and is to be transposed by late 2012. The Directive 
provides for a transposition period of about 3 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 started in 2009 and will continue 
through 2012. A key year will be 2011, when the Commission will table the proposal of the 
implementing  measures.  It  is  intended  to  modernise  the  evaluation  and  calculation  of  risks 
and  therefore  will  provide  for  a  new,  prospective,  and  economic  and  risk  based  approach 
putting  much  greater  emphasis  on  sound  risk  management  and  robust  internal  controls  by 
insurance  undertakings.  In  addition  SII  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.  

9.2.2.5.  Evaluation based on the current position 

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 the 
checking of the completeness of the communication of the transposition of the said Directive 
was  achieved.  In  2010  work  will  continue  the  focus  on  pursuing  infringements  for  those 
countries which appear not to have transposed in a correct way the Directive in question (only 
Poland and Romania would be prima facie concerned by this). 

Insurance  cases  have  generally  a  considerable  impact  in  economic  terms  and  in  terms  of 
proper  functioning  of  the  relevant  market  both  for  undertakings  and  final  users.  A  level 
playing  field  is  particularly  affected  because  breaches  either  limit  the  possibilities  of 
competitors  to  stay  on  the  market  or  allow  national  companies  to  offer  services  without 
fulfilling the obligations imposed by EC legislation. It also has consequences for the services 
and products that are offered to the consumers. 

The workload on complaints and infringements is likely to increase or at least remain broadly 
stable  in  2010-2011  mainly  due  to  increasing  awareness  of  citizens  of  their  rights  in  all  27 
Member states. This implies a likely increase in flow of work and the corresponding need to 
define and establish priorities. The current economic/financial crisis may have repercussions 
on national measures and subsequently on complaints. 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)  result  from  the  complexity  of  the  legislation  adopted  sometimes  in  several  steps 

344   Directive 2009/138/EC of 17.12.2009, OJ L 335 

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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).  

In  overall  terms  the  same  can  be  said  on  the  implementation  of  the  acquis  by  the  Member 
States in general. 

9.2.2.6.  Evaluation results 

(1) 

Priorities 

The main priority will be the ongoing work on the "level 2" measures as regards the Solvency 
II  Directive.  The  checking  of  recently  to  be  transposed  Directives,  notably  Directive 
2005/68/EC on reinsurance, will be continued. 

To ensure timely and effective problem solving efficient co-operation with the Member states 
as well as an efficient management of infringement procedures will be reinforced 

(2) 

Planned actions (2010 - 2011) 

As for insurance legislation, Guidance on the transposition of Solvency II has started in close 
co-operation with the Member States and will continue through to 2012. 

A  detailed  checking  of  the  substance  of  the  transposition  of  Directive  2005/68/EC  by  the 
Member States will be continued and completed by the Commission services. Failure to fully 
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. 

The  package  meetings  with  Member  States,  as  well  as  the  referral  of  cases  to  the  EU  Pilot 
tool, will be continued.  

SECURITIES 

9.2.2.7.  Current position 

(1) 

General introduction 

'Securities markets' legislation include the following (main) directives and regulations:  

a.  Directive  on  Markets  in  Financial  Instruments  2004/39/EC345  (MiFID)  and  its 
implementing provisions (Commission Directive 2006/73/EC346 and Commission Regulation 

345Directive 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) 

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1287/2006347),  which  regulate  the  provision  of  investment  services  in  the  EU  and  aim  to 
create a level playing field for trading venues.  

b.  Market  Abuse  Directive  2003/6/EC  (MAD)348  and  its  implementing  texts  (Commission 
Directive 2003/124/EC349, Commission Directive 2003/125/EC350, Commission Regulation 
2273/2003351, Commission Directive 2004/72/EC352), whose aim is to prevent and to fight 
against insider dealing and market manipulation.  

c.  Prospectus  Directive  2003/71/EC353  and  its  implementing  Regulation  809/2004354 
regulating  the  obligation  to  produce  a  prospectus  and  the  content  of  the  prospectus  to  be 
published when securities are offered to the public or admitted to trading in the EU.  

introducing  a 
d.  Investor  Compensation  Scheme  Directive  1997/9/EC355  (ICSD) 
compensation for investors having lost their assets as a result of the failure of an intermediary 
providing investment services.  

e.  Regulation  (EC)  No  1060/2009  of  the  European  Parliament  and  of  the  Council  on  credit 
rating agencies356 introducing a registration and supervisory regime.  

346Commission  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) 

347Commission Regulation (EC) No 1287/2006 of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and 
of the Council as regards record-keeping obligations for investment firms, transaction reporting, market transparency, admission of financial 
instruments to trading, and defined terms for the purposes of that Directive (OJ L 241, 2.9.2006, p. 1–25) 

348  Directive  2003/6/EC  of  the  European  Parliament  and  of  the  Council  of  28  January  2003  on  insider  dealing  and  market  manipulation 
(market abuse) (OJ L 96, 12.4.2003, p. 16–25) 

349 Commission Directive 2003/124/EC of 22 December  2003 implementing Directive 2003/6/EC of the European Parliament and of the 
Council  as  regards  the  definition  and  public  disclosure  of  inside  information  and  the  definition  of  market  manipulation  (OJ  L  339, 
24.12.2003, p. 70–72) 

350 Commission Directive 2003/125/EC of 22 December  2003 implementing Directive 2003/6/EC of the European Parliament and of the 
Council as regards the fair presentation of investment recommendations and the disclosure of conflicts of interest (OJ L 339, 24.12.2003, p. 
73–77) 

351 Commission Regulation (EC) No 2273/2003 of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and 
of the Council as regards exemptions for buy-back programmes and stabilisation of financial instruments (OJ L 336, 23.12.2003, p. 33–38) 

352 Commission Directive 2004/72/EC of 29 April 2004 implementing Directive 2003/6/EC of the European Parliament and of the Council 
as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of 
insiders, the notification of managers' transactions and the notification of suspicious transactions (OJ L 162, 30.4.2004, p. 70–75) 

353  Directive  2003/71/EC  of  the  European  Parliament  and  of  the  Council  of  4  November  2003  on  the  prospectus  to  be  published  when 
securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ L 345, 31.12.2003, p. 64–89) 

354 Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the 
Council  as  regards  information  contained  in  prospectuses  as  well  as  the  format,  incorporation  by  reference  and  publication  of  such 
prospectuses and dissemination of advertisements (OJ L 149, 30.4.2004, p. 1–126) 

355  Directive  97/9/EC  of  the  European  Parliament  and  of  the  Council  of  3  March  1997  on  investor-compensation  schemes  ( OJ  L  84, 
26.3.1997, p. 22–31) 

356  Regulation  (EC)  No 1060/2009  of  the  European  Parliament  and  of  the  Council  of  16 September  2009  on  credit  rating  agencies  ( 
OJ L 302, 17.11.2009, p. 1-31) 

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(2)  Work done in 2009 

In the area of securities markets, concerning the MiFID, the Commission services obtained a 
favourable  Court  judgement357  in  2009  against  Poland  for  non  transposition  of  the 
implementing  Directive  2006/73/EC  of  the  Markets  in  Financial  Instruments  Directive 
(MiFID). Following notification by Poland of complete transposition of Directive 2006/73/EC 
in December 2009, the completeness check of the transposition by Poland has been finalised 
for MiFID in 2009 through closure of all infringements for non communication of level 1 and 
level 2 of MiFID.  

The quality check for MiFID was continued and finalised in 2009 with the exception of three 
Member  States  for  which  investigations  are  ongoing,  two  of  which  are  subject  to  open 
infringements.  The  Commission  has  furthermore  closed  in  2009  an  infringement  against 
Spain on the basis of the Investment Services Directive (ISD)358.  

Moreover,  the  questions  and  answers  database  on  MiFID,  launched  by  DG  Internal  Market 
and Services in 2007, continued to be operated in 2009 to help provide all stakeholders with 
the  possibility  to  clarify  interpretational  issues  concerning  MiFID.  220  questions  were 
registered in the database until the end of 2009. The Commission services assisted regularly 
also to meetings of the Committee of European Securities Regulators (CESR) expert groups 
where  a  coordination  approach  in  terms  of  application  of  MiFID  is  sought  by  national 
supervisors. 

Concerning the MAD, the quality check of transposition for MAD continued. This check has 
lead  to  the  opening  of  two  infringement  proceedings  (reasoned  opinion)  in  2009  against 
Luxembourg and UK (Gibraltar). These infringements concerned provisions on the powers of 
competent  administrative  authorities  and  administrative  sanctions.  An  infringement  against 
Greece  for  incorrect  application  of  MAD  was  closed  in  2009.    Finally,  an  important 
clarification on the notion of the 'use of inside information' in MAD was brought in 2009 by 
the ECJ in the Spector Photo Group case359, where the Court, in line with the interpretation 
of the Commission, considered that there was a refutable presumption that a primary insider 
who  is  in  possession  of  inside  information  on  a  peculiar  issuer  uses  it  when  he  trades  the 
financial  instruments  of  this  issuer.  The  Commission  services  have  furthermore  launched  a 
call for evidence in April 2009 as a first step concerning the review of the MAD directives360 
and regulation. 

Concerning  the  ICSD,  the  Commission  services  closed  in  2009  five  infringement  cases 
against Germany on the incorrect application of the ICSD, as well as an infringement based 
on a complaint against Poland on compensation before the entry into force of ICSD.    

357  ECJ,  "Judgment  of  the  Court  (Eighth  Chamber)  of  19  March  2009  —  Commission  of  the  European  Communities  v  Republic  of 
Poland", case C-143/08 of 19 March 2009, OJ C 113, of 16 May 2009, p. 11 

358 The Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ L 197, 6.8.1993, p. 58) (ISD) is 
the predecessor of MiFID which started applying in November 2007. 

359 European Court of justice judgment C-45/08, "Spector Photo Group and Van Raemdonck (Approximation of laws)", of 23 December 
2009 

360  Commission 
http://ec.europa.eu/internal_market/securities/abuse/index_en.htm 

evidence  on 

call 

for 

review  of  Market  Abuse  Directive  of  20  April  2009 

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The  Commission  services  have  dealt  with  three  petitions  in  2009.  One  petition  alleged 
infringements of the ICSD by Poland. Another petition was received on the consequences of 
late transposition of MiFID by Greece. Finally, the third petition concerned the transposition 
of ICSD in Austria linked to the AMIS case. None of these petitions has lead to the opening 
of an infringement.  

(3) 

Changes underway (2009-2010)  

The  legislative  proposal  to  amend  the  Prospectus  Directive  Has  been  adopted  on  23 
September  2009361.  This  proposal,  adopted  in  line  with  the  Better  Regulation  Principles, 
aims  at  increasing  legal  clarity  and  efficiency  in  the  prospectus  regime  and  reducing 
administrative  burdens  for  issuers  and  intermediaries  while  enhancing  further  investor 
protection.  The  Council  has  adopted  a  common  approach  on  17  December  2009.  The 
Parliament Rapporteur's report has been presented on 27 January 2010.  The vote within the 
ECON Committee should take place on 23 March 2010 and the vote in the Plenary should be 
in May 2010.  The final adoption by the co-legislators is expected before summer 2010.   

Concerning  Credit  Rating  Agencies,  the  negotiations  on  the  Regulation  on  credit  rating 
agencies  were  finalised  in  April  2009,  whereas  formal  adoption  was  completed  on  16 
September  2009.  The  Commission  services  have  started  the  implementation  work  by 
publishing  a  mandate  on  12  June  2009362  to  the  Committee  of  European  Securities 
Regulators  for  technical  advice  on  the  equivalence  between  certain  third  country  legal  and 
supervisory frameworks and the EU Regulatory regime for credit rating agencies.  

On 26 October 2009 the Commission proposed legislative amendments to several directives 
in  the  financial  services  sector,  including  MiFID,  Prospectus  and  MAD  in  order  to  make 
targeted  changes  to  ensure  that  the  new  supervisory  Authorities  can  work  effectively.  In 
particular, these amendments intend to lay down in detail the scope for the new Authorities to 
exercise  their  powers,  ensuring  a  more  harmonised  set  of  financial  rules  through  the 
possibility  to  develop  draft  technical  standards,  settle  disagreements  between  national 
supervisors  and  facilitate  the  sharing  of  micro-prudential  information.  The  proposal  is 
currently being negotiated according to the co-decision process. 

9.2.2.8.   Evaluation based on current position 

The  answers  received  from  stakeholders  to  a  call  for  evidence  already  in  2008363  indicate 
that  the  quality  of  transposition  of  MiFID  is  in  general  good.  The  MiFID  quality  check 
undertaken  by  the  Commission  services  has  not  revealed  major  transposition  problems  in 
most Member States either. Particular attention has been and continues to be devoted to the 
practical  application  and  effects  of  MiFID  on  securities  markets  in  all  Member  States,  with 
the  aim  of  assessing,  in  the  perspective  of  the  forthcoming  review,  aspects  such  as  investor 
protection,  transparency,  availability  of  data,  fragmentation,  the  phenomenon  of  high 
frequency trading and regulatory framework applicable to different venues. 

361 COM(2009) 491 final [2009/0132 (COD)] 

362 Available at: http://ec.europa.eu/internal_market/securities/agencies/index_en.htm 

363  The 
http://ec.europa.eu/internal_market/securities/docs/isd/mifidtr_en.pdf  

results  of 

this  call 

for  evidence  have  been  published  on  4  November  2008  and  can  be 

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As  a  result  of  the  evolution  of  the  overall  regulatory  framework,  including  in  particular  the 
Commission Communication of 4 March 2009 on "Driving European Recovery"364, as well 
as  the  changes  to  the  Deposit  Guarantee  Schemes  Directive  and  the  entry  into  force  of  the 
MiFID, and in the light of these numerous complaints, the Commission services launched a 
call for evidence on ICSD in February 2009365 in order to determine the scope of the review 
of the directive, planned for 2010. This call for evidence helped identifying problems having 
emerged in some Member States on the application of some provisions of the directive. These 
results will be taken into account in the upcoming ICSD review.  

CESR published a consultation paper on the MAD, called “Third set of CESR guidance and 
information  on  the  common  operation  of  the  Directive  to  the  market”  366  as  well  as  an 
executive  summary  to  the  Report  on  administrative  measures  and  sanctions,  including  the 
criminal sanctions available in Member States under the MAD.  

Priorities and actions planned 

In the area of financial services, priority will be given in 2010 to the review of MiFID, ICSD 
and MAD.  

The MiFID review is intended to cover a broad range of issues including the assessment of 
the transparency provisions to non-equity markets, the functioning of MiFID provisions in the 
dynamic  evolution  of  regulated  markets  and  multilateral  trading  facilities,  the  evolution  in 
market microstructure and practices such as high frequency trading. Further work will cover 
aspects  such  as  the  telephone  recording  option,  the  application  of  Article  4  of  the 
Implementing Directive and other issues such as the availability of data and issues linked to 
broader  investor  protection.    In  its  work,  the  Commission  is  involving  CESR  and  the 
European  Securities  Committee367.  Extensive  consultation  with  stakeholders  is  planned  for 
2010.  

The MAD review is intended to focus on three main items: the extension of the scope of the 
MAD to some markets and instruments which are not fully covered; fostering the efficiency 
of the rules on enforcement and sanctions; to help stakeholders by clarifying some provisions 
and by diminishing the regulatory burden when possible. 

On  the  ICSD,  the  results  of  the  call  for  evidence  launched  in  2009,  as  well  as  the  changes 
brought to the Deposit Guarantee Scheme are expected to constitute the basis of the review 
which will be part of a package dealing with the review of the compensation schemes in the 
banking, insurance and securities sector.  

364 Commission of the European Communities, "Communication for the Spring European Council: Driving European Recovery", Brussels, 
4.3.2009, Volume 1, available on http://ec.europa.eu/commission_barroso/president/pdf/press_20090304_en.pdf 

365 Commission Call for evidence on Investor-Compensation Schemes Directive (Directive 1997/9/EC) of 9 February 2009, available no 
http://ec.europa.eu/internal_market/securities/isd/investor_en.htm 

366 CESR, “Guidelines - MAD Level 3 – Third set of CESR guidance and information on the common operation of the Directive to the 
market”, document [09-219], May 2009; www.cesr.eu 

367 The European Securities Committee (ESC) fulfils both comitology and advisory functions in the securities field. It is composed of high 
level representatives from the Member States and is chaired by a representative of the Commission.  

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Concerning  the  Regulation  on  credit  rating  agencies,  the  Commission  is  planning  to  amend 
the  Title  of  the  Regulation  dealing  with  the  supervisory  aspects  in  order  to  give  exclusive 
supervisory powers to the European Securities and Markets Authority (ESMA), as foreseen in 
the Presidency compromise on the ESMA Regulation (general approach) agreed by ECOFIN 
on 2 December 2009368. 

ASSET MANAGEMENT  

9.2.2.9.  Current position 

(1) 

General introduction 

In  the  area  of  asset  management  the  Commission  continued  the  verification  of  the 
transposition  of  the  Directive  2007/16/EC  (Eligible  Assets  Directive)  by  Member  States 
(MS).  Measures  adopted  by  certain  Member  States  to  counter  the  negative  effects  of  the 
financial crisis prompted the Commission to initiate a general transposition check with regard 
to legislative or administrative measures adopted by Member States which may have affected 
the  implementation  of  the  UCITS  Directive.  2009  was  also  marked  with  new  initiatives 
including legislative ones. 

(2) 

Report of work done in 2009 

Three work streams could be mentioned in the area of the application of EU law: 

First, the successful end of the transposition checks concerning the Eligible Assets Directive. 
After having received the remaining notifications of transposition measures the Commission 
could  close  the  infringement  proceedings  launched  against  those  Member  States  which  did 
not transpose the Directive on time. 

Second, in the context of the financial crisis, the Commission services launched a process of 
verification of whether the UCITS Directive is properly interpreted and applied via national 
legislation  of  EU  Member  States.  An  administrative  letter  was  sent  to  all  Member  States  in 
November  2009  in  order  to  gather  information  on  any  crisis-related  legislative  measure  or 
administrative  practice,  which  might  impact  the  national  rules  implementing  the  UCITS 
Directive.  

Finally, questions concerning the proper interpretation of this Directive were triggered also in 
the context of the Madoff scandal revealed in December 2008. In this case the Commission 
published a consultation paper to gather opinions of all stakeholders. It was a necessary step 
paving  the  way  to  the  policy  decision  on  the  future  work  concerning  the  regulation  on  the 
Community level of obligations and responsibilities of depositaries with regard to competent 
authorities, UCITS and their management companies. 

(3) 

Legislative changes underway 

2009 was marked by important actions affecting the asset management regulatory landscape.  

368  Presidency  compromise  on 
http://register.consilium.europa.eu/pdf/en/09/st16/st16751-re01.en09.pdf  

the  ESMA  Regulation  (general  approach)  agreed  by  ECOFIN  on  2  December  2009   

EN 

290 

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The proposal for a Directive on Alternative Investment Fund Managers (AIFM) was adopted 
by  the  Commission  on  29  April  2009.  It  forms  an  important  part  of  the  EU's  regulatory 
response  to  the  financial  crisis  aiming  at  creating  a  comprehensive  and  effective  regulatory 
and supervisory framework for AIFM in the EU. This Proposal was soon afterwards subject to 
intensive negotiations in the Council and with the European Parliament in view of its adoption 
in 2010.  

The recast of the UCITS Directive was adopted by the Council and the European Parliament 
on  13  July.  It  includes  over  20  delegated  powers  to  the  Commission  to  adopt  level  2 
measures.  The  Commission  is  under  the  legal  obligation  to  adopt  certain  implementing 
measures by 1 July 2010 as they are crucial for the functioning of the management company 
passport.  As  the  remaining  empowerments  constitute  a  very  useful  complement  to  the 
provision  of  level  1  Directive  and  would  substantially  facilitate  their  application  the 
Commission services decided to adopt all implementing measures foreseen in the recast of the 
UCITS  Directive  by  1  July  2010.  On  13  February  2009  the  Commission  sent  a  mandate  to 
CESR  asking  for  its  technical  opinion  on  those  measures.  CESR  delivered  first  part  of  its 
opinion on 31 October 2009 and the remaining one in December 2009. The intensive drafting 
of the measures took place in the second half of 2009. 

On  29  April  the  Commission  published  the  Communication  on  Packaged  Retail  Investment 
Products (PRIPs) indicating the possible ways and means to improve regulatory protection for 
retail  investors.  A  technical  workshop  was  organised  to  enable  all  relevant  stakeholders  to 
express  their  views  on  the  Commission  approach  with  regard  to  possible  horizontal  (cross-
sectoral) legislative measures.   

Finally,  on  3  July  2009  the  Commission  launched  a  public  consultation  on  the  tasks  and 
responsibilities of the UCITS depositary. It should be seen as an important step towards the 
identification  and  shaping  of  the  European  response  to  vulnerabilities  emanating  from  the 
UCITS  depositary  sector  with  a  view  to  improving  the  level  of  protection  for  UCITS 
investors. 

9.2.2.10. Evaluation based on the current situation 

In  terms  of  the  application  of  Community  law  the  priorities  set  out  for  2009  were  broadly 
reached.  The  infringement  procedures  concerning  non-transposition  of  the  2007/16/EC 
Directive were closed as this Directive was fully transposed in all member States.  

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  careful  and 
comprehensive analysis was carried out in 2009. The reflections need to be continued in 2010 
and they might result in new legislative proposals.  

9.2.2.11. Evaluation results 

a) Priorities 

Assuring  the  timely  and  correct  transposition  of  the  Community  law  in  the  area  of  asset 
management will remain a priority for 2010. In addition, obeying the deadline of 1 July 2010 
for  the  adoption  of  all  level  2  measures  would be  a  real  challenge.  The  issue  of  PRIPs  and 
depositary will continue to be on top of our agenda. 

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b) Planned action (2010 and beyond) 

The  Commission  services  will  continue  the  examination  of  national  measures  enacted  or 
administrative  practice  executed  in  an  aftermath  of  the  financial  crisis  and  which  may  have 
impact on the proper implementation of the UCITS Directive. This may result in opening new 
infringement cases.  

The extensive work on the level 2 measures will be carried out in 2010. Furthermore, more 
analysis would be needed with regard to the work on PRIPs and the depositary issue.  

9.2.2.12. Summary by sector 

In the asset management sector the work carried out in 2009 reflected the set priorities. By 31 
December  2009  the  2007/16/EC  Directive  was  fully  transposed  in  all  EU  Member  States. 
Important legislative work was carried out leading to the political agreement on the recast of 
the 85/611/EEC Directive. Its formal adoption in 2009 gave rise to the extensive work on its 
implementing measures to be enacted by the Commission in 2010.   

Some  measures  adopted  by  certain  Member  States  to  counter  the  negative  effects  of  the 
financial  crisis  call  for  the  evaluation  of  the  interpretation  given  by  those  countries  to  the 
UCITS Directive. The Commission services will devote proper attention to this issue as the 
consistent  and  uniform  application  of  this  Directive  is  a  cornerstone  for  the  successful 
functioning of UCITS in the EU.  

PAYMENTS AND RETAIL FINANCIAL SERVICES 

9.2.2.13. Current position 

(1) 

General introduction 

In  order  to  ensure  a  timely  and  consistent  transposition,  the  Commission  services  have 
continued  to  accompany  Member  States  in  their  transposition  process  through  transposition 
workshops369  and  other  activities  to  ensure  the  transposition  of  the  Payment  Services 
Directive  2007/64/EC  (hereby  referred  to  as  'the  PSD')370  by  1  November  2009.  Thanks  to 
these activities, as much as 21 Member States have passed legislation implementing the PSD, 
fully (15) or partially (6), by the end of 2009.  

The negotiations to modernise the two other main pieces of legislation in this area have led to 
the adoption of the new cross-border payments' Regulation (EC) No. 924/2009371 and the new 
E-Money Directive 2009/110/EC ((hereby referred to as 'the EMD')372. 

369   A Payment Services Directive Transposition Group (PSDTG) was set up end 2007. 

370  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) 

371   Regulation (EC) No. 924/2009 of the European Parliament and of the Council of 16 
September 2009 on cross-border payments in the Community and repealing Regulation (EC) 
No. 2560/2001 (OJ L 266, 9.10.2009, p. 11). 

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(2) 

Report of work done in 2009 

The PSD Transposition Group (PSDTG) set up end 2007 continues its work allowing national 
representatives  to  discuss  various  interpretation  issues.  This  Group  met  three  more  times 
during 2009 (10 in total since January 2008). One of these meetings was organized under the 
format  of  a  'stakeholders'  day',  allowing  payment  market  and  consumer  representatives  to 
attend and to share their views with the Group on some transposition issues linked to e-money 
and  low-value  payments.  In  total,  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. In addition, several bilateral meetings took 
place during 2009, upon request of the Member States concerned. 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. 

End  2009,  an  EMD  Transposition  Plan  was  set  up.  It  envisaged  specific  actions  based  on 
a proper  and  comprehensive  analysis  of  the  challenges  related  to  the  implementation  of  the 
EMD.  As  a  first  step,  all  Member  States  have  designated  'liaison  contacts'  for  the 
implementation of the Directive. An EMD Transposition Group (EMDTG) has also been set 
up.  Furthermore,  in  order  to  channel  questions  from  Member  States  and  other  stakeholders 
and  share  responses  with  all  interested  parties,  the  scope  of  the  web-based  question-and-
answer tool, which has proved its effectiveness during the transposition of the PSD373, will be 
extended to include questions on the new EMD. The tool aims to improve the dialogue with 
all stakeholders including Member States, businesses and other users during the transposition 
period. 

In the field of payments, the number of petitions, questions and complaints remained constant 
in  comparison  with  previous  years.  Most  of  the  enquiries  (around  150)  concerned 
cross-border  payment  services  and  the  application  of  Regulation  924/2009  (which  has 
replaced Regulation 2560/2001), probably due to the fact that knowledge of this Regulation 
and  of  its  scope  is  often  limited,  incomplete  or  inaccurate.  While  in  a  very  low  number  of 
cases  the  Commission  services  raised  the  issue  with  the  Member  State  concerned,  no 
infringement proceeding was launched during this period. 

(3) 

Changes underway and preventive measures 

372   Directive  2009/110/EC  of  the  European  Parliament  and  of  the  Council  of  16 
September  2009  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 (OJ L 267, 10.10.2009, p. 7). 

373 
http://ec.europa.eu/internal_market/payments/framework/transposition_en.htm 
This 
web-page, operated through a question and answers approach and open to everyone interested 
in  the  transposition  process  of  the  PSD,  has  received  and  answered  340  questions  by  end 
2009.  This  web-page  also  contains  the  full  text  of  the  Directive  and  information  on 
transposition-related  issues  including  up-dated  information  on  Member  States'  transposition 
plans  with  references  to  the  forecasts  for  adoption  of  national  measures  implementing  the 
PSD,  the  expected  dates  for  entry  into  force  of  such  measures  and  the  intended  use  of  the 
options. 

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As stated above, the transposition deadline in case of the PSD expired on 1st November 2009 
and a vast majority of Member States have transposed it (in full or partially) on time. Despite 
the  Commission  services'  efforts,  some  Member  States  are  lagging  behind.  The  oral 
information recorded during the transposition workshops and the written information received 
afterwards  have  served  the  Commission  services  to  update  the  information  available  on  the 
Commission's  website374.  In  the  thirteen  Member  States  which  have  transposed  in  full  the 
Directive on time, the national measures implementing the Directive have entered into force 
on the same date: 1 November 2009, as agreed within the PSDTG. 

9.2.2.14. Evaluation based on current position 

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.  Other 
stakeholders have also expressed their support. 

With regard to the 25 options contained in the PSD, Member States finally accepted to make 
publicly  available  through  the  Commission  website  the  information  available  on  the  use  of 
options well in advance.375 

The impact of the current financial crisis has been one of the external risks which have played 
an  important  role  in  the  delay  of  the  transposition.  In  some  cases,  such  as  in  Poland  and 
Sweden, a lack of resources, reallocated in accordance with the new priorities, has contributed 
to the delay. In the case of Greece, the early elections have lead to a delay for submitting draft 
legislation to the national Parliament in accordance with the announced timetable. 

Late  transposition  of  the  PSD  provokes  legal  uncertainty  for  both  citizens  and  the  payment 
industry. Leaving aside the legal consequences of partial or incorrect implementation, some 
stakeholders  have  pointed  out  the  issue  of  the  non-implementation  after  the  1 November 
deadline with regard to branches and the provision of cross-border services. This could lead to 
a two-speed situation insofar certain branches and to higher costs related to different rules in 
force in Member States. In addition, it jeopardises the timely launch of SEPA products and, in 
particular,  SEPA  Direct  Debit.  Moreover,  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 exposes Member States to the risk of actions for compensation of loses related to 
the Member State's failure to implement the Directive in time. 

As for activities carried out in the area of retail financial services, one success has been the 
implementation  of  Common  Principles  on  Bank  Account  Switching,  a  voluntary  code  of 
conduct that should help consumers to avail of their right to switch bank account provider and 
thereby bring the forces of competition to bear on the sector.  

374   http://ec.europa.eu/internal_market/payments/framework/transposition_en.htm 

375   http://ec.europa.eu/internal_market/payments/framework/options_en.htm 

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The  Commission  also  brought  to  a  close  the  evidence-gathering  stage  of  its  work  on 
responsible lending and borrowing, with a consultation, a public hearing and the completion 
of wide-ranging studies on the policy options for mortgage credit and on credit intermediaries.  

In the coming year, the Commission will bring forward proposals on responsible lending and 
borrowing,  with  additional  measures  addressing  mortgage  valuation,  registration  and 
foreclosure.  It  will  take  steps  to  ensure  the  access  of  every  EU  citizen  to  basic  financial 
products,  in  particular  a  basic  bank  account;  and  will  propose  ways  in  which  to  improve 
consumer and investor input to the Commission's financial services policy making.  

The  main  challenges  that  could  present  themselves  in  the  coming  year  include  a  possibility 
that  consumers  and  businesses  will  not  be  motivated  to  seek  out  the  benefits  of  the  single 
market,  in  an  environment  of  increasing  national  focus  and  even  protectionism.  This  could 
lead  to  a  magnification  of  the  current  problems  of  access  to  financial  services  for  non-
residents. Significant efforts will have to be made if citizens' confidence in the financial sector 
is  to  be  restored.  In  this  context,  it  will  be  imperative  to  meet  the  challenge  of  involving 
consumers  and  investors  fully  in  the  European  policymaking  process,  by  enhancing  their 
capacity to engage at EU level. 

9.2.2.15. Evaluation results  

a) Priorities 

Priorities  in  the  field  of  payment  services  will  not  change  substantially  in  2010.  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  of  both  the  PSD  and  the  new  EMD.  With  regard  to  the  PSD,  the  required 
steps  have  been  taken  to  launch  infringement  proceedings  linked  to  non-communication 
cases.  The  first  step  of  the  conformity  assessment  task  (getting  translations  of  national 
transposition measures) is going on. 

b) Planned actions 

As  regards  prevention,  all  the  actions  included  in  the  Transposition  Plan  of  the  PSD  have 
proved to be effective. Some of them will continue to be applied during 2010. In particular, 
and  in  parallel  to  the  infringement  proceedings,  Member  States  will  systematically  be 
reminded of the importance of transposition in the context of SEPA. Bilateral meetings, press 
releases  and  political  pressure  via  letters  addressed  to  Member  States  will  be  used  as  well. 
Information  on  state  of  play  will  also  be  systematically  provided  through  the  Commission 
website. A leaflet on the main features of the PSD is being prepared and will be released by 
mid-2010. 

Concerning the transposition of the new EMD, the first meeting of the transposition workshop 
will be held as soon as in February 2010. Up to two more other meetings of this Group might 
be  called  within  2010.  The  EMD  will  be  also  register  in  a  dedicated  website  on  Europa376 
allowing  anyone  to  browse  through  existing  questions  and  answers  and  also  to  submit  new 
questions  on  the  implementation  of  Internal  Market  Directives.  When  necessary  and  upon 
request, bilateral meetings will be held with those Member States having requested so in order 

376   Your Questions On Legislation (YQOL), http://ec.europa.eu/yqol/ 

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to  support  their  legislative  efforts,  to  closely  monitor  the  implementation  process  and  to 
spread best practice among Member States. Finally, a template for a concordance table will be 
provided by the Commission services facilitating the task of Member States to illustrate the 
correlation between the EMD provisions and the transposition measures adopted to implement 
them into domestic law. 

9.2.2.16. Summary by sector 

Based  on  the  experience  of  the  transposition  of  the  PSD,  we  can  conclude  that  a  pro-active 
transposition  approach  has  a  positive  impact  and  enhances  a  consistent  implementation. 
Therefore,  a  similar  –  though  slightly  lighter  –  approach  will  be  applied  for  the 
implementation of the EMD. Legal and political pressure will be kept up on Member States 
which are late with the transposition of the PSD. 

9.2.3.  Free movement of capital (Articles 63 et seq. TFEU) 

9.2.3.1.  Current position 

1.  General Introduction 

The relevant Treaty provisions governing the freedom of capital movements are enshrined in 
Articles 63 to 66 TFEU. In particular, Article 63 TFEU provides that "all restrictions on the 
movement of capital between MS and between MS and third countries 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.377 The legal framework governing this Treaty freedom can be found 
on the Internet.378 

2.  Report of work done in 2009 

Work done in 2009 was based on the priorities set in 2008, namely continuing the pro-active 
approach  by  way  of  monitoring,  concentrating  on  more  important  cases,  diversifying  the 
range  of  restrictions  to  the  free  movement  of  capital  which  are  being  dealt  with  and 
addressing these restrictions at an early stage.   

Measures  taken  by  the  MS  in  the  financial  sector  and  related  to  the  crisis  were  monitored 
from  a  free  movement  of  capital perspective.  These  measures should not only be consistent 
with state aid rules but also with the other Treaty provisions. Two complaints related to the 
nationalisation of a British bank were closed in 2009 on the basis of the Treaty principle of 
neutrality vis-à-vis MS' systems of property ownership, the absence of discrimination between 
domestic/foreign shareholders and a clear general interest involved. 

On  other  registered  infringements  cases,  the  Commission  services  prioritised  efforts  on 
tackling  those  with  the  most  impact  on  the  Internal  Market.    Three  cases  which  required 
further  attention  were  related  to  horizontal  measures  taken  by  MS  (France,  Greece  and 
Poland)  to  control  strategic  foreign  investment,  one  of  which  (Poland)  was  referred  to  the 
CJEU.        A  case  on  restrictions  on  investment  by  pension  funds  was  referred  to  the  CJEU 

377   OJ No L178, 8.7.1988 

378   http://ec.europa.eu/internal_market/capital/framework/index_en.htm  

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(concerning Poland). More than half of the cases closed in 2009 related to privatisation and 
special  rights  of  the  State  in  privatised  companies.  The  golden  share/special  rights  topic 
remained  however  a  concern  and  represents  still  about  40  %  of  infringement  cases. 
Complaints  related  to  real  estate  covered  a  wide  range  of  problems:  purchases  of  holiday 
homes,  pre-emption  rights,  purchase  of  agricultural  real  estate,  rental  prices,  expropriation.  
Three of these complaints fulfilled the criteria for registration in EU-pilot.  Steps were taken 
in two cases related to restrictions on the acquisition of agricultural land in Austria: for one 
case a letter of formal notice was sent and for the other a reasoned opinion.    

For the two newest Member States, the evaluation of the Bulgarian and Romanian replies to 
the Questionnaire on Intra-EU Investment (sent to them after accession) did not lead to any 
particular follow-up action going beyond the already active pursuit of Romanian privatisation 
cases in the energy sector.  

The CJEU delivered a judgment against Italy379 regarding a Decree Law attributing special 
powers  to  the  Italian  State  in  certain  companies  operating  in  the  petrochemical  and  energy, 
telecommunications, electricity and defence sectors and thus confirmed earlier jurisprudence 
on special rights. Regarding the unique third country dimension of Article 63 TFEU, further 
guidance  was  given  by  three  judgments  on  bilateral  investment  treaties  (BITs).  The  CJEU 
held that the concerned MS (Austria, Finland and Sweden) did not take appropriate steps to 
remove incompatibilities of the provision guaranteeing free transfers related to investment in 
their pre-accession BITs with restrictive measures that the Council may take under the Treaty 
Articles  on  the  free  movement  of  capital,  even  though  they  had  been  required  to  eliminate 
incompatibilities by Article 351 TFEU.  

Replies or contributions to replies were prepared for petitions on urban development and sales 
practices  on  the  housing  market  in  Spain,  privatisation  in  Romania,  shareholder  rights  in  a 
Belgian  financial  institution,  blocked  savings  accounts  in  Slovenia,  tax  representatives  in 
Portugal,  buying  property  in  Cyprus,  privatisation  and  deregulation  of  rents  in  Slovakia, 
nationalisation of a British credit institution, EU competence in the area of property law.  

9.2.3.2.  Evaluation based on the current position 

Enforcement  of  EU  rules  on  the  free  movement  of  capital  took  on  a  new  dimension  in  the 
context  of  the  crisis.  Unilateral  reactions  and  policies  could  have  a  negative  impact  on  the 
functioning  of  the  Internal  Market.  Nationalisations,  rescue  operations  and  guarantees,  in 
particular in the financial sector, triggered the introduction of possible restrictions on the free 
movement  of  capital.    The  following  potential  issues  for  further  monitoring  have  been 
observed: the right of the state to appoint board members, veto rights on certain management 
decisions and time limits of these veto rights, expropriation of shareholders.   

For all registered cases related to strategic foreign investment control, progress has been made 
in  the  sense  that  the  MS  concerned  have  announced  or  prepared  legislative  amendments 
which could possibly solve  the  outstanding issues. The Commission has,  however, a Treaty 
obligation  to  continue  proceedings  until  the  required  measures  are  adopted  and  legislation 
which is compatible with the Treaty is implemented. 

379   Ruling in case C-326/07, Commission v Italy, of 26 March 2009 

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On privatisation and golden shares/special rights of the State in privatised companies: almost 
half  of  the  related  cases  are  currently  pending  before  the  CJEU  or  subject  of  Art.  260 
proceedings (concerning Italy, Germany and Portugal).  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.  This could indicate 
that  such  possible  shifts  will  only  take  place  after  delivery  of  an  Article  258  or  even  260 
judgment of the CJEU. In addition, the golden shares/special rights cases relate to important 
economic sectors: in the first place energy but also telecom and car industry.  Also related to 
the energy sector is an Article 258 case in which restrictions of the free movement of capital 
have been identified in the regulatory framework (concerning Spain). 

On  BITs,  while  it  is  important  that  protection  is  maintained  for  investors,  it  is  all  the  more 
important that all investors be put in a position of legal certainty in compliance with EU law. 
The CJEU judgments concerned three MS who must now remove the incompatibility found 
by  the  Court.    However,  many  more  Member  States  are  likely  to  be  in  a  similar  situation 
(there around 300 other pre-accession BITs which were not subject to the Court rulings) . 

9.2.3.3.  Evaluation results 

1.  Priorities 

On  crisis  measures  taken  by  MS  in  key  sectors  (financial  sector,  automobile  sector,…), 
further monitoring will have to cover the phasing out and exit strategies adopted by the MS. It 
is essential that the temporary support measures should not be maintained longer than strictly 
necessary and that as the state divests itself of any stakes or reprivatizes over the medium- to 
long-term, no restrictions on free movement of capital are introduced.  

The  Commission  will  continue  working  with  MS  to  ensure  that  investment  laws  drafted  in 
response to national security concerns are compliant with Article 63 of the TFEU on the free 
movement of capital between Member States and between Member States and third countries.   
After  laws  have  been  adopted,  the  Commission  will  have  to  continue  monitoring  their 
implementation and will not hesitate to act should infringements be suspected. 

Procedures based on Art. 260 TFEU and the monitoring of the process of amendment of the 
incriminated provisions will be treated as a matter of priority.  

Activity  related  to  the  3rd  country  dimension  of  the  free  movement  of  capital  will  increase 
following  the  BITs  judgements.  The  CJEU  said  that  the  Commission  had  a  facilitation  role 
towards  MS  to  remedy  the  situation.    The  Commission  will  therefore  explore  with  all  MS 
ways  to  deal  with  problematical  clauses  in  their  BITs.    These  intensified  contacts  will  also 
cover the issues of post-accession BITs and BITs between Member States. 

2.  Planned action (2010 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.    

To  improve  understanding  of  market  trends  and  developments  in  the  field  of  Direct 
investment and M&A, a study will be carried out focussing on the benefits of free movement 
of capital and open investment in cushioning the European economy from economic shocks 
such as occurred during the financial crisis.  

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For the two newest Member States, a study on transitional restrictions maintained by Bulgaria 
and Romania with regard to the acquisition of agricultural real estate will be carried out.  The 
findings will serve as a basis for a report to the Council on possible review of the transition 
periods.   The Commission will also continue monitoring legal developments relevant for the 
preservation  of  the  free  investment  climate  in  these  countries,  including  related  legislative 
procedures and upcoming privatisations. 

9.2.3.4.  Summary by sector 

In  the  area  of  free  movement  of  capital  the  priorities  will  remain  enforcement  action  in 
important  sectors  (energy)  as  well  as  close  and  permanent  monitoring  activities  related  to 
strategic foreign investment control by MS and to the specific measures taken in the context 
of  the  crisis.    Increased  activity  related  to  MS'  bilateral  investment  treaties  will  also  be 
required. 

9.2.4.  Public procurement 

9.2.4.1.  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 49 and 56 TFEU.  

The secondary legislation in this field is three folds: 

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 had to be implemented by member States by December 2009. 

Thirdly,  a  new  special  Directive  for  Defence  and  Sensitive  Security  procurement  (Directive 
2009/81/EC380 of 13 July 2009) has been adopted in 2009. Member States have until August 
2011 to transpose these new procurement rules into national law. 

(2) 

Report on the work done in 2009 

(a) Management of the acquis through committees and expert groups 

380 OJEU of 20 August 2009, L 216/76 

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Exchange  with  the  Member  States  on  the  public  procurement  legal  framework  is  well 
established. The Commission regularly convenes Committees. First, the Advisory Committee 
on  Public  Contracts  (ACPC),  which  consists  of  the  representatives  of  Member  States 
authorities, met 3 times in 2009. Specialised working groups of the ACPC also met in 2009, 
i.e. 1 meeting of the Working Group on E-Procurement and 2 meetings of the Economic and 
Statistical  Working  Group.  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 2009. 

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). 

Transposition  of  the  new  "Defence"  Directive    2009/81/EC  of  13  July  2009  (i.e. 
national  time-schedules,  problems  met)  and  actions  of  the  Commission  in  the 
transposition context (i.e. bilateral meetings with Member States, etc); 

Discussion on actions to be taken  by Member States to implement the European Code 
of best practices facilitating access by SMEs to public procurement contract; 

Implementation  of  Article  45  of  Directive  2004/18/EC  concerning  the  exclusion  of 
bidders; 

National  recovery  plans  to  overcome  the  economic  crisis  and  measures  simplifying 
national public procurement legal systems;  

Electronic dimension of public procurement (i.e. actions in favour of SMEs, PEPOL 
project,…); 

Information on various negotiations with third countries which contribute to reinforce 
the role of the European public procurement legislation (i.e. GPA negotiations)   

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 
2009,  60%  of  infringement  cases  discussed  during  package  meetings  have  been  solved  in  a 
non-contentious way. 

b) Implementation of Article 30 of Directive 2004/17/EC (specific exemptions) 

Article 30 of Directive 2004/17/EC provides that the Directive does not apply to contracts that 
are awarded for the pursuit of one of the covered activities if, in the Member State in which it 
is performed, the activity is directly exposed to competition on markets to which access is not 
restricted.  In  other  words,  the  Directive  does  not  apply  if  there  has  been  a  liberalisation 
resulting in such a level of competition that the discipline of the Directive is no longer needed 
to ensure that procurement for the activity concerned will be carried out in a transparent, non-
discriminatory manner based on criteria allowing the contracting entity to identify the solution 
which overall is the economically most advantageous one. This exemption will be applicable 
where  the  Commission,  within  short  deadlines  of  up  to  a  maximum  of  six  months,  has 

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adopted  a  formal  Decision  establishing  that  the  conditions  are  met  or  in  cases  where  the 
Commission has failed to do so within the applicable deadline. 

In 2009, 8 requests for exemption were submitted to the Commission concerning electricity 
generation and sale in Spain, exploration for and extraction of oil and gas in the Netherlands 
and in England, Scotland and Wales, certain financial services in the financial sector in Italy 
and  certain  services  in  the  postal  sector  in  Austria  (mainly  parcel  services).  Commission 
Decision  2009/546/EC  of  8  July  2009  exempted  exploration  for  and  exploitation  of  oil  and 
gas  in  the  Netherlands381,  the  Spanish  request  for  exemption  was  withdrawn382  and  the 
examination of the 4 Italian applications was finalised383. Decisions concerning the U.K. and 
Austrian applications must be adopted, respectively, by 11.3.2010 and 16.4.2010 at the latest.  

(c) 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. As far as we can measure 
at present, there is a significantly higher use of EU Pilot in the field of procurement as in other 
areas.  Public  procurement  EU-Pilot  cases  accounted  for  43%  of  all  the  EU-Pilot  cases  in 
internal market and services area. In the public procurement sector, the EU-Pilot system has  
been used in a very proactive way with a result of 90% of the EU-Pilot cases closed in 2009.  

A new complaint  handling  system,  CHAP has  been introduced in  September 2009. It is too 
early to assess its effectiveness, but it is expected to change the workflow of complaints and 
information requests both for complainants and the Commission services. 

(d) Management of infringements 

In  2009,  258  public  procurement  infringement  files  have  been  handled.  Of  these,  127  cases 
(49%) could be closed (same percentage compared to 2008); only 6 (approx. 2.3%) had to be 
referred to the ECJ (same percentage compared to 2008).  

(d) Petitions 

In  2009  the  sector  of  public  procurement  received  8  petitions  concerning  problems 
encountered in Spain (3),  Italy (2), Germany (1), Greece (1) and Romania (1). 

(e) New legislation 

381 OJEU L 181 of 14.7.2009, p. 53. 

382 See the relative notice published in the OJEU C 237 of 2.10.2009, p. 29. 

383  See  Commission  Decision   2010/12/EU  of  5  January  2010  exempting  certain  financial 
services  in  the  postal  sector  in  Italy  from  the  application  of  Directive  2004/17/EC  of  the 
European Parliament and of the Council coordinating the procurement procedures of entities 
operating in the water, energy, transport and postal services sectors, OJEU L 6 of 9.1.2010, p. 
8.  

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Following the presentation of the so-called "defence package", a sector specific procurement 
Directive for defence and security has been adopted in July 2009 (Directive 2009/81/EC of 13 
July 2009). It should be implemented in Member States by 21 August 2011. 

A new Commission Regulation (EC) N° 1150/2009 of 10 November 2009 (OJEU L 313/3 of 
28/11/2009) modifying the existing Regulation on standard forms in order to take into account  
the "Remedies" Directive 2007/66/EC was adopted.  

Finally, the thresholds laid down in Directives 2004/17/EC and 2004/18/EC were modified by 
the adoption of Commission Regulation (EC) N° 1177/2009 of 30 November 2009.384 

(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  still  dedicated  to  the  transposition  of  this  Directive  in  2009.  The  Commission  held 
numerous  bilateral  meetings  with  individual  Member  States.  Issues  related  to  this 
transposition  have  been  discussed  at  the  ACPC  throughout  the  year  2009.  One  particular 
aspect handled in 2009 was the elaboration of new/modified standard forms with a view to the 
Directive. 

With regard to the new Directive 2009/81/EC on defence and sensitive security procurement, 
a  transposition  plan  has  been  established  and  Member  States  have  been  invited  to  identify 
liaison  contacts  and  inform  the  Commission  on  their  planning  and  time  frame  for  the 
transposition.  The  organisation  of  the  transposition  phase  has  been  discussed  at  the  ACPC 
meeting in October 2009. Following that meeting, an expert group for the transposition of the 
Directive has been set up. 

9.2.4.2.  Evaluation based on the current position 

In  2009,  the  caseload  of  public  procurement  infringement  cases  could  be  reduced  by  an 
effective  system  of  prioritisation  of  cases  and  of  speeding  up  the  infringement  procedures 
particularly  for  priority  cases.  The  new  EU-Pilot  has  also  been  used  in  cases  where 
clarification  was  needed  or  where  it  was  considered  possible  to  close  the  case  before 
launching an infringement procedure. 

9.2.4.3.   Evaluation results 

1. Priorities 

− 

− 

Ensuring smooth transposition of Directive 2009/81/EC in all Member States until the 
transposition deadline (21 August 2011). 

Verification  of  the  quality  of  the  national  transposition  measures  of  the  Remedies 
Directive 2007/66/EC. 

2. Planned actions (2010 and beyond) 

384 OJEU of 1 December 2009, L314/64 

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− 

− 

− 

− 

- 

- 

An Impact Assessment is presently being carried out on an initiative on concessions. 
This  task  is  expected  to  be  completed  by  the  end  of  the  first  half  of  2010.  A  new 
initiative  on  concessions  will  depend  on  the  results  of  this  evaluation  and  could  be 
presented in late autumn 2010. 

Adoption  of  a  Communication  on  Coherence  between  public  procurement  law  and 
other  policy  objectives in the fields of  environment, social inclusion and innovation. 
The aim  of this communication is to provide public procurers with a comprehensive 
and  coherent  guidance  across  all  policies  on  how  public  procurement  can  be 
effectively  used  to  attain  other  EU  policy  objectives  within  the  current  legal 
framework. 

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  2010.  Thus,  no  specific  estimations  can 
currently be made. 

Continued  support  and  coordination  of  the transposition  of  Directive  2009/81/EC  on 
defence and sensitive security procurement. Within the framework of the expert group 
on  transposition,  workshops  on  specific  issues  of  the  new  Directive  will  be  offered. 
Bilateral  meetings  with  Member  States  on  transposition  related  issues  will  also  be 
organised. Moreover, the publication of guidance notes on important issues of the new 
Directive is intended. 

Monitoring of the phasing out of national measures in the field of public procurement 
to  overcome  the  economic  crisis.  As  most  of  these  measures  have  been  foreseen  for 
the  two-year  period  2009-2010,  this  phasing  out  and  the  implementation  of  possible 
follow-up  measures  will  be  verified  and  discussed  with  the  Member  States  in  the 
second half of 2010. 

An  evaluation  study  has  been  commenced  in  order  to  carry  out  an  EU-wide  overall 
evaluation  of  the  impact  of  the  procurement  policy  with  a  strong  practical  and 
operational focus on implementation of key provisions and experiences of contracting 
authorities,  economic  operators  and  other  stakeholders.  The  evaluation  should  be 
finalised  by  mid-2011  and  it  will  form  part  of  the  basis  for  a  possible  reform  of  the 
public procurement legislation. 

 List of acts 

http://ec.europa.eu/internal_market/publicprocurement/legislation_en.htm 

9.2.5.  Regulated professions (qualifications) 

9.2.5.1.  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 

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these  barriers,  Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  on  the 
recognition of professional qualifications385 implements Articles 45, 49 and 56 of the TFEU 
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 lawyers386 and Directive 98/5/EC 
on the freedom of establishment of lawyers387). 

(2) 

Report of work done in 2009 

The  work  carried  out  in  2009  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 kinds of difficulties reported 
by  citizens  when  applying  for  recognition,  such  as  undue  delays  in  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 9 meetings of its expert group composed of the national coordinators 
responsible for the application of Directive 2005/36/EC. In June 2009, the group adopted the 
Code  of  Good  Conduct  on  the  national  administrative  practices  falling  under  Directive 
2005/36/EC.  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, 30 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. 

A  network  of  Contact  Points  for  Directive  2005/36/E,  whose  role  is  to  inform  and  assist 
citizens, met once. 

In  addition,  the  regulatory  committee  of  Directive  2005/36/EC  met  twice.  and  voted  on  a 
Commission  regulation  amending  Annex  II  to  the  Directive  which  was  adopted  by  the 
Commission  on  6  April  2009388.  This  is  the  third  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. 

385  OJ L 255, 30.9.2005, p. 22 

386  OJ L 78, 26.3.1977, p. 17 

387  OJ L 77, 14.3.1998, p. 36 

388   Commission Regulation (EC) n° 279/2009, OJ L 93, 7.4.2009, p. 11 

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(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.. 

The  new  CHAP  ("Complaints  Handling  –  Accueil  des  Plaignants")  database  became 
operational as from 28 September 2009. Approximately 30 inquiries and 65 complaints from 
citizens  have  been  registered  in  the  new  database.  As  far  as  the  complaints  are  concerned, 
roughly a quarter have already been closed.  

When enquiries reveal a potential problem of application of EU law, the Commission mostly 
refers  citizens  to  the  SOLVIT  network  and/or  inserts  their  cases  into  the  system  with  the 
citizen'sconsent. 15 % of the cases submitted to the SOLVIT network relate to the recognition 
of professional qualifications, i.e. 220 cases out of 1540 cases submitted to SOLVIT. Out of 
these 220 cases, 166 were solved (75,45 %) (see SOLVIT 2009 report).  

In 2009, 19 cases were introduced in EU-PILOT. 

(c) Management of infringements 

The volume of complaints and infringements concerning restrictions in breach of Articles 45, 
49  and  56  of  the  FEU  Treaty  and  the  directives  on  the  mutual  recognition  of  professional 
qualifications  which  were  dealt  with,  remained  broadly  stable  in  2009.  Approximately  100 
decisions (to proceed with or to close a case) were taken by the Commission. 

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  Union389,  the  Court  of  Justice  held  that  Portugal390  had  failed  to  fulfil  its 
obligations under this directive. The Commission decided to send a letter of formal notice 
under Article 260 of the FEU Treaty (ex-228 EC) to Greece and Portugal, and a reasoned 
opinion under Article 228 of the EC Treaty to Luxembourg.  

–  For Directive 2005/36/EC on the recognition of professional qualifications391, the Court 
of  Justice  held  that  Belgium392,  Germany393,  Greece394,  France395,  Luxembourg396, 

389  OJ L 363, 20.12.2006, p. 141 

390  

Judgment of 19.03.2009, Case C-245/08 Commission v. Portugal 

391  OJ L 255, 30.9.2005, p. 22 

392  

Judgment of 9.07.2009, Case C-469/08 Commission v. Belgium 

393  

Judgment of 17.12.2009, Case C-505/08 Commission v.Germany 

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Austria397  and  the  United  Kingdom398  had  failed  to  fulfil  their  obligations  under  this 
directive. The Commission also decided to send a letter of formal notice under Article 260 
of the FEU Treaty (ex-Article 228 EC) to Belgium, Greece, Luxembourg and the United 
Kingdom.  The  proceedings  opened  against  Cyprus,  Denmark,  Estonia,  Hungary,  Ireland, 
Latvia, Lithuania, the Netherlands, Poland, Portugal, Spain and Sweden could be closed as 
they have completed transposition. 

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  2009.  This  is  due  to  the  fact  that  almost  all  the 
Member States concerned intervened in 2009 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 including at the hearing 
of  the  Court  (which  did  not  take  place  in  2009)  before  moving  to  the  next  step  in  the 
concerned  infringement  proceedings.  Estonia  has  abolished  the  condition  of  nationality  but 
the Netherlands stopped the process of abolishing it waiting for the judgments of the Court. 
The Commission also decided to refer Portugal to the Court 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. 

Concerning  the  measures  taken  by  Greece  to  comply  with  the  judgment  of  the  Court  of  21 
April  2005399  regarding  Greek  legislation  on  the  ownership,  opening  and  operation  of 
opticians' shops by companies, by judgment under Article 260 TFEU (ex-Article 228 EC) of 
4 June 2009 in Case C-568/07 Commission v. Greece, the Court held that by failing to take, 
by  the  date  on  which  the  time-limit  set  in  the  reasoned  opinion  issued  by  the  Commission 
expired, all the measures necessary to comply with the judgment of 21 April 2005 in Case C-
140/03  Commission  v  Greece,  Greece  had  failed  to  fulfil  its  obligations  under  ex-Article 
228(1) EC, and condemned Greece to pay a lump sum of EUR 1 million. 

In  addition,  under  Article  260  TFEU  (ex-article  228  EC),  the  Commission  decided  to  send 
letters  of  formal  notice  and  then  reasoned  opinions  to  Greece  for  non-execution  of  the 
judgments of the Court of Justice in cases C-274/05 regarding the recognition of professional 
qualifications  of  engineers.  and  C-84/07  regarding 
the  recognition  of  professional 
qualifications  of  opticians.  In  particular,  in  both  cases,  Greece  still  refuses  to  recognise 
diplomas  awarded  by  competent  authorities  of  other  Member  States  under  franchise 
agreements.  Consequently,  holders  of  such  diplomas  are  still  unable  to  practise  their 
profession in Greece. 

394  

Judgment of 2.07.2009, Case C-465/08 Commission v. Greece 

395  

Judgment of1.10.2009, Case C-468/08 Commission v. France 

396  

Judgment of 2.07.2009, Case C-567/08 Commission v. Luxembourg 

397  

Judgment of 24.09.2009, Case C-477/09 Commission v. Austria 

398  

Judgment of 9.07.2009, Case C-556/08 Commission v. United Kingdom 

399  

Judgment of 21.04.2005, Case C-140/03 Commission v. Greece 

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As concerns  the two judgments  of  the Court referred to in the previous report (judgment in 
case  C-456/05  Commission 
for 
psychotherapists400    and  judgment  in  case  C-39/07  Commission  v.  Spain  regarding 
recognition  of  professional  qualifications  of  hospital  pharmacists401),  the  Commission 
decided to close the corresponding infringement proceedings due to the EU adoption of EU 
law compliant measures by the Member States concerned. 

transitional  provisions 

v.  Germany 

regarding 

(d) Petitions 

In  2009,  17  petitions  have  been  dealt  with.  These  petitions  in  essence  reflected  the  issues 
raised  in  enquiries  and  complaints  which  the  Commission  receives.  Most  cases  concern 
complex individual situations. 

(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  Code  of 
Good  Conduct  which  specifies  the  good  national  administrative  practices  competent 
authorities  should  follow  when  processing  applications,  was  adopted  by  the  Group  of 
Coordinators of Directive 2005/36/EC. 

To  enable  citizens  to  make  better  use  of  the  Directive,  the  Commission  also  published  a 
"User’s Guide" in which 66 questions and 66 responses are given depending on the individual 
situation  a  professional  might  be  confronted  with  in  terms  of  the  recognition  of  his/her 
qualification  when  moving  to  another  Member  State.  For  instance,  the  guide  explains  to 
citizens  how  they  can  benefit  from  the  Directive  when  they  want  to  work  temporarily  in 
another Member State. 

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 twice402 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. 

The Commission also published403 a new list of the associations or organisations notified by 
the  Member  States  (Annex  I  of  Directive  2005/26/EC).  As  the  profession  practised  by  the 
members of an association or organisation listed in this Annex shall be treated as a regulated 
profession, this allows the professionals concerned to benefit from the Directive when moving 
to another Member State where the profession concerned is regulated. 

400 

Judgment of 6.12.2007, Case C-456/05 Commission v. Germany 

401 

Judgment of 8 May 2008, Case C-39/07 Commission v. Spain 

402  Communication of 19 May 2009, OJ C 114 of 19.5.2009, p. 1 and Communication of 
19 November 2009, OJ C 279, p. 1 

403   Communication of 15 May 2009, OJ C 111, p. 1 

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9.2.5.2.  Evaluation based on the current position 

Directive 2005/36/EC had to be transposed by Member States by 20.10.2007. The number of 
Member  States  which  had  completed  transposition  has  risen  from  9  Member  States  on 
31.12.2008 to 20 Member States on 31.12.2009. For Directive 2006/100/EC, which had to be 
transposed  by  1.01.2007,  3  Member  States  still  had  not  completed  transposition  on 
31.12.2009.  However,  and  as  indicated  in  the  previous  report,  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 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 Commission intends publishing a report about 
the implementation of the Directive in the course of 2010. 

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 only started in 
2009.  Therefore  it  was  not  possible  to  publish  the  first  evaluation  report  announced  for  the 
end  of  2009  in  the  previous  report.  However  the  Commission  published  a  scoreboard  in 
December  2009  offering  an  overview  of  where  Member  States  stand  in  implementing 
Directive 2005/36/EC into national law. 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  2009,  around  1050  measures  had  been 
notified. 

The  IMI  system  plays  a  key  role  in  the  smooth  implementation  of  the  Directive.  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.  Initially 
used for four  professions  during a  pilot phase,  the  system was extended  in 2008 in order to 
cover  further  seven  professions  including  the  main  health  professions.  In  2009,  twenty 
professions  from  the  craft,  industrial  and  commercial  sector  were  introduced  in  the  system. 
The number of requests sent through IMI rose considerably from 375 requests in 2008 to 1404 
requests in 2009 (=370 % increase). 

9.2.5.3.  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 
texts needed to be adopted.  

As indicated in the previous report, 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  of  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 (2010 and beyond) 

Directive 2005/36/EC is expected to be transposed by all Member States by mid 2010. 

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The  main  priority  in  this  area,  after  the  closure  of  all  non-communication  infringement 
proceedings, remains 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 needing to be transposed (see above). A first evaluation of the transposition 
in Member States' regulations should be available in Summer 2010. 

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 are 
offered in the host Member State, which should organize them. 

9.2.5.4.  Summary by sector 

 Transposition  of  Directive  2005/36/EC  has  been  completed  in  most  Member  States.  The 
Commission  intends  therefore  focusing  on  how  Member  States  have  implemented  the 
Directive  into  their  national  regulations.  A  Code  of  Conduct  agreed  with  Member  States  in 
June  2009  should  facilitate  the  implementation  for  citizens.  Citizens  also  received  user-
friendly  guidance  via  a  so-called  "User's  Guide"  published  in  December  2009.  The  key 
challenges for the Commission will be first to ensure that Member States accurately transpose 
the  Directive  and  second  to  evaluate  how  the  Directive  works  and  whether  it  delivers  the 
effects compared to the objective of simplification. The evaluation could also take account of 
swiftly changing conditions, such as labour market, public health and others. 

9.2.6.  The business environment 

COMPANY  LAW,  CORPORATE  GOVERNANCE  AND  ANTI-MONEY 
LAUNDERING  

9.2.6.1.  Current position 

(1) 

General introduction 

In the field of company law and anti-money laundering the transposition deadline has recently 
passed  in  case  of  eight  Directives:  Directives  2004/109/EC,  2005/56/EC,  2005/60/EC, 
2006/70/EC, 2007/14/EC, 2006/68/EC 2007/36/EC and 2007/63/EC. Directives concerned are 
aimed at ensuring the stability and reputation of the financial sector (Anti-Money Laundering 
Directives, Directives 2005/60/EC and 2006/70/EC), harmonizing transparency requirements 
in  regulated  markets  (Directives  2004/109/EC  and  2007/14/EC),  ensure  shareholders'  rights 
(Directive  2007/36/EC)  and  facilitate  cross  border  mergers  as  well  as  easing  administrative 
burden  of  companies  by  simplifying  the  current  acquis  (Directives  2006/68/EC  and 
2007/63/EC). Taking into account the importance and impact of the acquis in the concerned 
field, the Commission established an Action Plan in 2008 to reduce transposition deficit and 
complete conformity assessments in the field of company law and anti-money laundering.  

(2) 

Report of work done in 2009 

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In the absence of national transposition measures, more than 140404 infringement procedures 
were  handled  by  the  end  of  2009,  but  monitoring  the  transposition  measures  have  required 
particular  efforts  as  well.  Considering  that  the  lack  of  concordance  tables  and  the  fact  that 
assessment  of  long  and  comprehensive  national  instruments  (for  example  Civil  and 
Commercial  Codes)  have  significant  implications  in  terms  of  resources,  the  Commission 
outsourced first phase of conformity assessments in the course of 2009 (translation of national 
transposition  measures  and  preparation  of  concordance  tables).  Within  the  frameworks  of  a 
pilot project, conformity assessment of a high volume of national transposition measures will 
be concluded during the first half of 2010 as a first step.  

As  mentioned  above,  an  Action  Plan  had  been  established  in  2008  in  the  field  of  company 
law, and anti-money laundering on the basis of which the Commission continued to apply a 
number  of  complementary  measures  in  2009  in  order  to  reduce  transposition  deficit  and 
conclude  conformity  assessments. 
  The  Commission  put  particular  emphasis  on 
straightforward management of infringement cases and identified priorities such as to ensure 
compliance with judgments of the European Court of Justice. The Commission continued to 
publish scoreboards on state of play of transposition and package meetings were used to raise 
the  issue  of  transposition.  It  also  kept  up  pressure  on  Member  States  through  meetings  of 
committees  and  national  expert  groups,  in  particular  the  Company  Law  Experts'  Group  and 
the  Committee  on  the  Prevention  of  Money  Laundering  by  requesting  delegations  to  justify 
their  bad  transposition  record.  Through  the  rigorous  action  and  comprehensive  range  of 
initiatives  taken  by  F2  in  accordance  with  the  Action  Plan,  noteworthy  progress  has  been 
achieved: the transposition of four Directives405 have been completed in the course of 2009. 

The  Court  of  Justice  issued  11  Court  rulings  for  the  unit's  non-communication  cases  in 
2009406. As infringement procedures based on Article 260 TFEU (ex-Article 228 EC) aim at 
ensuring  compliance  with  Court  rulings,  these  cases  have  been  treated  as  a  priority  and 
followed-up  closely  by  the  Commission.  At  the  beginning  of  2009,  all  concerned  Member 
States received letters of formal notice in compliance with Article 260 TFEU.  

Letters  of  formal  notice  were  sent  to  Member  States  immediately  after  the  transposition 
deadline  of  Directive  2007/36/EC  expired  on  3  August  2009.  Despite  the  efforts  of  the 
Commission  in  terms  of  application  of  a  wide  range  of  preventive  measures  (transposition 
workshop, identification and close contact with national contact points, technical assistance at 
committee  and  experts'  meetings)  twenty  new  infringement  cases  were  opened  for  non 
communication of national measures in 2009. It should be underlined that at the beginning of 
2010,  twelve  reasoned  opinions  have  been  addressed  to  Member  States  in  compliance  with 
the new rules of the Lisbon Treaty.  

As regards external submissions in the filed of company law and anti-money laundering the 
number  of  enquiries,  petitions,  complaints  has  not  been  increased  and  a  limited  number  of 
infringement procedures have been opened on the basis of non-compliance with EC acquis.  

404 in the field of company law and anti-money laundering only 0.7% of the cases were non-
conformity cases 

405  Directive  2004/109/EC,  Directive  2005/56/EC,  Directive  2006/68EC  and  Directive 
2007/14/EC 

406  

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(3) 

Changes underway  

One new Directive and two codification Directives have been adopted in 2009: 

Directive 2009/109/EC of the European Parliament and of the Council of 16 September 2009 
amending  Council  Directives  77/91/EEC,  78/855/EEC  and  82/891/EEC,  and  Directive 
2005/56/EC as regards reporting and documentation requirements in the case of mergers and 
division 

Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 
on coordination of safeguards which, for the protection of the interests of members and third 
parties,  are  required  by  Member  States  of  companies  within  the  meaning  of  the  second 
paragraph  of  Article  48  of  the  Treaty,  with  a  view  to  making  such  safeguards  equivalent 
(Before  21  October  2009:  First  Council  Directive  68/151/EEC  of  9  March  1968  on  co-
ordination of safeguards which, for the protection of the interests of members and others, are 
required  by  Member  States  of  companies  within  the  meaning  of  the  second  paragraph  of 
Article  58  of  the  Treaty,  with  a  view  to  making  such  safeguards  equivalent  throughout  the 
Community) 

Directive 2009/102/EC of the European Parliament and of the Council of 16 September 2009 
in the area of company law on single-member private limited liability companies (Before 21 
October  2009:  Twelfth  Council  Company  Law  Directive  89/667/EEC  of  21  December 
1989 on single-member private limited-liability companies)  

As regards other proposals pending in the course of 2009, the Simplification of the 1st and 11th 
Company Law Directives has been blocked since March, while the proposal for the Statute of 
a  European  Private  Company,  adopted  on  25  June  2008,  has  been  blocked  since  December 
2009. The new Commission will decide on any eventual steps to be taken in relation to these 
proposals.  

9.2.6.2.  Evaluation based on the current position 

Through the rigorous action and comprehensive range of initiatives taken by the Commission 
in  accordance  with  the  Action  Plan,  very  positive  results  have  been  achieved  and  the 
transposition of four Directives407 could be completed in 2009. By the end of 2009, 84 % of 
infringements in the filed of company law and anti-money laundering have been closed and 
all cases in relation to which the transposition deadline expired before 2009 were referred to 
the Court.  

The  most  significant  success  in  2009  was  the  completion  of  national  transposition  of  four 
Directives.  Implementing  the  Cross-Border  Mergers  Directive408  is  an  important  step 

407  Directive  2004/109/EC,  Directive  2005/56/EC,  Directive  2006/68EC  and  Directive 
2007/14/EC 

408 Directive 2005/56/EC 

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forward  as  delays  in  transposition  could  have  had  a  direct  effect  on  companies  of  Member 
States  which  transposed  the  Directive  on  time,  but  wished  to  merge  with  companies  of  a 
Member  State  in  delay.  In  addition,  a  late  transposition  of  the  Transparency  Directives409 
could have jeopardized the effective protection of investors, weaken investor confidence and 
create barriers to cross-border investment. Moreover, in the context of the financial crisis, full 
transposition of the simplification of the Second Company Law Directive410 was crucial in 
terms  of  facilitating  the  raising  of  capital,  the  restructuring  of  capital  ownership  in  public 
limited liability companies and ensuring harmonised safeguards for protection of creditors and 
minority shareholders. 

In relation to the completion of the national transposition of several Directives in the field of 
company law, the Commission drew up conclusions on the effectiveness of measures taken on 
the basis of the Action Plan. The analysis of the transposition procedure concluded that there 
might  be  a  systemic  problem  in  some  Member  States  which  are  consistently  late  with 
implementation. From our experience, these are Spain, Belgium and France411, and to some 
degree  Luxembourg,  Portugal,  Sweden,  Ireland  and  Greece412.  We  have  kept  and  will 
keep  up  the  pressure  on  them,  but  there  were  still  serious  concerns  in  2009  for  2  Member 
States  in  particular.  Belgium413  is  still  late  with  the  transposition  of  four  Directives,  while 
Spain414  is  still  due  to  transpose  three  Directives.  The  situation  can  be  potentially 
problematic  in  the  case  of  France415,  Greece416  and  Ireland417,  which  are  late  with  the 

409 Directive 2004/109/EC and Directive 2007/14/EC 

410 Directive 2006/68/EC 

411  In  2008,  Spain  was  late  with  the  transposition  of  the  Cross-border  mergers  Directive 
(2005/56/EC), the modifications to the 2nd CL Directive (2006/68/EC) and the modifications 
to  the  3rd  and  6th  CL  Directives  (2007/63/EC),  as  well  as  with  the  transposition  of  the  two 
Anti-MoneyLaundering  Directives  (Directives  2005/60/EC  and  2006/70/EC).  Also  in  2008, 
Belgium was late with the transposition of Directives 2005/56/EC, 2007/63/EC and the two 
AMLD,  and  France  was  late  with  the  transposition  of  the  Transparency  Directive 
(2007/14/EC) and the two AMLD.  

412  In  2008  Luxembourg  and  Portugal  were  late  with  the  transposition  of  Directives 
2005/56/EC,  2006/68/EC  and  2007/63/EC.  Also  in  2008  Sweden  was  late  with  the 
transposition  of  Directive  2005/56/EC  and  the  two  AMLD.  Currently,  these  three  Member 
States are late with the transposition of Directive 2007/36/EC. For its part, Ireland is still late 
with  the  transposition  of  the  two  AMLD  and  Greece  with  the  transposition  of  Directives 
2007/63/EC and 2007/36/EC. 

413  Anti-Money  Laundering,  Shareholder’s  rights  and  Simplification  Directive  (Directives 
2005/60/EC, 2006/70/EC 2007/36/EC and 2007/63/EC) 

414AntiMoney  Laundering  and  Shareholders’  rights  Directives  (Directives  2005/56/EC, 
2005/60/EC, 2006/70/EC, ) 

415 Anti-money Laundering  and Shareholders’ rights Directives (Directives 2005/60/EC and 
2007/36/EC) 

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transposition  of  two  Directives  each.  But  as  Cyprus,  Hungary,  Italy,  Luxembourg,  the 
Netherlands,  Portugal  and  Sweden  have  not  yet  transposed  Directive  2007/36/EC,  there  are 
only fifteen Member States which have no transposition deficit anymore at this stage.  

The highest transposition deficit can be identified in the case of the Anti-Money Laundering 
Directives  (three  Member  States  are  late  with  the  transposition  of  both  Directives)  and  the 
Directive on Shareholders' Rights (11 Member States are late). It should, however, be noted 
that the transposition deficit was reduced substantially in the course of 2009 and almost 60 % 
of the currently pending cases were open in September 2009 for the purpose the Shareholders' 
Rights Directive. In this regard, the Commission accelerated the procedure and sent reasoned 
opinions to the defaulting Member States in February 2010. Member States will be referred to 
the  Court  before  summer  2010  in  accordance  with  Article  258  TFEU.  Nevertheless,  a  late 
transposition  of  the  Anti-Money  Laundering  Directives  is  particularly  problematic  since  it 
may  jeopardize  the  fight  against  money  laundering  and  terrorist  financing  as  well  as  the 
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 the 
different rules in force in Member States.  

In the field of company law the Shareholder's Rights Directive aims at introducing minimum 
standards  to  ensure  that  shareholders  of  companies  whose  shares  are  traded  on  a  regulated 
market have a timely access to the relevant information ahead of the general meeting (GM) 
and  simple  means  to  vote  at  a  distance.  It  also  abolishes  share  blocking  and  introduces 
minimum  standards  for  the  rights  to  ask  questions,  put  items  on  the  GM  agenda  and  table 
resolutions. Late transposition might jeopardize the objective to enable shareholders of listed 
companies  throughout  the  European  Union  to  exercise  their  rights  and  have  their  say  by 
introducing minimum standards. 

9.2.6.3.  Evaluation results 

a. Priorities 

Priorities in the field of company law and money laundering will not change substantially in 
2010.  The  Commission  will  endeavour  to  reduce  further  transposition  deficit,  keep  up 
pressure on Member States to ensure compliance with Court rulings, follow up closely non-
communication cases and complete conformity assessment of national transposition measures. 

A  particular  emphasis  will  be  put  on  the  transposition  deficit  in  the  field  of  Anti-Money 
Laundering as all judgements issued by the Court in the field of company law and anti-money 
laundering relating to Directive 2005/60/EC and Directive 2006/70/EC.  

b. Planned actions 

In  the  field  of  company  law  and  anti-money  laundering,  the  first  phase  conformity 
assessments already outsourced in 2009 will be completed. Remaining conformity checks will 

416 Simplification of the Third and Sixth Company Lax Directives and Shareholders’ rights 
Directives (Directives 2007/36/EC and 2007/63/EC) 

417 Anti-money laundering Directives 2005/60/EC and 2006/70/EC 

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be continued in the course of 2010 requiring efficient management of facilities provided by 
DGT and external contractors, if necessary.  

As  complementary  instruments  included  in  the  Action  Plan  resulted  to  be  effective  in 
reducing the transposition deficit in the field of company law and anti-money laundering, they 
will  continued  to  be  applied.  A  particular  emphasis  will  be  placed  on  the  management  of 
infringement procedures based on Article 260 TFEU in order to ensure compliance with Court 
rulings.  According  to  the  provisions  of  the  Treaty,  letters  of  formal  notice  were  sent  in  all 
relevant cases at the beginning of 2009, and Member States concerned will be referred to the 
Court as soon as the deadline expired. Concerning non-communication cases, Member States 
will  be  requested  to  provide  detailed  information  on  the  state  of  play  of  transposition  at 
relevant committee and experts' meetings. A scoreboard in the field of company law and anti-
money  laundering  will  be  published  every  month  and  as  required,  package  meetings,  press 
releases and political pressure will be used as well.  

In the case of Directive 2007/36/EC, reasoned opinions in accordance with the provisions of 
Article 258 TFEU were addressed to the defaulting Member States at the beginning of 2010. 
The Commission will refer the cases to the Court as soon as possible proposing to impose a 
fine  as  envisaged  by  the  Lisbon  Treaty.  In  general,  in  the  field  of  company  law  and  anti-
money  laundering  the  Commission  is  committed  to  make  use  of  the  accelerated  procedure 
envisaged  for  non-communication  cases  (Article  258  TFEU)  and  in  cases  where  a  Court  of 
Justice ruling already exists (Article 260 TFEU).  

9.2.6.4.  Summary by sector 

In the field of company law and anti-money laundering, the focus remained on reducing the 
transposition  deficit,  and  ensuring  compliance  with  Court  rulings  and  complete  conformity 
assessment of national measures will also be treated as priority. The Action Plan established 
in  2008  has  brought  very  positive  results  ,  therefore  actions  and  instruments  identified  in  it 
will  be  applied  in  2010  as  well  with  a  view  to  reduce  further  transposition  deficit  and 
complete conformity assessments. In order to  overcome the remaining difficulties related to 
conformity  checks,  risk-based  assessments  will  be  continued  and  first  phase  conformity 
checks will be outsourced, if needed. Infringements will be followed up strictly and political 
pressure will be kept up on Member States which are late with transposition. 

AUDITING –STATUTORY AUDITS 

9.2.6.5.  Current position  

(1) 

Report on 2009 

In the field of auditing, the Commission worked on preparing a correct implementation of the 
Directive 2006/43/EC418 on statutory audits of annual accounts and consolidated accounts of 
17 May 2006 ("the Directive"). The transposition deadline was 29 June 2008. The preparation 
of  a  correct  implementation  of  the  Directive  was  mainly  done  by  discussing  potential 
problems that might arise from the transposition of the Directive at the meetings of the Audit 
Regulatory Committee.  

418 OJ L 157, 9.6.2006, p.87. 

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Member  States  were  alerted  on  a  regular  basis  at  the  meetings  of  the  Audit  Regulatory 
Committee  of  the  need  to  transpose  the  Directive.  Since  1  July  2008,  a  transposition 
scoreboard  was  drafted  and  has  been  updated  regularly  and  published  on  the  Commission's 
website.  

In 2008, the Commission sent sixteen reasoned opinions to the Member States that failed to 
communicate their transposition measures for the Directive 2006/43/EC. Four Member States 
communicated their transposition measures in 2008, so the infringement cases in their respect 
have  been  closed  in  2008.  In  2009,  amongst  the  sixteen  Member  States  to  which  reasoned 
opinions were sent the previous year, six of them, namely Cyprus, Czech Republic, Germany, 
Poland,  Sweden  and  United  Kingdom-in  respect  of  Gibraltar-  have  communicated  their 
national transposition measures. Consequently, the infringement cases against Cyprus, Czech 
Republic, Germany, Poland, Sweden and United Kingdom-in respect of Gibraltar- have been 
closed in 2009. Six other Member States, namely Austria, Estonia, Ireland,  Italy, Spain  and 
Luxemburg (the decision to send Luxembourg before the Court of Justice was decided with 3 
months  délai  d'exécution  expiring  on  20  February  2010)  have  been  referred  to  the  Court  of 
Justice for non communication of the transposition measures for the Directive 2006/43/EC.  

In 2009, the Commission Services started to check the transposition measures communicated 
by the Member States. In the cases where clarifications were needed in order to have a better 
view on how some of the Directive's provisions have been transposed in the Member States, 
the  Commission  Services  sent  administrative  letters  to  the  ministries  responsible  to  request 
additional  information.  Fifteen  such  administrative  letters  have  been  sent  to  the  Member 
States. In some cases, bilateral meetings have been organized to discuss the transposition of 
the Directive. 

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 
the  group  of  national  experts  "European  Group  of  Auditors'  Oversight  Bodies"  (EGAOB) 
continued its work on exchanging good practices on the establishment of those systems. Three 
meetings were organized in 2009.  

Within  the  EGAOB,  the  Sub-group  on  Cooperation  which  became  the  Sub-group  on 
Cooperation  on  Third  Countries,  held  six  meetings  in  2008.  At  the  meetings  held  in  2009, 
issues  related  to  the  transposition  of  Articles  45,  46  and  47  of  the  Directive  2006/43/EC  in 
Member  States  were  discussed  as  well  as  implementing  measures  to  be  adopted  by  the 
Commission under Article 47 of the Directive. 

Another  sub-group  established  within  the  EGAOB,  the  Sub-group  on  Intra-EU  Cooperation 
held five meetings in 2009. The issues discussed at the meeting of this sub-group related to 
the practical implementation of some articles of the Directive 2006/43/EC. 

(2) 

Changes underway (2010-2011) 

In  the  area  of  statutory  audit,  in  2009,  the  Commission  Services  tabled  a  draft  decision  to 
allow a good implementation of the provisions of Article 47 (1) of the Directive 2006/43/EC. 
Article  47  (1)  of  the  Directive  requires  the  Commission  to  assess  the  adequacy  of  the  third 
country  auditor  oversight  competent  authorities  that  wish  to  cooperate  with  the  Member 
States'  auditor  public  oversight  authorities  on  the  exchange  of  audit  working  papers,  in 
cooperation with the Member States. The adequacy refers to the capacity of the third country 
competent  authorities  to  fulfil  the  criteria  set  out  in  Article  47  (1)  of  the  Directive.  The 

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Member States voted, via a written procedure, in favour of a draft decision which proposes to 
recognize  as  adequate  under  Article  47  (1)  of  the  Directive  the  competent  authorities  from 
Canada,  Japan  and  Switzerland.  As  the  European  Parliament  made  no  objections  on  the 
proposal,  the  draft  decision  will  be  proposed  for  formal  adoption  by  the  Commission  end 
January  2010.  Therefore,  we  expect  this  decision  to  be  adopted  during  the  first  week  of 
February 2010. A similar decision based on Article 47 of the Directive might be follow with 
respect to other third country auditor oversight authorities. 

In  2010/2011,  the  Commission  might  also  use  the  comitology  powers  conferred  on  it  by 
Article  46  of  the  Directive  2006/43/EC  to  assess  the  equivalence  of  third  country  auditor 
oversight,  external  quality  assurance,  investigations  and  penalties  systems.  Such  decision 
would concern the audit oversight systems from some/all of the third countries to which the 
Commission  granted  a  transitional  period  for  audit  activities  in  2008  by  the  Commission 
Decision  2008/627/EC  concerning  a  transitional  period  for  audit  activities  of  certain  third 
country  auditors  and  audit  firms419.  If  the  Commission  recognizes  the  auditor  oversight 
system  of  a  third  country  as  equivalent  to  the  Member  States'  audit  oversight  systems,  the 
auditors and audit firms from the third country concerned will be allowed to carry out audit 
activities  in  the  Member  States  without  being  subject  to  the  external  quality  assurance, 
investigations  and  penalties  systems  of  the  Member  States  where  such  activities  would  be 
performed.  

9.2.6.6.  Evaluation based on current position 

The transposition deadline for the Directive 2006/43/EC was 29 June 2008.  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. 

However,  the  work  carried  out  by  the  Commission  to  prepare  a  timely  and  correct 
transposition of the Directive gave results, as amongst the sixteen the Member States which 
did  not  transpose  the  Directive  in  2008,  ten  Member  States  did  so  in  2009.  Moreover, 
amongst the remaining six Member States that did not transpose the Directive in 2009, five 
Member  States  committed  to  do  so  in  2010.  In  2009,  only  one  Member  State  has  not  yet 
established  an  auditor  public  oversight  body.  Twenty  six  Member  States  have  already 
established public oversight bodies and most of these authorities became operational in 2009. 

a) Priorities 

The main priority concerns efficient co-operation with the Member States to ensure that the 
six  Member  States  which  have  not  yet  transposed  the  Directive  2006/43/EC  will  fully 
transpose it in 2010/2011.   

Member States will be regularly alerted during the Audit Regulatory Committee meetings on 
the importance of transposing the Statutory Audit Directive especially in the current context 
of  financial  crisis.  Member  States  will  continue  to  be  invited  to  provide  updates  on  the 
transposition process of the Directive on a regular basis.  

419  OJ L 202, 31.7.2009, p. 70. 

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Another priority is to ensure that auditor public oversight bodies pursuant to the Directive are 
operational in the Member States and cooperate with each other.  

b) Planned action 

For  the  Member  States  that  communicated  their  transposition  measures  to  the  Commission, 
the  Commission  will  determine  the  list  of  Member  States  for  which  infringement  cases  for 
bad  transposition  of  Directive  2006/43/EC  will  be  initiated  before  the  Court  of  Justice  in 
April/May 2010. 

Regarding the conformity check in respect of the laws that Member States communicated into 
their  national  languages,  this  depends  on  the  availability  of  translations.  At  this  stage,  we 
estimate the translation needs at about two hundred pages for five languages. For four of these 
languages  we  have  been  provided  with  concordance  tables.  Where  necessary,  bilateral 
meetings will be organized with the Member States to discuss the transposition process. Also, 
it  will  be  examined  whether  the  Member  States  have  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. 

ACCOUNTING 

9.2.6.7.  Current position –  

(1) 

report on 2009 

In the field of accounting, 9 Directives were in force in 2009. Two of them have not yet been 
transposed in all Member States: the transposition deadline of Directive 2006/46/EC expired 
on  5  September  2008,  whereas  the  Directive  2009/49/EC  will  have  to  be  transposed  by  1 
January  2011  at  the  latest.  The  Commission  services  control  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  and  the  petitions  received  stem  from  the  non-
communication/non-adoption  of  national  transposing  measures.  In  December  2008  and  July 
2009, the Commission sent Letters of Formal Notice to 16 Member States on the basis of not 
having communicated the full transposition of Directive  2006/46. The  Commission services 
have  been  keeping  the  pressure  on  Member  States  for  encouraging  the  swift  transposition 
mainly  via  the  Accounting  Regulatory  Committee.  As  a  result,  by  January  2010,  12  cases 
could be closed. Thus, as expected, the transposition deficit has been considerably reduced in 
the course of 2009. The remaining cases have been referred to the Court and full transposition 
is expected to be achieved in the near future.  

Already three Member States communicated the full transposition of Directive 2009/49, even 
though  the  transposition  deadline  expires  one  year  later.  As  an  early  warning  measure,  the 
Commission services intend to remind Member States of the deadline in the regular meeting 
of the Accounting Regulatory Committee.  

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(2) 

Changes underway 

In February 2009 the Commission adopted an additional 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. This proposal is being  discussed by 
the European Parliament and the Council. Currently, the Commission services are working on 
a  larger  simplification  and  modernisation  proposal  to  review  the  4th  and  7th  Company  Law 
Directives which is expected to be adopted by the Commission in 2011. 

9.2.6.8.  Evaluation 

At  the  beginning  of  2009,  the  transposition  deficit  in  the  accounting  field  initially  appeared 
rather  high  compared  to  other  areas  in  DG  MARKT's  competence  based  on  the  number  of 
infringement  cases  pursued  and  the  number  of  Directives  in  the  field.  However,  this  deficit 
has  been  reduced  significantly  in  the  course  of  the  year.  The delay in transposition  was  not 
due  to  political  difficulties  but  rather  to  administrative  delays  in  the  Member  States' 
legislative procedures. 

a) Priorities 

The  main  priority  in  the  field  of  accounting  remains  to  ensure  the  timely  transposition  of 
adopted Directives. Furthermore, as mentioned above, the Services are working on a general 
comprehensive overhaul of the accounting acquis (4th and 7th Company Law Directives). 

b) Planned actions 

In the case of the Directives whose transposition deadline expired, the Commission Services 
are  closely  monitoring  the  transposition  status  of  the  Community  Law  by  pursuing 
infringement  cases.  In  the  case  of  newly  adopted  Directives,  the  Commission  services  will 
continue to 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  a  public  consultation,  meetings  with  stakeholders, 
targeted 
questionnaires, an external study aimed at evaluation of the cost burden reduction potential of 
certain proposed simplification measures, in order to be able to present the amending proposal 
accompanied by a corresponding Impact Assessment.  

9.2.7.  Protection of rights 

9.2.7.1.  Current position –  

(1) 

Report on 2009 

Copyright and related rights 

The  Commission  proposal  to  extend  the  term  of  protection  of  performers  and  record 
producers420 enjoyed a successful vote (377 vs 178) in the European Parliament on 23 April 

420 COM 2008/464 final, 16 July 2008 

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2009.  The  main  difference  with  the  original  Commission  proposal  is  that  the  term  of 
extension  has  been  reduced  from  95  to  70  years.  The  proposal  text,  as  voted  upon  by  the 
European  Parliament,  is  still  being  considered  by  Member  States  in  the  first  reading 
procedure.  

As a follow on from the 2008 Green Paper on "Copyright in the Knowledge Economy"421, 
the  Commission  published  an  eponymous  Communication  on  19  October  2009422.  After 
examining the main findings of the consultation the Commission identifies two priority areas 
for  further  action:  the  digitisation  of  orphan  works  and  out-of-print  books  and  access  to 
knowledge  for  persons  with  disabilities.  Action  will  be  taken  to  facilitate  the  digitisation  of 
orphan  books  (books  whose  authors  cannot  be  contacted)  while  a  stakeholder  dialogue  will 
seek consensus on increasing access to knowledge in favour of disabled persons.  

The  Commission  also  decided  to  voice  no  opposition  to  Member  States  extending  a 
derogation  allowing  them  not  to  apply  the  so-called  artists'  resale  right  to  heirs  of  deceased 
artists. The derogation will now expire by 1 January 2012. 

Trademarks and designs  

The  Commission  adopted  on  31  March  2009  Commission  Regulation  (EC)  No  355/2009 
amending 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  trade  mark.  These 
legislative changes to the trade mark acquis implied a substantial (40%) reduction of the fees 
for  obtaining  a  Community  trade  mark  and  a  significant  simplification  of  the  registration 
process by abolishing the registration fee. 

Moreover,  on  22  July  2009  the  Commission  published  a  call  for  tender  for  a  study  on  the 
overall functioning  of  the trade mark system in Europe. The  aim of this study is to identify 
potential areas for improvement, streamlining and future development of this overall system 
covering both Community and national level. The results shall provide the basis for the future 
review  of  both  the  Community  Trade  Mark  Regulation  and  the  Trade  Mark  Directive.  The 
contract  for  the  Study  was  awarded  to  the  Max  Planck  Institute  for  Intellectual  Property, 
Competition  and  Tax  Law  on  16  October  2009.  The  final  report  is  due  by  end  of  October 
2010.  

As  regards  patents  the  Commission  adopted  on  20  March  2009  a  Recommendation  to  the 
Council (SEC (2009) 330 final) aimed at authorising the Commission to open negotiations for 
the  adoption  of  an  Agreement  creating  a  Unified  Patent  Litigation  System.  The 
Recommendation set out the next steps for the creation of a mixed agreement on the creation 
of a common patent Court and enabled the Council on 28 May 2009 to agree on a consultation 
of  the  Court  of  justice  concerning  the  compatibility  of  the  draft  agreement  with  the  treaty 
(opinion 1/09). 

In  relation  to  infringements  it  is  important  to  mention  the  complaint  related  to  legal 
restrictions  of  parallel  imports  of  medicinal  products  in  the  Slovak  Law  on  Medicinal 

421 COM 2008/466 final, 16 July 2008 

422 COM 2009/532 final, 19 October 2009. 

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Products.  The  Commission  considered  these  restrictions  to  be  contrary  to  the  Community 
principle of exhaustion of rights conferred by a trade mark as defined in Trade Mark Directive 
89/104/EEC. Consequently, the Slovak authorities amended their law and thus brought it into 
compliance with Directive 89/104/EEC.  

In  the  area  of  the  enforcement  of  intellectual  property  rights,  the  monitoring  of  the 
transposition  of  Directive  2004/48/EC  was  done.  The  Directive  had  to  be  implemented  by 
Member  States  by  29  April  2006.  Infringement  procedures  against  10  Member  States  over 
their  failure  to  notify  their  implementing  measures  were  also  pursued.  The  ECJ  took  three 
decisions in 2007 against Germany, Luxembourg and Sweden for failure of transposition of 
the  Directive  according  to  Art.  258  TFEU.  Sweden  and  Luxembourg  notified  their  national 
measures beginning of the year.  All Member States have notified their national implementing 
measures.  

The  Commission  adopted  a  Communication  "Enhancing  the  enforcement  of  intellectual 
property rights in the internal market" in September 2009. 

The Commission in April launched the European Observatory for Counterfeiting and Piracy. 
Subsequently,  the  Commission  in  September  and  in  December  organised  the  two  first 
meetings respectively with private and public sectors. In March, the Commission launched a 
stakeholders' dialogue on the sale of counterfeit goods over the internet. In June, it launched a 
similar  dialogue  for  the  illegal  down  loading  and  illegal  up  loading.  The  objective  of  these 
dialogues is to foster voluntary inter-industry agreements between the relevant stakeholders; 
such  agreements,  given  the  quick  development  in  the  digital  economy,  often  provide  for 
quicker and more flexible solutions than legislation. 

Finally  a  study  on  a  possibility  to  establish  an  electronic  exchange  system  on  counterfeit 
goods has been launched in July. 

9.2.7.2.  Evaluation based on current position 

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 by 
some Member States. The monitoring was done through a constant dialogue with the Member 
States  not  having  transposed  the  Directive  yet.  The  last  two  Member  States  adopted  the 
transposition  measures  during  this  year.  Subsequently,  proceedings  according  to  Art.  260 
TFEU were abandoned. 

As far as the follow up of the European Counterfeiting and Piracy Observatory is concerned, 
three working groups have been set up which  meet on regular basis (one working group on 
statistics, one on legal framework and one on public awareness). 

As  far  as  the  stakeholders'  dialogues  are  concerned,  several  meetings  have  taken  place.  A 
drafting  of  a  Memorandum  of  Understanding  between  participants  has  started  for  the 
stakeholders' dialogue on the sale of counterfeit goods over the internet.   

a) Priorities 

The priorities identified in the 2008 Annual Report were the same also for the year 2009. The 
monitoring  of  the  Directive  2004/48/EC  and  the  planning  for  the  enhancement  of 
administrative cooperation were duly performed. 

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b) Actions planned 

On  4  December  2009  the  Council  unanimously  adopted  conclusions  on  an  enhanced  patent 
system  in  Europe.  The  package  agreed  covers  major  elements  to  bring  about  a  single  EU 
patent and establish a new patent court in the EU. Both together will make it less costly for 
businesses  to  protect  innovative  technology  and  make  litigation  more  accessible  and 
predictable. This major breakthrough may pave the way for solving the outstanding issues to 
achieve a major reform of the EU patent system in the near future. On the basis of the Council 
conclusions and pursuant to Article 118 (2) TFEU the Commission intends to present in 2010 
a  proposal  for  a  Council  Regulation  concerning  language  arrangements  for  the  single  EU 
patent whereas the European Parliament and the Council are expected to proceed further with 
the other components of the EU patent reform package. 

In  2009,  Member  States  were  expected  to  submit  to  the  Commission  a  report  on  the 
implementation  of  Directive  2004/48/EC.  On  the  basis  of  the  national  reports,  the 
Commission  is  preparing  a  report  on  the  conformity  of  the  national  measures  with  the 
provisions of the Directive.   

Following  the  creation  of  the  European  Counterfeiting  and  Piracy  Observatory,  the  first 
annual report, which will include the methodology for the collection of statistics as well as a 
report of the legal sub-group on civil measures are expected to be delivered in the next two 
years. 

As far the stakeholders' dialogue the Commission will keep working with the stakeholders on 
a possible adoption of the Memorandum of Understanding. 

In addition the Commission will follow-up the study on how to set up an information system 
for the rapid exchange of information on counterfeit goods. Those and other measures were 
presented  by  the  Commission  in  its  Communication  "Enhancing  the  enforcement  of 
intellectual property rights in the internal market". 

Finally,  subsequently  to  this  Commission  Communication,  the  Council  is  preparing  a 
Resolution on the enforcement of intellectual property rights in the internal market. 

10.  REGIONAL POLICY 

10.1.  Current situation 

10.1.1. General introduction 

Based  on  Article  158  of  the  EU  Treaty423,  European  regional  policy  aims  to  reduce 
disparities between the levels of development of the various regions and the backwardness of 

423  All applicable secondary legislation being based on the EU Treaty, the Articles in the 
Treaty on the Functioning of the European Union are only quoted in the footnotes; Article 158 
of the EU Treaty corresponds to Article 174 of the Treaty on the Functioning of the European 
Union. 

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the  least  favoured  regions  by  actions  supported  by  the  Structural  Funds424  (the  European 
Regional  Development  Fund425,  ERDF,  and  the  European  Social  Fund426,  ESF)  and  the 
Cohesion  Fund427  (CF).  ERDF  and  CF  are  under  the  responsibility  of  the  Directorate 
General  for  Regional  Policy,  ESF  is  under  the  responsibility  of  the  Directorate  General  for 
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  Development428  and  the  fisheries  sector429.  In 
addition  Directorate  General  for  Regional  Policy  is  responsible  for  programmes  under  the 
Instrument  for  Pre-Accession  Assistance  (IPA)430.  Rules  covering  the  programming  period 
2007-2013 were adopted in 2006; all 317 operational programmes financed by the ERDF and 
CF were negotiated in partnership and adopted by the Commission in 2007 or early 2008431. 
The new programmes of the Member States overlap with those of the period 2000-2006 for 
which the final date for expenditure was the end of 2008 (in February 2009, 385 of the 555 
Cohesion  Policy  programmes  were  extended  until  30  June  2009  in  order  to  add  another  six 
months to cope with delays due to the international financial crisis). 

In accordance with Community law432, assistance under the Funds is provided according to 
an  approach  of  complementarity  and  partnership  between  the  Commission  and  the  Member 

424  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). 

425  Regulation  (EC)  No  1080/2006  of  the  European  Parliament  and  of  the  Council  of  5 
July 2006 laying down general provisions on the European Regional Development Fund and 
repealing Regulation (EC) No 1783/1999 (OJ L 210, 31.7.2006, p. 1). 

426  Regulation  (EC)  No  1081/2006  of  the  European  Parliament  and  of  the  Council  of  5 
July  2006  laying  down  general  provisions  on  the  European  Social  Fund  and  repealing 
Regulation (EC) No 1784/1999 (OJ L 210, 31.7.2006, p. 12). 

427  Regulation  (EC)  No  1084/2006  of  the  European  Parliament  and  of  the  Council  of  5 
July  2006  laying  down  general  provisions  on  the  Cohesion  Fund  and  repealing  Regulation 
(EC) No 1164/94 (OJ L 210, 31.7.2006, p. 79). 

428  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). 

429  Council  Regulation  (EC)  No  1198/2006  of  27  July  2006  on  the  European  Fisheries 
Fund; (OJ L 223, 15.8.2006, p. 1). 

430  Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for 
Pre-Accession Assistance (IPA) (OJ L 210, 31.7.2006, p. 82). 

In  addition  17  programmes  under  IPA  were  adopted.  The  following  is  focussed  on 

431 
ERDF and CF progammes. 

432  Article 9 of Regulation (EC) No 1083/2006. 

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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. 

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 Directorate General for 
Regional  Policy  is  relatively  stable  and  does  not  normally  lead  to  infringement  procedures, 
but the complaints are resolved by application of the normal control and financial correction 
provisions specific to Cohesion Policy by the national authorities or by the Commission. 

10.1.2. Report of work done in 2009 

10.1.2.1. New legislation 

Simplification of existing legislation is in itself an additional means to promote a reduction in 
errors  and  irregularities  while  reducing  administrative  burdens.  In  2009,  the  eligibility  of 
energy efficiency and renewable energy investments in housing was clarified and extended to 
all Member States; at the same time simplification concerning the records of the expenditure 
incurred was introduced for certain cost categories433. One example is the simplification of 
eligibility  rules  to  allow  flat-rate  reimbursements  for  overheads,  an  area  where  in  the  past 
there have been a large number of errors. Furthermore certain provisions relating to financial 
management  such  as  the  use  of  financial  engineering  instruments  or  the  pre-financing 
mechanism  were  modified434.  In  parallel,  the  Commission  implementation  Regulation435 

433  Regulation (EC) No 397/2009 of the European Parliament and the Council of 6 May 
2009  amending  Regulation  (EC)  No  1080/2006  (…),  as  regards  the  eligibility  of  energy 
efficiency and renewable energy investments in housing (OJ L 126, 21.5.2009, p. 3). 

434  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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was simplified considerably. A Commission proposal for further simplification is for the time 
being with the legislator (see below section 1.3.2.1). 

10.1.2.2. Preventive measures taken (Comitology and cooperation with Member States) 

In  2009,  eleven  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 ten meetings of the 
Committee  for  the  Coordination  of  the  Funds  (COCOF)436,  although  this  Committee  was 
formally only informed about these documents. 

In  addition,  a  training  seminar  on  best  practices  for  the  managing  and  certifying  authorities 
was held in June 2009 as a continuation of the seminar held in June 2008 entitled "Control of 
structural actions – meeting the challenge". Three technical meetings were held and training 
sessions were given on simplified costs and two technical meetings were held with the audit 
authorities. 

10.1.2.3. Main actions being taken to control the correct application 

Financial corrections 

Financial  corrections  by  the  Member  States  themselves437  and  by  the  Commission438  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  2009  total  financial  corrections  carried  out  by  the  Member  States  and  by  the 
Commission,  following  Commission  audit  work  (ERDF  and  CF;  periods  1994-1999  and 
2000-2006)  amounted  to  approximately  EUR  2  billion439  (plus  EUR  173  million  for  the 
ESF). This amount is a marked increase on the EUR 288 million corrected in 2007440 and the 
EUR 1 billion (plus EUR 522 million for the ESF) corrected in 2008. The corrections reflect 
the  completion  of  the  follow-up  of  previous  audit  work  and  an  acceleration  of  financial 

435  Commission Regulation (EC) No 846/2009 of 1 September 2009 amending Regulation 
(EC) No 1828/2006 setting out rules for the implementation of Council Regulation (EC) No 
1083/2006 (…) (OJ L 250, 23.9.2009, p. 1). 

436  Article 103 of Regulation (EC) No 1083/2006. 

437  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. 

438  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. 

439  EUR 2,064,506,922. 

440 
2009. 

EN 

See  Report  on  the  implementation  of  the  action  plan;  COM(2009)42  of  3  February 

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correction procedures under the "Action plan to strengthen the Commission's supervisory role 
under shared management of structural actions"441 (hereinafter referred to as "Action Plan"). 

Compliance assessment 

In order to improve the management and control of the 317 programmes for the 2007-2013 
period, the Member State authorities have to undertake an assessment of the description of the 
national  management  and  control  system  per  programme  accompanied  by  an  independent 
report giving an opinion on their compliance with the regulatory requirements to be submitted 
before  the  first  intermediate  payment  can  be  made.  This  compliance  assessment  is  a  new 
element442  seeking  to  ensure  that  the  set  up  of  management  and  control  systems  is  in 
conformity  with  applicable  rules.  By  end  of  2009,  311  compliance  assessment  reports 
regarding national systems had been received (98% of the total due) by the Commission, of 
which 271 (85% of those received) were judged acceptable as of 31 December 2009. 

Audits 

In 2009 the Commission carried out 19 on-the-spot audit missions for the 2000-2006 period 
and 28 for the 2007-2013 period concerning ERDF and Cohesion Fund in 15 Member States 
focusing  on  the  remaining  risks  in  management  and  control  systems,  the  review  of  bodies 
responsible  for  the  closure  of  the  2000-2006  programmes,  audit  of  operations  on  a 
representative sample of projects for the 2007-2013 period and the review of the work of the 
audit  authorities  for  the  2007-2013  period.  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, where necessary. 

10.1.2.4. Management of the acquis through committees and expert groups 

Beyond the development of guidelines presented to the COCOF committee and the technical 
meetings  held  in  2009  (see  above  section  1.1.2.2.),  no  other  committees  or  expert  groups 
meetings linked to the legality of the expenditure of the Funds have been organised. 

10.1.2.5. Enquiries, problems and complaints management 

13 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 

441  COM(2008)97 of 19 February 2008. 

442  Articles 71 and 72 of Regulation (EC) No 1083/2006. 

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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 Directorate General for Regional Policy uses the EU-PILOT System, as 
the  Commission  in  most  cases  can  only  react  in  substance  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  previous  reports,  concerning  the  new  Council  Regulation  on  a  European 
Grouping of Territorial Cooperation (EGTC)443, 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 2009, 
sixteen Member States had adopted national rules, against a regulatory deadline of 1 August 
2007. By the end of 2009 the Commission was informed of national rules adopted in another 
seven Member States. By the end of 2009, national rules and rules on the level of the federal 
entities were adopted in Belgium and Austria, leaving only two Member States still to adopt 
them.  These  results  were  achieved  through  political  dialogue  and  cooperation  with  the 
national authorities without recourse to infringement procedures. 

10.1.2.6. Petitions 

Directorate-General  for  Regional  Policy  has  treated  as  "chef  de  file"  18  petitions  involving 
projects possibly co-financed by the Funds and has been associated/consulted on 20 petitions, 
mostly  led  by  Directorate-General  for  Environment.  For  the  18  petitions  where  Directorate-
General for Regional Policy was in charge, ten concerned Spain. In general, petitions concern 
the  misuse  of  EU  funding,  deterioration  of  environment  linked  to  the  construction  of 
infrastructure projects, or other possible infringement of Community law. 

10.1.2.7. Management of Infringements 

One  infringement  proceeding  was  officially  opened  during  2009,  whereas  two  cases  were 
closed  after  the  parallel  financial  correction  procedure  had  been  closed.  Adding  two  other 
proceedings already opened before 2008, as of 31 December 2008, five current infringement 
proceedings concern Directorate General Regional Policy. 

10.2.  Evaluation based on the current situation 

10.2.1. Assessment of the current situation (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  Auditors.  To  make  progress 
towards  this  goal  it  introduced  an  Action  Plan  towards  an  Integrated  Internal  Control 

443  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). 

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Framework444. In 2008, the Commission adopted a specific Action Plan445 to strengthen its 
supervisory  role  in  the  structural  actions  area,  in  order  to  address  the  Parliament's  concerns 
arising  from  the  weaknesses  identified  by  the  Court  of  Auditors  in  its  2006  Annual  Report. 
The  structural  actions  Action  Plan  addressed  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 has been on increasing the effectiveness of the controls undertaken by the 
Member  States  and  of  its  own  supervisory  activity,  in  order  to  ensure  that  by  the  time  the 
2000-2006 programmes and projects are closed, most of the irregular expenditure is corrected 
and  the  residual  risk  of  error  is  as  low  as  possible.  For  the  2007-2013  period,  the 
Commission's  preventive  actions  aim  to  ensure  that  the  Member  States'  management  and 
control  systems  function  effectively  from  the  beginning  of  the  programme  implementation 
and that deficiencies are detected as early as possible. 

Concerning  the  EGTC  Regulation,  the  fact  that  national  rules  were  adopted  in  seven  more 
Member States during 2009 is regarded as satisfactory. 

10.2.2. 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 vital and the planned actions 
set out below contribute to this overall priority. 

10.2.3. Underlying reasons for problematic areas 

Even  under  shared  management  (see  following  section),  according  to  Article  274  of  the 
Treaty446 "(t)he Commission shall implement the budget, in accordance with the provisions 
of the [Financing Regulation], on its own responsibility (…), having regard to the principles 
of sound financial  management". Consequently any item of expenditure co-funded from the 
Funds  shall  comply  with  the  provisions  of  the  Treaty  and  of  acts  adopted  under  it447. 
Compliance with the acquis on as different matters as single market (EU Directives on public 
procurement),  competition  (state  aid  rules),  environment,  research,  transport  or  energy  puts 
the national authorities in front of a genuinely complex task when implementing operations on 
the ground together with a huge number of public or private final beneficiaries spending the 
contribution from the Funds. 

444   COM(2006) 9 and SEC(2006) 49. 

445 

"Action Plan" (COM(2008)97 of 19 February 2008). 

446  Article 274 of the Treaty corresponds to Article 317 of the Treaty on the Functioning 
of the European Union, where "on its own responsibility" is replaced by "in cooperation with 
the Member States". 

447  Article 9(5) of Regulation (EC) No 1083/2006. 

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10.2.4. 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  in  the  first  instance  to  correct  these  errors 
(mainly by financial corrections on project level). The Commission seeks to ensure, through 
its supervisory role, that the management and control systems set up by the Member States are 
effective  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 for the 2000-2006 period – on project level. 

10.2.5. Corrective action required (priority character, timing and scale) 

From  the  different  actions  carried  out  in  2009,  it  is  evident  that  the  respect  of  the  regional 
policy  acquis  requires  actions  of  a  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). 

The  implementation  of  the  Action  Plan  and  the  Joint  Audit  Strategy  of  the  Directorates-
General in charge of Cohesion Policy, which focus on measures to strengthen the supervision 
of the correct implementation of the programmes and projects, further simplification and the 
finalizing of the compliance assessment, have been key elements in order to reduce as far as 
possible errors linked to the closure of the 2000-2006 programmes and to avoid errors under 
the new programming exercise. 

Key actors linked to the Action Plan are the some 90 staff (out of a total in the DG of 745) 
carrying  out  control  activities  in  the  Directorate  General  Regional  Policy.  Financial 
corrections  and  infringement/complaints  proceedings  involve  of  course  a  lot  of  other  staff 
from the Resources Directorate, the "Legal advice, procedures" unit and the operational units. 
Consequently, an important part of Directorate General 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. 

10.3.   

Evaluation results 

10.3.1. Priorities 

As indicated in its "Annual Management Plan 2010" (18 December 2009) one of the specific 
objectives  identified448  is  to  seek  reasonable  assurance  that  the  management  and  control 
systems in the Member States and beneficiary countries comply with the requirements of the 
Community regulations and are functioning effectively, so as to prevent and detect errors and 
irregularities  and  assure  the  legality  and  regularity  of  the  expenditure  declared  to  the 
Commission.  To  this  end,  the  Directorate  General  for  Regional  Policy  will  seek  to  ensure 
through its supervisory role that Member States and regions have established the appropriate 
structures for management and control and will advise on measures to tackle weaknesses in 

448 

See section 5.5. 

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administrative  capacity  for  delivery,  as  well  as  provide  appropriate  support  for  setting  up  a 
sufficient stock of projects. 

10.3.2. Planned action (2010 and beyond) 

10.3.2.1. New legislation in preparation (simplification) 

The  Directorate  General  for  Regional  Policy  will  also  follow-up  and  where  possible 
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. As indicated above 
(see  section  1.1.2.1),  in  July  2009  the  Commission  adopted  a  further  set  of  measures 
amending two Council Regulations449 proposing further simplification of the rules governing 
the  financial  management  of  the  Structural  Funds,  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.  These  proposals  should  be  adopted  in  the  first  half  of 
2010. 

The  informal  preparation  of  the  new  legislation  concerning  the  2014  to  2020  programming 
period will be intensified in 2010, but formal proposals will be transmitted to the legislator in 
2011. 

10.3.2.2. Preventive measures taken (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 the years 2007 to 2009. A small number, less than ten, will 
be presented to the Committee for the Coordination of the Funds (COCOF) in 2010. Due to 
the amendments to the legislation adopted in 2009 and 2010, seven 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 led up to now to positive 
results. 

10.3.2.3. Main actions being taken to control the correct application 

Financial corrections 

The  current  estimate  of  potential  financial  corrections  likely  to  result  from  the  financial 
correction procedures underway at  the end of 2009 is approximately EUR 600 million (plus 
EUR 345  million  for  ESF).  Due  to  the  audit  work  (see  below  section  1.3.2.3.3)  executed, 
financial  corrections  are  necessary  only  in  cases  that  recommendations  for  remedial  actions 
for  deficiencies  identified  in  the  systems  have  not  been  taken  up  by  the  Member  States  or 
where irregularities have been found. 

449  Commission's  Proposal  amending  Regulation  (EC)  No  1080/2006  on  the  European 
Regional  Development  Fund  (ERDF)  (COM(2009)382  final;  adopted  on  17.7.2009); 
Commission's  Proposal  amending  Regulation  (EC)  No  1083/2006  (COM(2009)384  final, 
adopted on 22.7.2009. 

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Compliance assessment 

Concerning the 2007-2013 period, the compliance assessment exercise will be completed as 
quickly as possible, provided the Member States submit the necessary and revised documents 
in due time. 

Audits 

In  terms  of  audit  and  control  activities,  the  Directorate  General  for  Regional  Policy  will 
maintain  the  momentum  generated  by  the  Action  Plan  to  strengthen  the  Commission's 
supervisory role under shared management of structural actions and continue rigorous actions 
in  2010  under  its  multi-annual  audit  strategy.  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 and functioning of the programmes for the 2007-2013 period. 
Concerning the 2000-2006 period, the completion of financial corrections, the completion of 
the  follow-up  of  the  review  of  bodies  responsible  for  the  closure  of  the  2000-2006 
programmes  and  the  review  of  closure  declarations  will  be  the  main  priority  in  2010. 
Concerning the 2007-2013 period, audits will be continue to be focused on the  work  of  the 
audit authorities to obtain assurance on the reliability of their work and on the functioning of 
the management and control systems. 

10.3.2.4. Enquiries, problems and complaints management 

The Directorate General for 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. 

10.3.2.5. Petitions 

Given the few cases, no systematic action needs to be planned. 

10.3.2.6. Management of infringements 

Given the few cases, no systematic action needs to be planned. 

11. 

TAXATION AND CUSTOMS SERVICES 

11.1. 

Situation in the sector of CUSTOMS 

11.1.1.  Current position  

11.1.1.1. General introduction 

In continuation with previous years, the strategy was to put the emphasis on the prevention of 
the  infringements,  fully  in  line  with  the  Communication450  on  a  strategic  review  of  better 

450  COM(2006)689 of 14.11.2006 

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regulation  in  the  European  Union,  and  moreover  with  the  Communication451  on  a  better 
monitoring  of  the  application  of  Community  law,  the  attention  is  devoted  to  a  better  and 
simplified legal environment. Due to its responsibilities in the area of the EU legislation, the 
Commission continued its efforts aiming at enhancing the correct and uniform application of 
the Community customs legislation.  

Member  States  are  fully  committed  to  apply  correctly  Union  customs  rules,  helped  in  this 
crucial task by a close cooperation with the Commission. The key element of this process is 
the priority given to preventive approach aimed at involving all parties concerned. To enable a 
comprehensible  approach,  the  multi-annual  programme  of  monitoring  the  compliance  of 
customs legislation in different Member States has been satisfactory continued and developed. 
This pro-active strategy follows a planning process, targeting a selection of legislative sectors 
presenting, according to the risk criteria, actual or potential risk of incorrect or non uniform 
application, thus damaging main interests of Trade and of financial importance.  

Existing measures in force: see Annex I 

11.1.1.2. Report of work done in 2009 

In  2009  the  Court  of  justice  delivered  17  judgments  related  to  customs,  which  represents  a 
clear increase compared with 2008 (13).  

Most of the Court's judgments in this area concerned references for preliminary rulings.  

The following case was of particular relevance: 

The judgement of the European Court of Justice in case C-349/07, Sopropé – Organizações 
de Calçado Lda was delivered on 18 December 2008. In deciding the case the ECJ made clear 
that fundamental rights form an integral part of the general principles of law, the observance 
of  which  the  Court  ensures.  Turning  to  the  core  of  the  matter,  the  Court  stated  in  an 
unambiguous  manner  that  observance  of  the  rights  of  the  defence  is  a  general  principle  of 
Community  law  which  applies  where  the  authorities  are  minded  to  adopt  a  measure  which 
will adversely affect an individual. Once such general principle was established, the ECJ went 
on to clarify that it also applies, as seems obvious, in customs related matters. Therefore, in 
accordance  with  that  principle,  the  addressees  of  decisions  which  significantly  affect  their 
interests must be placed in a position in which they can effectively make known their views as 
regards the information on which the authorities intend to base their decision. They must be 
given  a  sufficient  period  of  time  in  which  to  do  so.  Having  regard  to  the  fact  that  their 
decisions come within the scope of Unionlaw, the  customs authorities of the Member States 
are  subject  to  that  obligation,  even  though  the  Community  legislation  currently  applicable, 
which  is  the  Community  Customs  Code,  does  not  expressly  provide  for  such  a  procedural 
requirement. The future Modernised Customs Code instead already foresees such a procedural 
requirement. 

Volume of enquiries, complaints, infringements work and petitions, and prioritization among 
them 

Regarding parliamentary questions, 5 have been treated, while no petition has been registered. 

451  COM(2002)725 of 16.05.2003 

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As  regards  customs,  the  Commission  opened  one  own  investigations  regarding  presumed 
infringements, and 3 on the basis of complaints.  

Besides,  17  requests  that  constitute  potential  infringements  have  been  received,  alike  2 
potential own initiative cases. 

No  reasoned  opinions  (Art  258)  (ex  Art  226)  have  been  sent.  Thus,  the  total  number  of 
infringement cases (4) is lower than in 2008 (17) and is also lower for reasoned opinions (2 in 
2008). 

During 2009, 32 opened infringement cases were closed after the Member States concerned 
modified their legislation or practice to comply with EU law. 

Most of enquiries and complaints in this area relate to the application of customs legislation in 
general.  No  prioritisation  was  necessary  to  deal  with  the  cases  as  regards  clear  and  serious 
infringements of EU legislation. 

11.1.2.  Evaluation based on the current situation 

In the customs field, EU legislation is mainly adopted in the form of Regulations. Therefore 
the correct and uniform application of EU customs law is a clear obligation for the Member 
states.  

The  policy  on  infringements  should  be  envisaged  in  a  larger  framework.  The  control  of  the 
correct  application  of  EU  customs  law  should  be  seen  as  one  of  the  instruments  of  a  wider 
policy  of  the  harmonisation  of  Member  State  legislation  and  the  implementation  of  EU 
legislation (committees, working groups, soft law, comitology, proposing a modifying act). 

This is clear in the area of customs, where a uniform-application of EU rules is dependent on 
both  clear  and  accurate  legislation  and  strong  cooperation  between  the  Member  States.  The 
practical  application  of  Community  customs  legislation  to  individual  cases  is  particularly 
important, which accounts for the high volume of requests made by national courts to the ECJ 
for  preliminary  rulings  that  become  a  major  guarantee  of  the  uniform  application  of  the 
Community law in the customs field. 

In  the  case  of  complaints  or  presumed  infringements,  a  distinction  has  been  made  between 
isolated failures affecting a specific individual and more general failures affecting groups of 
individuals. Isolated failures do not confirm the existence of national legislation or a general 
practice  contrary  to  EU  customs  law.  Isolated  cases  are  more  appropriately  and  effectively 
addressed  through  administrative  or  judicial  appeal  processes  provided  for  by  national  law. 
More general failures have been subject to an analysis of the scope and permanence of their 
impact, in terms of the extent to which they are likely to affect in a serious and sustainable 
way the objectives set by EU customs law. 

As a result, there has been no significant increase in the number of infringements over recent 
years and the overall situation in the area of customs may be seen as stable and this tendency 
is expected continue.  

Another way of improving the correct application of customs legislation is through increased 
use of informatics. Thus, in recent years, customs authorities have developed and introduced 
the  extensive  application  of  electronic  instruments,  through  the  package  called  'E-Customs'. 

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The introduction of this computerisation involves both a harmonisation and standardisation of 
data and procedures that should contribute to improved application.  

11.1.3.  Evaluation results 

11.1.3.1. Priorities 

As  far  as  customs  are  concerned,  the  situation  has  not  significantly  changed  regarding  the 
volume of infringements work and the number of references to the Court. Therefore, priorities 
set  for  2009  remain  unchanged  for  2010.  Considering  that  the  overall  volume  of 
infringements  and  complaints  remains  relatively  stable  compared  with  previous  years,  and 
that  this  situation  is  likely  to  continue  in  2009,  no  specific  action  regarding  prioritization 
should be envisaged.  

11.1.3.2. Planned action (2009 and beyond) 

Given  this  evaluation  of  the  current  situation,  no  additional  specific  planning  is  required. 
Nevertheless,  the  fact  that  the  volume  of  problems  in  the  application  of  the  law  being 
identified  has  not  increased  does  not  necessarily  mean  that  the  situation  is  satisfactory  and 
that EU customs legislation is evenly and correctly applied. For instance, economic operators 
and citizens may be facing problems which, for whatever reasons, they are not reporting to the 
Commission. As a result, a pro-active and horizontal approach has been adopted. 

The focus is put on ensuring that Member States orientate their efforts towards the correct and 
uniform  application  of  EU  customs  legislation.  The  strategy  is  based  on  closer  cooperation 
with  Member  States  and  oriented  towards  new  tools  enabling  improved  monitoring  of  the 
application  of  EU  customs  law.  With  this  end  in  view,  a  multi-annual  programme  of 
monitoring  the  compliance  of  customs  legislation  in  the  whole  EU  territory  has  been 
introduced in 2008. 

In order to help Member States to ensure the correct and uniform application of EU customs 
legislation,  TAXUD  operates  in  a  proactive  manner.  The  main  option  targets  preventive 
action aimed at reducing the number of situations likely to give rise to infringements. In this 
context  attention  is  paid  to  the  identification  of  areas  of  legislation  which  seem  to  present 
higher risks of incorrect application that may require special monitoring in the framework of 
an annual and targeted programme. The justifications for targeting specific areas have to be 
based  on  selection  criteria,  according  to  risk  criteria  (financial,  economic,  administrative, 
legal, security and safety). 

In  2009,  the  selected  areas  concerned:  the  role  and  functions  of  Authorised  Economic 
Operators  (AEO);  the  provision  of  Binding  Tariff  Information  (BTI);  decisions  on  non-
recovery, remission or repayment of customs duties; and the management of tariff quotas and 
surveillance of goods. 

This  strategic  and  horizontal  approach,  based  on  the  principles  of  coordination  and 
partnership between the Commission and Member States, has confirmed a strong commitment 
from all concerned and produced a clearly improved legal environment.  

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11.1.4.  Sector summary  

During  the  year  2009  in  the  area  of  customs,  the  volume  of  enquiries,  complaints  and 
references  for  preliminary  rulings  has  been  stable  compared  to  the  other  years.  Considering 
the likeliness of this tendency to continue, no specific urgent action needs to be decided. 

Like previously, the strategic emphasis was put on the prevention of the infringements so to 
act  upstream  instead  of  increasing  the  intervention  at  the  downstream  level,  through  the  
infringements process. 

11.2. 

Situation in the sector of INDIRECT TAXATION 

11.2.1.  Current position 

11.2.1.1. General introduction 

Establishing  an  internal  market  supposes  the  application  in  Member  States  of  legislation  on 
indirect taxation that distorts neither conditions of competition nor free movement of goods 
and services. 

Therefore  it  is necessary to achieve harmonisation  of legislation in  line with  the  changes in 
the  economy  by  means  of  proposals  for  new  directives  although  that  achievement  is  often 
compromised by the rule of unanimity.  

Existing measures in force (situation on 31/12/2009: see Annex I) 

11.2.1.2. Report of the work done in 2009  

a)  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) 

In  the  context  of  the  fight  against  VAT  fraud,  the  Commission  worked  on  two  legislative 
proposals. On 1 December 2008 the Commission adopted a proposal for a Council Directive 
amending  Directive  2006/112/EC  (COM  (2008)805  final).  This  Directive  on  one  hand 
clarifies the conditions for an already specific exemption at importation which is currently the 
subject of abuse through fraud schemes and on the other hand to provide tax administrations 
with  a  tool  for  recovering  VAT  from  non-established  traders  in  cases  where  the  non 
compliance of these traders with regard to their reporting obligations has facilitated the fraud. 
In June 2009 the Council adopted the part on importation (Council Directive 2009/69/EC of 
25 June 2009), but is still discussing the proposed recovery measure. 

On  18  August  2009  the  Commission  adopted  a  proposal  for  a  Council  Regulation  on 
administrative  cooperation  and  combating  fraud  in  the  field  of  Value  Added  Tax  (Recast) 
(COM  (2009)  427  final).  The  aim  of  this  proposal  is  to  give  Member  States  the  means  to 
combat  cross-border  VAT  fraud  more  effectively.  A  first  discussion  in  Council  took  place 
under the Swedish Presidency. 

Measures for a consistent response to carousel fraud in certain sectors 

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In  order  to  allow  Member  States  to  take  rapid  action  against  this  kind  of  fraud,  the 
Commission  has  adopted  a  proposal  for  a  Directive  allowing  the  application  of  a  reverse 
charge  mechanism  on  supply  of  five  categories  of  particularly  fraud  sensitive  goods  and 
services, namely: computer chips, mobile phones, precious metals, perfumes and greenhouse 
gas emission allowances. 

The possibility for all Member States to opt for the application of a reverse charge under the 
same  conditions  to  a  limited  list  of  goods  and  services  provides  Member  States  with  the 
necessary  tool  to  tackle  worrying  fraud  phenomena  in  a  flexible  manner  while  ensuring 
consistency  in  the  response  Member  States  give  to  carousel  fraud  and  to  avoid  fraud 
relocation.  It  will  also  produce  valuable  information  for  evaluating  the  efficiency  of  such  a 
measure. 

On  3rd  December  the  Council  agreed  on  a  general  approach  on  this  proposal,  based  on 
limiting  the  scope  of  the  measure  to  greenhouse  gas  emission  allowances.  Discussions  will 
continue on the remaining part of the proposal. 

Invoicing 

On  28  January,  the  Commission  adopted  a  proposal  to  change  the  VAT  Directive 
2006/112/EC  with  respect  to  invoicing  rules,  based  on  a  Communication  on  technological 
developments in the field of electronic invoicing. The aim of the proposal is to increase the 
use  of  electronic  invoicing,  reduce  burdens  on  business,  support  small  and  medium  sized 
enterprises  (SMEs)  and  help  Member  States  to  tackle  fraud.  The  proposal  simplifies, 
modernises  and  harmonises  the  VAT  invoicing  rules.  In  particular,  it  eliminates  the  current 
barriers to e-invoicing in the VAT Directive by treating paper and electronic invoices equally. 
The proposal is a key element of the Commission's Action Programme to reduce burdens on 
business  by  25%  by  2012,  and  is  part  of  the  Commission's  strategy  to  combat  VAT  fraud 
more efficiently.  

The Communication and the proposal reflect the real concerns of the business community and 
tax  administrations,  as  indicated  in  their  replies  to  the  public  consultation.  The  proposal  
addresses not only the VAT obstacles which hamper the up-take of electronic invoicing and 
storage, but it also addresses difficulties that businesses face due to the diversity of national 
rules on the content of invoices. 

This proposal is currently under discussion in Council. 

Technical amendments of the VAT Directive  

The Council adopted on 22 December 2009 a Directive amending several elements of Council 
Directive 2006/112/EC based on November 2007 Commission proposal. These amendments 
concern notably: the scope of the scheme applicable to natural gas and electricity since 2003 
in order to bring legislation into line with economic developments; the tax treatment of joint 
undertakings  set up pursuant to Article 187 of the TFEU; the taking into account of certain 
consequences  of  EU  enlargement;  and  the  arrangements  for  exercising  the  right  to  deduct 
VAT for mixed-use immovable property and business assets. . 

Comments  from  the  business  world  and  the  Member  States  had  demonstrated  the  need  to 
amend several elements of the VAT Directive. 

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Mutual recovery assistance 

On  2  February  2009,  the  Commission  adopted  a  proposal  for  a  new  Council  Directive 
concerning  mutual  assistance  for  the  recovery  of  claims  relating  to  taxes,  duties  and  other 
measures (COM(2009)28). The aim of this proposal is to facilitate the recovery assistance and 
to make it more efficient. It is expected that this Directive will be adopted by the Council in 
the first half of 2010, to enter into force on 1 January 2012. 

Excise duties 

In  the  area  of  excise  duties,  Council  Directive  2009/55/EC  of  25  May  2009  concerning  tax 
exemptions  applicable  to  the  permanent  introduction  from  a  Member  State  of  the  personal 
property of individuals (codified version of Directive 1983/183/EEC), was adopted. Since the 
initial  version  of  Directive  1983/183/EEC  has  been  substantially  amended  several  times,  a 
codified version proved to be necessary in the interest of clarity and rationality. 

The Commission continued preparatory work on a possible revision of Directive 2003/96/EC 
("the  Energy  Taxation  Directive")  to  better  combine  fiscal  and  environmental  goals.  In  the 
wider context of that work, the Commission also organised an one day conference on "What 
taxation for a low carbon economy?", which focused on the role that taxation could or should 
play with respect to emissions not included in the EU emission trading system. 

b)  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, 

Value added tax (VAT) 

Since  the  Council  Directive  2009/69/EC  of  25  June  2009  regarding  tax  evasion  linked  to 
imports requires some implementing measures, discussions have started within the framework 
of  the  Standard  Committee  on  Administrative  Cooperation  (SCAC)  and  the  Customs 
Directorate within DG TAXUD. The Commission also organised a seminar under the Fiscalis 
Programme to examine together with the participants from all Member States the new rules 
provided  for  by  this  Council  Directive.  Regarding  the  implementation  of  Council  Directive 
2008/117/EC of 16 December 2008 amending Directive 2006/112/EC on the common system 
of  value  added  tax  to  combat  tax  evasion  with  intra-Community  transactions  (reducing  of 
timeframes for submitting recapitulative statements) the Commission monitored the progress 
made  by  the  Member  States  in  order  to  adjust  their  IT  systems  to  the  required  standards  in 
time.  

The Commission also organised a seminar under the Fiscalis Programme in order to discuss 
with  the Member States the changes  that result  from  the  new  legislative  measures  and  their 
impact on administrative cooperation. 

Implementation of the "VAT package" 

From 1 January 2010, the new "VAT Package" enters into force across the EU, including new 
provisions  which  will  see  VAT  for  business-to-business  services  paid  in  the  country  of 
consumption  rather  than  the  country  where  the  supplier  is  located,  while  for  business-to-

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consumer services, VAT will continue to be paid in the Member State in which the supplier is 
established.  On  the  same  date,  a  new  electronic  procedure  is  put  in  place  in  order  to  allow 
taxable persons to claim back the VAT they paid in another MS directly to their own Member 
State. 

Directives  2008/8/EC  of  12  February  2008  amending  Directive  2006/112/EC  as  regards  the 
place of supply of services and 2008/9/EC of the same date 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, have been 
discussed several times in the VAT Committee. 

On  1st  December  the  Commission  adopted  an  implementing  regulation  on  Refunds  of  VAT 
laying down the detailed rules for the electronic submission of refund request and exchange of 
information on these requests.  

In preparation for the entry into force of the new rules on supply of services, the Commission 
adopted  on  17  December  a  proposal  on  implementing  measures  for  the  VAT  Directive 
2006/112 (COM(2009) 672 final), which includes a number of measures related to the VAT 
Package,  in  particular  to  prevent situations of double taxation that could arise as a result of 
diverging interpretations of the new rules. For example, there are guidelines for suppliers on 
establishing the location and tax status of the customer, as this will determine the rate of VAT 
that must be  paid. Other guidelines focus on the provisions within the VAT Package which 
complement or provide exceptions to these general new rules. The VAT Package, which was 
adopted  by  Member  States  at  the  ECOFIN  Council  in  February  2008,  also  provides  for  a 
faster, more effective electronic procedure for businesses to reclaim the VAT that they pay in 
a Member State other than the one in which they are established. 

Reduced VAT rates  

Following the ECOFIN political agreement of 10 March 2009, the Council adopted on the 5th 
of May Directive 2009/47/EC essentially allowing all Member States – on a permanent basis 
–  to  opt  for  the  application  of  reduced  rates  of  value-added  tax  (VAT)  to  certain  labour-
intensive local services, including restaurant and catering services. 

EU rules on VAT rates, set by the Council Directive 2006/112/EC, require Member States to 
apply a minimum 15 % standard rate to the supply of most goods and services. As a general 
rule, Member States are however allowed to apply one or two reduced VAT rates of at least 
5% to a limited number of supplies. 

The current rules are the outcome of a variety of initiatives over the years, including the 1992 
Council Directive on the harmonisation of VAT rates in the context of the EU single market, 
and  subsequent  Council  Directives  and  Decisions  to  allow  reduced  VAT  rates  on  labour-
intensive local services with a view to stimulating employment and reducing fraud. 

As a follow up to the entry into force of the new scope of reduced rates, the Commission has, 
by means of a letter, invited all Member States to carefully consider the precise scope of the 
10 March 2009 political agreement (ECOFIN), having regard notably to the options to apply 
reduced VAT rates and the changes unanimously agreed. In addition, the Commission invited 
all  Member  States  to  analyse  their  national  legislation  and,  if  need  be,  take  rectifying 
measures.  The  Commission  also,  acting  in  its  role  of  guardian  of  the  Treaties  is  examining 
Member States' legislation in order to establish whether EU rules on reduced rates of VAT are 

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correctly  applied  and  will  undertake  the  necessary  steps  in  order  to  ensure  a  correct 
implementation of the new scope of reduced VAT rates as agreed by the Council. 

VAT grouping 

On  2nd  July  the  Commission  adopted  a  Communication  setting  out  its  position  on  VAT 
grouping schemes. The EU VAT legislation gives Member States the option, for the purpose 
of  administrative  simplification,  to  regard  as  one  single  taxable  person  those  who,  while 
legally  independent,  are  closely  bound  to  one  another  by  financial,  economic  and 
organisational links. The Communication includes guidelines which aim at ensuring a correct, 
coherent and uniform application of the VAT grouping option. 

Excise duties 

Council  Directive  2008/118/EC  of  16  December  2008  concerning  the  general  arrangements 
for  excise  duty  and  repealing  Directive  92/12/EEC,  which  will  enter  into  force  on  1  April 
2010. It will  provide the  legal base  for EMCS (the Excise  Movement  and Control System), 
which  is  a  computerised  system  for  monitoring  the  movements  of  excise  goods  under 
suspension of excise duty within the EU. Directive 2008/118/EC provides the legal basis for 
EMCS, which enters into application as of 1 April 2010 as well. The entry into application of 
EMCS and of the Directive on 1 April 2010 has been actively prepared and monitored by the 
Committee  on  Excise  Duties  as  well  as  by  its  subcommittee  responsible  for  EMCS,  the 
ECWP (Excise Computerisation Working Party). 

c)  Main  actions  being  taken  to  control  the  correct  application  of  the  law  –  conformity 
assessments, reports on the application of legislation, studies, etc 

Value added tax (VAT) 

On  18  August  2009  the  Commission  adopted  its  report  on  the  application  of  Council 
Regulation EC no 1798/2003 concerning the administrative cooperation in the field of Value 
Added  Tax  (COM  (2009)  428).  This  report  assesses  the  functioning  of  the  administrative 
cooperation  between  Member  States  and  announces  a  range  of  measures  which  will 
substantially  affect  the  way  administrative  cooperation  will  function  in  the  future.  Part  of 
these  measures  is  taken  on  board  in  the  legislative  proposal  for  a  Recast  of  Council 
Regulation 1798/2003. 

The  Commission  has  checked  the  correct  implementation  by  the  Member  States  of  the 
extension, after 31 December 2008, of the e-commerce special scheme, according to Directive 
2008/8/EC of 12 February 2008. 

d) Management of the acquis through committees and expert groups  

Value added tax (VAT) 

As  regards  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, internet 
monitoring, new means of transport (cars and yachts), risk management and e-learning. 

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 

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Commission  or  the  representatives  of  the  Member  States,  which  concern  the  application  of 
Community provisions on VAT. At least twice a year, but often more, the VAT Committee 
examines  questions  raised  on  the  interpretation  and  application  of  the  existing  VAT 
legislation.  Given  the  adoption  of  the  new  rules  on  the  place  of  taxation  of  supplies  of 
services,  the  VAT  Committee  held  5  meetings,  spread  on  7  days,  in  2009,  with  a  view  of 
agreeing  common  guidelines  concerning  the  implementation  of  the  new  rules.  The  work  of 
the VAT committee has lead to the recast proposal on implementing measures for the VAT 
Directive 2006/112 (COM(2009) 672 final) to be adopted unanimously by the Council. 

Mutual recovery assistance 

The  Recovery  Committee  examines  matters  concerning  the  application  of  the  Directive  on 
mutual recovery assistance (Arts. 20 and 21 of Council Directive 2008/55/EC). Two meetings 
have been held in 2009. 

e) Enquiries, problems and complaints management  

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; inter alia in 
the  area  of  VAT  grouping  Commission  issued  a  Communication452  and  has  opened 
infringement  procedures  against  Member  States  violating  the  VAT  Directive.  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. 

In  the  Commission  Communication  'A  Europe  of  results-Applying  Community  law'453,  the 
Commission  decided  on  the  introduction  of  an  arrangement  for  monthly  decision-taking  to 
allow  for  the  quicker  progress  of  infringement  cases  about  2  years.  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.  A  significant 
number of cases is currently before the ECJ. 

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 (EUPILOT).In the course of the year the 
overwhelming majority of files have reached a satisfactory conclusion, even if improvements 
have been identified in the way the process could operate, with 75 percent of Member State 
responses provided within the 10week benchmark. 

452 COM(2009)325 

453 COM(2007)502 

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Reference to the system SOLVIT will remain an important means for resolving the problems 
confronting citizens and taxpayers in a Member State different then the Member State of their 
residence. 

f) Petitions  

Regarding  the  33  petitions  treated  in  the  area  of  indirect  taxation,  in  2009,the  most 
recurrent issues remained in the area of taxation of cars. 

g) Management of infringements 

Within  the  area  of  indirect  taxation,  2009  was  another  successive  year  with  a  considerable 
number  of  infringement  cases,  closed  after  bringing  their  legislation  into  conformity  with 
Community  Law  by  the  Member  States  during  the  different  steps  of  the  258-(ex  226-) 
procedure,  and  a  considerable  input  related  to  new  Court  cases.  The  following  cases  merit 
extra attention: 

In the judgment in the case Commission v. Poland454, the Court declared that, by failing to 
adapt,  by  1  January  2006,  its  system  of  electricity  tax  with  regard  to  the  time  at  which  the 
electricity tax becomes chargeable to the requirements of the Council Directive 2003/96/EC 
the  Republic  of  Poland  has  failed  to  fulfil  its  obligations  under  that  directive  and  the  Court 
ordered the Republic of Poland to pay the costs. 

 In the judgments Commission v. Ireland455 and Commission v. Spain456 the Court decided 
that Ireland and Spain failed to lay down in its national legislation requirement or a criterion 
for  a  framework  that  bodies  governed  by  public  law  acting  in  their  capacity  as  a  public 
authority  are  to  be  subject  to  value  added  tax  where  their  treatment  as  non-taxable  persons 
gives rise to significant distortions of competition as well as that where they are engaged in 
activities listed in Annex I to Council Directive 2006/112/EC they are to be subject to tax. 

In the judgment Commission v. Finland457 the Court declared that, by deducting the tax on 
vehicles from value added tax as well as by retaining, when taxing vehicles, the same taxable 
value  for  vehicles  under  three  months  old  as  for  new  vehicles,  the  Republic  of  Finland  has 
failed to fulfil its obligations under the first paragraph of Article 90 EC (Article 110 TFEU) 
and Article 17(1) and (2) of Directive 77/388/EEC. 

Finally in the case TNT458 the Court decided that as ‘public postal services’ (exempted from 
VAT) must be regarded all operators, whether public or private, who undertake to supply not 
individually negotiated postal services which meet the essential needs of the population and 
therefore, in practice, to provide all or part of the universal postal service in a Member State. 

454 Judgment of 12.02.2009, case C-475/07 

455 Judgment of 16.07.2009, case C-554/07 

456 Judgment of 12.11.2009, case C-154/08 

457 Judgment of 19.03.2009, case C-10/08 

458 Judgment of 23.03.2009, case C-357/07 

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11.2.2.   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 principles in the area of VAT) of the texts towards harmonization in the 
field of taxation. This situation makes harmonization by legislation more complex and often 
leads  to  the  granting  of  options  to  Member  States  thereby  creating  differences  leading  very 
often to prejudicial consequences. 

Furthermore,  the  important  proposal  of  5  July  2005459  ,  for  a  directive  which,  inter  alia, 
includes the abolition of registration taxes and would have positive effect on free movement 
of persons consequently 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.  For  example  the  existing  provisions  of  EU-law  concerning  travel 
agencies and VAT exemption on postal services were interpreted differently by the Member 
States  and  this  fact  led  at  the  end  to  opening  of  infringement  procedures.  Therefore  the 
infringement  policy  ensured  harmonized  interpretation  of  concerned  rules  by  all  Member 
States. 

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 and this trend is still likely to 
continue. The key challenges will be 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. 

Finally, it is welcomed that during 2009, 57 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. 

11.2.3.   Evaluation results 

11.2.3.1.  Priorities  

Our  existing  pro-active  infringement  policy  and  prioritisation  of  specific  issues  has  been 
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 

459  COM (2005) 2641 final 

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complaints year after year. Unfortunately this policy has not always reached the stated goal 
(for example, on travel agencies). 

On the control of the implementation of Directives, the implementing national provisions were 
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  directives  and  could  represent  a  useful  tool  for  both 
administrations and stakeholders, but unfortunately is not yet entirely applied.  

A second priority concerns the Community own resources. Those resources within the area of 
indirect taxation include those accruing from VAT and are obtained through the application of 
a  uniform  rate  on  a  uniform  to  basis  of  assessment  in  accordance  with  Community  rules. 
Cases detected through "own investigation" with a possible impact on own resources continue 
to  be  initiated  by  the  Commission.  For  example  the  Commission  has  initiated  several 
procedures concerning the correct application of VAT exemptions according to Article 137 of 
the VAT Directive. Their purpose is to ensure of the equal treatment of the Member States in 
their contributions 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  110  of  the  EU  Treaty  (ex  article  90  of  the  EC  Treaty)  as  interpreted  by  the 
Jurisprudence  of  the  Court  of  justice,  to  ensure  that  the  Member  States  do  not  tax  in  a 
discriminatory  way,  at  the  time  of  registration,  second-hand  vehicles  bought  in  the  other 
Member  States  (Bulgaria,  Greece,  Ireland,  France,  Cyprus,  Hungary,  Malta,  Portugal, 
Romania). 

For  indirect  taxation  issues,  the  Commission  opened  136  new  infringement  cases  99  of 
which  related  to  VAT,  14  related  to  excise  duties  and  23  regarding  car,  energy  and 
environmental taxation. 

During 2009, 57 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. 

The infringement policy of the Commission was reflected both in a considerable number of 
infringement cases and a considerable input related to new Court cases. During the year 2009, 
the Court of justice has delivered 30 judgments related to indirect taxation (24 in the domain 
of  VAT  and  6  regarding  other  indirect  tax  issues),  mostly  judgments  in  consequence  of  a 
request for a preliminary ruling from a national court in pursuance of which the Commission 
has given its advice. 

The volume of petitions in this sector is relatively moderate and stable (24 petitions have been 
handled during 2009). 

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11.2.3.2. Planned action (2010 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. 

And last but not least the challenge of correct transposition of new rules on place of supply  
starting on 1 January 2010 in scope of VAT package implementation as well as the new 
system of reimbursement of VAT allowing the taxpayer to submit the documents to the tax 
authorities of the Member state where is he registered. All these measures require a 
coordinated and instant legislative as well as technical implementation in all Member States. 

11.2.4.  Sector summary  

Regarding  indirect  taxation,  the  Commission  continues  to  be  confronted  within  this  area 
with  a  marked  increase  in  enquiries,  complaints  and  references  for  preliminary  rulings.  The 
Commission  has  concentrated  its  efforts  to  ensure  alignment  of  Member  States'  indirect  tax 
legislation  with  the  requirements  of  primary  and  secondary  Community  law,  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  further  followed  up  in  this  context. 
Despite 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  particular  attention  will  be  devoted  to  the  important 
modifications which will come into force on 1.1.2010 (VAT package). 

11.3. 

Situation in the sector of DIRECT TAXATION 

11.3.1.  Current position  

11.3.1.1. Existing measures in force 

See Annex 

11.3.1.2. Report of work done in 2009 

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. 

On  2  February  2009,  the  Commission  adopted  a  proposal  for  a  new  Council  Directive 
concerning  administrative  cooperation  in  the  field  of  taxation  (COM  (2009)29).  The  aim  of 
this proposal is to enhance and streamline the mechanisms of administrative cooperation for 
all  taxes  that  are  not  yet  covered  by  Community  legislation  relating  to  administrative 
cooperation  and  mainly  for  direct  taxes.  It  especially  provides  for  the  abolition  of  bank 

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secrecy  for  administrative  cooperation  purposes.  It  is  expected  that  this  Directive  will  be 
adopted by the Council in the first half of 2010, to enter into force on 1 January 2012 for all 
measures  but  automatic  exchange  of  information  and  on  1  January  2014  for  automatic 
exchange of information. 

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 after increases in the last years reflected in a rather stable number of infringement 
cases and increased input into new Court cases. As in previous years, the main focus in 2009 
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 Internal Market. In 
this respect, priority was in particular given to infringement cases in respect of exit tax rules 
on individuals and companies and discriminatory tax treatment of foreign charities.  

In  2009  the  Court  of  Justice  delivered  23  judgments  related  to  direct  taxation.  Most  of  the 
Court's  judgments  in  this  area  (16)  concerned  references  for  preliminary  rulings.  The 
following cases were of particular relevance: 

In Persche460 the Court held that Article 56 EC [now Article 63 TFEU] precludes legislation 
of a Member State by which, as regards gifts made to bodies recognised as having charitable 
status, the benefit of a deduction for tax purposes is allowed only in respect of gifts made to 
bodies established in that Member State, without any possibility for the taxpayer to show that 
a gift made to a body established in another Member State satisfies the requirements imposed 
by that legislation for the grant of such a benefit. 

In  Margarete  Block461  the  Court  ruled  that  Article  56  EC  [now  Article  63  TFEU],  in 
circumstances  such  as  those  of  the  present  case,  does  not  preclude  legislation  of  a  Member 
State which does not provide for inheritance tax paid in another Member State to be credited 
against inheritance tax payable in the first Member State. The double taxation results from the 
exercise in parallel by two Member States of their fiscal sovereignty. Community law, in its 
current state and in a situation such as that in the main proceedings, does not lay down any 
general  criteria  for  the  attribution  of  areas  of  competence  between  the  Member  States  in 
relation to the elimination of double taxation within the Community. 

In Commission v. Italy462 the Court held that by making dividends distributed to companies 
established in other Member States subject to a less favourable tax regime than that applied to 
dividends  distributed  to  resident  companies,  the  Italian  Republic  has  failed  to  fulfil  its 

460 Judgment of 27.01.2009, case C-318/07 

461 Judgment of 12.02.2009, case C-67/08  

462 Judgment of 19.11.2009, case C-540/07 

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obligations  under  Article 56  EC  [now  Article  63  TFEU].  The  Court  confirmed  the 
Commission's position that outbound dividend payments to corporate shareholders resident in 
other EU Member States may not be taxed less favourably than dividend payments to resident 
corporate  shareholders.  In  addition,  the  Court  rejected  the  Italian  argument  invoking  the 
application  of  Conventions  for  the  avoidance  of  double  taxation  as  a  mechanism  able  to 
compensate the difference in treatment arising from the Italian legislation. 

Regarding the petitions in the direct tax area, most petitions related 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,  the  Commission  opened  90  new  infringement  cases  in  2009,  a 
smaller  number  than  in  2008.  This  was  due  also  to  the  new  approach  of  applying  a  tighter 
dialogue and co-operation between the Commission and Member States in the stages prior to 
opening of formal infringement proceedings. During 2009, 70 (100% increase with regard to 
2008)  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  260  in  2009)  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 (15 petitions in 
2009).  

Management of the acquis through committees and expert groups 

The Working Group for Administrative Cooperation in the field of Direct Taxes (WG ACDT) 
examines  matters  concerning  the  application  of  the  Directive  on  mutual  assistance  in  direct 
tax  matters  and  insurance  premiums  (Directive  77/799/EEC)  and  the  application  of  the 
Directive  on  the  taxation  of  savings  income  in  the  form  of  interest  payments  (Directive 
2003/48/EC). Three meetings have been held in 2009. 

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In  addition,  a  sub  group  of  the  WG  ACDT  devoted  to  the  design  and  IT  development  of 
common forms for exchange of information met four times in 2009. 

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,  negotiations  are  ongoing  on  the  amendment  to  the  Savings 
Taxation  Directive  (2003/48/EC)  and  the  Mutual  Assistance  Directive  (77/799/EEC). 
Adoption by Council in 2010 would require substantial transposition work. 

11.3.2.  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 without an increase in resources 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 
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.   

11.3.3.  Evaluation results 

11.3.3.1. Priorities 

As far as direct taxation is concerned, the priorities set for 2009 remain unchanged for 2010.  

11.3.3.2.  Planned action (2010 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 

(CCCTB)  would 

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application of the measure. Once adopted and implemented, CCCTB would reduce the scope 
for cross-border restrictions and thus result in a decrease in infringements in the corporate tax 
area.  

Amendment Savings Directive463 

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. 

11.3.4.  Sector summary  

In the area of direct taxation, action continues to relate mainly to the second priority listed in 
the 2007 Communication (breaches of Community law raising issues of principle). In view of 
the lack of secondary Community legislation in this area, the main focus is on the application 
of the fundamental Treaty freedoms in respect of differential treatment of domestic and cross-
border  situations.  There  has  again  been  a  marked  increase  in  enquiries,  complaints  and 
references for preliminary rulings and this trend is likely to continue. In order to manage this 
increase  in  activity,  the  Commission  will  continue  to  pursue  a  strategic  approach  to 
infringement  action  in  this  area  by  focusing  on  specific  priorities  and  by  looking  more 
horizontally at similar infringements in different Member States. Moreover, as outlined in the 
2006  Communication  on  Co-ordinating  Member  States'  direct  tax  systems  in  the  Internal 
Market,  the  Commission  is  encouraging  Member  States  to  be  more  pro-active  in  removing 
existing tax obstacles by examining the scope for co-ordination in this area. Such co-ordinated 
action can help to remove discrimination and promote compliance with Community law. The 
priorities in this area remain unchanged for 2010. 

12. 

EDUCATION AND CULTURE 

12.1.  Current position 

12.1.1.  General introduction 

12.1.1.1. Education and training 

The continuing challenge in the field of education and training is to ensure the application of 
the  principle  of  free  movement  for  students,  a  fundamental  objective  of  EU  action  in 
accordance with Article 165 TFEU, which replaced and supplemented Article 149 of the EC 
Treaty.  Students  in  the  different  types  and  levels  of  education  and  training  should  not  be 

463 Directive 2003/48/EC on taxation of income from savings (OJ L 157 p 38 of 26.06.2003) 

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treated less favourably because they have exercised their right to mobility for all or a part of 
their studies or have been awarded diplomas in another Member State. 

Learning  mobility  plays  a  key  role  both  in  the  personal  and  skills  development  of  the 
individual  student  and  in  promoting  greater  labour  market  flexibility  after  the  studies.  It  is 
also an important component for creating the Europe of citizens, one of the key objectives of 
the Union. The obstacles to mobility should therefore be removed as far as possible. Despite 
the relative lack of specific, binding provisions in EU primary and secondary law in this area, 
the  Commission  took  action  to  protect  the  principle  of  free  movement.  The  obstacles 
encountered  relate  mainly  to  the  equality  of  tuition  and  registration  fees,  to  some  benefits 
directly related to student status, to the recognition of periods of study and diplomas acquired 
in  other  Member  States  and  to  the  scholarships  and/or  student  loans  offered.  Infringement 
procedures  begun  in  2009  concerned  areas  such  as  discrimination  in  access  to  distance 
learning  provided  from  a  Member  State  other  than  the  Member  State  of  residence;  and 
discrimination in access to reduced fares for students on public transport. 

The main Treaty articles and other legally binding provisions applicable are: 

•  Article 12 of the Treaty464, establishing the principle of prohibition of any 
discrimination  on  grounds  of  nationality  within  the  scope  of  application  of 
the Treaty465.  

•  Article 17, establishing citizenship of the Union and ensuring citizens of the 

Union enjoy the rights conferred by the Treaty. 

•  Article 18, providing that every citizen of the Union shall have the right to 

move and reside freely within the territory of the Member States. 

•  Articles 149, related to education. In paragraph 2, the objectives of  the EU 
institutions'  action  in  the  field  of  education  are  set  out.  Among  those 
objectives  are  "encouraging  mobility  of  students  and 
teachers,  by 
encouraging inter alia, the academic recognition of diplomas and periods of 
study"  and  "encouraging  the  development  of  distance  education".  Similar 
provisions are contained in Article 150, related to vocational training.  

•  Directive 2004/38/EC, on the right of citizens of the Union and their family 
members to move and reside freely within the territory of the Member States. 
This  Directive  contains  several  provisions  concerning  students  and  persons 
under  vocational  training.  Indeed,  students  are  an  important  category  of 

464   Since  the  1.12.2009,  Article  18  of  the  Treaty  on  the  Functioning  of  the  European 
Union. As our legal cases in 2009 have been treated under the old Treaty (EC Treaty), it is to 
that Treaty we will refer in the present contribution. We will use reference to the new Treaties 
in the topic concerning planned action for the future. 

465  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. 

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citizens  moving  between  Member  States  and  the  Directive  contains  key 
provisions  related  to  students  on,  for  example,  rights  of  residence  for 
students  legally  enrolled  in  education  or  vocational  training,  and  on  equal 
treatment  of  EU  citizens  with  specific  rules  on  social  assistance  and 
maintenance grants. 

Directives  and  other  EU  legal  acts  containing  provisions  related  to  education  or  vocational 
training466  are  not  adopted  on  the  basis  of  Articles  149  and  150  EC,  because  the 
harmonisation  of  the  laws  and  regulations  of  the  Member  States  for  the  achievement  of  the 
objectives referred to in these Articles is excluded by the Treaty (see paragraph 4 of Articles 
149 and 150). EU action based on these articles may only encourage, support and supplement 
Member States' action, while fully respecting their responsibility for the content of teaching 
and vocational training and for the organisation of education and training systems.  

Nevertheless,  Article  149  paragraph  2,  taken  together  with  the  abovementioned  Articles  12, 
17  and  18  and  Directives,  provides  a  clear  structure  for  the  legal  framework  on  the  free 
movement of students. 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  to  recognize  a  diploma  acquired  in  another  Member  State  or  when  s/he 
asks  for  the  portability  of  a  grant  or  scholarship  in  order  to  continue  studying  in  another 
Member State467. 

In  that  light,  the  refusal  to  recognize  a  diploma  without  a  proper  justification  or  the 
application of disproportionately long or costly procedures could be interpreted as penalising 
a European citizen for having exercised his or her right to free movement and having followed 
studies in another Member State. Such practices could, therefore, also constitute violations of 
EU law.  

Finally, it is useful here to show the methodology used by the Commission in the exercise of 
its tasks for the classification of the issues pertaining to education and training. The categories 
are: 

(1) 

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 
here.  Among  seven  cases  handled  by  our  DG  in  2008,  the  cases  against 

466   Another example is Council Directive 2000/78/EC of 27 November 2000 establishing 
a  general  framework  for  equal  treatment  in  employment  and  occupation.  This  Directive, 
which  lays  down  a  general  framework  for  combating  discrimination  on  the  grounds  of 
religion  or  belief,  disability,  age  or  sexual  orientation,  is  likely  to  apply  in  some  questions 
related  to  education  and  vocational  training.  The  adoption  of  such  anti-discriminatory 
provisions  to  be  applied  also  in  the  fields  of  education  and  vocational  training  is  not 
incompatible  with  Articles  149  par.  4  and  150  par.  4  EC,  because  the  objective  of  anti-
discrimination rules crosscuts all areas of EU law.    

Judgment  of  the  Court  of  23  October  2007  in  the  joint  cases  C-11/06  and  C-12/06, 

467 
Morgan and Bucher. 

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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  data468  which  will 
enable an evaluation to be made on whether the measures are necessary and 
proportionate. Moreover, the preliminary case C-73/08, Bressol, submitted to 
the Court of Justice in 2008 and on which the judgement is expected in 2010, 
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 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 concerned469.  

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.  

(2) 

(3) 

(4) 

Apart from the binding provisions of EU law in this sector, 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  resolved. In this context, the European Qualifications  Framework, due to be 
implemented by all Member States by 2011, is beginning to have an impact. Valuable results 
are  also  often  obtained  in  this  area  by  the  ENIC-NARIC  network  (European  Network  of 
Information Centres, National Academic Recognition Information Centres)470.  

468  A second annual set of statistics was provided by Austria in December 2009. 

469   To  the  same  category  (student  rights  toward  the  country  of  destination)  could  be 
classified  the  issue  of  entry  and  residence  permit  for  students.  As  for  the  movement  of 
students between Member States, the issue was addressed initially by Directive 93/96/EC and 
recently  by  Directive  2004/38/EC.  As  for  the  movement  of  students  between  a  EU  country 
and a third country to which extends the application of Union programmes, the problems are 
often  resolved  by  the  provisions  governing  the  programme  (mandatory  or  not).  In  cases  of 
other third countries, the solutions are given either by the provisions of mutual agreements or 
by other instruments of the Union, which are the responsibility of the Directorate General for 
Justice, Liberty and Security.  

470   http://www.enic-naric.net/  

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12.1.1.2. Sport 

In the area of sport, it is established case-law of the Court of Justice that sport federations and 
regulations must respect the fundamental rights guaranteed by the Treaty, and in particular the 
principle  of  non-discrimination  on  grounds  of  nationality471.  When  faced  with  obstacles  to 
mobility or with indirect discrimination, the principle of proportionality applies on a case by 
case  basis,  taking  into  consideration  the  specificity  of  sport.  The  same  case  law  has 
recognised  that  the  principle  of  equal  treatment  does  not  apply  to  rules  of  purely  sporting 
interest which are not of an economic nature, such as the composition of national teams.  

In  the  absence  of  provisions  on  sport  in  the  Treaty  establishing  the  European  Community, 
amateur sport was understood both as a social advantage for migrant workers and as a field 
subject to equal treatment rules in the framework of European citizenship. Following the entry 
into force of the Lisbon Treaty on 1st December 2009, the competence of the European Union 
in the area of sport now includes all sport activities within the scope of EU law. 

The entry into force of the Lisbon Treaty introduced a new Article 165 TFEU extending the 
competence  of  the  European  Union  in  the  area  of  sport.  Following  a  combined  reading  of 
Articles  18,  21  and  165  TFEU,  the  Commission  considers  that  the  general  EU  principle  of 
prohibition of any discrimination on grounds of nationality applies to sport for all EU citizens 
who have used their right to free movement. As a consequence, sport activities as a whole fall 
into  the  scope  of  EU  law,  including  amateur  sport  as  well  as  professional  sport,  which  also 
falls more specifically under the provisions related to internal market freedoms, in so far as 
the sport activities under consideration constitute an economic activity. 

Moreover, 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)  1612/68472, 
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. 

Additionally, the Commission takes into account the recent ECJ case law473 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 citizens of the Union are able to practice 
sport as amateurs 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. 

471   See CJEU cases C-36/74 Walrave; C-13/76 Donà; C-415/93 Bosman 

472  Regulation  (EEC)  1612/68  of  the  Council  of  15  October  1968  on  freedom  of 
movement for workers within the Community. 

See  Cases  C-184/99  Grzelczyk,  paragraphs  31  to  33;  C-85/96,  Martinez  Sala, 

473 
paragraph 63; C-158/07 Förster, paragraphs 37 to 43. 

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In  applying  Union  law  to  amateur  sport,  the  Commission  takes  into  account  the  specific 
characteristics of sport, as set out in Article 165 TFEU and in the Commission's White Paper 
on sport474. 

12.1.2.  Report of work done in 2009 

12.1.2.1. Education and training 

The  Commission  services  have  intensified  their  activity  in  this  area,  through  infringement 
cases, parliamentary questions, petitions to Parliament, citizens' inquiries and complaints, and 
by the application of new tools (EU Pilot, CHAP) for the implementation of Community law.  

The Commission opened three infringement proceedings under Articles 12, 17, 18 and 149 of 
the  Treaty  and  Article  24  Directive  2004/38  about  discrimination  of  students  by  the  host 
country,  regarding  fares  on  public  transport.  The  procedures  have  reached  the  stage  of 
reasoned opinions for two Member States, while the third has complied with EU law at the 
stage  of  formal  notice.  The  Commission  believes  that  students  who  perform  some  or  all  of 
their studies in a Member State should have access to public transport of that State under the 
same conditions as domestic students.  

The Commission also opened infringement proceedings against two Member States relating to 
fees and grants for distance learning. The Commission believes that students, who study in a 
Member  State  other  than  the  one  where  the  university  providing  the  distance  learning  is 
situated, should not pay higher tuition fees than students from that country nor receive a lower 
maintenance grant than if the university was situated in the Member State of residence.  

Two further  files  are  related to tuition fees in higher education. In the first, compliance has 
been achieved following approaches from the Commission services. In the other, the opening 
of an infringement procedure is foreseen for the beginning of 2010. 

In response to a petition to the European Parliament, the Commission services are currently 
pursuing  a  case  of  possible  discrimination  in  access  to  compulsory  education  based  on  the 
language  spoken  by  the  child  at  home.  Such  a  criterion  risks  constituting  indirect 
discrimination based on nationality. 

12.1.2.2. Sport 

The  Commission  received  an  increasing  number  of  complaints  in  2009  relating  to 
discrimination on grounds of nationality, concerning access to competitions, awards of titles 
and  medals,  obstacles  to  mobility  and  transfer  or  administrative  fees.  The  Commission's 
concern  is  to  ensure  that  rights  to  free  movement  and  equal  treatment  are  respected,  taking 
into account the specific characteristics of sport. In that light, the Commission has launched a 
study  to  address  the  specific  issue  of  access  to  individual  competitions  which  will  help  to 
provide better guidance in this area. 

The  complaints  concerned  access  to  both  individual  and  collective  competitions  in  various 
sports  such  as  basketball,  handball,  tennis,  mountain  running,  horseback  riding  or  bowling. 
Infringement proceedings were opened concerning respectively discrimination on grounds of 

474  White paper on sport, 11 July 2007, COM (2007) 391 final. 

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nationality  in  individual  judo  competitions,  basketball  regulations  and  transfer  fees  in 
handball. Three requests were sent through EU Pilot related to basketball administrative fees, 
nationality quotas in squash and shooting. The Commission also continued its dialogue with 
sport associations as foreseen in the White Paper on sport. In this framework, the Commission 
continued  to  work  with  FIFA  on  the  so-called  "6+5"  rule  in  order  to  find  a  solution 
compatible with EU law.  

12.2.  Evaluation based on the current situation 

12.2.1.  Education and training 

The  level  of  compliance  of  Member  States  with  the  acquis  can  be  considered  generally 
satisfactory.  However,  the  number  of  complaints  and  petitions  of  citizens,  especially  on  the 
recognition of diplomas and periods of study, reveals that the obstacles to free movement are 
still widespread in practice.  

The  Commission  services  intend  therefore  to  publish  guidance  for  public  authorities  and 
stakeholders  in  the  Member  States,  drawing  out  the  key  implications  of  the  case  law 
established  by  the  Court  thus  far.  This  guidance  will  cover  issues  such  as  access  to 
educational institutions, recognition of diplomas, the portability of grants, and other rights of 
students in the host country or in the country of origin. It should help to establish the rights of 
students  to  free  movement  as  a  clear  area  of  EU  law,  underpinning  the  trend  already 
established  by  the  Court.  In  doing  so,  it  would  contribute  to  the  Union’s  objective  of 
achieving a substantial increase in the level of mobility among students in higher education. 
Announced in the previous Report on the control of application of EU law, this guidance is 
foreseen  to  be  published  in  the  framework  of  the  new  Commission  initiative  Youth  on  the 
Move. 

12.2.2.  Sport 

The  Union  acquis  concerning  collective  sports  enables  the  Commission  to  act  against 
discrimination  on  grounds  of  nationality  and  obstacles  to  free  movement  when  nationality 
quotas are detected. Other areas of sport challenging EU law and not yet covered by the ECJ's 
case law, such as access to individual competitions which may be destined to select, directly 
or indirectly, national athletes or award national titles, medals or records, need legal certainty. 
In that light, the Commission has launched a study which will help to provide better guidance 
in this area and better define the specific characteristics of the concerned sports. 

Large  disparities  can  be  found  across  the  Union  concerning  the  involvement  of  Member 
States in the area of sport and its regulation. When confronted with violations of EU law that 
can only be considered as disputes between private individuals, the Commission is unable to 
intervene  within  the  framework  of  article  258  TFEU  and  can  only  recommend  when 
appropriate  the  use  of  means  of  redress  available  at  national  level,  thus  relying  on  national 
tribunals which have the duty to ensure that EU law is correctly applied to every case brought 
before them. 

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12.3.  Evaluation results 

12.3.1.  Priorities 

12.3.1.1.   

Education and training 

The  priority  area  remains  the  mobility  of  students  within  the  European  Union,  where  the 
current  obstacles  prevent  the  Union  from  realising  the  full  economic  and  social  benefits.  In 
this context, the academic recognition of diplomas is probably the most difficult issue to deal 
with. 

12.3.1.2.   

Sport 

The  priorities  set  in  the  previous  Annual  Reports  are  unchanged.  The  Commission  will 
continue to ensure that rights to free movement and equal treatment are respected, taking into 
account the specific characteristics of sport. 

12.3.2.  Planned action (2010 and beyond) 

12.3.2.1.   

Education and training 

Noting  that  the  area  of  education  is  a  separate  chapter  of  the  Union's  acquis,  the 
Commission intends to support its implementation by:  

•  Opening formal proceedings in cases which, in the Commission’s view, represent 

clear infringements of EU law; 

•  Participation  in  significant  preliminary  references  to  the  Court,  when  matters 

relating to education and sport are involved. 

•  Increasing use of the EUPilot and CHAP tools in cases which appear to involve 
one-off  misapplications  of  principles  which  are  otherwise  accepted  by  the 
Member State concerned;  

•  The provision of guidance 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 fields of education and amateur sport.  

12.3.2.2.   

Sport 

The planned actions for 2010 are to: 

•  Make proposals for the implementation of the new sport provisions foreseen 

in Article 165 TFEU, 

•  Continue the enforcement of EU law, relying on the new provisions of Article 

165 TFEU, 

•  Continue dialogue with sport associations in a preventive perspective, 

•  Make  use  of  the  results  of  the  Study  on  equal  access  to  individual 

competitions for better guidance in this problematic area. 

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13. 

HEALTH AND CONSUMERS 

13.1. 

Introduction 

The mission of the Commission in this domain is to improve the health, safety and confidence 
of European citizens. We aim to use our Treaty powers to the fullest possible extent, mindful 
in  particular  of  the  need  for  legislation  to  be  implemented  and  enforced.  Effective 
implementation of this body of legislation requires the cooperation of the Member States, the 
support  of  the  European  Parliament  and  the  help  of  consumers,  patients  and  citizens.  The 
Commission is committed to engage society at large and all European and national institutions 
in our efforts to ensure that citizens and business benefit from legislation in this domain. 

The three main policy pillars in this area - consumer affairs, public health, and food safety - 
require  diligent  use  of  finite  enforcement  resources  to  produce  the  intended  benefits  for 
citizens and business in application of this body of legislation (see Annex I paragraph VI for a 
comprehensive listing of the legislative acquis for each policy area). 

The  credibility  and  legitimacy  of  policy  actions  depend  on  how  effectively  legislation  is 
implemented.  The  Commission  ensures  that  legislation  in  this  area  is  fully  and  consistently 
implemented  because  the  stakes  are  high  when  citizens  do  not  benefit  from  the  protection 
afforded by established safety requirements. 

Member States are our key partners because they have the primary responsibility for ensuring 
implementation  of  EU  law.  But  equally  better  cooperation  between  national  enforcement 
agencies  and  the  Commission  will  result  in  more  uniform  application  of  legislation  in  this 
area.  In  addition,  the  Commission  sought  during  the  course  of  2009  to  empower  citizens, 
consumers  and  patients  through  information  and  education  to  enable  them  to  support  our 
implementation efforts and those of Member States. 

This  section  describes  the  work  done  in  2009  by  the  Commission  services  responsible  for 
health and consumers. It describes how we are seeking to engage everyone that has a say in 
better application of EU law in this domain and who may have a stake in developing a "smart" 
regulatory environment based on the principles of Better Regulation. 

The  Commission  seeks  to  use  all  parts  of  the  tool-box  at  its  disposal  to  ensure  adequate 
application of EU law. We see this challenge as an opportunity to use  enforcement resources 
in  an  optimal  way  and  to  improve  our  capacity  for  prioritisation  of  infringements.  Member 
States  are  increasingly  turning  to  the  Commission  for  leadership  in  the  area  of  better 
application of EU law and we will not lose any opportunity to show it. We aim to make every 
aspect of implementation of EU law in this domain both open and participatory using modern 
tools of communication to solicit collaboration. 

We  understand  that  this  body  of  legislation  is  often  technical  and  requires  guidance  to 
Member  States  on  the  practical  modalities  of  its  application.  Law  without  enforcement  is 
impotent and the Commission is making sure that it supports, assists, encourages and, in the 
last resort, prosecutes Member States for failures to comply. 

For each area a description is given on how the Commission has developed partnerships with 
Member States to improve their application of the acquis. The document also describes areas 
where  weaknesses  have  been  detected  in  the  application  of  the  legislation  and  the  required 
actions have been prioritised. 

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13.2. 

Public Health 

13.2.1.  Current position 

13.2.1.1. 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. 

The  Lisbon  Treaty  that  came  into  force  in  2009  has  not  changed  much  in  the  EU’s 
competence to act. Article 168(4) TFEU (ex Article 152(4) TEC) 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 114 TFEU (ex Article 
95 TEC). 

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 EU, 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. 

13.2.1.2. Report of Work Done in 2009 

2009 saw significant developments in relation to the transposition of the EU health acquis. As 
regards Directives in the tissues and cells sector the transposition rate continued to increase 
following continual contacts between the Commission and Member States Health Attachés to 
track  specific  progress.  By  the  end  of  2009,  one  Member  State  –  Italy  -  was  still  lacking 
transposition  measures  for  Directives  2006/17/EC  and  2006/86/EC.  The  Commission  has 
accelerated  infringements  proceedings  against  Italy  in  respect  of  both  directives  so  that  the 
Court of Justice delivered on 12.11.2009475 and 26.11.2009476 judgments condemning Italy 
for not having transposed those Directives. 

475  Case C-12/09 (concerning the non transposition of Directive 2006/17/EC) 

476  Case C-13/09 (concerning the non transposition of Directive 2006/86/EC) 

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In  the  blood,  tissues  and  cells  sectors  (Directives  2002/98/EC  and  2004/23/EC),  the 
Commission regularly collects information through questionnaires and pursues collaborative 
follow-up  meetings  with  competent  national  authorities  of  Member  States  tasked  with 
enforcement  of  these  directives.  The  main  implementation  challenges  resolve  in  close 
partnership  with  Member  States  are  linked  to  the  vigilance,  traceability  and  inspections 
systems. 

Measures  (until  June  2010)  allowing  temporary  derogations  to  certain  eligibility  criteria  for 
whole blood and blood components donors in the context of a risk of shortage caused by the 
Influenza  A(H1N1)  pandemic  were  adopted  in  November  2009  (Commission  Directive 
2009/135/EC). An operational manual for competent national authorities for the inspection of 
tissue and cell procurement and tissue establishments was developed during 2009. A common 
approach  concerning  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 principle. 

Two reports on the implementation of the Directives on blood and on tissues and cells have 
been developed during 2009.. The reports show that the implementation of both Directives is 
satisfactory although further efforts are needed: 

– 

– 

the 

blood 

the 
of 
in 
sector 
accreditation/designation/authorisation/licensing  process 
respect  of  each 
individual blood establishment; the performance of inspections and the submission of 
the annual report on vigilance to the Commission; 

finalisation 

regarding 

the 

in 

the 

and 

tissue 

sector 

the 
in 
the 
cell 
respect  of  each 
accreditation/designation/authorisation/licensing  process 
individual  tissue  and  cell  establishment;  development  of  inspections  systems; 
monitoring  of  import/export  measures;  registry  of  tissue  establishments,  and 
fulfilment of different reporting requirements. 

finalisation 
in 

regarding 

of 

The Commission is further developing partnerships with Member States to help them develop 
operational solutions in response to the remaining challenges. 

Finally,  following  the  completion  of  the  notification  of  Member  State's  transposition,  a 
concordance  table  addressing  the  most  important  aspects  of  the  four  Blood  Directives  was 
sent  to  the  Member  States  for  completion.  Based  on  the  results  of  the  tables  received,  the 
Commission is  performing conformity checks in order to adequately monitor the adequacy of 
the notified transposition measures. 

In the tobacco sector the two existing Directives (Directives 2001/37/EC and 2003/33/EC) are 
well implemented in Member  States. In  general, Member States have wider advertising and 
sponsorship  bans  than  the  cross-border  bans  required  by  the  Tobacco  Advertising  Directive 
(2003/33/EC).  Advertising  in  virtual  environments  continues  to  be  a  challenge  not  only  for 
Europe  but  around  the  world,  requiring  a  global  solution.  Cross-border  internet  sales  of 
cigarettes for example involve illegal tobacco advertising and promotion. In addition, on-line 
sales often lack the required warning messages and encourage tax evasion. Negotiations on a 
protocol to address illicit tobacco trade are on-going in context of the Framework Convention 
on Tobacco Control (FCTC). 

EN 

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As  regards  more  particularly  the  Tobacco  Products  Directive  (2001/37/EC),  the  biggest 
challenges  are  new  tobacco  and  nicotine  products    proliferating  on  the  market  and  the 
intensified use of tobacco packages as a promotion tool. 

In November 2009 the Commission published a Report on the Implementation of the Council 
Recommendation  (2003/54/EC)477  on  smoking  prevention  and  on  initiatives  to  improve 
tobacco control. The report is based on information from Member States and concludes that 
the degree of implementation is generally good. 

On 30 November 2009, Health Ministers adopted a Council Recommendation on smoke-free 
environments478.  The  Commission    supports  and  encourages  its  implementation  by  the 
Member States. 

Considerable  efforts  by  the  Commission  have  also  been  achieved  in  the  communicable 
diseases  area.  Implementing  measures  have  now  completed  the  EU  legal  framework,  which 
notably lays down the list of diseases and special health issues together with the criteria for 
their  selection  (Commission  Decision  2000/96/EC),  provides  case  definitions  for  these 
diseases  (Commission  Decision  2002/253/EC),  and  defines  the  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). Decision 
2000/96/EC has been amended by Decision 2009/312/EC, in order to update it in the light of 
the development of dedicated surveillance networks.  

In the context of the Influenza A (H1N1) pandemic, a case definition of this new virus was 
promptly  adopted  (Decision  2009/363/EC  amending  Decision  2002/253/EC,  complemented 
by  Decision  2009/540/EC  once  WHO  had  given  an  official  name  to  this  new  virus),  and  it 
was  added  to  the  list  of  diseases  covered  by  the  epidemiological  surveillance  network 
(Decision  2009/539/EC  amending  decision  2000/96/EC).  Decision  2000/57/EC  was 
substantially amended by Decision 2009/547/EC in order to allow the coordination of contact 
tracing  measures  (of 
level.  A  Council  Recommendation 
(2009/1019/EC) on seasonal influenza vaccination was also adopted on 22 December 2009. 

infected  persons)  at  EU 

During  the  course  of  2009  discussions  infirst  reading  of  the  proposal  for  a  directive  on  the 
application of patients' rights in cross-border  healthcare  were pursued. The European value-
added to this proposal is to achieve clarity for all patients on their rights of reimbursement for 
healthcare received in another Member State. The European Parliament adopted amendments 
in first reading on 23 April 2009. 

EU  health  systems  are  currently  facing  a  number  of  challenges,  like  population  ageing, 
citizens'  rising  expectations,  migration,  and  mobility  of  patients  and  health  professionals.  In 
this  context,  it  is  necessary  to  ensure  provision  of  safe  and  high  quality  healthcare  for  all 
European  citizens,  whilst  respecting  the  principle  of  subsidiarity.  The  provision  of  safe  and 
high quality healthcare can improve an individual's health outcome, and can contribute, in the 
longer term, to a cost-effective use of resources. To assist Member States in  their efforts in 
ensuring provision of safe and high quality healthcare, the Commission adopted a proposal for 
a  Council  Recommendation  on  patient  safety,  including  the  prevention  and  control  of 

477 

SEC(2009) 1621 final 

478  OJ C 296, 5.12.2009 

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healthcare  associated  infections.  Member  States  adopted  the  Recommendation  in  June 
2009479. 

Safe and high quality healthcare strongly depends on having a motivated and efficient health 
workforce  with  the  right  set  of  skills  and  in  adequate  numbers  given  the  needs.  The 
Commission addressed this issue in the Green Paper on the European Workforce for Health 
and  ran  a  public  consultation  on  the  Paper  in  2009.  The  numerous  responses  confirmed  the 
importance of this issue at EU level. 

13.2.2.  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.  The  Commission  continues  to  ensure  that  this 
legislation is fully and consistently enforced by ensuring that Member States are playing their 
full role for the benefit of citizens and patients. We are calling upon Member States to take 
full responsibility for ensuring implementation of the EU's public health policies and actively 
promoting cooperation between the Commission and national competent authorities. 

13.2.3.  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. We will also seek 
increased transparency of enforcement action and outputs by Member States to ensure that EU 
standards are meticulously upheld. 

13.3.  Consumer Affairs 

13.3.1.  Current position 

13.3.1.1. General Introduction 

There are now more than 500 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  Article  169  TFEU  (ex 
Article  153  TEC),  which  promotes  the  economic  interests,  health  and  safety  of  European 
consumers. It is designed to ensure that the internal market is open, fair and transparent, and 
that  products  sold  are  safe,  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: less than 30% 
of people have done so over the past year. Yet, the EU single market offers many possibilities 
for competition and for buying at a lower price. 

479  OJ C 151, 3.7.2009 

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13.3.1.2. Report of Work Done in 2009 

Consumer rights 

There has been a rapid evolution in the travel sector during the last two decades, i.e. since the 
time of the adoption of Directive 90/314/EEC on Package Travel (1990). The development of 
the Internet has made it possible for consumers to make their reservations themselves directly 
from  a  wide  range  of  providers,  e.g.  tour  operators,  travel  agencies/retailers,  air  carriers, 
cruise lines and hotels. The increasing trend of offering "dynamic packages", especially on the 
Internet, has created legal grey zones, where both businesses and consumers may be uncertain 
of  whether  such  arrangements  are  covered  by  the  current  Directive.  Furthermore,  the  rapid 
development of low cost air carriers has revolutionized the supply of air transport and thereby 
has  enhanced  competition  and  consumer  choice  in  the  travel  market.  For  these  reasons  a 
decreasing number of consumers are protected by the Directive when going on holidays. Both 
the  Council  Conclusions  from  2000  and  the  European  Parliament's  Resolution  on  general 
aspects  of  consumer  protection  2001/213  called  for  an  update  and  clarifications  of  the 
Directive.  Against  this  background,  the  Commission  started  the  formal  impact  assessment 
process  on  the  potential  revision  of  the  Directive  in  June  2009.  A  Member  State  Workshop 
was organised in the context of the impact assessment in October 2009. It confirmed a strong 
support for revising the Directive. In November, the Commission published an external study: 
"Study  on  Consumer  Detriment  in  the  area  of  Dynamic  Packages"  and  simultaneously 
launched  a  public  consultation  on  the  revision  of  the  Directive.  This  consultation  was  open 
until 7 February 2010. In December 2009 the Commission also initiated a public consultation 
on air passenger rights, which, in particular, touches on the question of bankruptcy protection 
for standalone air tickets. 

The  co-decision  legislative  process  is  well  advanced  in  relation  to  the  proposal  for  a  new 
Directive on consumer rights, which was adopted by the Commission in 2008. The proposal 
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 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 
existing consumer directives. Businesses are therefore either reluctant to sell cross-border or 
pass the additional costs incurred from doing so on to consumers. Through the harmonisation 
of  the  most  important  aspects  of  the  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).  During  the  Czech  and  Swedish  presidencies,  intense  negotiations  on  the 
proposal took place on the proposal in the Council and considerable progress was achieved. 
The  progress  was  confirmed  by  a  positive  outcome  of  the  policy  debate  in  the 
Competitiveness Council  on  3  December 2009. The discussions in the European  Parliament 
are progressing as well; the lead committee (IMCO) held several exchanges of views, with the 
draftsperson intending to present a working document on the proposal by April 2010. 

Consumer credit 

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Directive  2008/48/EC  on  credit  agreements  for  consumers,  which  repeals  Council  Directive 
87/102/EEC,  was  adopted  on  23  April  2008.  Pursuant  to  Article  27  of  the  Directive 
(following a corrigendum from 11 August 2009480), the Directive is to be transposed by the 
Member States by 11 June 2010. 

In  2009  only  Portugal  and  Germany  notified  to  the  Commission  measures  transposing  the 
Directive.  In  order  to  assist  the  Member  States  with  the  transposition  of  the  Directive,  two 
workshops took place during 2009. The first one, held on 27 March 2009, mainly focused on 
the  study  of  the  Annual  Percentage  of  Rate  (APR)  and  on  answering  Member  States' 
questions. During the second workshop, held on 9 October 2009, the Commission's initiative 
on responsible lending, a topic closely related to consumer credit was discussed. Depending 
on the demand by Member States, a third workshop could take place . 

The  Commission's  proposal  contained  a  provision  obliging  the  Member  States  to  provide 
concordance tables. However, upon the request of certain Member States, this obligation was 
later removed. Instead, recital 50 of the Directive now invites Member States, in accordance 
with point 34 of the Interinstitutional Agreement on better law-making, to submit such tables. 
The  lack  of  a  formal  obligation  to  provide  concordance  tables  will  make  the  Commission's 
work more complicated and resource intensive.. 

Distance Marketing in Financial Services 

Directive 2002/65/EC on Distance Marketing of Financial Services was adopted in 2002 with 
a  view  to  boosting  consumer  confidence  when  purchasing  financial  services  by  means  of 
concluding a distance contract, in particular in cross-border internet transactions. Pursuant to 
Article 21 of the Directive, Member States were to adopt transposition measures by 9 October 
2004. 

Most of the Member States transposed the directive only in 2005-2006, on 20 November 2009 
the Commission adopted a report481, informing the European Parliament and the Council on 
the application and the review of the Directive. This report takes into account the results of 
two  studies  launched  in  2007  assessing  the  economic  and  legal  impact  of  the  Directive  on 
cross-border distance marketing of financial services. It also includes conclusions drawn from 
two  workshops  held  in  2007  and  2008  with  consumer  groups  and  the  financial  services 
industry, the Commission's transposition checks, and other sources. The report underlines the 
fact  that  in  most  Member  States  the  market  for  cross-border  distance  selling  of  financial 
services is rather insignificant. 

The market will be monitored regarding an increase of e-commerce in the field of financial 
services, which is likely to occur. However, should no such increase be observed, appropriate 
initiatives  addressing  the  causes  for  the  delayed  market  development,  focusing  possibly  on 
enforcement, could be explored. 

480  OJ L 133, 22.5.2008 

481  Review  of  the  Distance  marketing  of  consumer  financial  services  Directive 
(2002/65/EC), COM (2009) 626 (final) 

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In relation to the abovementioned transposition check, in those cases where the Commission 
found a lack of conformity of national transposition measures with the Directive, it launched 
formal  infringement  proceedings.  On  9  October  2009,  letters  of  formal  notice  were  sent  to 
Spain,  Italy,  Belgium,  Sweden,  the  Netherlands  and  Latvia.  Further  letters  of  formal  notice 
are expected to be sent in the course of 2010. 

Injunctions 

Directive 98/27/EC on injunctions for the protection of consumers' interests was adopted on 
19 May 1998. Since then, the scope of the Directive has been extended through modifications 
of its Annex. For the sake of clarity, the Injunctions Directive has been codified by Directive 
2009/22/EC, adopted on 23 April 2009 

The  Commission  is  in  the  process  of  verifying  the  compliance  of  the  laws  of  the  Member 
States with the provisions of the codified Injunctions Directive. 

Transposition and application of Directive 2005/29/EC 

By  the  end  of  2009  Directive  2005/29/EC  concerning  unfair  business-to-consumer 
commercial  practices  in  the  internal  market  had  been  transposed  by  all  Member  States. 
However, the transposition of the Directive still poses a number of challenges considering the 
important  legal  impact  of  full  harmonisation  in  a  broad  area  characterised  by  considerable 
differences in national legislations and policies. In order to achieve adequate transposition of 
the Directive, the Commission launched two infringement proceedings (against Belgium and 
France)  in  2009,  and  held  several  bilateral  meetings  with  certain  Member  States.  The 
Commission also intervened in various cases referred to the Court of Justice for preliminary 
rulings  which  concerned  the  Directive.  In  two  judgements  handed  down  on  23  April  2009 
(cases  C-261/07  and  C-299/07)  and  14  January  2010  (case  C-304/08),  the  Court  of  Justice 
confirmed  the  full  harmonisation  character  of  the  Directive.  While  examining  the 
compatibility  of  Belgian  and  German  laws  prohibiting  certain  combined  offers  with  the 
provisions  of  the  Directive,  it  held  that  "Member  States  may  not  adopt  stricter  rules  than 
those  provided  for  in  the  Directive,  even  in  order  to  achieve  a  higher  level  of  consumer 
protection". Thus, the Directive was found to preclude such national prohibitions of combined 
offers. 

To promote a common understanding and to develop a uniform application of the Directive, 
the  Commission  published  online  Guidance  on  the  application  of  the  Unfair  Commercial 
Practices  Directive482483  on  3December  2009.  This  Guidance  aims  mainly  national 
enforcers,  as  well  as  other  stakeholders.  It  includes  examples  showing  how  the  Directive 
should work in practice. Furthermore, the Commission launched in 2009 a call for tender to 
establish a public database on the Directive, which will include national laws transposing the 
Directive and relevant European and national case law, decisions and doctrine. 

Transposition and application of other consumer protection Directives  

482 

SEC(2009)1666 

483 

http://ec.europa.eu/consumers/rights/docs/Guidance_UCP_Directive_en.pdf 

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In 2009 the Commission continued its efforts in carrying out systematic checks on the quality 
of transposition of several consumer protection directives by the Member States. In addition, 
its  services  dealt  with  a  number  of  complaints  which  identified  potential  transposition 
problems. 

In particular, the Commission followed-up on infringement proceedings opened in 2008 and 
based  on  the  inadequate  transposition  of  Directive  93/13/EEC  on  unfair  terms  in  consumer 
contracts.  In  some  cases  the  Member  States  concerned  changed  their  legislation.  In  those 
cases  where  the  Commission  considered  that  the  Member  States'  transpositions  remained 
inadequate, the Commission continued the infringement proceedings, in particular by sending 
reasoned  opinions  to  the  Czech  Republic  and  Slovakia484,  and  bringing  an  action  against 
Malta  in  the  European  Court  of  Justice  (Case  C-220/09).The  latter  action  was,  however, 
withdrawn as Malta amended its legislation. 

Transposition  checks  carried  out  in  2009  in  relation  to  Directive  99/44/EC  on  the  sale  of 
consumer goods and guarantees gave rise to the opening of infringement proceedings against 
a number of Member States.485 In a few cases Member States brought their legislation in line 
with the Directive, whereas in other cases infringement proceedings are likely to be continued 
in 2010. In addition, several complaints were dealt with under the Directive. 

Transposition checks in relation to other directives, including Directive 97/7/EC on distance 
contracts,  will  continue  in  2010.  The  Commission  may  continue  informal  contacts  with  the 
Member  States  to  amicably  resolve  the  issues  at  stake,  but  it  may  have  to  resort  to 
infringement cases in certain cases. 

Finally, there were a number of new requests for preliminary rulings under Article 267 TFEU 
(ex  Article  234  TEC)  in  relation  to  different  consumer  protection  directives,  including 
Directive  97/7/EC  and  Directive  99/44/EC.  In  Cases  C-511/08  Heinrich  Heine  a  German 
court asks whether Directive 97/7/EC precludes national legislation which allows the costs of 
delivering  the  goods  to  be  charged  to  the  consumer  even  where  he  has  withdrawn  from  the 
contract. Case C-146/09 Scholl deals with the question of whether under Directive 97/7/EC a 
consumer  has  a  right  to  withdraw  from  a  distance  contract  for  the  supply  of  electricity  and 
gas. Cases C-65/09 Wittmer and C-87/09 Medianess Electronics GmbH (concerning Directive 
99/44/EC) concern the questions of whether, when replacing a product, the seller must bear 
the  costs  of  removing  the  non-conforming  consumer  good  from  a  thing  into  which,  in  a 
manner consistent with its nature and purpose, it has been incorporated by the consumer. 

The  Court  ruled  on  Directive  97/7/EC  in  Case  C-489/07  Messner.  This  case  concerns  a 
German provision according  to  which a  seller  may  claim  compensation for  the value of the 
use  of  the  goods  delivered  to  the  consumer  in  case  where  the  consumer  withdraws  from  a 
distance  contract.  The  Court  found  that  a  general  requirement  to  pay  compensation  for  the 
value  of  the  use  of  the  consumer  goods  acquired  under  a  distance  contract  during  the 
withdrawal  period  is  incompatible  with  the  objectives  of  Directive  97/7/EC.  However,  the 
Court also considered that the directive  does not  intend to  grant consumers  rights which go 
beyond what is necessary to allow for them to effectively exercise the right of withdrawal. 

484  Commission's press release IP/09/1451  

485  Commission's press release IP/09/1032 

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In Case C-227/08 Martín Martín the Court ruled that Directive 85/577/EEC did not prevent a 
national court from declaring of its own motion that a doorstep-selling contract is void on the 
grounds that the consumer was not informed of his right of withdrawal. The Court considered 
that the obligation to give notice of the right of withdrawal (Article 4 of the Directive) played 
a central role in the directive as an essential guarantee for the effective exercise of that right. 
This as well as the imbalance between consumers and traders justifies, in the Court's view, the 
positive intervention by the national court for the benefit of consumers. 

Following requests for preliminary rulings in 2008 in relation to Directive 93/13/EEC 486 on 
unfair terms in consumer contracts the Court concluded in Case C-243/08 Pannon GSM that, 
on  the  basis  of  Article  6(1)  of  Directive  93/13/EEC487,  that  national  courts  are  not  only 
entitled,  but  also  required  to  examine,  of  their  own  motion,  the  unfairness  of  a  contractual 
term where they have available to them the legal and factual elements necessary for that task. 
Where they consider such a term to be unfair, they must not apply it, except if the consumer 
opposes that non-application. The Court clarified certain aspects of this obligation in Case C-
40/08  Asturcom  Telecomunicaciones,  and  is  expected  to  give  further  guidance  in  Case  C-
137/08 VB Pénzügyi Lízing, where a judgment can be expected in 2010. 

Communication on the enforcement of the Consumer Acquis 

On  2  July  2009  the  Commission  adopted  a  Communication  on  the  Enforcement  of  the 
Consumer  Acquis488  which  notes  certain  actions  taken  in  the  field  of  consumer  rights 
enforcement and sets out five priority areas where further work is needed. This prioritization 
will form the basis for the Commission enforcement strategy in the years ahead, and includes 
the strengthening of cooperative frameworks such as the rapid alert system for product safety 
RAPEX  and  the  Consumer  Protection  Cooperation  (CPC)  Network,  the  stepping  up  of 
cooperation  with  third  countries,  better  market-monitoring,  the  reinforcement  of  knowledge 
sharing and a common understanding of the rules, and lastly, the giving of more visibility and 
transparency to enforcement actions. 

EU-Sweeps 

In 2009 the third EU "Sweep" was carried out, involving systematic and simultaneous checks 
in different Member States to investigate potential breaches of consumer protection rules in 
the  electronic  goods  sector.  This  Sweep  looked  into  369  websites,  of  which  55%  showed 
irregularities  and  were  flagged  for  further  investigation  in  the  enforcement  phase.  The 
exercise was carried out by all the EU Member States, with the exception of Slovakia, as well 
as  by  Norway  and  Iceland.  The  participating  authorities  focused  on  a  group  of  electronic 

Join cases C-243/08 Pannon GSM and C-137/08 VB Pénzügyi Lízing. See as well case 

486 
C-40/08 Asturcom Telecomunicaciones 

487  Article 6 (1) reads: "Member States shall lay down that unfair terms used in a contract 
concluded with a consumer by a seller or supplier shall, as provided for under their national 
law, not be binding on the consumer and that the contract shall continue to bind the parties 
upon those terms if it is capable of continuing in existence without the unfair terms." 

488  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  on  the 
enforcement of the consumer acquis, COM (2009) 330 final 

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products:  MP3/MP4  players,  PC  related  equipment,  digital  cameras,  mobile  phones,  DVD 
players  and  game  consoles.  The  most  common  breaches  detected  in  the  2009  Sweep  were 
related to misleading information about consumer rights (66% of problematic websites),  for 
instance consumers were not informed or were mislead about their right to return an ordered 
product. There were also many websites with misleading information on the final price of the 
product (45% of problematic websites) or where contact details of the trader were missing (33 
% of the problematic websites). In the first half of 2010 the authorities will check whether the 
detected irregularities still exist and will report on the results. 

The final report on the follow-up of the 2007 Sweep related to websites selling air tickets was 
published  in  May  2009.  The  results  of  the  report  showed  that  out  of  the  447  websites 
investigated in 2007, 94% are now compliant. The final report on the follow up of the 2008 
Sweep on mobile phone services showed that out of the 500 websites investigated 70% may 
now be considered acceptable 

Consumer empowerment 

Through  the  European  Consumer  Consultative  Group  (ECCG),  the  Commission  pursued  its 
dialogue  with  consumer  organisations and consulted them on initiatives having an effect on 
consumers.  ECCG  members  also  shared  their  views  regarding  the  application  of  EU 
legislation. The Commission Decision setting up the ECCG489 has been revised in order to 
further improve the efficiency and representativeness of the group; to better involve national 
consumer  organisations  which  are  not  ECCG  members  in  its  work  and  to  ensure  sufficient 
continuity in the group. 

In  2009,  information  campaigns  raising  awareness  of  EU-wide  consumer  rights  were 
conducted in Estonia, Latvia and Lithuania and it was planned to carry out a similar campaign 
in Bulgaria at the beginning of 2010. 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) about 66% of the Estonian citizens, 82 % of Latvian 
citizens  and  86%  of  Lithuanian  citizens.  In  addition,  materials  from  equally  successful 
campaigns  in  other  new  Member  States  conducted  in  previous  years  were  updated, 
reproduced and redistributed in 2009. 

Training and education activities 

In  2009  the  Commission  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. The Commission also distributed 
3.870.000 copies of the Europa Diary containing consumer education materials to over 22.000 
EU schools and developed its consumer education website: www.dolceta.eu. 

Consumer Protection Cooperation (CPC) 

489  Commission Decision 2009/705/EC, OJ L 244, 16.9.2009, p. 21–24 

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The  Enforcement  Network,  also  referred  to  as  the  CPC  Network,  was  established  by  the 
Consumer  Protection  Cooperation  (CPC)  Regulation490  in  December  2006  to  stop  intra-
community  infringements  of  EU  consumer  laws  in  cross-border  situations.  Some  250 
enforcement authorities in Member States are linked to form an EU-wide consumer protection 
network. 

The Network further developed its activities in 2009: 319 new requests for mutual assistance 
were registered in the database in 2009 (compared to 265 in 2008), of which more than a third 
were closed within one year. Some 44 alerts (95 in 2008) concerning suspected or confirmed 
intra-community infringements were circulated within the Network. In addition, a third joint 
market surveillance and enforcement exercise was carried out in the form of a sweep on sites 
selling  electronic  goods  (see  above).  Joint  activities  of  CPC  authorities  also  continued,  for 
instance in the area of air transport where a report on airport taxes and charges was published 
in November 2009 by 11 CPC authorities. 

In  2009,  the  Commission  took  the  first  steps  to  address  the  shortcomings  in  the  Network's 
operations that had been identified in discussions with Member States in 2008, in particular 
through  the  experience  of  coordinating  the  sweeps.  CPC-authorities  examined  with  the 
Commission,  in  the  framework  of  a  workshop,  how  to  enhance  cooperation  within  the 
network and to improve the efficiency of the network's operations. The outcome of this work 
will result in the adoption of operating guidelines . 

Moreover, during 2009 the Commission organised two other workshops which discussed two 
subjects of relevance to the Network. The first workshop discussed the question of applicable 
law  in  the  CPC  enforcement  context  while  the  second  focused  on  sanctions  and  naming  of 
traders. The follow up action to these two workshops, including the results of questionnaires 
on the subjects under discussion, will be discussed during another workshop in 2010. 

Earlier in the year, the Commission also set up a network of national trainers to reinforce the 
training capacities and to provide to CPC users a forum for discussion and exchange of best 
practice. 

In  July  2009,  the  Commission  reported  to  Parliament  and  Council  on  the  application  of  the 
Consumer  Protection  Cooperation  (CPC)  Regulation491  in  the  period  2007-2008.  This  first 
Biennial Report was based on national reports from Member States covering the same period 
and reflects the Commission's experience monitoring and coordinating the application of the 
Regulation. It confirms that the CPC Network is developing to a powerful tool that increases 
the level of  consumer protection in the  EU,  but it also shows, based on statistical evidence, 
that further efforts are required to strengthen the Network and to further develop the broader 
cooperation framework established by the Regulation. 

490  Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 
October 2004 on cooperation between national authorities responsible for the enforcement of 
consumer protection laws, OJ L 364 dates 9.12.2004 

491  Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 
October 2004 on cooperation between national authorities responisble for the enforcement of 
consumer protection laws, OJ L 364 dates 9.12.2004 

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The Commission also continued the dialogue with Member States, initiated in 2008, aiming at 
ensuring that adequate resources are allocated to enforcement in order to meet the obligations 
stemming  from  the  Consumer  Cooperation  Regulation.  This  point  was  raised  again  in  the 
Competitiveness Council of 25 September 2009. 

Commission  Decision  2009/251/EC  banning  Dimethyl  fumarate  in  all  consumer 
products 

The  Commission  adopted  on  17  March  2009  Decision  2009/251/EC492  on  the  basis  of 
Article  13(4)  of  Directive  2001/95/EC  of  the  European  Parliament  and  of  the  Council  on 
general  product  safety  (General  Product  Safety  Directive,  "GPSD")493.  This  Decision 
concerns  Dimethyl  fumarate  (DMF),  a  biocide  preventing  moulds  which  is  strongly 
sensitising  and  can  cause  severe  skin  reactions.  The  Decision  requires  Member  States  to 
ensure  that  all  consumer  products  containing  DMF  are  withdrawn  from  the  market  and 
recalled from consumers. Since the Decision can only be valid for one year at a time, it will 
be prolonged for further periods until a permanent measure is put in place in EU legislation. 

Commission Decision 2009/298/EC on child-resistant lighters 

On  26  March  2009,  the  Commission  adopted  Decision  2009/298/EC494,  extending  for  the 
third  time  –  until  11  May  2010  –  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  so-called  novelty  lighters.  Upon  a  mandate  from  the 
Commission,  CEN  is  currently  revising  the  relevant  standard  (EN  13869:2002  ‘Lighters  — 
Child-resistance for lighters — Safety requirements and test methods’). 

Commission Decision 2009/490/EC on personal music players 

A  Commission  Decision  (2009/490/EC495)  was  adopted  on  23  June  2009  which,  for  the 
purposes of Article 4 of the GPSD, defines the safety requirements for personal music players 
in  order  to  avoid  the  risk  of  hearing  damage.  In  particular,  the  Decision  states  that,  first, 
exposure to high sound levels shall be limited in order to avoid hearing damage and, second, 
users  shall  be  provided  with  adequate  warnings  and  information  on  the  risks  of  hearing 
damage. A mandate to develop new safety standards, based on the safety requirements in the 
Decision, was subsequently sent to the European standards bodies on 28 September 2009. It is 
expected that the standards will be adopted by the end of 2011. 

Report on the implementation of the General Product Safety Directive and the follow-up 
to this Report 

492  OJ L 74, 20.3.2009, p. 32 

493  OJ L 11, 15.1.2002, p. 4 

494  OJ L 81, 27.3.2009, p. 23 

495  OJ L 161, 24.6.2009, p. 38 

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On  14  January  2009,  the  Commission  adopted  the  Report  on  the  implementation  and 
application  of  Directive  2001/95/EC  on  General  Product  Safety496  and  submitted  it  to  the 
European Parliament and to the Council. The Report highlighted that the GPSD has proven to 
be a powerful tool for protecting the safety of non-food consumer products. In particular, the 
RAPEX system, the rapid exchange mechanism on dangerous products, has allowed prompt 
identification  and  follow-up  to  products  identifying  as  posing  serious  risks  to  consumers. 
However,  the  Report  has  also  identified  some  areas  in  the  Directive  which  should  be 
addressed  in  order  to  improve  its  efficiency  and  effectiveness:  tighter  product  traceability, 
alignment with the market surveillance framework under Regulation (EC) No 765/2008497, 
which  entered  into  force  on  1  January  2010,  more  modern  and  standardisation  provisions, 
more flexibility for urgent or temporary measures etc. 

On the basis of the conclusions reached in the Report and the obligations set out in Regulation 
(EC)  No  765/2008  requiring  the  Commission,  inter  alia,  to  analyse  the  consistency  of  EU 
rules  in  the  field  of  market  surveillance  and,  if  appropriate,  amend  and/or  consolidate  these 
rules, the Commission started to work on the revision of the GPSD. 

RAPEX system  

RAPEX  is  the  EU  Rapid  Information  System  for  dangerous  non-food  consumer  products 
which  was  established  by  and  operates  under  the  GPSD.  The  Member  States,  EFTA/EEA 
countries and the Commission use RAPEX to rapidly exchange information about dangerous 
non-food  consumer  products  found  on  and  consequently  withdrawn  from  the  European 
market. 

RAPEX  operation  improved  again  in  2009.  In  total,  1.993  notifications  were  exchanged 
through  the  system  by  participating  countries  and  the  Commission.  This  constitutes  an 
increase  by  7%  when  compared  to  2008.  Half  of  the  countries  participating  in  the  system 
further enhanced their activities and submitted more notifications on dangerous products than 
in  the  previous  years.  As  RAPEX  notifications  sent  by  the  Member  States  in  2009  were  of 
better quality, the number of notifications distributed for information purpose only decreased 
by 9% compared to 2008 (283 notifications distributed in 2009 compared to 311 notifications 
in 2008). 

Toys,  motor  vehicles  and  electrical  appliances  were  still  among  the  most  often  notified 
products through the system. However, in 2009, there was a significant increase in the number 
of RAPEX notifications on clothing and textiles (395 notifications, 23% of all) which results 
mainly  from  the  enhanced  market  surveillance  activities  undertaken  by  national  authorities 
following,  in  particular,  the  adoption  of  the  Commission  Decision  2009/251/EC  banning 
Dimethyl fumarate in all consumer products and the launch  of the joint market surveillance 
action on cords and drawstrings in children's clothing. This proves that risk-focused EU-level 
measures and joint prioritisation of certain types of products in the surveillance actions taken 
by Member States result in well spent resources in terms of finding dangerous products that 
could be harmful to consumers. 

496  COM(2008) 905 

497  OJ L 218, 13.8.2008, p. 30 

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The  number  of  notifications  with  an  unidentified  country  of  origin  decreased  again  in  2009 
(from  23%  in  2004  to  7%  in  2009).  This  is  an  indicator  that  the  market  surveillance 
authorities  in  Europe  are  increasingly  aware  of  the  importance  of  not  only  taking  the 
incriminated product off the outlets in their country but also the discovery of the traceability 
data  helpful  to  authorities  in  other  countries  and  ultimately  in  the  country  of  origin  of  the 
product. The number of dangerous products of Chinese and European origin notified through 
RAPEX  was  maintained  at  the  level  of  respectively  60%  and  20%  of  all  notifications  (i.e. 
1013 and 337 notifications). These results are similar to previous year's results. 

Revision of the RAPEX guidelines 

On  16  December  2009,  the  Commission  adopted  Decision  2010/15/EU498  laying  down  the 
new  guidelines  for  the  management  of  the  EU  Rapid  Information  System,  ‘RAPEX’, 
established  under  Article  12  and  the  notification  procedure  established  under  Article  11  of 
Directive  2001/95/EC  The  new  RAPEX  guidelines  introduced  by  Decision  2010/15/EU 
repealed the previous guidelines laid down by Commission Decision 2004/418/EC499. 

The  revision  was  based  on  various  developments  since  2004  (when  the  previous  guidelines 
were adopted), such as (a) the significant increase in the number of notifications sent through 
RAPEX  which  have  to  be  followed  up  in  all  Member  States,  (b)  the  need  to  increase  the 
traceability of dangerous products by providing more detailed and precise information about 
the dangerous products notified via RAPEX, and (c) enhanced cooperation and exchange of 
information with third countries, such as China and the United States, on dangerous consumer 
products  and  corrective  measures.  Furthermore,  when  revising  the  RAPEX  guidelines,  the 
Commission's intention was to include into the new guidelines all the best practices developed 
over the years by the Member States and the Commission RAPEX Team to ensure even more 
efficient and effective operation of RAPEX. 

While  the  scope  of  the  RAPEX  guidelines  remains  unchanged  under  Decision  2010/15/EU 
(i.e.  RAPEX  and  Article  11  notification  procedure),  the  new  guidelines  more  precisely  and 
comprehensibly  clarify  the  notification  criteria  and  define  various  stages  and  aspects  of  the 
notification and reaction procedures including organisational aspects. The new guidelines also 
regulate  aspects  of  the  RAPEX  system  which  had  not  previously  been  subject  to  specific 
rules,  and  which,  however,  are  essential  for  the  functioning  of  the  procedure,  including, 
permanent  withdrawal  of  notifications  from  the  system,  temporary  removal  of  notifications 
from the RAPEX website and confidentiality rules. 

Another  fundamentally  revised  element  in  the  RAPEX  guidelines  is  the  new  improved  risk 
assessment  method  that  was  developed  by  a  dedicated  working  group  of  Member  State 
experts  and  is  recommended  to  all  national  authorities  in  order  to  assess  the  safety  of 
consumer products. 

Business Application 

498  OJ L 22, 26.1.2010, p. 1 

499  OJ L 151, 30.4.2004, p. 83 

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In May 2009, the Commission introduced a new online system in the product safety area for 
producers and distributors called "Business Application". The application was established to 
simplify the procedure for producers and distributors to fulfil their obligation (as laid down in 
Article  5(3)  of  the  GPSD)  to  notify  the  competent  national  authorities  of  any  dangerous 
consumer products placed on the EU market. The application makes it possible for producers 
and distributors to alert all European countries at the same time in one step, thus simplifying 
and  speeding  up  the  notification  process.  Since  its  launch,  the  operation  of  the  "Business 
Application" has proved successful. In total, 44 notifications (including updates) sent through 
the  application  in  2009  by  producers  and  distributors  have  been  accepted  by  the  competent 
national authorities. 

Joint Actions on market surveillance activities 

To  support  the  Member  States  in  their  cross-border  activities,  in  2009  the  Commission 
awarded a financial contribution of EUR 1.2 million to five joint market surveillance actions. 
These joint actions focused on: sun beds and solarium services, helmets, household appliances 
that  could  be  appealing  to  children,  lighters  and  baby  walkers.  To  further  strengthen 
cooperation  between  the  Member  States  on  consumer  product  safety,  the  Commission  will 
continue joint actions in 2010 and 2011 and will financially contribute to the best proposals 
suggested by Member States. 

International cooperation 

The  Commission  further  strengthened  collaboration  with  its  international  partners  in  the 
product safety area. The main aim is to share information about emerging product safety risks, 
provide  updates  on  legislative  and  normative  developments  and  prevent  dangerous products 
from  finding  their  way  onto  the  EU  market.  More  particularly,  in  November  2009,  the 
Council authorised the European Commission to open negotiations with the United States for 
an  agreement  on  cooperation  and  information  exchange  in  the  area  of  consumer  product 
safety. 

In  2009  the  collaboration  with  the  People's  Republic  of  China's  General  Administration  for 
Quality  Supervision,  Inspection  and  Quarantine  (AQSIQ)  continued  and  the  Commission 
continued to make available on the Internet the analyses of the quarterly follow-up reports to 
the RAPEX notifications sent to China. 

The European Consumer Centres Network (ECC-Net) 

In 2009, the European Consumer Centres Network (ECC-Net) handled over 60 000 contacts 
with consumers who turned to them for advice about their rights or for help with problems in 
the course of cross-border shopping. 

The  work  of  the  centres  shows  that,  in  2009,  as  it  was  already  the  case  in  2008,  European 
consumers’  biggest  problems  were  related  to  transport,  recreation  and  culture  and 
accommodation  services.  More  than  half  of  all  complaints  concerned  on-line  transactions 
(54%). 

In  2009  most  complaints  dealt  with  by  the  ECCs  related  to  products  and  services  (32.7%), 
delivery  (24.1%),  contract  terms  (11.7%)  and  price  and  payment  (11.4%).  The  ECCs  also 
helped consumers to reach agreements on complaints with traders using out-of-court dispute 
resolution mechanisms. 

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In addition, the ECCs have also carried out joint projects analysing consumer complaints and 
concerns  on  key  issues  such  as  Alternative  Dispute  resolution  mechanisms  in  Europe  and 
comparison of hotel categories in the EU, and publicised their conclusions in reports released 
in late 2009. They have also laid the ground work for reports on how consumers feel about 
Air Passenger Rights and e-commerce. 

In  addition,  the  ECCs  participated  actively  in  the  European  Consumer  Summit  2009  as 
speakers and sponsors of consumers who presented their real life stories and organised several 
consumer awareness raising events at national level. 

13.3.2.  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, 
Commission  services  and  the  Member  States  developed  in  2009  a  framework  for  regular 
collection of enforcement 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.  An  expert  group  composed  of  members  of  the  CPC 
(Consumer  Protection  Cooperation)  and  GPSD  (General  Product  Safety  Directive) 
committees identified the most appropriate indicators, taking account of differences between 
national enforcement systems. 

The  Commission  will  launch  in  2010  a  mid-term  evaluation  of  the  2007-2013  Consumer 
Policy  Strategy  and  of  the  2007-2013  Programme  of  Community  Action  (as  well  as  an  ex-
post  evaluation  of  the  Programme  of  Community  Action  2004-2006).  This  exercise  will 
provide building blocks for the preparation of the next Consumer Policy Strategy (post 2013). 

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. 

13.3.3.  Summary of Sector 

The  challenge  in  this  sector  in  the  near  future  is  to  increase  EU-wide  consumer  confidence 
through  clearer,  simplified  and  harmonised  rules  that  are  uniformly  enforced  by  national 
authorities across Europe. Another challenge is to step up enforcement of EU rules To do so 
the Commission will seek increased transparency of enforcement action and output to ensure 
that Member States' role is not only crucial in ensuring proper transposition of Directives but 
also  in  effectively  deploying  the  resources  and  mechanisms  needed  to  ensure  compliance. 
Consumers' awareness will also play a key role 

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13.4. 

Food safety 

13.4.1.  General Introduction 

For consumers, safety is the most important ingredient of their food. Consumer confidence is 
an essential outcome of a successful food policy and is therefore a primary goal of EU action 
in this area. The central goal of the Commission's food safety policy is to ensure a high level 
of protection of human health and consumers' interests in relation to food, taking into account 
diversity,  including  traditional  products,  whilst  ensuring  the  effective  functioning  of  the 
internal market. 

The  Commission's  guiding  principle,  is  to  apply  an  integrated  approach  from  farm  to  table 
covering  all  sectors  of  the  food  chain,  including  feed  production,  primary  production,  food 
processing,  storage,  transport  and  retail  sale.  The  credibility  and  legitimacy  of  the 
Commission's actions depend on how  effectively  the food safety policy  is implemented  and 
results delivered. Greater transparency at all levels of food safety policy is the thread running 
through  the  Commission's  integrated  approach  and  will  contribute  fundamentally  to 
enhancing consumer confidence in Europe's food safety policy. 

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. 
There  have  been  enormous  developments  in  the  past  decades,  both  in  the  methods  of  food 
production and processing, and the controls required to ensure that acceptable safety standards 
are  being  met.  Legislation  will  be  reviewed  and  amended  as  necessary  in  order  to  make  it 
more  coherent,  comprehensive  and  up-to-date.  Enforcement  of  this  legislation  at  all  levels 
will  be  promoted.  Member  States  are  our  key  partners  in  ensuring  adequate  and  uniform 
application of Europe's food safety legislation. 

13.4.2.  Work done in 2009 

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 Strategy500 and the recently launched work towards a Plant Health 
Strategy501  include  the  objective  of  providing  the  EU  with  a  more  coherent  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 acquis is one of the largest, numbering more 
than 500 Directives). 

500  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. 

501  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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A  report  on  the  state  of  implementation  of  Regulation  (EC)  No  882/2004502  on  official 
controls  performed to ensure the verification of compliance with feed and  food law, animal 
health and animal welfare was transmitted to the European Parliament and Council on 8 July 
2009 (on the basis of its Article 65)503. 

Three main issues are highlighted in the report: 

•  The rules on financing of official controls (Articles from 26 to 29 of Regulation (EC) No 
882/2004)  have  proven  to  be  difficult  to  implement  by  the  Member  States  given  their 
complexity and unclear wording, according to a 2008 evaluation carried out by an external 
contractor.  Moreover,  the  report  indicated  that  the  main  objective  of  these  rules,  i.e. 
ensuring  that  adequate  resources  are  available  for  the  required  official  controls,  has  not 
been  fulfilled.  On  this  basis,  the  Commission  has  therefore  started  a  review  of  these 
provisions and the related impact assessment is now on-going; 

•  The need for further integration of the official controls carried out in specific sectors into 
the general framework of Regulation (EC) No 882/2004. One of the main examples is the 
legislation on residues of veterinary medicines (Council Directive 96/23/EC on measures 
to monitor certain substances and residues thereof in live animals and animal products). On 
the basis of a reflection that began in 2003, the Commission has now started a review of 
that  Directive  with  the  objective  of  optimizing  and  simplifying  the  overall  legislative 
framework; 

•  The application for the first time of harmonized checks at the EU border for feed and food 
of non-animal origin as provided for in Article 15(5) of Regulation (EC) No 882/2004 and 
implemented by Regulation (EC) No 669/2009 (applicable from 25.1.2010). The new rules 
provide that specific feed and food of non-animal origin identified on the basis of a known 
or  emerging  risk  are  to  be  subject  to  an  increased  level  of  official  controls  at  the  EU 
border. 

In  more  general  terms,  the  Commission  through  an  intra-departmental  reorganisation  has 
integrated  the  issue  of  enforcement  throughout  the  EU  food  safety  policy  area.  This  has 
mainly  resulted  in  a  systematic  analysis  of  all  issues  related  to  implementation  of  EU 
legislation and emerging from in-house information, including the more than 200 inspection 
reports  produced  yearly  by  the  Food  and  Veterinary  Office  (FVO)  of  the  Commission,  or 
from  information  received  from  Member  States  or  stakeholders.  For  each  of  them  an 
appropriate action is decided upon in cooperation with the responsible Units and a continuous 
follow-up is ensured till the issue has been resolved. 

Moreover,  the  issues  related  to  transposition  highlighted  in  the  previous  report  have  been 
specifically followed-up during 2009 and most of them have now been closed due to the fact 
that  transposition  has  taken  place.  For  the  other  cases,  appropriate  action  has  been  taken  to 

502  OJ L 165, 30.4.2004, p. 1–141 

503 
8.7.2009. Report from the Commission to the European Parliament and to the Council 
on  the  application  of  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 welfare rules – COM(2009) 334 final 

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resolve the issue. Please refer to the sectoral sections of this chapter, where the most relevant 
initiatives are described. 

FVO inspections 

At EU level, valuable information regarding the application of EU 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 during the course of 2009 to provide 
an  overview  of  potential  shortcomings  in  relation  to  transposition  problems  of  some 
Directives or inadequate application of legislation throughout the food chain. 

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 vigorously pursued  infringement proceedings against  Greece 
because  that  Member  State  persistently  failed  to  comply  with  a  range  of  important 
components of EU food safety legislation. 

In  2009  the  Court  delivered  in  the  framework  of  three  infringement  proceedings  judgments 
condemning Greece to have failed to correctly apply EU law: 

– 

– 

– 

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 are mainly attributable 
to the shortage of human resources in the Greek veterinary services. Because of these 
shortages  both  in  central  administration  as  well  as  in  the  decentralised  authorities, 
there  was  a  failure  to  carry  out  the  official  controls  in  an  effective  and  substantial 
way.  The  Court  concluded  that  the  results  of  the  efforts  made  by  the  Greek 
authorities to solve these problems were unsatisfactory.504 

FVO  missions  provided  evidence  of  systemic  deficiencies  in  the  management  of 
animal  by-products.  The  Court  concluded  that  Greece  failed  to  correctly  apply  key 
provisions  of  Regulation  (EC)  No  1774/2002  laying  down  health  rules  concerning 
animal by-products not intended for human consumption505. 

Also on the basis of evidence gathered during FVO inspections, the Court of Justice 
condemned Greece for failure to apply in a satisfactory way EU legislation relating 
to the protection of animals during transport and in slaughterhouses506. 

504 

Judgment of the Court of Justice of 23.4.2009 in case C-331/07 

505 

Judgment of the Court of Justice of 17.12.2009 in case C-248/08 

506 

Judgment of the Court of Justice of 10.9.2009 in case C-416/07 

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All three cases show the need to give priority to initiatives that aim at engaging fully Member 
States'  enforcement  actors  in  discussions  and  actions  that  address  the  optimal  use  of  finite 
enforcement resources. 

13.4.3.  Food Hygiene 

(1) 

Current position 

General introduction 

The EU Food “Hygiene Package” is composed of three Regulations consolidating, updating 
and simplifying the EU legislation on food hygiene: 

•  Regulation  (EC)  No  852/2004  of  the  European  Parliament  and  of  the  Council  on  the 

hygiene of foodstuffs507; 

•  Regulation (EC) No 853/2004 of the European Parliament and of the Council laying down 

specific hygiene rules for food of animal origin508, 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 consumption509. 

Those  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  the  Hygiene  Package  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. Further measures providing detailed criteria and conditions for 
the implementation of the above mentioned Regulations are: 

•  Commission Regulation (EC) No 2073/2005 on microbiological criteria for foodstuffs510; 
Commission  Regulation  (EC)  No  2074/2005  laying  down  implementing  measures  for 
certain products under the Hygiene Package511; 

507  OJ L 139, 30.4.2004, p. 1 

508  OJ L 226, 25.6.2004, p.22 

509  OJ L 226, 25.6.2004, p. 83 

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•  Commission Regulation (EC) No 2075/2005 laying down specific rules on official controls 

for Trichinella in meat512; 

•  Commission Regulation (EC) No 2076/2005 laying down transitional arrangements for the 

implementation of the Hygiene Package513. 

Report of work done in 2009 

Given  the  innovative  nature  of  the  Hygiene  Package,  the  European  Parliament  and  the 
Council  had  requested  the  Commission  to  prepare  a  report  three  years  after  the  start  of  the 
application of this legislation.514 This report (Report from the Commission to the Council and 
the  European  Parliament  on  the  experience  gained  from  the  application  of  the  hygiene 
Regulations  (EC)  No  852/2004,  (EC)  No  853/2004  and  (EC)  No  854/2004  of  the  European 
Parliament and of the Council of 29 April 2004) ("Hygiene Report") was adopted on 28 July 
2009515.  The  Hygiene  Report  followed  a  thorough  consultation  process.  It  is  based  on 
information received from the competent authorities in the Member States, representatives of 
the  food  business  operator  and  consumer  organisations  at  European  level,  and  the 
Commission's Food and Veterinary Office. 

The  Hygiene  Report  aims  at  presenting  factually  the  experience  gained,  including  the 
difficulties  encountered,  in  2006,  2007  and  2008  from  the  implementation  of  the  hygiene 
package by all interested actors. 

The Hygiene Report does not suggest any detailed solutions to the difficulties reported and is, 
therefore, not accompanied by proposals. The Commission believes that additional experience 
is first needed before deciding whether any proposals for improving the food hygiene package 
are warranted and whether consensus could be achieved in the future within the framework of 
the co-decision procedure. 

The  Commission  also  followed  closely  the  discussions  and  the  development  of  the 
microbiological criteria in the Codex Alimentarius Committee for Food Hygiene. 

(2) 

Evaluation of the current situation 

The  Hygiene  Report  concludes  that  overall  Member  States  have  taken  the  necessary 
administrative  and  control  measures  to  ensure  compliance  but  there  is  still  room  for 
improvement in relation to implementation. These conclusions are supported by the findings 

510  OJ L 338, 22.12.2005, p.1 

511  OJ L 338, 22.12.2005, p.27 

512  OJ L 338, 22.12.2005, p.60 

513  OJ L 338.22.12.2005, p. 83 

514  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. 

515  Doc 12482/09 – COM (2009) 403 final 

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of audits and inspections carried out by the Commission's Food and Veterinary Office (FVO). 
Consulted stakeholders consider that the new principles and  requirements introduced by the 
hygiene package have had a positive impact. 

The  main  difficulties  identified  are  in  relation  to  certain  exemptions  from  the  scope  of  the 
hygiene  Regulations,  certain  definitions  laid  down  in  the  Regulations  and  the  procedure  for 
adapting those definitions, certain practical aspects concerning the approval of establishments 
handling  foods  of  animal  origin  and  the  health  or  identification  marking  of  such  foods,  the 
import  regime  for  certain  foods, the  implementation of HACCP-based procedures in  certain 
food businesses and the implementation of official controls in certain sectors. 

(3) 

Priorities and planned actions  

Priorities 

As a result of the consultation within the framework of the drafting of the hygiene Report, the 
following issues were identified as priorities: 

•  Review of meat inspection provisions. This priority is supported by the Chief Veterinary 
Officers  (CVO)  conclusions  on  modernisation  of  sanitary  inspection  in  slaughterhouses 
adopted  at  their  meeting  in  October  2008516  and  by  the  Council  conclusions  on  the 
Hygiene Report, adopted during the 2967th Agriculture and Fisheries Council meeting on 
20 November 2009. 

•  The  replacement  of  biological  testing  methods  (mouse  bio-assays)  by  chemical  detection 
methods  of  marine  biotoxins  in  live  bivalve  molluscs,  mainly  for  reasons  of  animal 
welfare. 

•  Consideration  of  a  revision  of  certain  articles  of  the  hygiene  Regulations  by  the  co-

decision procedure and the launch of a relevant impact assessment. 

•  Evaluation and guidance on the flexibility provisions in the Hygiene Package, in particular 

for small capacity establishments. 

Planned actions (2010 and beyond) 

•  Review of meat inspections: round table conferences are scheduled. The purpose of these 
conferences is to exchange views with competent authorities of Member States and third 
countries,  private  stakeholders'  organisations  and  scientific  bodies.  In  order  to  ensure  a 
risk-based approach, the European Food Safety Authority (EFSA) is requested to provide 
scientific opinions on meat inspections in slaughterhouses and, if considered appropriate, 
other  stages  of  the  production  chain.  Amendments  of  legal  provisions  based  on  these 
consultations are scheduled for 2011. 

•  Detection of marine biotoxins: After validation of the chemical methods, legal provisions 

will be amended to replace the mouse bio-assays. 

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•  Proposals for amendments to Articles of the "hygiene package" Regulations: In 2010, the 
provisions to be amended will be identified by consultations and an impact assessment on 
such  proposed  amendments.  The  co-decision  procedure  will  be  started  in  2011  with  the 
aim to achieve a result by 1 January 2014. 

•  Flexibility:  Guidance  documents  both  for  competent  authorities  and  food  business 
operators will be published. The outcome of FVO fact-finding missions on this issue will 
be assessed and further initiatives considered when appropriate. 

•  A  first  step  requiring  that  certain  processed  products  of  animal  origin  in  composite 
products satisfy with the requirements in Regulation (EC) No 853/2004, shall be adopted 
before the end of 2010. 

13.4.4.  Food Labelling 

13.4.4.1. Current position 

General Introduction 

EU  legislation  on  the  labelling  of  foodstuffs  includes  general  provisions  on  the  labelling  of 
foodstuffs  to  be  delivered  to  the  consumer,  as  laid  down  in  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. This Directive sets 
out harmonised rules to enable European consumers to get comprehensive information on the 
contents  and  the  composition  of  food  products.  Nutrition  labelling  on  foods  is  regulated  by 
Directive  90/496/EEC.  At  the  moment,  under  EU  legislation,  nutrition  labelling  is  optional, 
although  it  becomes  compulsory  when  a  nutrition  or  health  claim  is  made  in  the  labelling, 
presentation or advertising of a foodstuff or when vitamins or minerals are voluntarily added 
to foods. 

Report of work done in 2009 

EU legislation on food labelling is currently under revision. 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.  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 is in line with the simplification process in the context of 
Better Regulation as it 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. 

The  labelling  acquis  is  managed  through  the  Standing  Committee  on  the  Food  Chain  and 
Animal Health (SCFCAH). The Committee plays a key role in exchange of views between the 
Member States and the Commission regarding the application of the labelling provisions and 
the  increasing  number  of  draft  measures  notified  by  the  Member  States  (on  the  basis  of 
Article  19  of  Directive  2000/13/EC).  The  following  measures  were  notified  by  the  Member 
States under the notification procedure and assessed by the Commission during 2009: 

•  Malta  notified  a  draft  Regulation,  requiring  the  mandatory  indication  of  the  country  of 
origin and the date of slaughter on the labelling of packaged meat products. Following the 
negative opinion of the Commission, Malta withdrew the draft measures. 

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•  Greece notified a draft Decree on the provision of information on the country of origin of 
the raw material (milk) used for the manufacture of dairy products intended for sale to the 
final consumer. The Commission gave a negative opinion as the notified measure was not 
justified under the provisions of Directive 2000/13/EC. 

•  Italy  notified  a  draft  Decree  providing  for  inter  alia  several  obligations  to  indicate  the 
country  of  origin  of  certain  milk  products.  The  Commission  gave  a  negative  opinion  as 
Italy  failed  to  demonstrate  that  such  measure  was  justified  to  avoid  the  consumer  being 
misled as to the true origin of such foods. 

•  Italy notified a draft measure providing, inter alia, for additional warnings for the labelling 

of certain herbal extracts. 

•  France notified a draft measure laying down the conditions and labelling requirements for 

the use of virgin linseed oil for human consumption. 

The  two  latter  notifications  were  sent  end  2009  and  their  assessment  is  to  be  completed  in 
early 2010. 

In  terms  of  infringement  procedures,  there  is  one  pending  case  before  the  Court  of  Justice 
concerning  mandatory  origin  labelling  for  poultry  meat  (C-383/08),  and  an  ongoing 
infringement proceeding concerning the labelling of allergens. 

13.4.4.2. Evaluation based on the current situation  

The EU legislation on food labelling has been extensively scrutinised over the last years and 
the results of this exercise confirmed the need for a significant overhaul of labelling rules. The 
revision  of  the  legislation  will  bring  coherence  and  clarity  to  provisions  that  apply  to  all 
foods.  The  replacement  of  the  current  horizontal  labelling  Directives  by  one  concise 
legislative act in the form of a Regulation will provide for consistency of application of food 
labelling rules across all Member States. 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. 

During 2009 discussions on the Commission's proposal for a Regulation on the provision of 
food information to consumers continued with the European Parliament and the Council. The 
main  political  issues  in  these  discussions  have  been:  the  presentation  of  the  nutrition 
information;  the  inclusion  of  origin  labelling  and  whether  it  should  be  mandatory  for  all  or 
certain categories of foods; the application of the general labelling requirements to alcoholic 
beverages; and, the inclusion of specific criteria to improve legibility of information. The First 
Reading  in  the  European  Parliament  was  postponed  until  after  the  2009  elections  and  it  is 
expected to take place in the first half of 2010. 

13.4.4.3. Priorities and planned action 

The  priority  in  the  general  and  nutrition  labelling  sector  remains  the  overhaul  of  existing 
legislation  in  order  to  optimise  this  regulatory  area.  This  will  involve  working  towards 
adoption of the proposal for the Regulation on the provision of food information to consumers 
by the European Parliament and the Council and assessing notifications by Member States of 
additional mandatory labelling requirements. 

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Following  the  adoption  of  the  proposed  regulation  it  will  be  necessary  to  take  forward 
appropriate implementing measures. 

13.4.4.4. Sector summary  

EU  food  labelling  legislation  is  regulated  by  Directive  2000/13/EC.  This  Directive  sets  the 
compulsory information that has to be provided to the final consumer, such as the name of the 
product,  the  list  of  ingredients,  the  use-by  date  and  any  special  conditions  of  use.  The 
increasing  number  of  national  notifications,  in  particular  concerning  the  mandatory  origin 
labelling for certain foods, should be noted. Nutrition labelling rules are laid down in Council 
Directive  90/496/EEC.  This  Directive  provides  harmonised  rules  on  the  basic  nutrition 
labelling  provided  on  a  voluntary  basis  or,  when  necessary,  a  mandatory  basis.  In  order  to 
modernise and improve EU food labelling rules, 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,  which  is  currently  under  discussions  in  the  European 
Parliament  and  the  Council.  The  priority  areas  on  general  food  labelling  are  to  follow  the 
discussion  in  the  European  Parliament  and  the Council  with  a  view  to adoption  of  the  final 
Regulation  in  the  coming  year  and  to  assess  Member  State  notifications  of  draft  national 
legislative measures concerning food labelling. 

13.4.5.  Nutrition labelling 

13.4.5.1. Current position 

General introduction 

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. 

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,517  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. 

13.4.5.2. Evaluation 

The  development  of  EU  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 

517  COM(2008)40final. 

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fibre in EU 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 
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 EU 
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. 

13.4.6.  Nutrition and Health Claims 

13.4.6.1. Current position 

General introduction 

Regulation  (EC)  No  1924/2006  of  the  European  Parliament  and  of  the  Council,  has  been 
applicable since 1 July 2007, and lays down harmonised rules for the use of health or nutrition 
claims  (such  as  “low  fat”,  “high  fibre”  and  “helps  lower  cholesterol”)  on  foodstuffs.  The 
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. 

Among  the  principles  laid  down  in  the  Regulation,  nutrient  profiles  were  foreseen  to  be 
established by January 2010. Nutrient profiles have to determine whether foods are eligible to 
bear claims on the basis of their nutrient composition and 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 Regulation has two routes for authorising health claims; either via adoption of the EU list 
of  permitted  health  claims  based  on  national  lists  (the  so-called  article  13  list  of  functional 
claims)  or  via  authorisation  procedures  based  on  applications  directly  from  food  business 
operators. 

Regarding  nutrition  claims,  the  Regulation  included  in  its  annex  a  list  of  such  authorized 
claims. 

Report of work done in 2009 

In 2009, further development of the nutrient profiles system and analysis of its impact were 
performed following EFSA's advice in 2008. The Commission services have put forward draft 
measures taking into account the opinion of EFSA, Member States, and stakeholders. These 

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draft measures raised considerable public interest, showing that longer discussion was needed, 
thus delaying the Commission Decision on this matter. 

Concerning nutrition claims, an amendment adding 5 new nutrition claims was proposed and 
received  a  favourable  opinion  from  the  Regulatory  Committee,  paving  the  way  for  its 
adoption beginning of 2010. The new nutrition claims are related to the content in fatty acids 
such as omega-3 fatty acids, and conditions for the use of such claim guarantee a minimum 
content of these fatty acids in foods bearing these claims. 

The Commission authorised and rejected the first health claims under the Regulation. 10 were 
authorised  and  38  were  rejected  of  those  based  on  applications  directly  from  food  business 
operators. Such health claims refer to the reduction of disease risk, to children's development 
and health of children, or newly scientific evidence and/or include a request for protection of 
proprietary data. 

Concerning  the  EU  list  of  permitted  health  claims  based  on  national  lists  further  work  was 
done  to  consolidate  the  unexpected  high  number  of  44.000  health  claims  from  the  Member 
States. Examination of the national lists showed that Member States had applied the relevant 
criteria  differently  when  preparing  the  lists  and  in  certain  cases  not  applied  them  at  all. 
Consequently, consolidating the national lists into a single list including the claims for which 
the  Authority  should  give  scientific  advice  (by  2009,  4185  health  claims  have  been  send  to 
EFSA), required further discussions with the Member States, stretching throughout 2009 and 
expected  only  to  be  finalised  in  2010.  An  addendum  is  expected  to  be  submitted  to  EFSA 
early 2010. 

Meetings  with  Member  States'  experts  have  been  held  on  a  monthly  basis  to  facilitate 
discussions  on  the  application  of  the  Regulation  and  to  prepare  the  votes  in  the  Standing 
Committee on the authorisation of health and nutrition claims. Guidance documents aimed at 
the  food  business  operators  and  enforcement  authorities  are  being  developed.  The  guidance 
strives to ensure that only valid applications are submitted to EFSA and that authorised claims 
are used in compliance with the Regulation. 

13.4.6.2. Evaluation based on the current situation 

Though  key  implementation  measures  still  need  to  be  adopted,  the  new  Regulation  already 
prohibits  some  misleading  marketing  practices  and  benefits  the  European  consumer  in 
tangible ways. 

Nutrient profiles are necessary to ensure that the claims delivered to consumers are accurate 
and not misleading, as could be claims on foods high in fat or sugars or salt, and therefore it 
will be a priority for the Commission to adopt the measures establishing these profiles. 

The  new  rules  on  nutrition  claims  on  fatty  acids  such  as  "Source  of  Omega-3  fatty  acids" 
ensure  consumers  that  they  will  have  significant  contributions  in  these  fatty  acids  when 
choosing foods bearing such claims. Few Member States had rules for the use of these claims 
and  therefore  the  introduction  of  harmonised  rules  is  an  improvement  of  consumer 
information that could help consumer to make healthier choices. 

On health claims, the implementation of the Regulation gave rise to significant difficulties. 
This was illustrated by the unexpected high number of 44.000 health claims submitted by the 
Member States, as mentioned above, which would result in delaying the adoption of the EU 

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list  of  permitted  health  claims  only  due  to  the  necessary  time  for  EFSA  to  complete  its 
assessment. 

13.4.6.3. Evaluation results 

Priorities 

The  priority  remains  to  ensure  a  smooth  implementation  of  the  Regulation,  meeting  the 
objectives of that legislation in terms of both protecting consumers and harmonizing the use 
of nutrition and health claims within the EU. 

Planned action 

Nutrient  profiles  will  have  to  be  set  up  in  accordance  with  the  basic  Regulation  as  they  are 
necessarily  to  complete  the  implementing  rules  and  allow  an  efficient  functioning  of  that 
legislative framework. 

On  1  October  2009  the  Commission  and  the  Member  States  received  from  EFSA  the  first 
series of opinions  providing advice on 525 health claims in the consolidated list.  EFSA  has 
indicated to the Commission that the assessment of all the health claims in the consolidated 
list could not be completed before end 2011. Therefore, in an effort to fulfil the intention of 
the legislator, to protect the consumers against misleading claims and to provide clarity in the 
market, the Commission decided to propose a stepwise adoption of the EU list of permitted 
health claims. A first adoption of the EU list of permitted health claims is expected in 2010 
and  the  EFSA  advice  on  the  525  health  claims  has  been  scrutinized  and  discussed  with  the 
Member States and stakeholders with a view to prepare such adoption. 

The Commission has planned a seminar in 2010 for all involved parties in implementing the 
Regulation  (i.e.  authorities,  enforcement  bodies,  self-regulatory  organisations  etc)  with  the 
purpose  of  understanding  each  other  tools  and  roles  under  the  Regulation  and  thereby 
promoting a uniformed and correct application of the Regulation. 

13.4.6.4. Sector summary 

Implementing  Regulation  (EC)  N°  1924/2006  on  nutrition  and  health  claims  made  on  food 
was  a  major  task  in  2009.  Substantial  preparatory  work  has  been  completed  for  the 
establishment  of  specific  nutrient  profiles,  and  further  development  of  the  nutrient  profiles 
system  and  analysis  of  its  impact  were  performed.  Five  additional  nutrition  claims  were 
proposed and received a favourable opinion from the Regulatory Committee, paving the way 
for inclusion  into the  list beginning of  2010. Regarding health  claims based on  applications 
directly  from  food  business  operators,  10  were  authorised  and  38  were  rejected  by  the 
Commission on the basis of the scientific opinion published by EFSA. 

Concerning the EU List of  permitted  health claims based on national lists further work was 
done  to  consolidate  the  unexpected  high  number  of  44.000  health  claims  from  the  Member 
States. By 2009, 4185 health claims have been send to EFSA. An addendum is expected to be 
submitted to EFSA early 2010. 

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13.4.7.  Dietetic foodstuffs 

13.4.7.1. Current position 

General introduction 

Directive  2009/39/EC  on  foodstuffs  intended  for  a  particular  nutritional  uses  (recast  of 
Council Directive 89/398/EEC, hereafter referred to as the Framework Directive) 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. 

Foods for particular nutritional uses, or dietetic foods, are defined as foodstuffs which owing 
to their composition or manufacturing process, are clearly distinguishable form foodstuffs for 
normal consumption, which are suitable for their claimed nutritional purposes and which are 
marketed in such a way as to indicate such suitability. The labelling of these products must 
include the particular elements of the qualitative and quantitative composition or the special 
manufacturing process which gives its particular nutritional characteristics. 

For  a  number  of  these  groups  specific  legislation  has  already  been  adopted.  There  are 
Commission Directives on foods for infants and young children, foods for weight reduction, 
medical foods and gluten-free foods. However, for certain groups of consumers mentioned in 
the  Framework  Directive,  decisions  as  to  whether  or  not  specific  directives  would  be 
proposed (e.g. food products for people with diabetes), or indeed are still needed (e.g. foods 
for sports people), are still to be taken. 

Products  that  do  not  belong  to  the  abovementioned  categories  are  required  to  undergo  a 
notification procedure in the Member States, with a view to facilitating the official monitoring 
and the placing on the market of innovative products. 

Report of work done in 2009 

The Framework Directive on dietetic foods is now more than 21 years old and a number of 
issues have arisen in relation to its scope and implementation. Many relate to the continued 
evolution of the EU food legislation. Of particular importance is the adoption of the Directive 
on food supplements, the Regulation on the addition of vitamins and minerals and of certain 
other substances to foods and the Regulation on nutrition and health claims made on foods. 
Following  the  developments  in  the  food  market  this  last  decade  and  due  to  the  broad 
definition mentioned above, many 'normal' foods now claim particular nutritional benefits due 
to their composition. 

These  elements,  together  with  the  evolution  of  the  food  market,  render  the  revision  of  this 
legislation necessary. 

An  impact  assessment  supporting  the  revision  of  the  legislation  on  dietetic  foods  was 
therefore  undertaken  in  2009.  It  is  based  on  a  study  commissioned  by  the  Commission  and 
finalised in April 2009, on consultations with Competent Authorities and stakeholders and on 
two  specific  reports  published  in  June  2008  on  1)  the  implementation  of  the  notification 
procedure  and  2)  the  desirability  of  special  provisions  for  foods  for  persons  suffering  from 
carbohydrate-metabolism disorders (diabetes). 

On  the  other  hand,  Commission  Regulation  (EC)  No  953/2009  on  substances  that  may  be 
added for specific nutritional purposes in foods for particular nutritional uses was adopted on 

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the  13  October  2009. This Regulation consolidates the existing rules and amends the list of 
authorised  sources  of  vitamins  and  minerals  that  may  be  added  to  foods  for  particular 
nutritional uses and for which the EFSA has given a favourable opinion. 

13.4.7.2. Evaluation based on the current situation 

It  is  clear  from  surveys,  reports  and  comments  from  Stakeholders  and  National  Competent 
Authorities that recently adopted pieces of food legislation to some extent overlap with some 
of  the  underlying  principles  of  the  dietetic  food  framework  legislation.  Consequently  the 
application  of  each  piece  of  legislation  to  dietetic  foods  might  be  unclear  for  businesses  or 
Member  States.  Discussions  have  highlighted  difficulties  in  particular  with  regards  to  the 
interpretation of the definition of dietetic foods. 

There  is  also  a  need  to  consider  the  legislation  on  dietetic  foods  in  relation  to  the  more 
"strategic goals" of ensuring a better and simplified legal framework to facilitate innovation. 
Therefore,  the  impact  assessment  on  the  revision  of  the  Framework  Directive  on  dietetic 
foods would also consider the needs to simplify the legislative framework for businesses and 
Competent Authorities and to reduce administrative burdens. Particular attention will be given 
on small businesses to ensure that any change made to the legislation is easily communicated 
and simple to implement. 

13.4.7.3. Evaluation results 

Priorities 

The main priority is to continue on the ongoing work related to the revision of the legislation 
on foods for particular nutritional uses, otherwise called dietetic foods. 

Three key objectives must be achieved through the revision: 1) ensure continuing food safety 
for  consumers,  2)  ensure  the  free  movement  of  goods  within  the  internal  market  and  with 
third  countries  and  3)  minimise  burdens  on  food  business  operators  and  ensure  suitable 
flexibility and clarity for small businesses. 

Planned action 

The  associated  impact  assessment  should  be  submitted  to  the  board  during  the  first  part  of 
2010 and adoption  of a new proposal  of the Commission  is  foreseen  by  the  end  of  2010  or 
early 2011. 

13.4.7.4. Sector summary 

The need to optimise the existing legal framework on dietetic foods to take into account the 
more recent developments in food legislation (food supplements, fortified foods, claims) and 
to clarify their interactions with the dietetic food legislation is considered under the revision 
of  the  framework  Directive  on  dietetic  foods.  On  the  basis  of  an  impact  assessment,  the 
Commission  is  currently  assessing  all  the  potential  impacts  that  various  options  for  the 
revision  could  have  on  the  management  of  dietetic  foods.  The  Commission  would  adopt  a 
proposal by the end of 2010. 

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13.4.8.  Food Supplements  and  addition of  vitamins  and minerals and of certain  other 

substances to foods 

13.4.8.1. Current position 

General introduction 

Directive  2002/46/EC  of  the  European  Parliament  and  of  the  Council  on  food  supplements 
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  specific  rules 
applicable to the use of vitamins and minerals in the manufacture of food supplements are laid 
down in the Directive. According to Article 4(8) of the Directive, the Commission adopted on 
5 December 2008 a Report518 on the use of substances other than vitamins and minerals in 
food supplements which concludes that the existing EU legal instruments already constitute a 
sufficient 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. 
Therefore, the use of substances other than vitamins or minerals in the manufacture of food 
supplements continues to be subject to the rules in force in national legislation. 

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 to foodstuffs of vitamins and minerals and of certain other substances, 
such  as  amino  acids,  essential  fatty  acids,  fibre,  various  plants  and  herbal  extracts.  The 
objective of this Regulation is to ensure the effective functioning of the internal market whilst 
providing a high level of consumer protection. 

Report on work done in 2009 

In  2009,  the  Commission  adopted  Regulation  (EC)  No  1170/2009  of  30  November  2009 
amending Directive 2002/46/EC of the European Parliament and of Council and Regulation 
(EC)  No  1925/2006  of  the  European  Parliament  and  of  the  Council  as  regards  the  lists  of 
vitamin and minerals and their forms that can be added to foods, including food supplements. 
That Regulation updates the list of vitamins and minerals and of their authorised forms, that 
may be added to these foods, and for which the European Food Safety Authority (EFSA) has 
given a favourable opinion. 

13.4.8.2. Evaluation based on the current situation 

In order to complete the harmonization in that sector, the two acts mentioned above foresee 
that maximum amounts should be set up for use of the vitamins and minerals listed in their 
annexes in foods and in food supplements. 

An  impact  assessment  report  to  analyse  the  economic,  social  and  environmental  impacts  of 
the options for the setting of maximum amounts is currently being finalized. 

518  COM(2008)824. 

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13.4.8.3. Evaluation results 

Priorities 

In the area of food supplements and of fortified foods, the priority remains the completion of 
the harmonization for the use of vitamins and minerals. 

Planned actions 

Future  activities,  in  the  field  of  food  supplements  and  of  fortified  foods,  will  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. 

13.4.8.4. Sector summary 

Directive 2002/46/EC and Regulation (EC) No 1925/2006 of the European Parliament and of 
the  Council  respectively  harmonise  partially  the  rules  applicable  to  the  placing  of  food 
supplements  on  the  market  and  the  addition  of  vitamins  and  minerals  and  of  certain  other 
substances to foodstuffs. 

The lists of vitamins and minerals have been recently updated. 

The completion of the harmonization should take place in the near future with the setting up 
of maximum amounts for the use of the substances concerned. 

13.4.9.  GMO Food and Feed 

13.4.9.1. Current position 

General introduction 

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 EU procedure for the authorisation of all food and feed 
containing, consisting or produced from a genetically modified organism. This authorisation, 
valid  throughout  the  EU,  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. 

Report on work done in 2009 

In  line  with  its  obligations  deriving  from  Regulation  (EC)  No  1829/2003,  the  Commission 
implemented the EU legislation on GM food and feed mainly in the two following areas: 

•  Authorisations were granted to those GM food and feed complying with all the conditions 

set out in the basic legislation: 

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On 10 March 2009 the Commission adopted Decision 2009/184/EC authorising the 
placing  on  the  market  of  products  containing  or  produced  from  genetically 
modified oilseed rape T45 (ACS-BNØØ8-2);  

On 30 October 2009 the Commission adopted Decision 2009/813/EC authorising the 
placing on the market of products containing, consisting of or  produced from 
genetically modified maize MON 89034 (MON-89Ø34-3);  

On 30 October 2009 the Commission adopted Decision 2009/814/EC authorising the 
placing on the market of products containing, consisting of or  produced from 
genetically modified maize MON 88017 (MON-89Ø17-3);  

On 30 October 2009 the Commission adopted Decision 2009/815/EC authorising the 
placing on the market of products containing, consisting of or  produced from 
genetically  modified  maize  59122xNK603  (DAS-59122-7xMON-ØØ6Ø3-6) 
and  

On 30 November 2009 the Commission adopted Decision 2009/866/EC authorising 
the  placing  on  the  market  of  products  containing,  consisting  of  or  produced 
from genetically modified maize MIR604 (SYN-IR6Ø4-5). 

•  The  Commission  monitored  the  situation  as  regards  the  risk  of  non-authorised  GM  food 
and  feed  in  products  imported  from  third  countries  being  placed  on  the  EU  market.  This 
was  in  particular  the  case  concerning  emergency  measures  regarding  the  presence  of  the 
unauthorised genetically modified organism Bt 63 in rice products coming from China and 
regarding the non-authorised genetically modified organism LL RICE 601 in rice products 
originating  from  the  United  States.  In  addition,  a  protocol  of  sampling  and  testing  on 
linseed has been agreed with the Canadian authorities in order to prevent the import of the 
non authorised linseed FP 967. 

The Commission has launched in June 2009 an evaluation on genetically modified food and 
feed with the view to assess to what extent the EU legislative framework and its objectives in 
this sector are still in line with the needs of the EU society. 

The primary objective of this evaluation is to assess the implementation of the major aspects 
of  the  legislative  framework  and  to  present  possible  policy  options.  The  evaluation  will 
particularly focus on three aspects: (a) the authorisation procedure; (b) the labelling regime; 
(c) the acceptance of the EU regulatory system. 

The authorisation of GMOs for cultivation is excluded from the scope of this evaluation as it 
covered by a parallel evaluation launched by DG Environment. 

13.4.9.2. Evaluation result 

Two  evaluations  have  been  launched  in  2009  to  review  and  assess  the  EU  legislative 
framework in the field of GM food, feed and seed. The evaluations seek to identify existing 
challenges in its implementation, and to ensure its relevance for the current needs focusing, in 
particular, on the regulatory approval process and the compulsory labelling of GM food and 
feed.  These  evaluations  also  aim  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 used as a basis 
for possible future policy decisions to streamline this sector. 

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13.4.10. Novel Foods 

13.4.10.1. 

Current position 

General introduction 

Novel foods are foods and food ingredients that have not been used for human consumption to 
a  significant  degree  within  the  EU  before  15  May  1997.  Regulation  (EC)  No  258/97  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 EU 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. 

The  Commission  adopted  on  14  January  2008  a  proposal  for  a  Regulation  of  the  European 
Parliament and the Council on novel foods, based on Article 114 TFEU (ex Article 95 TEC), 
which would revise and replace the existing legislation. 

Report of the work done in 2009 

A total of 13 novel foodstuffs (Arachidonic acid; Vitamin K2; 2 * two extension of uses of 
DHA; 3 * lycopene; lycopene oleoresin from tomatoes; Krill oil; leaf extract from Morinda 
citrifolia;  Ice  Structruing  Protein;  Chia  seed  (Salvia  hispanica);  leaf  extract  from  lucerne 
(Medicago sativa)) were authorised for marketing in the EU in 2009. Also ca. 50 novel food 
products  that  were  substantially  equivalent  to  existing  foods  or  food  ingredients  have  been 
notified according to the simplified procedure in 2009. 

13.4.10.2. 

Evaluation based on the current situation 

The current legislation lays down a decentralized procedure leading to a long (3-5 years) and 
costly process which may prevent companies, in particular SMEs, from innovating in the food 
sector.  The  objectives  of  Commission's  proposal  were  to  address  these  points  in  particular 
through  a  centralised  evaluation  and  authorisation  procedure  and  to  provide  for  better 
conditions for innovation in the food sector. 

The European Parliament adopted its opinion in first reading on the novel food proposal on 25 
March 2009. 

However, the inter-institutional debate progressively focused on the issues of animal cloning 
for food production and of nanotechnology in food. 

On cloning, the Commission acknowledged that the novel food Regulation was not the right 
legal instrument to cover all the aspects of the cloning issue and agreed to present a report to 
the  European  Parliament  and  the  Council  on  all  aspects  of  food  produced  from  animals 
obtained by using a cloning technique and from their  offspring, followed where appropriate 
by any legislative proposals. 

On  nanotechnologies,  the  Commission  supported  the  EP  amendment  for  the  inclusion  of  a 
definition of "engineered nanomaterials" which is science based and could be later revised to 
take into account international scientific developments. It also agreed that all food ingredients 

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containing  such  nanomaterials  would  need  a  pre-market  authorisation  under  the  novel  food 
Regulation. 

As regards the mandatory labelling of all nano-ingredients, the Commission considered that it 
should be decided on a case by case basis when authorising the nano-ingredient under novel 
food Regulation. 

13.4.10.3. 

Evaluation results 

Priorities 

Taking  into  account  the  objectives  of  the  Commission's  proposal  of  improving  the 
authorisation procedure of novel foods, and of providing for better conditions for innovation 
in the food sector, the priority should be to progress toward an agreement for an adoption of 
the revised legislation on Novel Food. 

Planned actions 

A  report  to  the  European  Parliament  and  the  Council  on  all  aspects  of  food  produced  from 
animals  obtained  by  using  a  cloning  technique  and  from  their  offspring,  followed  where 
appropriate by any legislative proposals, will be prepared. 

13.4.10.4. 

Sector summary 

The current legislation on novel foods does not allow for an efficient authorization procedure 
and for stimulating innovation in the food sector. 

A  Commission  proposal  currently  discussed  within  the  co-decision  procedure  aims  at 
adapting  the  legislative  framework  in  these  respects.  In  that  context, those  discussions  gave 
rise  to  a  debate  on  the  issues  of  the  safety  implications  and  ethical  concerns  of  the  use  of 
cloning and nanotechnologies in the food sector. 

A report should be prepared by the Commission on cloning. 

13.4.11. Food additives 

13.4.11.1. 

Current position 

General introduction 

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; 

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•  confers implementing powers on the Commission to update the EU 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 EU 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. 

Commission  Directive  2009/163/EU  amending  Directive  94/35/EC  of  the  European 
Parliament  and  Council  on  sweeteners  for  use  in  foodstuffs  with  regard  to  neotame  was 
adopted on 22 December 2009. 

Legislative Changes Underway 

A  number  of  implementing  measures  under  Regulation  (EC)  No  1333/2008  and  Regulation 
(EC)  No  1331/2008  are  required.  The  preparation  started  on  the  following  measures  during 
2009: 

•  Commission  Regulation  setting  up  a  programme  for  the  re-evaluation  of  approved  food 

additives, taking into account advice from EFSA. 

•  Commission  Regulation  establishing  the  EU  list  of  food  additives  approved  for  use  in 
foods and conditions of use, following a review of all current additives authorisations for 
their compliance with the principles of the Regulation (EC) No 1333/2008. 

•  Commission Regulation establishing the EU list of food additives and carriers approved for 

use in food additives, food enzymes and food flavourings and the EU. 

•  Commission Regulation laying down specifications of the approved food additives. 

•  Amendments to Commission Directives 95/2/EC and 94/36/EC, following applications for 
new additives, applications for the extension of use of already authorised additives, where 
necessary taking into account the opinions of EFSA. 

•  Preparation of the implementing measures as laid down in article 9 of Regulation (EC) No 
1331/2008, concerning the content, drafting and  presentation of  an application  for  use of 
food additives, the arrangements for checking the validity of such applications and the type 
of  information  that  must  be  included  in  the  opinion  of  EFSA  on  the  risk-assessment  of 
these additives. 

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13.4.11.2. 

Evaluation 

Until  these  implementing  measures  are  for  some  time  in  force,  it  is  not  possible  to  fully 
appreciate the enforcement of Regulation (EC) No 1331/2008, which should finally result in 
significant  improvement  (in  particular  for  food  business)  due  the  simplification  of  the 
authorisation procedure for food additives. 

13.4.12. Food Flavourings 

13.4.12.1. 

Current position 

General introduction 

The general framework for food flavourings in the EU 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 
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 EU list of 
flavouring substances. The Regulation will become obsolete after the establishment, foreseen 
by the end of 2010 at the latest, of the EU 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)  No  2065/2003  on  smoke 
flavourings used or intended for use in or on foods establishes an EU procedure for the safety 
assessment  and  the  authorisation  of  smoke  flavourings  in  order  to  ensure  a  high  level  of 

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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. 

13.4.12.2. 

Evaluation results 

The EU list on flavouring substances is scheduled to 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  will  be  elaborated  under  Regulation  (EC)  No 
1331/2008 by end 2010. 

A common methodology for monitoring flavourings will be elaborated under Regulation (EC) 
No 1334/2008. 

The  EU  list  on  smoke  flavourings  will  be  established  in  2nd  quarter  of  2010  as  the  EFSA 
adopted all the opinions on smoke flavourings in the end of November 2009. 

13.4.13. Food Contact Material 

13.4.13.1. 

Current position 

General introduction 

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. 

Specific  legislation  exists  for  ceramic  materials,  regenerated  cellulose  film,  plastic  food 
contact materials and recycled plastics. 

Work done in 2009 

In 2009 specific legislation was adopted for active and intelligent materials and articles to be 
used in contact with food. These are materials and articles that can interact with the food by 
absorbing  or  releasing  substances  or  that  monitor  the  conditions  of  the  packaged  food. 
Commission  Regulation  (EC)  No  450/2009  sets  down  additional  requirements  for  these 
materials and articles to the ones already contained in Regulation (EC) No 1935/2004 in order 
to  ensure  their  safety.  These  additional  requirements  are  for  example  a  list  of  authorised 
substances and specific labelling requirements. 

In  February  2009,  a  number  of  Member  States  detected  the  presence  of  a  chemical,  4-
Methylbenzophenone,  in  certain  food  products.  The  substance  migrated  from  the  printed 
cardboard  package  into  the  food.  Paper  and  inks  for  use  in  contact  with  food  are  not  yet 
harmonised at EU level. Therefore, the Commission immediately coordinated the actions of 
Member  States  in  order  to  respond  efficiently  to  the  crisis.  An  urgent  Standing  Committee 
meeting  was  called  and  a  common  strategy  was  agreed  by  Member  States.  The  European 

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Food  Safety  Authority  was  consulted  and  their  opinion  supported  scientifically  the 
conclusions reached by the Standing Committee. 

13.4.13.2. 

Evaluation 

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  simplify  rules  on 
migration testing. 

While the harmonisation of legislation on plastic food contact materials at EU level is nearly 
complete,  only  the  basic  principles  are  set  out  for  other  materials  such  as  paper  and  board, 
printing inks, adhesives. In 2010 it will be analysed how and to what extent harmonisation at 
EU level of other materials could be possible. 

13.4.13.3. 

Evaluation results 

In the future a system tackling non-yet-harmonised materials will need to be developed. This 
system  will  have  to  avoid  overregulation  of  the  sector  but  at  the  same  time  will  have  to  be 
efficient and able to ensure that the safety of citizens is guaranteed. 

13.4.14. Plant Protection Products – Pesticide Residues 

13.4.14.1. 

Current situation 

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  Regulation  (EC)  No  1107/2009)  and  the  maximum 
residue levels (MRLs) of pesticides that can be found in or on food and feed (Regulation (EC) 
No 396/2005). 

The evaluation, marketing and use of plant protection products in the EU 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. 

The  rules  for  the  placing  on  the  market  and  use  of  plant  protection  products  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. 

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   EN 

In 2009 the Commission finalised a program reviewing the active substances already on the 
market  at  the  moment  that  the  Directive  became  applicable.  Certain  producers  of  active 
substances,  had  challenged  before  the  Court  of  Justice  Commission  decisions  not  including 
active  substances  on  the  positive  list  of  Annex  I  of  Directive  91/414/EEC  or  the  conditions 
provided for in that Annex by invoking errors during the assessment of the substances or with 
regard  to  legal  flaws  during  the  decision  making.  In  2009  the  Court  dismissed  4  such 
cases519. 

Regulation  (EC)  No  1107/2009  concerning  the  placing  of  plant  protection  products  on  the 
market, was published on 24 November 2009 and is based on a Commission proposal of July 
2006 and which was subject to detailed discussions in Council and European Parliament. 

This  Regulation  will  enter  into  force  in  June  2011  and  will  repeal  Council  Directive 
91/414/EEC, which is the current legislative framework for the placing on the market of plant 
protection products. Like Directive 91/414/EEC, Regulation (EC) No 1107/2009 provides for 
a system for approval of active substances at EU-level and authorisation by Member States of 
plant protection products containing approved substances. It ensures a high level of protection 
of  both  human  and  animal  health  and  the  environment  by  setting  strict  and  clear  approval 
criteria  for  active  substances,  safeness  and  synergists  in  plant  protection  products,  which 
increase  the  level  of  safety  particularly  for  consumers,  farmers  and  the  environment.  The 
Regulation provides also for comparative assessment of products containing substances which 
are  identified  at  EU  level  as  candidates  for  substitution  leading  to  substitution  by  safer 
alternatives. At the same time it intends to safeguard competitiveness of EU agriculture and 
industry by setting a more streamlined assessment procedure, improved rules on monitoring 
and control and new rules on data protection. A system of obligatory mutual recognition in 3 
agro-climatic zones will ensure a more harmonised availability of plant protection products. 

As regards Regulation (EC) No 396/2005, in 2009 the Commission adopted three Regulations 
to  set  several  new  maximum  residue  levels  (MRLs)  for  following  the  evaluation  of  new 
MRLs  applications  by  manufacturers  as  well  as  third  countries.  On  16  November  2009  the 
Commission also adopted the Regulation (EC) No 1097/2009 to reduce the permitted MRLs 
of  eleven  pesticide  active  substances  because  of  safety  concerns.  New  information  on 
toxicology, consumer exposure and the expected pesticide residues indicated that the existing 
MRLs for these substances might no longer be safe for all EU consumer groups. In addition, 
in November 2009, following repeated findings of high levels of the pesticide amitraz in pears 
from  Turkey,  the  Commission  took  emergency  measures  imposing  controls  on  at  least  10% 
consignments  at  import  of  Turkish  pears.  These  measures  were  laid  down  in  Commission 
Decision 2009/835/EC, which provided also for a possible review of the degree of control on 
the basis of the results that had to be reported by Member States to the Commission on a 2-
week basis. The results received in 2009 suggested that the Turkish authorities took measures 
on their side and suspended or reduced export of pears to the EU. Although there was no need 

519  Case T- 326/07 - Cheminova v. Commission – judgment of 3.9.2009 

Case T- 420/05 - Vischim v. Commision – judgment of 7.10.2009 

Case T- 380/06 - Vischim v. Commision – judgment of 7.10.2009 

Case T- 334/07 - Denka v. Commission - judgment of 19.11.2009 

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to readjust the degree of control, the provision to check for amitraz in 10% of consignments 
will remain in place also for 2010. 

13.4.14.2. 

Legislative Changes Underway 

In 2010 the Commission's activity in this area will be mainly aimed at the implementation of 
Regulation (EC) No 1107/2009. In parallel, the activity under Directive 91/414/EEC will also 
continue,  with  a  special  focus  on  the  dossiers  submitted  by  several  manufacturers  under 
Regulation (EC) No 33/2008. This Regulation lays down rules concerning the re-submission 
of  dossiers  regarding  substances  previously  not  included  in  the  positive  list  of  Directive 
91/414/EEC  (Annex  I).  In  the  course  of  2009  more  than  70  dossiers  were  submitted  by 
industry, for which the evaluation shall be finalised in 2010. 

13.4.14.3. 

Evaluation 

Although this policy area is characterised by complex technical issues the enforcement of the 
legislation seems to be adequate. Only few complaints on the bad application by the Member 
States of Directive 91/414/EEC have been received. One infringement has been referred to the 
Court  (Case  C-363/09  concerning  incorrect  transposition  by  Spain  of  provisions  concerning 
data protection) on 11.9.2009. 

13.4.15. Contaminants in food 

13.4.15.1. 

Current position 

General introduction 

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 EU 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; 

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•  Aflatoxins, ochratoxin A, Fusarium-toxins, and patulin (mycotoxins); 

•  Lead, cadmium, mercury (heavy metals); 

•  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. 

Work done in 2009 

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  Regulation 
(EC) No 1152/2009 of 27 November 2009 imposing special conditions governing the import 
of certain foodstuffs from certain third countries due to contamination risk by aflatoxins and 
repealing Decision 2006/504/EC520 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.  The 
Regulation  (EC)  No  1152/2009  provides  for  a  strengthening  of  the  import  procedure 
compared to Commission Decision 2006/504/EC. 

Furthermore, other safeguard measures taken in 2008 have been updated in 2009 to take into 
account  the  control  results  at  import  and/or  the  outcome  of  an  inspection  of  the  Food  and 
Veterinary Office (FVO). 

520  OJ L 313, 28.11. 2009, p. 40 

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•  Commission  Regulation  (EC)  1151/2009  of  27  November  2009  imposing  special 
conditions governing the import of sunflower oil originating in or consigned from Ukraine 
due to contamination risks by mineral oil and repealing Decision 2008/433/EC521; and 

•  Commission  Regulation  (EC)  No  1135/2009  of  25  November  2009  imposing  special 
conditions  governing  the  import  of  certain  products  originating  in  or  consigned  from 
China, and repealing Commission Decision 2008/798/EC522. 

Discussions on an update of the provisions of 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  have  been 
finalised but adoption and entry in force of these new provisions is foreseen for early 2010. 

13.4.15.2. 

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  (heavy  metals,  polycyclic  aromatic 
hydrocarbons (PAHs) and dioxins). 

Discussion  on  the  review  of  the  existing  provisions  as  regards  aflatoxins  and  ochratoxin  A 
have  been  finalised  in  2009,  but  adoption  and  entry  in  force  of  these  new  provisions  is 
foreseen for early 2010. 

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. 

13.4.15.3. 

Evaluation 

Much  attention  is  paid  to  the  effective  and  uniform  enforcement  of  the  legislation  on 
contaminants and of related safeguard measures. 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 DG 
"Health and Consumer" web pages: 

521  OJ L 313, 28.11.2009, p. 36 

522  OJ L 311, 26.11.2009, p. 3 

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•  Guidance  document  for  competent  authorities  for  the  control  of  compliance  with  EU 

legislation on aflatoxins523; 

•  Guidelines  for  the  enforcement  of  provisions  on  dioxins  in  the  event  of  non-compliance 

with the maximum levels for dioxins in food524; 

•  Guidance on sampling of whole fishes of different size and/or weight525; 

•  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 legislation526. 

13.4.16. Zoonoses and antimicrobial resistance  

13.4.16.1. 

Current position 

General introduction 

Zoonoses are diseases and infections that can be transmitted from animals to humans, directly 
or, in particular, through food (e.g. Salmonella in eggs) 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/EEC527. 

•  Regulation  (EC)  No  2160/2003  of  the  European  Parliament  and  of  the  Council  on  the 
control  of  salmonella  and  other  specified  food-borne  zoonotic  agents528.  Implementing 
provisions include the setting of targets for the reduction of Salmonella in flocks of poultry 

523

n.pdf; 

http://ec.europa.eu/food/food/chemicalsafety/contaminants/aflatoxin_guidance0309_e

http://ec.europa.eu/food/food/chemicalsafety/contaminants/guidelines-

524 
july_2004_en.pdf; 

http://ec.europa.eu/food/food/chemicalsafety/contaminants/guidance-sampling%20-

525 
whole-fish-with%20exemples- dec2006.pdf 

http://ec.europa.eu/food/food/chemicalsafety/contaminants/report-

526 
sampling_analysis_2004_en.pdf  

527  OJ L 325, 12.12.2003, p. 31. 

528  OJ L 325, 12.12.2003, p. 1. 

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and approval of Salmonella control programmes in third countries needed to continue the 
import of live poultry and eggs. 

Reports have been published by EFSA and the European Centre for Disease Prevention and 
Control (ECDC) on the increasing risk of antimicrobial resistance (AMR) in zoonotic agents, 
jeopardizing the treatment of these infections in humans. 

Report of work done in 2009 

After  the  end  of  a  transitional  period,  a  definitive  target  for  the  reduction  of  Salmonella  in 
flocks of breeding hens has been agreed on529. 

Control  programmes  in  flocks  of  breeding  turkey  submitted  by  third  countries  have  been 
evaluated, approved530 or rejected. 

A  staff  working  paper  of  the  services  of  the  Commission  was  adopted.  The  purpose  of  the 
paper  is  to  serve  as  a  basis  of  discussion  and  further  reflections  on  the  ways  to  tackle  the 
growing public and animal health problem of AMR. The working paper provides an overview 
of the activities already undertaken of the EU in combating the AMR in the past decades. The 
paper  collects  the  activities  related  to  AMR  in  the  areas  of  public  health,  zoonoses  control, 
animal  health  and  welfare.  It  covers  among  others  monitoring,  risk  assessment,  risk 
management  and  research  on  AMR.  It  also  identifies  areas  where  further  actions,  like 
improvement  of  surveillance  systems  in  human  medicine  and  ensuring  the  prudent  use  of 
antimicrobials in animal husbandry, may need to be reflected. 

At the request of the Commission, ECDC, EFSA, the European Medicines Agency (EMEA) 
and  the  European  Commission’s  Scientific  Committee  on  Emerging  and  Newly  Identified 
Health  Risks  (SCENIHR)  have  published  a  joint  scientific  opinion  on  AMR  focused  on 
infections transmitted to humans from animals and food. 

13.4.16.2. 

Evaluation based on the current situation 

The monitoring of zoonoses need to be reconsidered continuously in order to better assess the 
spread of emerging risks such as methicilin resistant Staphylococcus aureus (MRSA) and Q-
fever and to further harmonise monitoring and reporting. The need for further harmonisation 
arises from difficulties to use current data in a comparable way between Member States or for 
risk assessment. 

The  step-by-step  transition  from  targets  set  for  a  transitional  period  on  the  reduction  of 
Salmonella in flocks of poultry to definitive targets, are useful occasions to improve the legal 
provisions on minimum requirements for control programmes based on the experience gained. 

Evaluation of the staff working paper on AMR and its suggested initiatives will happen when 
an ongoing consultation is finalised. 

529 

SANCO/5971/2009 

530 

SANCO/5541/2009 

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13.4.16.3. 

Evaluation results 

Priorities 

Priority is given to consultation and reflections on the need for further initiatives in the area of 
AMR in zoonotic agents. 

Planned actions 

•  Consultation  of  all  relevant  parties  on  the  staff  working  document  of  the  services  of  the 
commission  on  AMR.  It  might  result  in  additional  request for  risk  assessment,  improved 
monitoring or the consideration of additional measures. 

•  Setting  of  a  definitive  target  for  the  reduction  of  Salmonella  in  flocks  of  laying  hens, 

including improving current provisions based on the experience gained. 

•  Reconsideration of monitoring activities (harmonisation, introduction of emerging agents). 

13.4.17. Transmissible Spongiform Encephalopathies 

13.4.17.1. 

Current position 

General introduction 

Regulation (EC) No 999/2001531 of the European Parliament and of the Council lays down 
rules  for  the  prevention,  control  and  eradication  of  certain  transmissible  spongiform 
encephalopathies (TSEs). 

The EU has made great strides in 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 EU 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 the light of the reduction of BSE cases, new developments in science, and in accordance 
with the TSE Roadmap adopted by the Commission on 15 July 2005532, 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. 

Report of the work done in 2009 

531  OJ L 147, 31.5.2001, p. 1 

532  Com(2005)322 final 

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In 2009 following measures were adopted for updating the TSE legislation: 

Commission Regulation (EC)  No  103/2009 of 3  February  2009 amending  Annexes  VII  and 
IX  to  Regulation  (EC)  No  999/2001  introduced  specific  eradication  measures  for  ovine  and 
caprine animals. 

Commission Regulation (EC) No 162/2009 of 26 February 2009 amending Annexes III and X 
to  Regulation  (EC)  No  999/2001  modified  certain  approved  laboratory  methods  for  the 
diagnostic of TSEs. 

Commission  Regulation  (EC)  No  163/2009  of  26  February  2009  amending  Annex  IV  to 
Regulation (EC) No 999/2001 amended certain feed ban provisions. 

13.4.17.2. 

Evaluation based on the current situation 

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 and supported by a favourable epidemiological situation and trend. 
Efforts will focus on the need to adjust existing measures to new scientific findings and thus 
to risk. 

13.4.17.3. 

Evaluation results 

Priorities 

The  majority  of  short  and  medium  term  actions  envisaged  in  the  TSE  Roadmap  have  been 
achieved. The goal for the coming years is to continue the review of the TSE measures based 
on  science,  while  maintaining  the  current  high  level  of  food  safety.  It  is  the  intention  to 
propose  to  the  European  Parliament  and  Member  States  a  TSE  Road  Map  II,  covering  the 
next  five  years.  It  will  be  a  reflection  paper  for  future  amendments  of  the  legislation.  The 
tentative timing to present the Road map is May-June 2010. 

Planned actions 

•  The  goal  for  the  coming  years  is  to  continue  the  review  of  the  TSE  measures  while 
maintaining and assuring the high level of food safety. For this purpose, a TSE Roadmap II 
covering  the  period  2010-2015  is  being  prepared.  Any  amendments  to  the  TSE  rules  are 
and will be supported by a solid scientific basis. 

•  One  of  the  points  covered  will  be  a  revision  of  the  current  feed  ban  provisions  which 
should  be  risk-based  but  at  the  same  time  taking  into  account  the  control  tools  to 
differentiate  between  ruminant  and  non-ruminant  proteins.  The  future  amendment  would 
only  target  the  use  of  non-ruminant  proteins  into  feed  but  taking  into  account  the 
prohibition on intra-species recycling (cannibalism) e.g. only chicken MBM can be given 
to pigs and vice versa. There is however no intention to re-authorise the use of ruminant 
proteins into feed.  

13.4.18. Animal Health – Non Zoonotic Diseases 

13.4.18.1. 

Current position 

General introduction 

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Animal health is an important factor for a functioning agriculture and the safe supply of food. 
It has been part of the EU acquis from the very beginning of the EU 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 or 
bluetongue. 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 usually cannot be solved by the EU 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  fully  comply  with  more  modern 
requirements  for  simplicity,  transparency  and  flexibility.  Thus  on  19  September  2007  the 
Commission  presented  its  plans  to  improve  the  situation  through  a  New  Animal  Health 
Strategy533.  This  triggered  a  broad  consultation  involving  stakeholders,  trade  partners  and 
institutions.  As  a  result,  a  Communication  on  an  Animal  Health  Action  Plan534  was 
published, listing all actions considered necessary for a new approach on animal health until 
2013. The most important action is the work preparing a proposal on a new animal health law. 

Against  this  background  the  challenge  to  address  acute  animal  health  concerns  effectively 
remains. Animal health is under consistent threat of outbreaks within the EU, 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.  Modified  agricultural  practices  increase  the 
importance  of  fish  diseases  and  tuberculoses.  Changes  in  the  environment  especially  in  the 
climate foster the spread of bluetongue. 

While the Highly Pathogenic Avian Influenza H5N1 virus has not posed to the EU a major 
threat  in  2009,  the  emergence  of  the  new  human  pandemic  (H1N1)  2009  influenza  virus 
which  contains  genes  of  human,  avian  and  pig  origin,  further  underlined  the  importance  of 
international coordination and integrated efforts of human and animal health professionals to 
fight similar threats. 

Work done in 2009 

In 2009 the Commission has pursued the actions to implement the Animal Health Action Plan 
mentioned above. 

533  COM(2007)539final. 

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Serious disease outbreaks can have devastating impacts on farmers, society and the economy, 
the new strategy is based on the principle that “prevention is better than cure” and thus puts 
greater focus on precautionary measures, disease surveillance, controls and research. The aim 
is to reduce the incidence of animal disease and minimise the impact of outbreaks when they 
do occur. 

One part of this approach is the review of the existing animal health legislation while creating 
an  overarching  EU  Animal  Health  Law.  It  will  in  particular  provide  the  principle  rules  for 
some  fundamental  issues,  such  as  responsibilities  of  animal  keepers,  business  operators, 
competent  veterinary  authorities,  as  well  as  concerning  disease  prevention  and  protection 
from biological threats (biosecurity). It will clarify the links between animal health policy and 
other  relevant  EU  policies  and  thus  insure  coherence.  The  new  law  will  embrace  the 
principles of smart legislation by providing flexibility to adapt to new circumstances and to 
take account of new developments in science, relevant technology and animal husbandry. 

Preparatory  work  has  been  ongoing  in  2009  for  a  proposal  and  Impact  Assessment  of  this 
Law. The above key issues have been discussed at several occasions and in various fora (such 
as the Animal Health Advisory Committee). A web-based public consultation was open from 
mid-October to end of December 2009. It generated over 150 replies from stakeholders across 
the board and the EU, among them national veterinary authorities, industry organisations at all 
levels, non-government organisations and business operators. 

The  movement  of  pet  and  companion  animals  (such  as  dogs  and  cats)  is  of  practical 
importance  to  citizens.  The  application  of  the  Regulation  on  the  intra-EU  movement  of 
pets535  continued  to  be  problematic  due  to  the  different  regimes  applicable  to  certain 
Member States, related to disease status and traditions. In 2009 the Commission proposed to 
finally fully harmonise the regime in the whole EU, after a limited (1,5 year) prolongation of 
the special regime, to facilitate the transition. 

Work was also ongoing on the area of electronic identification of ovine and caprine animals. 
In preparation of the application of the new rules applicable as from 1 January 2010, that were 
established by the Council with the support of the European Parliament at the end of 2007, the 
Commission  has  addressed  this  issue  at  several  fora  and  regularly  required  reports  from 
Member States on their efforts to correctly implement the rules. Last but not least, in 2009 the 
Commission  has  made  full  use  of  its  regulatory  powers  and  adopted  legislation  to  further 
cushion  the  transition  from  the  old  to  the  new  regime  and  reduce  administrative  burden  for 
operators. 

Due  to  fundamental  changes  in  the  regulatory  framework  in  this  area,  all  the  provisions  of 
Council Decision 79/542/EEC regulating certain aspects of import of fresh red meat into the 
EU  will  be  laid  down  in  a  Commission  Regulation  which  the  Commission  is  expected  to 
adopt soon. From the moment that that Regulation will enter into force, the Commission will 
for the sake of clarity and transparency propose the repeal of Decision 79/542/EEC. 

Disease situation 

Successful  disease  control  not  only  relies  on  an  adequate  legal  framework  but  also  on  its 
consequent  implementation.  In  2009  Member  States  again  have  responded  to  outbreaks,  in 

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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. In fact the Commission and the Member 
States  are  now  in  a  better  position  than  ever  to  base  their  decisions  on  solid  data,  as 
implementing  measures  by  Comitology  under  to  the  Directive  keep  providing  reliable  data 
from obligatory surveillance. 

The  control  of  the  spread  of  bluetongue  has  been  successful.  During  2009  the  vaccination 
campaign has continued and proven very effective. This contributed to the significant drop of 
outbreaks, from several tens of thousands of outbreaks observed in 2007-2008, just to a few 
hundred. 

Nevertheless, bluetongue is a complex disease to manage because it is transmitted by insects 
(vector borne) and has 24 different (known) serotypes which behave differently, depending on 
the  host,  the  vector  involved,  the  geographical  areas,  weather  conditions  and  other  factors. 
Also,  currently  the  legal  environment  (although  effective)  is  less  than  optimal  for  several 
reasons. 

The  bluetongue  situation  in  the  EU  has  evolved  considerably  since  the  year  2000  when  the 
basic Directive was adopted. Not all facts/assumptions factored into the Directive have proven 
to be valid and because of this, the current EU policy appears not (fully) sustainable and is not 
(fully)  supported  by  many  stakeholders.  Implementing  rules  on  movements  from  restricted 
zones are also complex and needed to be adjusted quite often due to the complex behaviour of 
the  disease..  This  makes  them  rather  difficult  to  apply  for  local  farmers,  traders,  local  and 
national veterinary services and other stakeholders. 

Therefore  in  2009  a  Discussion  paper  was  produced  which  reviews  critically  the 
developments  of  the  last  years  and  outlines  the  principles  for  the  establishment  of  an 
enhanced,  harmonised,  sustainable  and  effective  bluetongue  policy  with  appropriate  control 
measures to reduce direct and indirect economic losses caused by bluetongue. 

13.4.18.2. 

Evaluation 

Considering  the  above,  while  the  animal  health  framework  for  handling  various  disease 
generally is adequate and effective (as shown above). It can however be improved by smarter 
and more efficient solutions. Hence the area is currently in a phase of reform with the purpose 
to identify opportunities of further enhancing efficiency and reduce unnecessary burden. 

In addition to the discussions on the general framework, the specific reflection on bluetongue 
will continue in 2010 and might lead to new EU rules on this area in the next years. The key 
elements for this exercise are simplification and proportionality/ sustainability. 

So far, strategic discussions of the EU policy for bluetongue have been deeply influenced by 
the assumptions on feasibility of eradication. In the light of the disease evolution since 2000 
and  the  more  recent  evolution  in  2006-2009  it  is  highly  questionable  that  eradication  is 
feasible throughout the EU considering the bluetongue serotypes which continue to circulate 
and taking into account the constant threat from neighbouring countries. 

Future rules based on the few principles of simplified movement restriction and vaccination 
accompanied by basic surveillance should ensure proportionality and feasibility. 

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13.4.18.3. 

Evaluation results 

Priorities 

The combat of disease outbreak is the first priority dictated by the circumstances. The second 
priority remains the further development of the Animal Health Strategy as a long term goal. 

Planned action 

In 2010 work will continue on the creation of the Animal Health Law with the view that the 
final  proposal  could  be  adopted  by  early  2011.  The  Commission  will  also  continue  a 
fundamental reflection process on effective measures to combat bluetongue within the EU. 

Preparatory  work  has  already  started  on  the  important  area,  how  the  EU  finances  certain 
animal health measures (whether emergency measures or planned and systematic eradication 
of diseases). This will also continue well into 2010 and 2011 and should result latest in 2012 
in an impact assessment and proposal for the review of Decision 2009/470/EC, the financial 
instrument for EU veterinary expenditure. 

On the area of pet animals, developments of 2009 both in the EP and Council seem to indicate 
that  despite  previous  political  difficulties,  compromise  can  be  reached  on  the  timetable 
envisaged  by  the  proposal.  At  the  same  time  however  agreement  with  the  EP  and  Council 
must be reached also in relation to the new changes introduced by the Lisbon Treaty to the 
exercise of delegated and implementing powers by the Commission. Therefore, this challenge 
continues well into 2010. 

13.4.18.4. 

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. 

13.4.19. Zootechnics 

13.4.19.1. 

Current position 

Zootechnical  legislation  is  closely  linked  with  the  Animal  Health  acquis  as  it  establishes 
minimum genetic criteria to ensure free trade in breeding animals and their genetic material 
(semen, embryos). The current system of EU zootechnical legislation has been established in 
the 1980s in order to abandon trade barriers. The result is a body of law of over 30 pieces of 
legislation  (6  basic  Directives  and  their  implementing  acts)  laying  down  principles  on  the 
registration of breeding animals in herd books and the work of breeding organisations. 

13.4.19.2.  Work done in 2009 

The results of the above are being considered by the Commission with a view to proposing 
legislation simplifying and clarifying existing procedures for the recognition and supervision 
of  breeding  organisations.  A  series  of  consultations  has  taken  place  with  stakeholders  and 
Member  States  in  the  framework  of  the  Standing  Committee  on  Zootechnics.  Advice  was 
given to the Member States on the implementation of the legislation. 

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13.4.19.3. 

Evaluation 

The present system has generally worked well. However, it has been recognised that there is 
scope  to  clarify  the  legislation  and  to  adapt  it  to  structural  changes  in  the  breeding  sector. 
About 10 complaints are pending in this area. Most refer to specific cases of alleged incorrect 
implementation at national level. 

The main problems identified with the current legislative framework are the following: 

•  The  current  legislation  does  not  specifically  address  cross  border  activities  of  approved 
breeding organisations. Breeding organisations are increasingly serving breeders in several 
Member States and breeding programmes are carried out at international level. 

•  Due  to  lack  of  clarity  of  the  legislation  there  are  disparities  in  the  application  and  the 
implementation  of  zootechnical  legislation.  That  can  cause  unjustified  obstacles  to  EU 
trade and threaten the uniform application of EU law. 

13.4.19.4. 

Evaluation results 

Priorities 

Supporting  Member  States  in  the  implementation  of  the  legislation  is  the  first  priority.  The 
second  priority  will  be  to  amend  implementing  measures  with  view  to  clarification  and 
simplification. 

Planned action 2010 and beyond 

It  is  foreseen  to  continue  the  actions  in  managing  the  acquis  and  enforcing  the  acquis 
(complaints and infringement work) as well as updating existing legislation. 

13.4.20. Animal by-products 

13.4.20.1. 

Current Situation 

General introduction 

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 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  EU  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. Therefore, the Commission adopted 
a proposal for a revised animal by-products Regulation in 2008536. The European Parliament 
and the Council started their discussions on this proposal in the second half of 2008. Currently 
8  complaint  cases  concerning  animal  by-products  are  open.  These  were  either  triggered  by 

536  COM(2008)345final. 

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unsatisfactory  results  of  inspection  by  the  FVO  (see  under  point  4.3)  or  complaints  of 
stakeholders that considered their products not adequately classified. 

Report on Work Done in 2009 

Through  a  close  cooperation  with  the  European  Parliament  and  with  the  French  and  Czech 
Presidencies of the Council, the Commission was able to contribute to an early agreement on 
the  revised  Animal  by-products  Regulation  (EC)  No  1069/2009537,  which  was  adopted  in 
October 2009 and will become applicable on 4 March 2011. The Commission also started its 
preparations  for  implementing  measures  for  that  Regulation,  which  only  lays  down  the 
general principles that are applicable to animal by-products. 

13.4.20.2. 

Evaluation 

The  new  Regulation  (EC)  No  1069/2009  provides  for  clearer,  more  risk-proportionate  rules 
for  animal  by-products.  It  clarifies  the  relationship  between  veterinary  rules  on  animal  by-
products and environmental rules, as well as with food safety legislation. Thus, it contributes 
to the overall objective of the Commission to simplify Union law. Experience with the current 
legislation  on  animal  by-products  suggests  that  stakeholders  will  benefit  from  the  wider 
options  to  use  animal  by-products  for  technical  purposes  and  from  the  reduction  in 
administrative burden from the revised Regulation. 

13.4.20.3. 

Evaluation results 

Planned Action 

The Commission will carry out further, wide consultations of all stakeholders for the purposes 
of the preparation of the implementing measures for Regulation (EC) No 1069/2009. 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  organised  in  order  to  contribute  to  a 
smooth transition to the new framework. 

13.4.20.4. 

Summary of Sector 

Significant achievements marked 2009. The challenge now is to finalise the legislative work 
and  to  assist  the  players  in  the  sector  (both  the  authorities  of  the  Member  States  and  the 
economic operators) to learn, understand, correctly implement and enforce the new rules and 
benefit from those maximally. 

13.4.21. Feed  

13.4.21.1. 

Current Situation 

General introduction 

New  rules  for  the  feed  marketing  and  feed  labelling  sector  have  been  adopted  through 
Regulation (EC) No 767/2009 of the European Parliament and of the Council of 13 July 2009, 

537  OJ L 300, 14.11.2009, p.1. 

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which  will  apply  as  from  the  1st  of  September  2010.  Until  that  date  of  application,  the 
following Directives still apply: 

•  Directive 79/373/EEC with the rules for the circulation of compound feeding stuffs in the 

EU (e.g. labelling requirements). It also covers pet food; 

•  Directive  93/74/EEC  which  contains  the  principle  rules  for  feeding  stuffs  intended  for 

particular nutritional purposes (“dietetic feeds”); 

•  Directive 96/25/EC on general rules for the circulation and use of feed materials; and  

•  Directive 82/471/EEC concerning the marketing conditions for certain products, belonging 

to the category feed materials, used in animal nutrition (“bio-proteins”). 

Council  Directive  90/167/EEC  still  apply  to  medicated  feed  but  new  legislation  is  in 
preparation (see below). 

As  regards  the  feed  additives  sector,  Regulation  (EC)  No  1831/2003  of  the  European 
Parliament and of the  Council  provides for the rules on the authorisation for placing on the 
market and use, including labelling, of these products. Detailed rules for the preparation and 
presentation of applications for authorisation are laid down in Commission Regulation (EC) 
No  429/2008,  while  the  Community  Reference  Laboratory  (CRL)'s  duties  and  tasks  are 
developed in Commission Regulation (EC) No 378/2005. 

Undesirable substances in feed are governed by Council and European Parliament Directive 
2002/32/EC. 

Report of work done in 2009 

Feed marketing and labelling 

New Regulation (EC) No 767/2009 on the placing on the market and use of feed was adopted 
by  the  EP  and  the  Council  on  13  July  2009  (OJ  L  229  of  1.9.2009,  p.  1).  This  Regulation, 
which  contributes  to  the  Commission's  "Better  Regulation"  plan,  replaces  old  Directives 
79/373/EEC, 96/25/EC,  82/471/EEC and 93/74/EEC  in  order  to  simplify  and  modernise  the 
regime applicable to the marketing and use, including labelling, of feed, both for farm animals 
and pets. The Regulation, which will apply from 1 September 2010, brings legal clarity and 
will allow harmonised implementation and smooth functioning of the internal market in the 
feed sector. It aims at increasing the competitiveness of the EU feed and farming sector, but 
also providing adequate information for users and consumers, while assuring the high level of 
feed safety and thus of protection of public health in the EU. 

As  soon  as  Regulation  (EC)  No  767/2009  entered  into  force  in  September  2009,  the 
preparation of the necessary implementing measures could start, including: 

•  the establishment of the Community Catalogue of feed materials; 

•  the definition of guidelines to clarify borderlines between different types of feed; 

•  the update of the list of prohibited materials in feed; 

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•  the granting to operators of transitional measures for the application of the new labelling 

rules. 

Medicated feed 

Council Directive 90/167/EEC on medicated feed is outdated and not consistent anymore with 
current legislation both on feed and veterinary medicinal products. The preparatory works for 
recasting  and  modernising  the  legislation  for  this  specific  type  of  products  have  started  in 
2009, including: 

•  the completion of a questionnaire by the Member States on the current national situation in 

this sector; 

•  the  launch  and  conclusion  of  an  external  study  on  the  evaluation  of  the  EU  legislative 

framework in the field of medicated feed. 

Feed additives 

In  2009,  more  than  30  authorisation  Regulations  were  adopted  by  the  Commission  (mostly 
zootechnical  additives)  after  completion  of  a  procedure  involving  EFSA,  the  CRL  and  the 
Member  States,  and  applicants'  requests  of  confidentiality  of  the  data  submitted  have  been 
processed by the Commission.  

The  preparatory  works  for  the  re-evaluation  of  current  additives  authorisations,  as  provided 
for in Regulation (EC) No 1831/2003, have been carried out in collaboration with EFSA and 
the CRL, including a priority-setting exercise, in view of the large amount of applications to 
be received by November 2010. 

Undesirable substances in feed 

In  2009,  maximum  levels  of  certain  contaminants  in  feed  have  been  set  or  reviewed  in  the 
context of Directive 2002/32/EC, taking account of EFSA risk assessments. In particular, the 
Commission  took  measures  in  order  to  tackle  the  situation  resulting  from  the  unavoidable 
carry-over of coccidiostats, a category of additives, in feed and food that should not contain 
such  substances  (Commission  Directive  2009/8/EC  and  Commission  Regulation  EC  No 
124/2009). 

Committee and expert groups 

The management of the above mentioned feed sectors is subject to close co-operation with the 
Member States through regular (generally monthly) meetings of the Standing Committee on 
the Food Chain and Animal Health, section on Animal Nutrition, and punctual expert groups 
meetings where appropriate. 

International issues 

In  2009,  the  Commission  continued  its  participation  to  task  forces'  works  in  OIE,  CODEX 
and FAO in the feed sector. 

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13.4.21.2. 

Evaluation based on the current situation 

The adoption in 2009 of a Regulation (Regulation (EC) No 767/2009) replacing a series of old 
Directives concerning the marketing and labelling of feed was very much expected, in order 
to  remedy  to  difficulties  due  to  a  lack  of  uniform  application  in  the  Member  States  and  to 
sometimes  obsolete  provisions.  Priority  action  is  now  to  prepare  required  implementing 
measures before the formal entry into application of the Regulation on 1 September 2010. 

EU legislation on medicated feed is obsolete and no more in line with current legislation on 
feed, in particular the Feed Hygiene Regulation, but also legislation on veterinary medicines. 
This makes the preparation of new legislation in this sector a priority action. 

In  the  field  of  undesirable  substances  in  animal  feed,  the  setting  of  maximum  levels  of 
contaminants  is  decided  through  successive  amendments  to  the  Annex  to  Directive 
2002/32/EC.  This  complicates  the  legibility  of  such  measures  and  makes  necessary  to 
integrate and re-structure all amendments into a new tool. 

13.4.21.3. 

Evaluation results 

Priorities 

Given  the  EU  legislation  on  medicated  feed  is  in  need  of  reform  because  it  is  not  coherent 
with the Feed Hygiene Regulation as well as legislation on veterinary medicines, this will be a 
priority  for  the  next  couple  of  years.  A  full  impact  assessment  will  be  carried  out  in  2010, 
taking into account the preparatory works already carried out, in order to present possibly by 
the end of 2010 a Commission proposal recasting and modernising the legislation in this field. 

Planned action 

As  regards  the  feed  marketing  and  labelling  sector,  it  is  intended  to  adopt  a  series  of 
implementing measures of new Regulation (EC) No 767/2009 in view of its full application 
on 1 September 2010. 

The  main  challenge  in  the  feed  additives  area  will  be  the  optimal  implementation  of  the 
review  exercise  of  all  current  authorisations.  By  the  deadline  of  8  November  2010,  it  is 
expected  that  around  2000  applications  will  have  been  received  by  the  Commission.  In 
addition,  requests  for  authorisation  of  feed  additives  submitted  to  the  Commission  will 
continue to be processed within the time-limits prescribed by Regulation (EC) No 1831/2003. 

As far as undesirable substances in feed are concerned, in addition to the continuous review 
of  maximum  levels  in  the  framework  of  Directive  2002/32/EC,  it  is  envisaged  to  take 
measures  concerning  the  presence  of  pharmaceuticals  in  feed  for  non-target  animals  and  to 
adopt  legislation  on  acceptability  criteria  for  detoxification/decontamination  processes  in 
feed.  The  possibility  to  consolidate  the  annexes  of  Directive  2002/32/EC  will  also  be 
considered in 2010. 

13.4.21.4. 

Sector summary 

In summary, the following actions are to be considered as main priorities for 2010 and beyond 
in the feed sector: 

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•  adoption of implementing measures of Regulation (EC) No 767/2009 on the placing on the 

market and use of feed; 

•  launch of impact assessment and preparation of new legislation in the field of medicated 

feed; 

•  implementation of the re-evaluation exercise of current feed additives authorisations. 

13.4.22. Animal welfare 

13.4.22.1. 

Current Situation 

General introduction 

Animals  are  key  to  our  food  supply  and  human  nutrition.  Animal  welfare  concerns  have 
grown in our society and there is a growing insistence on high animal welfare standards. As 
the  world's  largest  trader  (exports  plus  imports),  Europe  leads  in  promoting  high  levels  of 
animal welfare. The Treaty on the Functioning of the European Union recognises this trend 
and has made animal welfare a very explicit objective of Union policy. It provides a stronger 
legal basis for animal welfare and will be explored further by the Commission. 

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  species  raised  in  intensive  systems  such  as  laying  hens,  calves  and  pigs.  From  30 
June 2010, specific rules will also apply to broilers. 

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 and killing 

Every  year  nearly  360  million  pigs,  sheep,  goats  and  cattle,  several  billion  poultry  and  25 
million fur animals are slaughtered in the Union for the production of meat and textiles. The 
control of contagious diseases may require the killing 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 as well as the need for a level playing field for operators 
called for the revision of the Directive. On 24 September 2009, Council Regulation (EC) No 
1099/2009 on the protection of animals at the time of killing was adopted. It will apply from 1 
January 2013. 

Ban on cat and dog fur 

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Regulation (EC) No 1523/2007 of 11 December 2007 bans the placing on the market and the 
import to, or export from, the EU of cat and dog fur, and products containing such fur. The 
ban applies since 31 December 2008. 

Complaints: 

•  The  number  of  complaints  on  animal  welfare  remains  relatively  high  because  in  recent 
years, the general public, together with Civil Society, have become more aware of issues 
related  to  animal  welfare  standards.  The  Commission  is  often  placed  in  a  position  of 
resolving difficult judgement calls involving: 

•  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: 

•  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 the EU institutions. 

In 2009, most of the complaints were either related to the conditions of transport of animals or 
to the conditions under which pigs are kept. 

13.4.22.2. 

Report on Work Done in 2009 

Animal welfare in holdings/on the farm 

The Commission followed closely the results of research projects which will have an impact 
on  future  welfare  legislation.  In  particular,  on  8  and  9  October  2009  in  Uppsala,  the 
Commission  participated  in  the  presentation  of  the  outcomes  of  Welfare  Quality,  an  EU 
funded  research  project,  which  developed  a  series  of  animal  based  welfare  indicators  and  a 
system  to  enable  overall  assessment  of  welfare  at  farm  level.  The  Commission  intends  to 
integrate animal based welfare indicators into future legislation on farm animals. 

Additionally, the results of two research projects on pig castration (PIGCAS and ALCASDE) 
were delivered and will be used as a basis to move forward on this issue in 2010. 

The  Commission  aware  of  the  difficulties  of  Member  States  to  implement  certain 
requirements  of  the  Directive  on  the  protection  of  pigs  took  the  initiative  to  organise  a 
workshop  on  17  November  2009  where  the  main  stakeholders  and  veterinary  experts  from 
Member  States  could  exchange  information  and  best  practices  regarding  the  provisions  of 
enrichment material and the avoidance of routine tail docking in pig farms. The Commission 
received strong support from stakeholders to continue this experience. 

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The Commission monitored closely through FVO inspections the implementation of Directive 
1999/74/EC  laying  down  minimum  standards  for  the  protection  of  laying  hens  and  in 
particular actions taken so far by Member States to phase out battery cages by 1 January 2012. 

Animal welfare during transport 

The  number  of  complaints  and  numerous  requests  for  specific  amendments  reveal  that 
Council Regulation (EC) No 1/2005 on transport of animals is not properly enforced. Based 
on a study on travelling times and space allowances, an impact assessment on the effects of 
rules  concerning  improved  requirements  on  comfort  for  animals  and  traceability  of  animal 
during  transport  was  published.  During  the  consultation  process,  stakeholders  asked  for  an 
update  of  the  scientific  data  regarding  the  conditions  of  transport  of  animals  and  for  an 
evaluation  of  the  current  application  of  Regulation  (EC)  No  1/2005  which  is  in  force  since 
January 2007. The Commission is now working in order to address these issues. 

The  Commission  is  convinced  that  better  enforcement  of  the  transport  Regulation  can  be 
achieved  by  ensuring  a  proper  network  and  use  of  control  posts  for  resting  animals 
transported over long journeys. To this effect, with the financial support from the European 
Parliament, the Commission engaged in a preparatory action to promote high quality control 
posts. 

Animal welfare during slaughter 

On 24 September 2009, Council Regulation (EC) No 1099/2009 on the protection of animals 
at the time of killing was adopted. The new Regulation will improve from 1 January 2013 the 
conditions for animals when slaughtered or culled. The new Regulation simplifies the existing 
legislation  and  aligns  it  to  the  food  hygiene  regulations;  it  integrates  welfare  considerations 
into  the  design  of  slaughterhouses  and  requires  the  regular  monitoring  of  the  efficiency  of 
stunning  techniques.  The  Regulation  aims  at  increasing  the  responsibility  of  operators  on 
animal welfare and the level of competence of the staff in slaughterhouses. Several changes 
are  also  introduced  in  order  to  take  into  account  the  technological  changes  and  the  new 
scientific knowledge in this field. 

Animal Welfare Labelling and European Network of Reference Centres 

The Commission adopted on 28 October 2009 a report in which it outlines a series of options 
for animal welfare  labelling, to facilitate an in-depth political debate with other institutions. 
The  overall  goal  is  to  make  it  easier  for  consumers  to  identify  and  choose  welfare  friendly 
products,  and  thereby  give  an  economic  incentive  to  producers  to  improve  the  welfare  of 
animals.  The  report  also  presents  options  for  the  possible  establishment  of  a  European 
Network  of  Reference  Centres  for  the  protection  and  welfare  of  animals.  Such  a  network, 
modelled on the existing Community Reference Laboratories for animal health, could provide 
technical  support  for  the  development  and  implementation  of  animal  welfare  policies, 
including regarding certification and labelling. The document, based on an external study and 
a broad stakeholder consultation, is the Commission's response to the conclusions of the May 
2007  Agriculture  Council  which  called  for  a  report  that  would  allow  an  in-depth  debate  on 
animal welfare labelling. Although the report does not endorse any of the options outlined, it 
identifies those which are considered to be the most feasible today. 

Ban on cat and dog fur 

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The ban entered into application on  31 December 2008.  The Commission  is monitoring the 
analytical methods used by Member States to identify the species of fur as well as the system 
of penalties applicable in case of infringements to the ban. 

FVO Inspections Findings 

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 avoidance of routine tail-docking. 
Concerning the transport of animals, requirements of vehicle for long journeys and controls of 
journey times are in general not sufficiently dealt with. The conditions of transport of horses 
for slaughter are still a problematic issue. 

Although on farm emergency slaughter has been implemented in a number of Member States, 
the  issue  of  the  transport  of  injured  cows  to  slaughterhouses  continues  to  be  a  significant 
problem in others. 

13.4.22.3. 

Evaluation 

Animal  welfare  remains  an  issue  attracting  public  attention  given  that  ordinary  citizens  are 
keenly interested in how livestock is raised and whether the required animal welfare standards 
are being respected. Member States are our key partners in ensuring implementation of animal 
welfare  legislation.  The  Member  States'  role  is  not  only  crucial  in  ensuring  transposition  of 
Directives in this area but also in effectively deploying the resources and mechanisms needed 
to ensure compliance with the EU's animal welfare requirements. 

Some resources are devoted to dealing with situations for which we lack powers to regulate. 
Stray  dogs  and  cats,  for  instance,  do  not  fall  under  the  scope  of  the  Treaty  but  yet  the 
Commission devotes considerable resources in replying to citizens complaining about cruelty 
towards pet animals. 

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. 

In  December  2009,  the  Commission  has  mandated  an  external  consultant  to  perform  an 
evaluation  of  the  EU  policy  on  animal  welfare.  The  evaluation  will  last  one  year  and  the 
results  will  contribute  to  the  reflection  for  possible  Union's  action  on  animal  welfare.  This 
initiative will ensure consistency within policy initiatives and Article 13 of the Treaty on the 
Functioning of the European Union. 

Priorities 

It  will  remain  important  to  react  swiftly  and  adequately  to  the  concerns  of  interested 
stakeholders.  The  FVO  will  continue  to  put  an  emphasis  on  establishing  data  on  the 
compliance  of  Member  States  with  Union  rules  on  animal  welfare  in  order  to  detect 

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shortcomings but also in order to understand more precisely why certain Member States have 
difficulties to comply with welfare rules. 

The  Commission  will  continue  to  raise  awareness  on  animal  welfare  by  developing  further 
already existing tools such as "Farmland", by pursuing its active participation in the "Better 
Training  for  Safer  Food"  programme  and  by  organising  an  international  conference  on 
education and animal welfare on 1 and 2 October 2010. 

13.4.22.4. 

Evaluation results 

Planned Actions 

A number of actions which have been initiated in the previous years will be maintained and 
expanded. 

Regarding farmed animals, the Commission will continue to examine the best way to address 
the concerns on their welfare in a more general approach. The work of the Commission will 
be based on the principles highlighted in the Community Action Plan on Animal Welfare538 
and will take into account the latest scientific opinions of the EFSA on dairy cattle and pigs as 
well as the results of the EU funded research project Welfare Quality. One of the possibilities 
the  Commission  is  working  on  is  a  revision  of  the  general  Directive  98/58/EC  in  order  to 
integrate animal based welfare indicators. The preparation of the second action plan on animal 
welfare will probably start in 2010 and the results of the evaluation will indicate the way EU 
welfare  law  will  have  to  be  shaped  in  the  next  years.  In  parallel,  the  Commission  will 
continue to develop initiatives to improve the enforcement of the Directive on the protection 
of  pigs  but  also  to  facilitate  exchange  of  information  on  the  issue  of  pig  castration  by 
organising specific workshops on these topics. 

Directive  2007/43/EC  laying  down  minimum  rules  for  the  protection  of  chickens  kept  for 
meat  production  ("broilers  Directive")  has  to  be  transposed  by  30  June  2010.  At  the  same 
time,  the  scientific  opinions  of  EFSA  on  the  welfare  of  broilers  will  be  published.  On  this 
basis, the Commission will work on a report to the European Parliament and to the Council 
concerning  the  influence  of  genetic  parameters  on  identified  deficiencies  resulting  in  poor 
welfare of chickens. 

Concerning  the  transport  of  animals,  the  Commission  requested  in  January  2010  EFSA  to 
update  the  scientific  information  available  on  the  welfare  of  animals  during  transport.  The 
EFSA  scientific  opinion  should  be  available  by  December  2010.  On  this  basis,  the 
Commission  will  work  on  a  report  to  the  European  Parliament  and  to  the  Council  on  the 
impact of Regulation (EC) No 1/2005 on the protection of animals during transport. 

The  implementation  of  the  ban  on  cat  and  dog  fur  within  the  Union  will  be  assessed  in  a 
report which will be submitted to the European Parliament and to the Council. 

Regarding  animal  welfare  labelling  and  the  European  Network  of  Reference  Centres,  the 
Commission’s  reflections  in  shaping  possible  future  policy  options  will  depend  from  the 

538  The Community Action Plan on the Protection and Welfare of Animals 2006-2010 

http://ec.europa.eu/food/animal/welfare/actionplan/actionplan_en.htm  

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outcome  of  the  discussions  on  the  report  in  Council  and  the  European  Parliament.  The 
Commission will be ready to contribute in any further step. 

During  2010,  the  Commission  will  be  strongly  involved  in  an  in  depth  evaluation  of  its 
policies  on  animal  welfare.  The  report  of  the  Committee  on  Agriculture  and  Rural 
Development of the European Parliament on evaluation of the Action Plan on the Protection 
and  Welfare  2006-2010  as  well  as  the  report  of  the  external  consultant  mandated  by  the 
Commission  will  constitute  strong  basis  to  identify  the  appropriate  actions  to  improve  EU 
policies in animal welfare. 

13.4.22.5. 

Summary of Sector 

The challenge in this sector is to reply to the growing European citizens' concerns on animal 
welfare  both  in  the  EU  and  internationally,  and  to  balance  expectations  of  animal  welfare 
organisations  with  the  requirements  of  a  competitive  agriculture,  while  seeking  to  simplify 
legislation and reduce administrative burden. 

13.4.23. Plant Health 

13.4.23.1. 

Current Situation 

Work done in 2009 

In 2009, the strategy of the Commission in this field has gone in two directions: 

ferrugineus  which 

First, ensure the application of the current acquis through, in particular, a stricter enforcement 
of  existing  legislation,  a  revision  of  some  emergency  measures  and  an  increased  budget  for 
co-financing  eradication  actions  in  Member  States.  A  stricter  enforcement  of  existing 
legislation  has  been  initiated  in  the  domains  of  recognition  and  maintenance  of  protected 
zones  within  the  EU,  actions  against  repeated  interceptions  at  import  (e.g.  potatoes  from 
Egypt)  and  a  strengthened  implementation  of  the  emergency  measures  against  the  red  palm 
the 
weevil  –  Rhynchophorus 
Mediterranean  areas.  The  main  emergency  measures  being  revised  relate  to  pinewood 
nematode - Bursaphelenchus xylophilus (further strengthening of the measures following the 
notification  of  new  outbreaks  in  Portugal  and  an  isolated  case  in  Spain)  and  Western  corn 
rootworm - Diabrotica virgifera virgifera (completion of a study and initiation of an impact 
assessment  before  developing  a  new  EU  strategy  as  this  pest  is  now  widespread  in  certain 
areas  within  the  EU).  Upon  request  of  Member  States  and  in  order  to  ensure  a  better  and 
harmonised  protection  against  the  spread  of  new  pests  and  diseases  in  the  territory  of  the 
Union,  the  EU  co-financing  of  eradication  dossiers  was  increased  significantly  up  to  14 
million euro, especially to combat extremely harmful pests like pinewood nematode, red palm 
weevil and citrus longhorn beetle. 

threatens  most  palms  species 

in 

In parallel, steps have been undertaken to develop a new common plant health strategy. The 
existing 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.  Terms  of  reference  have  been  finalised  in  consultation  with  the 
competent  authorities  of  the  Member  States  and  stakeholders  for  conducting  an  overall 
evaluation of the current plant health regime. This evaluation exercise has been outsourced. It 
started in June 2009 and will take a full year's study. The first objective of the evaluation is to 
analyse the results of the existing regime. The second objective is to clarify which aspects of 

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the  current  regime  need  to  be  improved  and  to  suggest  potential  options  for  amendment, 
including possible improvements to its structure and working practices. 

13.4.23.2. 

Legislative Changes Underway 

The  preparatory  work  to  allow  a  recast  of  the  main  plant  health  Directive  (Directive 
2000/29/EC)  was  completed  in  2009  and  the  main  study  which  will  be  the  basis  for  a 
fundamental revision of the EU plant health policy was initiated. The results of that study will 
be discussed in 2010 with Member States' competent authorities and stakeholders. 

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, a regulated harmful organism of maize. 

13.4.24. Seeds and Plant Propagating Material 

13.4.24.1. 

Current Situation 

Work done in 2009 

In the sector of seeds and plant propagating material (S&PM) the current legislation was kept 
updated and further developed. However, an increasing part of the work concentrated on the 
review  of  the  legislation.  In  the  year  2009,  a  number  of  international  meetings  on  plant 
genetic resources took place. In addition, an ad hoc working group 'on seeds and propagating 
material' for the stakeholders of the sector, including plant variety rights, was created in the 
framework of the advisory group on the food chain to improve consultation and participation 
of all relevant stakeholders and organisations. 

The common catalogues on varieties of agricultural and vegetable plant species were updated 
12  times  and  both  had  a  consolidated  edition  published.  Altogether  1680  new  varieties  of 
agricultural  plant  species  and  1060  vegetable  varieties  were  included  in  the  catalogues.  The 
Community  list  of  Forest  Reproductive  Material  was  also  regularly  updated  and  a  new 
common  catalogue  for  vine  propagating  material  was  created.  In  2009,  the  Member  States 
made  29  requests  on  less  stringent  requirements  of  the  minimum  germination  under 
Regulation (EC) 217/2006 and Delegation decisions were made for 23 of them. 

In  November  2009,  the  Commission  adopted  Directive  2009/145/EC  providing  for  certain 
derogations, for acceptance of vegetable landraces and varieties which have been traditionally 
grown  in  particular  localities  and  regions  and  are  threatened  by  genetic  erosion  and  of 
vegetable varieties with no intrinsic value for commercial crop production but developed for 
growing  under  particular  conditions  and  for  marketing  of  seed  of  those  landraces  and 
varieties. 

Concerning  the  review  of  the  legislation,  a  conference  on  'Seed  Availability  in  the  21st 
Century' was organised on 18 March 2009 to present and discuss the evaluation results with 
various  stakeholders.  Around  200  stakeholders  participated  and,  overall,  they  supported  the 
Commission's  intention  to  revise  the  legislation.  The  Commission  services  developed  an 
S&PM Action Plan539 which was presented and discussed with the Member States and with 

539  Action  plan  for  the  review  of  the  Community  legislation  on  marketing  of  seed  and 
plant propagating material and related issues. (SEC(2009) 172 final). 

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other stakeholders. On the basis of the Action plan, the preparation of the impact assessment 
started  and  terms  of  reference  were  prepared  for  an  external  consultant  to  collect  necessary 
data for the impact assessment. 

The  Governing  Body  of  the  International  Treaty  on  Plant  Genetic  Resources  for  Food  and 
Agriculture (FAO) held its 3rd session in Tunis in June 2009. The 12th Regular session of the 
Commission on Genetic Resources for Food and Agriculture (FAO) held a session in Rome in 
October  2009.  At  the  same  time,  work  continues  for  the  establishment  of  an  International 
Regime on Access and Benefit Sharing under the Convention on Biological Diversity. 

13.4.24.2. 

Legislative Changes Underway 

Notwithstanding the work done on the review of the legislation, different actions have been 
undertaken  to  ensure  the  updating  and  adaptation  of  the  EU  S&PM  legislation  to  current 
needs. Following the adoption of the Council Directive 2008/90/EC on the marketing of fruit 
plant propagating material and fruit plants intended for fruit production (recast), work is under 
way  to  update  and  develop  the  necessary  implementing  rules  As  regards  to  further 
implementing measures to conserve and protect natural environment, a proposal on grass seed 
mixtures  is  being  currently  developed.  In  addition,  following  the  adoption  of  a  new 
international standard on seed potatoes, the current legislation will be updated and aligned. 

Concerning  the  review  of  the  legislation,  the  aim  is  to  finalise  the  necessary  impact 
assessments in 2010 and prepare a proposal for the new legislative framework by the end of 
2011. 

13.4.25. Plant Variety Rights 

13.4.25.1. 

Current Situation 

The EU Plant Variety Rights system was created by Council Regulation (EC) No 2100/94 and 
provides protection of new plant varieties valid throughout the EU. On the basis of a single 
application to the Community Plant Variety Office based in Angers (FR), a breeder may be 
granted an EU-wide intellectual property right for his/her new variety. In 2009, the number of 
applications  for  the  first  time  was  decreasing  by  about  6%  (e.g.  due  to  the  financial  crisis, 
breeders’  strategies  for  protection,  the  number  of  merges  between  the  breeding  companies). 
Currently,  more  than  16.600  varieties  of  plants  are  protected  under  the  EU  Plant  Variety 
Rights system. 

In the framework of "Better Regulation", during the course of 2009, 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  was 
recasted and replaced by Commission Regulation (EC) N° 874/2009. 

13.4.25.2. 

Evaluation 

As  the  Community  Plant  Variety  Right  regime  dates  back  to  more  than  15  years,  the 
Commission  has  started  to  draft  in  the  last  quarter  of  2009  the  Terms  of  Reference  for  an 
external  evaluation  on  the  regime.  This  external  evaluation  should  be  carried  out  in 
2010/2011. 

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13.4.26. Enforcement of the rules applicable to the food and feed chain 

13.4.26.1. 

Current situation 

Sustained attention to and coordination of enforcement action remains a priority in all areas 
related to food and feed safety, plant health, animal health and animal welfare. 

Consideration  will  be  given  to  the  possibility  of  strengthening  cooperation  on  enforcement 
matters with and among Member States’ competent authorities and to a more transparent use 
and efficient handling of the vast amount of enforcement related data which is available to the 
Commission and to Member States. 

Information contained in several reports from FVO audits carried out in 2009 indicate that in 
some  Member  States  the  recent  economic  crisis  might  have  reverberated  also  on  the 
availability  of  resources  allocated  for  official  controls  to  verify  compliance  with  the  food 
chain acquis (food and feed law, animal and plant health and animal welfare rules). Lack of 
resources is of course not a valid justification for non compliance with EU rules, and all cases 
where insufficient controls result in a violation of Union law will be dealt with accordingly. 

The  finite  nature  (and  sometimes  the  scarcity) of  control  resources  is  a  fact  however  which 
deserves  attention.  The  Commission  has  therefore  started  a  review  of  the  rules  on  the 
financing  of  official  controls,  as  set  out  in  Regulation  (EC)  No  882/2004,  with  a  view  to 
improving  the  mechanisms  intended  to  ensure  appropriate  resourcing of control  activities at 
national level and to ultimately promote a more efficient use of available resources. 

13.4.26.2. 

Legislative changes underway 

The impact assessment on the mentioned review on the legislation on the financing of official 
controls  has  now  started  and  it  is  foreseen  it  will  be  finalized  during  2010.  It  will  include 
extensive  consultation  with  Member  States  and  other  stakeholders  in  order  to  assess 
advantages and disadvantages of the different options available for change. The related data 
will be acquired in the course of the consultation or, where needed, through specific surveys. 
A  proposal  for  change,  if  required,  can  therefore  be  expected  for  the  end  of  2010  or  early 
2011 (further details can be found at the following web address: 

http://ec.europa.eu/food/food/controls/inspection_fees/index_en.htm). 

The  review  of  Council  Directive  96/23/EC  will  be  continued  through  the  year  starting  with 
the impact assessment with the involvement of Member States and other stakeholders with the 
idea of presenting a proposal by the first half of 2011. The general objectives of the review 
are the simplification of the existing rules and to ensure consistency with Regulation (EC) No 
882/2004 allowing for the introduction of risks assessment criteria. 

Regulation  (EC)  No  669/2009  on  increased  level  of  official  controls  on  imports  of  certain 
feed  and  food  of  non-animal  origin  and  implementing  Article  15.5  of  Regulation  (EC)  No 
882/2004 becomes applicable on 25.1.2010 and extensive work is being carried out to ensure 
a smooth application of the new rules. This includes specific training activities in the context 
of  Better  Training  for  Safer  Food,  the  creation  of  a  dedicated  webpage  with  the  list  of 
Designated Points of Entry and the regular review of Annex I to the Regulation containing the 
list of relevant feed and food products of non-animal origin. 

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13.5.  Overall evaluation 

13.5.1.  Better application of the health and consumer acquis is everyone's concern 

The Commission seeks to use Treaty powers at its disposal to the fullest possible extent, while 
engaging society at large in our efforts to ensure that citizens and business fully benefit from 
our  policies  in  this  area.  But  the  Commission  cannot  deliver  alone  better  application  of  the 
EU's  health  and  consumer  acquis  without  the  cooperation  of  the  Council,  the  European 
Parliament and Member States. Member States are primarily responsible for implementation 
and  the  Commission  can  only  build  partnerships  and  bridges  of  cooperation  to  ensure  that 
legislation becomes reality on the ground. 

During  the  course  of  2009  the  Commission  has  found  that  the  EU  Pilot  Project  has  been  a 
useful tool that has enhanced communication and resolution of enforcement problems in this 
domain. It is key that further Member States who are keen to step up to the plate to improve 
their  record  on  enforcement  of  EU  legislation  in  this  area  participate  in  the  pilot  project. 
Cooperation between national enforcers is also essential starting as early as the design phase 
of any new legislation. 

The Commission is mindful that this area of legislation is often technical, complicated and not 
easy  to  understand  by  enforcers,  economic  operators  and  ordinary  citizens.  Every  effort  is 
being made to promote a regulatory environment that is modern, simple and proportionate but 
that does not give up the necessary protection afforded by our policies in this area. 

This area is very close to many concerns that citizens have about Europe.  The Commission 
will  seek  to  increase  transparency  on  actions  being  taken  by  Member  States'  enforcement 
actors to ensure compliance. At the same time the Commission will seek to empower citizens, 
consumers  and  patients  through  information  to  enable  them  to  support  implementation 
practices and outcomes in Member States. 

13.5.2.  Prevention 

Laws cannot be properly applied unless they are fully understood by those that enforce it or 
apply it in order to comply with its provisions. 

The Commission services have issued implementation guidelines on the correct application of 
the  food  and  safety  and  public  health  policy  areas.  In  the  public  health  policy  area,  an 
operational  manual  was  published  for  competent  authorities  for  the  inspection  of  tissue  and 
cell  procurement  and  tissue  establishments  in  order  to  ensure  a  harmonised  application  of 
Directives 2006/17/EC and 2006/86/EC. In the consumer policy area the Commission revised 
the RAPEX guidelines. This revision was necessary because of the significant increase in the 
number of notifications through the RAPEX network that has be followed up in the Member 
States  and  of  the  need  to  increase  the  traceability  of  dangerous  products  notified  via  the 
system. 

In addition the Commission organized workshops either to assist the Member States with the 
implementation of Directives which they are in the process of transposing (e.g. the consumer 
credit  Directive  2008/48/EC)  or  to  promote  an  exchange  of  information  and  best  practices 
between  industry  and  veterinary  experts  from  Member  States  (as  for  example  on  how  to 
minimise animal suffering during pig tail docking). 

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Also for the implementation and consistent application of Directive 91/414/EEC concerning 
the placing of plant protection products on the market, the Commission continued to develop 
further guidelines and currently 47 guidelines documents are available. 

In  2006  the  Commission  launched  a  training  programme  entitled  "Better  Training  for  Safer 
Food".  This  is  aimed  at  organising  a  Community  training  strategy  for  food  and  feed  law, 
animal health and welfare rules and plant health rules. Training is designed for Member State 
competent  authority  staff  involved  in  official  control  activities.  It  aims  to  keep  them  up-to-
date  with  Community  law  in  the  areas  specified  above  and  to  ensure  more  uniform  and 
efficient controls across the EU. 

Better  Training  for  Safer  Food  comprises  training  programmes  on  subjects  where  needs  for 
improved  application  of  EU  law  have  been  identified.  The  number  of  programmes  and  the 
number of people trained have increased each year since the initiative's launch. 

Subjects covered for the first time in 2009 included training on controls of food of non-animal 
origin,  feed  law  and  GMO  analysis.  Further  new  actions  are  to  be  launched  in  2010.  These 
include training on new subjects such as animal health of aquaculture animals and of bees and 
exotic zoo animals and food testing on SPS issues. 

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  2009  the  Commission  services 
responsible  for  health  and  consumers  examined  approximately  200  notifications  of  draft 
legislations  in  order  to  avoid  that  Member  States  adopt  legislation  which  would  be 
incompatible with EU 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  feed540.  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 
2009 a total of 3201 original notifications were transmitted through the RASFF; 1745 market 
notifications  and  1456  border  rejections.  558  market  notifications  were  classified  as  alerts, 
and 1187 as information notifications. 

A similar tool is the EU rapid information system RAPEX for dangerous non-food consumer 
products  found  and  consequently  withdrawn  from  the  market.  A  number  of  notifications  in 

540  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.  

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RAPEX  led  to  the  adoption  of  Decision  2009/251/EC  which  bans  the  dimethyl  fumerate  in 
consumer products. The Commission will take initiatives to strengthen the RAPEX system. 

Discussions  with  Member  States  or  with  stakeholders  in,  for  example,  workshops,  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. 

13.5.3.  Regular review of legislation 

The health and consumer legislation is regularly reviewed after careful evaluation of impacts 
as well as continuous and fruitful dialogue with citizens, consumers and other stakeholders in 
order to: 

– 

– 

– 

– 

– 

optimise the legislation for ensuring that policy goals are met 

simplify and clarify the legislation 

take into consideration the burdens to business and enforcers 

to introduce new technologies into the legislation 

clarify the interaction with other EU legislation. 

In 2009, as a result of that work, the adoption Regulation (EC) No 767/2009 on the placing on 
the  market  and  use  of  feed,  Regulation  (EC)  No  1069/2009  laying  down  health  rules  as 
regards  animal  by-products  and  derived  products  not  intended  for  human  consumption, 
Regulation  (EC)  No  1099/2009  on  the  protection  of  animals  at  the  time  of  killing  and 
Regulation  (EC)  No  1107/2009  concerning  the  placing  of  plant  protection  products  on  the 
market, finalised the revision of several key legislations. 

New evaluations of the existing legislation have been carried out and will the basis of impact 
assessments  in  2010  and  likely  for  future  major  legislative  revisions  (e.g.  in  the  plant  seed 
legislation  as  well  in  the  genetically  modified  organisms  legislation).  Further  evaluation  is 
about to be launched (inter alia on the plant variety rights legislation). 

13.5.4.  Audits, Inspections and market surveillance  

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 and third countries from which food is imported, 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. 

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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. 

In  the  consumers  policy  area  the  Commission  for  the  third  time  carried  out  a  market 
surveillance  exercise  in  the  form  of  a  sweep  on  sites  selling  electronic  goods  (see  point 
3.1.2.10). Such sweeps allow the Commission to identify the existing incompliant conditions 
on  websites  and  through  contacts  with  the  involved  companies  to  obtain  corrections  on  the 
websites. 

13.5.5.  Processing and prioritisation of infringements 

The Commission during the course of 2009 has been taking internal measures to improve its 
processing  speed  through  prevention,  improved  cooperation  with  Member  States  (e.g.  EU 
Pilot project) and prioritisation (e.g. strategy paper and implementation planning). A strategy 
for  prioritisation  of  infringements  was  largely  conceived  in  2008  and  implemented  within 
2009. 

Due  to  prioritisation  and  accurate  case  planning  the  Commission  has  in  the  course  of  2009 
considerably improved its efficiency in handling complaints and infringements in this domain. 
Better  application  of  consumer  and  health  legislation  has  been  integrated  a  cross-cutting 
theme  throughout  all  of  our  policy  areas.  Adequate  planning  has  also  been  put  in  place  to 
ensure  that  Member  States  are  accompanied  during  the  transposition  process  and  are 
adequately supported for implementation of new legislation. 

DG  SANCO  is  at  the  forefront  of  evolving  challenges  inherent  in  its  sector  that  is  prone  to 
changes  in  technology  and  innovation  in  production  methods.  The  Commission  in  this  area 
has  to  ensure  an  optimised  use  of  its  tool-box for  better  application  of  EU  law  in  a  results-
orientated  way  so  that  EU  citizens  see  the  real  benefits  in  our  efforts  to  better  apply  our 
acquis.  At  the  same  time  several  Member  States  have  initiated  discussion  on  how  best  to 
maximise efficiency in complying with legislation in this area. 

13.5.6.  Challenges 

The  credibility  and  legitimacy  of  our  actions  invariably  depends  on  how  effectively  our 
legislation  is  implemented  and  the  policy  results  achieved.  Without  reducing  the  efforts  to 
further simplify the regulatory environment, the Commission will continue to pay increasing 
attention to better application of the consumer and health acquis. Our challenge for 2010 will 
be  to  show  leadership  in  engaging  society  at  large  while  promoting  transparency  on 
enforcement action and output. 

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14. 

JUSTICE, FREEDOM AND SECURITY 

14.1. 

Immigration and integration 

14.1.1.  Current position: general introduction 

Community legislation in the field of immigration and integration currently consists of nine 
directives, two of which were adopted in 2009.  

As concerns legal migration, four sets of measures of have been adopted: 

•  a  first  set  of  measures  adopted  in  2003:  the  Family  Reunification  Directive  2003/86541 

and the Long-term Residents Directive 2003/109542; 

•  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 
the  competent 
authorities543; 

immigration,  who  cooperate  with 

to  facilitate 

illegal 

•  the Students Directive 2004/114544 and the Researchers Directive 2005/71545; 

•  the  Highly-skilled  Workers  Directive  2009/50546  (“EU  Blue  Card”),  adopted  in  May 

2009. 

Three directives concern illegal immigration: 

•  a first pair of directives adopted in 2001/2002: the Carriers Liability Directive 2001/51547 

and Directive 2002/90548 defining facilitation; 

541  Council Directive 2003/86 of 22 September 2003 on the right to family reunification, 
OJ L 251, 3.10.2003, p. 12. 

542  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. 

543  OJ L 261, 6.8.2004, p. 19. 

544  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. 

545  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. 

546  Council  Directive  2009/50/EC  of  25 May  2009  on  the  conditions  of  entry  and 
residence  of  third-country  nationals  for  the  purposes  of  highly  qualified  employment,  OJ  L 
155, 18.6.2009, p. 17. 

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•  the Employer Sanctions Directive 2009/52549, adopted in June 2009, which aims to reduce 
illegal immigration by prohibiting the employment of illegal staying migrant workers and 
providing for sanctions against employers who infringe the prohibition. 

The  EU’s  comprehensive  migration  policy  continues  to  be  developed,  and  consequently 
efforts  in  this  area  remain  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 Migration550 announced its intention to present proposals for a general 
framework directive and directives for specific categories of paid workers. In 2009, the first 
such  specific  directive  –  the  EU  Blue  Card  –  was  adopted  and  discussions  continued  in  the 
Council on the proposed Framework Directive551. The Commission pursued its preparation 
of  proposals  for  two  of  the  remaining  Directives  (seasonal  workers  and  intra-corporate 
transferees). The third proposal, on remunerated trainees, will be prepared after the evaluation 
of the Students Directive. 

14.1.2.  Current position: Report on work done in 2009 

In line with the call of the Stockholm Programme for the Commission to evaluate and, where 
necessary, review the Family Reunification Directive, taking into account the importance of 
integration  measures552,  it  remains  the  intention  of  the  Commission  to  carry  out  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 2012, to amend the current directive. 

As regards non-communication cases, in the course of 2009 the remaining two Member States 
that had not initially complied with the transposition deadlines of Directives from 2005 and 
earlier did so. 

547  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. 

548  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. 

549  Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 
providing  for  minimum  standards  on  sanctions  and  measures  against  employers  of  illegally 
staying third-country nationals, OJ L 168, 30.6.2009, p. 24. 

550  COM(2005) 669 final. 

551 
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 of 23.10.2007. 

Presidency Conclusions, document EUCO 6/09. The Programme itself is in document 

552 
17024/09. 

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As  regards  suspected  infringements  disclosed  by  complaints,  the  Commission  continued  its 
infringement procedure against the Netherlands in relation to the high level of fees charged to 
those  applying  for  long-term  residents  permits  and  in  January  2010  decided  to  bring  the 
matter before the Court of Justice. The Commission started an infringement procedure against 
another Member State in relation to the rules under which third-country national students are 
permitted to work in that Member State; the Commission considers that the Students Directive 
2004/114 requires third-country national students to be allowed to work under less restrictive 
conditions. 

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 Network553 (EMN) continued to be a means for 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 Commission launched the procedures to commission external transposition studies for the 
Students Directive and Researchers Directive with a view to preparing implementation reports 
on the directives as well as, where relevant, proposals for their amendment in order further to 
enhance  the  attractiveness  of  EU  as  a  centre  of  excellence  for  studies  and  research.  The 
procedure was also launched to update the earlier study on the Long-term Residents Directive. 

As concerns the development of new legislation, the EU Blue Card and Employer Sanctions 
Directives  were  adopted.  Member  States  have  until  respectively  June  and  July  2011  to 
transpose the Directives into national law. First meetings of contact committees were held in 
late 2009 (employer sanctions) and early 2010 (EU Blue Card), enabling a useful exchange of 
views between the Commission and national experts involved in the national transposition of 
the directives. 

Legislative  discussions  in  Council  and  European  Parliament  continued  on  the  third  of  the 
three  proposals  presented  in  2007:  the  general  framework  directive  for  labour  migration 
which will provide for a single permit (residence and work) and basic socio-economic rights 
for  migrant  workers.  In  addition,  the  Commission  continued  preparing  its  proposals  for 
directives on other specific categories of paid workers (seasonal workers and intra-corporate 
transferees and remunerated trainees) in line with the 2005 Policy Plan. Presentation of those 
proposals was postponed, taking notably into account the change of legal basis resulting from 
the Lisbon Treaty and the need to evaluate the Students Directive. 

14.1.3.  Evaluation based on the current situation 

The complete EU-wide transposition only in 2009 of Directives dating from 2005 and before 
reinforces the need for Member State to make renewed efforts to complete the transposition of 

553  Council  Decision  2008/381/EC  of  14  May  2008  establishing  a  European  Migration 
Network, OJ L 131, 21.5.2008, p. 7. 

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the most recent directives in this field – the EU Blue Card and employer sanctions – within 
the deadline of mid-2011. 

The  Commission  continued  –  and  will  continue  –  to  pursue  the  most  important  suspected 
infringements disclosed by complaints. In order however to ensure the correct application of 
the acquis, the Commission intends to pursue with other directives the approach started with 
the  Family  Reunification  Directive:  first  an  external  study,  then  a  Commission  report  as  a 
basis for further action. 

Legislative  activity  (preparing  new  proposals  as  well  as  legislative  discussions  themselves) 
continued to be important in this sector. The Lisbon Treaty has introduced codecision in the 
area of legal immigration, thus notably giving an enhanced role of the European Parliament. 
This  has  given  an  impetus  to  the  legislative discussions  on  the  general  framework  directive 
for a single permit and rights. 

14.1.4.  Evaluation results: Priorities 

These remain unchanged and are: 

(1) 

Reviewing  the Family  Reunification  Directive 2003/86. This was the first legislative 
instrument on legal migration at EU level and, as a result several Member States554 
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. 

14.1.5.  Evaluation results: Planned action (2010 and beyond) 

As regards the first priority, the Family Reunification Directive 2003/86, the Commission will 
follow up its report on the directive by launch a wider consultation by way of a Green Paper 
on  the  future  of  the  family  reunification  regime.  This  could  lead  to  proposals,  at  earliest  in 
2012, to amend the current directive. 

As regards the second priority, the Commission will in 2010 present reports on the Victims of 
Trafficking,  and  Students  Directives,  and  in  2011  on  the  Long-term  Residents  and 
Researchers  Directives.  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. 

–  Presenting proposals for directives on other specific categories of paid workers: seasonal 

workers and intra-corporate transferees. 

554  EL, CY, MT, RO. 

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14.1.6.  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 other directives in this 
area. 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 the two directives adopted in 2009. 

14.2.  Asylum 

14.2.1.  Current position: Report on work done in 2009 

Work with regard to the development and implementation of the EU asylum acquis in 2009 
was characterised by further very significant progress in the development of new legislation 
and the pursuit of appropriate infringement actions. 

On  18  February  2009,  the  Commission  adopted  a  proposal  to  create  a  European  Asylum 
Support Office (EASO) as an independent EU agency to manage practical cooperation in the 
asylum  field,  including  an  amendment  of  the  Decision  establishing  a  European  Refugee 
Fund.555 In November 2009, political agreement was reached on the proposal in the Council 
and European Parliament, and it is expected that it will be formally adopted early in 2010. 

On 2 September 2009, the Commission  adopted a proposal for the establishment of an EU-
wide  scheme  aimed  at  facilitating  the  resettlement  in  the  EU  of  refugees  hosted  in  third 
countries, in the form of a Communication from the Commission to the Council and European 
Parliament  and  an  amendment  to  the  Decision  establishing  a  European  Refugee  Fund.  The 
scheme is aimed at developing resettlement within the EU into a more effective instrument for 
the protection of refugees, by providing for closer strategic and practical cooperation among 
EU Member States. 

On  10  September  2009,  the  Commission  adopted  an  amended  proposal  for  the  EURODAC 
Regulation  (Regulation  2725/2000)  which  aimed,  on  the  one  hand,  to  integrate  the 
amendments suggested by the European Parliament in its resolution of May 2009 and, on the 
other  hand,  to  allow  law  enforcement  authorities  and  Europol  access  to  the  EURODAC  in 
order to strengthen their capacity to fight terrorism and serious crimes. 

On 21 October 2009, the Commission adopted proposals for the revision of the Qualification 
Directive  (Directive  2004/83)  and  of  the  Asylum  Procedures  Directive  (Directive  2005/85). 
Discussion of these two proposals commenced in December 2009 and is expected to continue 
throughout 2010. The main purpose of the proposed revision of the two directives is to ensure 
a  higher  degree  of  protection  to  victims  of  persecution,  to  simplify  and  consolidate 
substantive  and  procedural  standards  of  protection  across  the  Union,  thus  preventing  fraud 
and  improving  efficiency  of  the  asylum,  and  to  improve  coherence  between  EU  asylum 
instruments.  The  proposals  were  accompanied  by  Impact  Assessment  Reports  which 
evaluated  in  detail  the  content  of  the  two  directives,  as  well  as  how  they  had  been 

555  Council Decision No 573/2007/EC. 

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implemented  by  Member  States  in  practice,  with  a  view  to  identifying  deficiencies  to  be 
remedied by legislative amendment. 

Discussion  of  the  three  Commission  proposals  for  revision  of  the  Reception  Conditions 
Directive, the Dublin Regulation, and the EURODAC Regulation556 in the Council Working 
Group  and  in  the  European  Parliament  took  place  throughout  2009  and  is  expected  to 
continue in 2010. 

In February 2009, the Commission's case against Finland for non-communication of measures 
fully  transposing  the  Qualification  Directive  (Directive  2004/83)  resulted  in  a  ruling  by  the 
Court  of  Justice  that  Finland  had  breached  Article  226  EC  Treaty  (now  Article  258 
TFEU).557  In  July  2009,  Finland  communicated  measures  fully  transposing  the  Directive. 
Accordingly, the case was closed. 

In  April  2009,  the  Commission's  case  against  the  UK  for  non-communication  of  measures 
fully  transposing  the  Qualification  Directive  (Directive  2004/83)  resulted  in  a  ruling  by  the 
Court of Justice that the UK had breached Article 226 EC Treaty.558 A few days before the 
judgement  was  rendered,  the  UK  communicated  measures  fully  transposing  the  Directive. 
Accordingly, the case was closed. 

In  May  2009,  the  Commission's  case  against  Sweden  for  non-communication  of  measures 
fully  transposing  the  Qualification  Directive  (Directive  2004/83)  resulted  in  a  ruling  by  the 
Court  of  Justice  that  Sweden  had  breached  Article  226  EC  Treaty.559  In  January  2010, 
Sweden communicated legislative measures which it claims fully transpose the Directive. The 
case will be closed. 

In July 2009, the Commission's case against Spain for non-communication of measures fully 
transposing the Qualification Directive (Directive 2004/83) resulted in a ruling by the Court 
of  Justice  that  Spain  had  breached  Article  226  EC  Treaty.560  In  November  2009,  Spain 
communicated  legislative  measures  which  it  claims  fully  transpose  the  Directive.  The  case 
will be closed. 

In January 2009, the Commission sent letters of formal notice to two Member States for non-
communication  of  transposition  measures  relating  to  Article  15  of  the  Asylum  Procedures 

556  On 3 December 2008, in the 'first phase' of its legislative proposals, the Commission 
adopted proposals to revise three legislative instruments: the Reception Conditions Directive 
(Directive  2003/9),  the  "Dublin"  Regulation  (Regulation  343/2003),  and  the  EURODAC 
Regulation (Regulation 2725/2000). 

557  Case C-293/08, Commission v Finland; judgement of 5 February 2009. 

558  Case C-256/08, Commission v the United Kingdom; judgement of 30 April 2009. 

559  Case C-322/08, Commission v Sweden; judgement of 14 May 2009. 

560  Case C-272/08, Commission v Spain; judgement of 9 July 2009. 

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Directive  (Directive  2005/85).  The  deadline  for  transposition  of  this  provision  was  1 
December 2008, whereas the deadline for the transposition of the remainder of the Directive 
was 1 December 2007. 

In September 2009, the Commission sent reasoned opinions to four Member States for non-
communication  of  measures  fully  transposing  the  Asylum  Procedures  Directive  (Directive 
2005/85), including Article 15 thereof. All four Member States have replied to these letters, 
and these are being examined by the Commission. Three of the replies were accompanied by 
the notification of measures claiming to fully transpose the Directive.  

In  December  2009,  proceedings  against  two  Member  States  for  non-communication  of 
transposition measures relating to the Qualification Directive (Directive 2004/83), and against 
five Member States for non-communication of transposition measures relating to the Asylum 
Procedures Directive (Directive 2005/85), were still pending. 

In  November  2009,  the  Commission  sent  a  letter  of  formal  notice  to  one  Member  State  for 
incorrect  application  of  the  asylum  acquis,  in  particular  as  regards  access  to  the  asylum 
procedure and the treatment of asylum seeking unaccompanied minors. The letter also raised 
concerns about possible failure by that Member State to respect fundamental rights, including 
the  principle  of  non-refoulement,  in  its  application  of  the  Schengen  Borders  Code,  in 
particular when conducting border controls. 

During  2009,  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  and  on  other  asylum-related  matters.  One  workshop,  which 
included  the  participation  of  Member  State  judges  and  national  experts,  focused  on  various 
aspects of the implementation of the Dublin Regulation. 

14.2.2.  Evaluation based on the current situation 

In  line  with  the  ambitions  articulated  by  the  Council  in  The  Hague  Programme  adopted  in 
2004  and  the  Stockholm  Programme  adopted  in  December  2009,  as  well  as  in  the 
Commission's own 2008 Policy Plan on Asylum561, the scope of the asylum acquis is in need 
of being extended and enhanced, in order to ensure the successful completion of the Common 
European  Asylum  System  (CEAS).  More  specifically,  EU  asylum  legislation  should 
guarantee 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  significant  degree  of  harmonisation  via 
the current acquis, the rates of recognition of asylum seekers as qualifying for protection still 

561  COM(2008)360 "Policy Plan on Asylum – an integrated approach to protection across 
the EU", 17 June 2008. 

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varies very considerably between Member States. This deficit can be attributed to a number of 
causes, including insufficiently far-reaching 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 intends to continue to pursue a "twin track" 
approach consisting of, on the one hand, working to extend and improve the EU acquis and, 
on the other, of 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, in particular by ensuring that the future European 
Asylum Support Office (EASO) is placed on a sound footing.  

14.2.3.  Evaluation results: Priorities and planned action (2010 and beyond) 

To  date,  the  Commission  has  given  priority  to  the  creation  and  further  development  of  EU 
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 EU law in the asylum field in the coming years:  

The  further  development  of  EU  legislation  in  the  asylum  field,  notably  as  regards  the 
amendment of the existing legislative instruments and the possible adoption of new ones; 

Pursuit  of  practical 
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; 

cooperation 

improving 

efforts, 

aimed 

at 

Monitoring and evaluation of the implementation of EU legislation in the asylum field; 

Contribution  to  the  Commission's  intervention  before  the  Court  of  Justice  with  regard  to 
requests by national courts for preliminary rulings on the interpretation of EU legislation in 
the  asylum  field,  and  follow-up  of  individual  complaints  about  compliance  with  EU 
legislation in the asylum field in the Member States. 

14.2.4.  Summary 

EU law in the asylum field is still in the process of being developed. Some shortcomings have 
been identified in the scope and impact of the existing acquis and of the manner in which it is 
applied. Priority in the short to medium term should be accorded to extending and improving 
EU  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 EU legislation in the asylum field, to intervene before the Court of Justice 
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. 

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14.3.  European visa policy 

14.3.1.  Current situation: Report on work done in 2009  

Currently, the issuance of short-stay visas is still governed by a number of legal instruments 
drawn  up  over  the  last  15  years  which  were  mostly  developed  within  the  Schengen 
framework. 

On 13 July 2009, the European Parliament and the Council adopted a Regulation establishing 
a Community Code on Visas562. The Visa Code recasts the legal framework for the common 
visa  policy  and  will  enhance  transparency,  equal  treatment  of  applicants  and  legal  certainty 
and  bring  about  a  harmonisation  of  the  procedures  for  issuing  short  stay  visas.  In  line  with 
Article 51 of the Visa Code, the Commission is currently elaborating a Commission decision 
containing operational instructions on the practical application of the Visa Code (Visa Code 
Handbook)563. 

14.3.2.  Evaluation based on the current situation 

Due to the process of revision of the Community acquis on short-stay visas during the years 
2007  -  2009, the  handling of infringement procedures initiated in 2007 which are related to 
incorrect  implementation  of  legislation  to  be  replaced  by  the  new  instruments,  was  not 
considered as a priority. 

In  2009,  the  Commission  continued  to  receive  complaints  from  individuals  related  to  the 
incorrect  implementation  of  EU  law  in  the  field  of  visas.  The  complaints  received  reflected 
the weakness of the current Visa acquis; a large majority of these weaknesses will be resolved 
with the introduction of the new Visa Code which includes inter alia provisions on mandatory 
motivation  of  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. 

14.3.3.  Evaluation results: Planned action (2010 and beyond) 

In light of the  legislative changes intervening on 5 April 2010, ensuring timely, correct and 
efficient  implementation  of  the  new  legislative  framework  by  all  Member  States  will  be  a 
priority for the Commission. 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  intends  to  closely  monitor  the  implementation  of  the  Visa  Code.  Existing  fora 
such as the Visa Working Group in Council or the Visa Committee will continue to play an 

562  Regulation  (EC)  No  810/2009  of  the  European  Parliament  and  of  the  Council  of  13 
July 2009 establishing a Community Code on Visas. 

563  Draft  Commission  Decision  of  […]  establishing  the  Handbook  for  the  processing  of 
visa applications and the modification of issued visas. 

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important role for identifying issues of common interest and solving them in the appropriate 
way wherever possible.  

At  local  level,  the  involvement  of  EU  delegations  in  third  countries  should  increase  and  as 
they  should  play  a  stronger  role  in  ensuring  that  visa  policy  is  implemented  in  a  right  and 
harmonised  way  by  all  Member  States'  consulates.  Based  on  information  received  through 
these various channels, the Commission will continue using its institutional prerogative in this 
area which has been identified as a specific challenge for DG JLS in 2010.  

14.4.  Document Security (European passport and residence permits) 

14.4.1.  Current situation: Report on work done in 2009 

The main achievement on document security is the adoption - for the first time in co-decision 
procedure  of  the  amendment  of  Regulation  (EC)  No  444/2009  on  standards  for  security 
features  and  biometrics  in  passports  and  travel  documents  issued  by  Member  States 
introducing exceptions from the requirements of taking fingerprints and of the principle "one 
person-one passport".564 It entered into force on 26 June 2009. Member States shall apply the 
Regulation  (a)  as  regards  the  facial  image  at  the  latest  18  months  and  (b)  as  regards 
fingerprints  at  the  latest  36  months  following  the  adoption  of  the  additional  technical 
specifications. The obligation to issue passports and travel documents as separate documents 
shall be implemented at the latest on 26 June 2012. 

In  the  same  area,  the  Commission  adopted  three  decisions  in  comitology  procedure;  one, 
modifying the technical specifications for the uniform format for residence permits for third 
country nationals introducing biometric identifiers and at the same time starting the delay for 
their implementation,565 a second as regards the implementation of the certificate policy for 
passports  issued  by  Member  States  introducing  a  single  point  of  contact,566  and  a  third  in 

564  Regulation  (EC)  No  444/2009  of  the  European  Parliament  and  of  the  Council  of  28 
May  2009  amending  Council  Regulation  (EC)  No  2252/2004  on  standards  for  security 
features  and  biometrics  in  passports  and  travel  documents  issued  by  Member  States 
introducing  exception  from  the  requirements  of  taking  fingerprints  and  introducing  the 
principle "one person-one passport". 

565  Commission  Decision  of  20.5.2009  modifying  the  technical  specifications  for  the 
uniform  format  for  residence  permits  for  third  country  nationals  introducing  biometric 
identifiers. 

566  Commission  Decision  of  5.10.2009  amending  Commission  Decision  C  (2008)  8657 
final  laying  down  a  certificate  policy  as  required  in  the  technical  specifications  on  the 
standards  for  security  features  and  biometrics  in  passports  and  travel  documents  issued  by 
Member States introducing a single point of contact. 

EN 

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view  of  the  implementation  of  the  Visa  Information  System  laying  down  further  technical 
specifications for the uniform format for visas as regards the numbering.567 

14.4.2.  Evaluation based on the current situation 

During  2009,  the  Commission  continued  to  closely  monitor  the  correct  implementation  of 
Regulation 1030/2002 laying down a uniform format for residence permits for third country 
nationals. In  this context, reasoned  opinions had already been sent to  Italy  and  Belgium  for 
incorrect  implementation  of  Article  9  of  the  Regulation  in 2008.  In  the  absence  of  progress 
made  by  Italy,  the  Commission  referred  this  case  to  the  Court  of  Justice  in  November 
2009.568 

In order to collect information on the correct and timely implementation by all Member States 
of the second biometric identifier (finger prints) in respect of passports and travel documents 
of  EU  citizens  in  accordance  with  the  provisions  of  Regulation  2252/2004  which  became 
mandatory as of July 2009, the Commission circulated a questionnaire to all Member States in 
October 2009 in order to collect specific information on the state of implementation. 

14.4.3.  Evaluation results: planned action (2010 and beyond) 

Ensuring the correct application of Regulation 2252/2004 will remain a priority action for the 
Commission also in 2010. The analysis of the replies to the questionnaire is ongoing and the 
necessary measures in case of infringement will be taken in due time. 

14.5.  Border management and return policy 

14.5.1.  Current position: General introduction 

In the field of border management and return policy, the Commission mainly carried out its 
control  of  the  application  of  EU  law,  which  resulted  in  the  follow  up  of  infringement 
proceedings  in  few  cases  launched  in  2008.  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.  Strategic  priority  was 
given  to  provide  the  ground  for  a  timely  and  correct  transposition  of  the  Return  Directive 
2008/115/EC. 

14.5.2.  Current position: Report on work done in 2009 

The Commission has received and followed-up several complaints from individuals related to 
the incorrect application of EU law in the field of border management, and particularly of the 
Schengen  Borders  Code.  Most  of  these  complaints  concern  the  non  compliance  with 
provisions related to the abolition of internal border controls at the land and air borders and to 

567  Commission  Decision  of  20.5.2009  modifying  the  Commission  Decision  C  (96)  352 
of  7  February  1996  laying  down  further  technical  specifications  for  the  uniform  format  for 
visas as regards the numbering. 

568  C-486/2009. 

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the  removal  of  obstacles  to  traffic  at  road  crossing  points  at  internal  borders  between  the 
Member States.  

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.  On  24  July  2009,  the  Commission  issued  its  first  report  to  the  European 
Parliament and the Council on the implementation and functioning of the local border traffic 
regime introduced by Regulation (EC) No 1931/2006 of the European Parliament and of the 
Council laying down rules on local border traffic at the external land borders of the Member 
States569,  which  gives  a  detailed  overview  on  the  activities  carried  out  and  the  problems 
encountered so far. 

As  far  as  the  implementation  of  the  Council  Directive  2004/82/EC  on  the  obligation  of 
carriers  to  communicate  passenger  data  is  concerned,  the  evaluation  of  the  transposition 
measures communicated by all Member States except one Member State has been completed. 
An infringement procedure against that Member State opened in 2008 for non communication 
is still ongoing. 

In the field of return action focused on some remaining open cases of non-communication of 
transposition  of  Directives  2001/40/EC  on  the  mutual  recognition  of  decisions  on  the 
expulsion  of  third  country  nationals  (cases  related  to  incomplete  transposition  against  three 
Member  States  were  closed;  one  remaining  case  is  due  to  be  closed  in  early  2010)  and 
2003/110/EC on assistance in cases of transit for the purposes of removal by air. 

In  order  to  facilitate  the  correct  and  homogenous  transposition  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 (due to be transposed by 24 December 
2010),  the  Commission  Services  convened  in  2009  three  meetings  of  a  Contact  Group, 
providing  an  informal  forum  for  an  exchange  of  views  between  Member  States  and  the 
Commission on how the requirements set out in the Directive might be met. 

The Commission also actively intervened in a first ECJ case related to the interpretation of the 
Return Directive: In its first judgment on this Directive (judgment of 30 November 2009 in 
Case C-357/09 PPU, Kadzoev), the ECJ followed the position taken by the Commission and 
confirmed the protective provisions on detention contained in the Return Directive (absolute 
character of the 6/18 months maximum period; no possibility to abuse detention as a form of 
"soft  imprisonment"  for  public  order  reasons;  and  obligation  to  release  the  detainee 
immediately if there are no more reasonable prospects of removal). 

14.5.3.  Evaluation based on the current situation 

The correct application of EU 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 

569  COM (2009) 383 final  

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borders  in  which  the  free  movement  of  persons  has  to  be  ensured.  Alleged  internal  border 
checks  at  the  land  borders  and  at  the  airports  have  been  reported.  The  Commission 
endeavours  to  closely  monitor  the  situation  in  these  internal  border  zones.  Moreover,  the 
Commission closely follows the developments regarding the dismantling of remaining traffic 
obstacles at road border crossing-points at internal borders.  

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 
acquis570.  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.  Although, 
following  the  entry  into  force  of  the  Lisbon  Treaty  the  current  proposal  will  have  to  be 
reviewed, such a draft provision should be maintained as it will considerably contribute to the 
correct application of the absence of internal border controls.  

In the field of return, the main achievement 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.  

The Directive was formally adopted by EP and Council on 16 December 2008 and published 
in  OJ  L  348  of  24  December  2008,  with  a  transposition  period  for  Member  States  until  24 
December  2010  (2011  in  relation  to  free  legal  aid).  This  means  that  the  States  which  are 
bound  by  the  Directive  (all  Member  States  except  Ireland  and  UK  plus  the  associated 
Schengen  States)  will  have  to  adapt  their  national  legislation  in  order  to  comply  with  the 
Directive  by  these  dates.  The  Commission  expressly  encouraged  all  States  to  assure 
compliance with the Directive as quickly as possible, bearing notably in mind that most of the 
obligations  of  Member  States  under  the  Return  Directive  are  not  new  in  substance:  many 
obligations are directly inspired by the "Council of Europe Guidelines on forced return" which 
had been formally accepted in 2005 by the Committee of Ministers of the Council of Europe. 
Member  States  are  therefore  already  today  politically  committed  to  respect  these  standards. 
Moreover, most of these standards are directly related to already existing relevant provisions 
of the European Convention on Human Rights and other pertinent international law instruments.  

In  order  to  facilitate  the  correct  and  homogenous  transposition  of  the  Directive,  the 
Commission  Services  started  to  convene  regular  meetings  of  a  Contact  Group,  providing  a 
forum  for  an  exchange  of  views  between  Member  States  and  the  Commission  on  how  the 
requirements set out in the Directive might be met. Three meetings of this Group took place in 
2009.  Further  meetings  are  scheduled  for  2010.  These  meetings  also  include  special 
workshops  at  which  not  only  Member  States  but  also  IOs/NGOs  which  have  concrete 
practical experiences on selected issues, such as "forced return monitoring - Article 8(6)" and 
"assistance  by  appropriate  bodies  for  unaccompanied  minors  -  Article  10(1)" are  invited  to 
report and to share their knowledge with participants of the Contact Group. 

570  COM(2009)102 final 

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14.5.4.  Evaluation results: Priorities 

In 2009, priority has been given to the follow-up of complaints received from citizens in the 
field  of  internal  land  and  air  borders,  notably  with  relation  to  the  checks  carried  out  on 
persons in internal border zones and at the airports and with the remaining obstacles to traffic 
at the road crossing points at internal borders. The Commission regularly addressed national 
authorities of the Member States in order to obtain  explanations, particularly on the alleged 
checks  on  persons  within  the  internal  border  zones  and  exchanged  on  the  remaining  traffic 
obstacles in order to better understand the difficulties linked to their dismantling.  

In  the  field  of  return,  strategic  priority  was  given  to  provide  the  ground  for  a  timely  and 
correct  transposition  of  the  Return  Directive  2008/115/EC.  Numerous  complaints  and 
petitions related to return issues have been received but no concrete follow-up could – yet - be 
given, due to the fact that the transposition period for the Directive had not expired yet. 

14.5.5.  Evaluation results: Planned action (2010 and beyond) 

As  one  of  the  fundamental  objectives,  the  Commission  will  continue  to  closely  monitor  the 
correct  application  of  EU  legislation  in  the  field  of  absence  of  internal  border  controls  and 
remaining  traffic  obstacles.  The  aforementioned  Commission's  proposal  on  the  Schengen 
evaluation  mechanism,  which  will  be  revised  following  the  entry  into  force  of  the  Lisbon 
Treaty,  could  undoubtedly  contribute  to  the  accomplishment  of  this  objective.  Priority  will 
thus still be given to complaints received from individuals in relation with checks carried out 
on persons at the internal borders or 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 
increases, as the sensitivity of the border acquis increases.  

In 2010, the Commission will submit to the European Parliament and the Council a report on 
the application of Title III (Internal borders) of Regulation (EC) No 562/2006 establishing a 
Community Code on the rules governing the movement of persons across borders (Schengen 
Borders  Code),  paying  particular  attention  to  the  application  of  Article  21  of  the  Schengen 
Borders Code (checks within the territory and in particular in internal border zones) and to the 
difficulties arising from the reintroduction of border control at internal borders.  

Moreover, the Commission will continue to carry on consultations with Member States and 
analyse  the  compatibility  of  draft  local  border  traffic  agreements  with  EU  law.  The 
Commission  committed  itself  to  submit  a  second  report  on  the  implementation  and 
functioning of the local border traffic regime to the European Parliament and the Council in 
the second half of 2010. 

The Commission will continue the launched infringement proceeding against Poland for non 
communication of transposition measures concerning the Directive 2004/82/EC.  

Continued strategic priority will have to be given in 2010 to prepare the ground for a timely 
and correct transposition of the Return Directive 2008/115/EC (by convening further Contact 
Groups). In addition, from 2010 onwards, an analysis of the national implementing measures 
will have to be started in order to check the correct transposition of the Directive by Member 
States.  Finally,  the  end  of  the  transposition  period  on  24  December  2010  will  allow  the 
Commission  to  become  more  active  with  regard  to  the  numerous  complaints  and  petitions 

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related to return issues which are already now being received by the Commission. Depending 
on the number of complaints received, there will be a need for priority setting. 

14.6. 

Free movement of persons 

14.6.1.  Current position: General introduction 

Free movement of persons constitutes one of the fundamental freedoms of the internal market, 
to  the  benefit  of  EU  citizens  and  their  families,  of  the  Member  States  and  of  the 
competitiveness of European economy. It is one of the most cherished rights by 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  21(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union  stipulates  that  every 
citizen of the Union shall have the right to move and reside freely within the territory of the 
Member States, subject to the limitations and conditions laid down in the Treaties and by the 
measures  adopted  to  give  them  effect.  The  respective  limitations  and  conditions  are  to  be 
found in Directive 2004/38/EC571 which codified the existing legislation and case-law in the 
area of free movement, streamlined the procedures, cut the red tape and simplified the legal 
text in the interest of reader-friendliness and clarity. 

14.6.2.  Current position: Report on work done in 2009 

Building on the 2008 report572 on the application of Directive 2004/38/EC which concluded 
that  the  transposition  of  the  Directive  in  Member  States  was  rather  disappointing  and 
identified  a  large  number  of  shortcomings,  the  single  most  important  activity  in  2009  was 
adoption of guidelines for better transposition and application of Directive 2004/38/EC573 to 
provide guidance to Member States on how to apply Directive 2004/38/EC correctly; with the 
objective of bringing a real improvement for all EU citizens and of making the EU an area of 
security, freedom and justice. 

The  guidelines  provided  detailed  guidance  on  key  issues  covered  by  Directive  2004/38/EC 
(personal scope of family members, entry visas for family members who are not EU citizens 
themselves, sufficient resources, restrictions on grounds of public policy and public security 
and abuse and fraud, such as marriages of convenience). 

The  Council  and  the  European  Parliament  welcomed  the  Guidelines  in  JAI  Council 
Conclusions of 21 September 2009 and EP Resolution of 22 July 2009.  

571  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). 

572  COM(2008)840 final. 

573  COM(2009)313 final.  

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A newly established group of Member States’ experts on the practical application of Directive 
2004/38/EC met four times in 2009 and discussed issues related to correct application of EU 
law in the area of free movement, particularly on fighting abuses and frauds. The exchange of 
views, know-how and best practices are contributing towards improved implementation of EU 
law and the case-law of the Court of Justice of the European Union. The group will continue 
to meet on a regular basis. 

In the second semester 2009, in accordance with the priorities established in the 26th Annual 
Report  on  the  Control  of  Application  of  Community  law  (2008),  the  Commission  initiated 
bilateral meetings with Member States to discuss all the issues of implementation of Directive 
2004/38/EC  identified  as  problematic.  The  Commission  endeavours  to  meet  all  Member 
States by mid-2010. 

In 2009, the Commission continued to deal with a large number of enquiries and complaints 
in the area of free movement of persons – 1000 were replied in 2009 compared with 1070 in 
2008.  Complaints  management  was  also  a  significant  part  of  ensuring  full  and  proper 
implementation  of  Directive  2004/38/EC.  In  2009,  205  complaints  were  registered  with  the 
Secretariat-General (compared with 81 registered in 2008).  

There were 37 written EP questions and 36 petitions in the area of free movement of persons 
in 2009. 

The  Commission  also  made  an  extensive  use  of  informal  dispute-settlement  mechanisms, 
such  as  SOLVIT.  According  to  the  2009  report  on  development  and  performance  of  the 
SOLVIT  network,  number  of  cases  in  the  residence  rights  area  tripled  in  comparison  with 
2008  (549  cases  handled  and  closed  with  92  %  of  cases  solved).  The  issues  of  residence 
related  complaints  became  the  area  with  the  biggest  share  of  complaints  dealt  by  with  the 
SOLVIT for the first time ever (38 % of all complaints), underlining the significance of this 
part of EU law and expectations of EU citizens.  

In 2009, 12 cases were submitted to the EU Pilot scheme (compared with 9 in 2008). 

Concerning implementation of priorities established in the previous Annual Report in the area 
of free movement of persons for 2009, progress was satisfactory. All Article 260 TFEU (ex-
Article 228 EC) cases have been closed and progress has been made with regard to other cases 
under Article 258 TFEU (ex-Article 226 EC), where priority was given to older cases. 

Concerning  cases  raising  issues  of  principle  or  having  particularly  far  reaching  negative 
impact for citizens, the Commission closed 15 cases concerning delays in handling residence 
applications  of  third  country  family  members  of  EU  citizens  by  the  a  Member  State's 
authorities in January 2010.  

14.6.3.  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 2009 to the most important areas. 

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However, despite the efforts of the Commission, the situation in the area of free movement of 
persons requires further improvement. The report on the application of Directive 2004/38/EC 
concluded  that  the  overall  transposition  of  the  Directive  was  rather  disappointing.  The 
situation is improving only gradually. 

To address the unsatisfactory implementation, the Commission will also continue working at 
technical level with the Member States within the group of experts. The work of the group in 
2009 focused on the sensitive areas of fighting frauds and abuses. EU Member States do not 
follow one single approach (some Member States do not consider this as problematic, some 
attach major importance to these issues and EU action) and tools employed to address these 
issues  are  consequently  different  (most  of  the  Member  States  are  not  taking  any  active 
measures as they have not recorded abuses, few Member States report trends or statistics and 
have rules to be able combat abuse effectively). The disparate situation is making it difficult 
to assess the extent of the phenomenon and to suggest further action at the EU level. 

In  addition  to  incorrect  transposition  of  Directive  2004/38/EC,  many  EU  citizens  have 
complained  about  Member  States  not  implementing  correctly  their  national  law  transposing 
EU law in the area of free movement of EU citizens. The single most numerous issue in 2009 
concerned delays in handling residence applications of EU citizens and their family members 
by  one  Member  State.  Since  October  2008,  the  Commission  received  a  high  number  of 
individual complaints (300) alleging that the authorities of that Member State were failing to 
meet  the  deadlines  imposed  by  national  and  EU  law.  Following  contacts  with  the  Member 
State, a comprehensive solution was implemented and the situation is significantly improving 
(according to the MS's authorities, new applications are handled within the deadlines and the 
backlog of 77.000 cases has been halved). The Commission continues to closely monitor the 
situation.  

This  particular  issue  underlines  the  crucial  role  Member  States  play  in  practical 
implementation  of  EU  law  and  that  correct  transposition  must  be  accompanied  by  robust 
measures  enabling  national  authorities  to  effectively  apply  the  law.  This  is  even  more 
important in the areas of direct concern to large groups of EU citizens, such as with regard to 
applications for residence.  

In 2010, an improvement can be expected for the second semester, once the bilateral meetings 
between  Member  States  and  the  Commission  will  have  been  completed  and  issues  of 
transposition of Directive 2004/38/EC thoroughly discussed. The Commission expects that a 
significant proportion of the issues can be resolved or clarified through the bilateral meetings 
and ongoing discussion with Member States. Improvement of transposition must remain to be 
a priority for the Commission as it has potential to prevent future violations of EU law.  

14.6.4.  Evaluation results: Priorities 

Priorities for 2010 and beyond must be slightly changed compared to those for the previous 
period.  

The main emphasis in the next years will be to conclude infringement proceedings for non-
conformity. Priority will be also given to start package infringement cases related to incorrect 
transposition  of  Directive  2004/38/EC  and  cases  raising  issues  of  principle  or  having 

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particularly  far  reaching  negative  impact  for  citizens,  notably  with  regard  to  the  number  of 
aggrieved EU citizens. 

14.6.5.  Evaluation results: Planned action (2010 and beyond) 

In 2010 and the next 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  will  also  continue  to  inform  EU  citizens  about  their  rights  under  the 
Directive. To this end, information on the Directive will be a priority. A simplified guide on 
EU  law  for  EU  citizens  on  freedom  of  movement  will  be  updated,  published  and  widely 
distributed in 2010. 

The  Commission  will  encourage  Member  States  to  launch  awareness-raising  campaigns  to 
inform EU citizens of their rights under Article 34 of the Directive. 

14.6.6.  Summary 

The Commission attaches priority to the concrete fulfilment of the fundamental and personal 
right  of  EU  citizens  and  their  family  members  to  move  and  reside  freely.  The  transposition 
and implementation  of  the Directive in Member States  needs to be  further  improved. In the 
next years, the Commission will step up its efforts and use infringement proceedings, where 
necessary.  The  Commission  will  continue  to  work  closely  together  with  Member  States  at 
technical  level  to  provide  guidance  as  to  how  resolve  more  problematic  issues  of  free 
movement.  This,  together  with  intensified  information  to  citizens,  should  bring  real 
improvements in the daily life of EU citizens and their family members. 

14.7.  Citizenship 

14.7.1.  Current position: General introduction 

Article  22  of  the  Treaty  on  the  Functioning  of  the  European  Union  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/EC574 as regards European Parliament elections 

574  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 

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and  Directive  94/80/EC575  as  regards  municipal  elections.  Directive  1994/80  was  modified 
by Directive 1996/30/CE and Directive 2006/106/EC in view of consecutive enlargements of 
the Union. 

14.7.2.  Current position: Report on work done in 2009 

In  2009,  the  Commission  dealt  with  an  increasing  number  of  enquiries  and  complaints  on 
citizenship and electoral rights of the EU citizens: 140 (compared to 80 in 2008) of which 40 
on citizenship and 100 on electoral rights. In 2009, there were 12 written EP questions and 12 
petitions  in  this  area.  This  shows  the  increasing  awareness  and  interest  of  EU  citizens 
concerning  their  electoral  rights  and  it  clearly  reflects  that  EP  elections  were  organised  in 
2009. 

Concerning implementation of priorities established in the 26th Annual Report on the Control 
of Application of Union law in the area of citizenship, the only infringement proceeding for 
non  communication  of  Directive  2006/106/EC  (adapting  Directive  94/80/EC  on  municipal 
elections  by  reason  of  the  accession  of  Bulgaria  and  Romania  to  the  EU)  was  closed  on  8 
October 2009576.  

An  important  activity  on  electoral  matters  was  to  accompany  the  correct  implementation  of 
Directive  93/109/EC  in  the  June  2009  European  elections.  The  Commission  assisted  the 
Member  States  by  providing  updated  guidelines  to  the  national  administrations  for  the 
implementation  of  the  Directive,  and  namely  to  improve  the  efficiency  of  the  information 
exchange  system  that  the  Member  States  put  in  practice  for  preventing  double  vote  and 
double  candidacy  in  the  elections.  The  Commission  provided  information  in  its  website 
referring to the modalities of the exercise of the right to participate in the EP elections. 

14.7.3.  Evaluation based on the current situation 

Essentially,  all  Member  States  transposed  the  Union  legislation  in  electoral  matters.  No 
infringement proceedings were open as of 31 December 2009. The situation in the field of the 
electoral rights of EU citizens can be considered satisfactory. 

A compatibility study was concluded in February 2009. It covers the EU-12 Member States 
for  Directives  94/80/EC  and  93/109/EC  and  the  EU-27  for  the  1976  Act  on  European 
elections577.  This  will  assist  the  Commission  in  the  assessment  and  actions  to  be  taken  to 
ensure  the  correct  and  complete  transposition  and  implementation  of  Union  law  in  the 
national legislations.  

575  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 

576 

Infringement proceeding n°2007/0215 

577  Act of 1976 on the election of representatives of the European Parliament annexed to 
Decision 76/787/ECSC,  EEC, Euratom, last as amended by Council Decision 2002/772/EC, 
Euratom 

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A  Commission  Report  assessing  the  implementation  of  Directive  93/109/EC  is  planned  for 
2010. 

14.7.4.  Evaluation results: Priorities 

The  priorities  set  in  2009  remain  applicable  in  2010.  The  focus  is  to  ensure  conformity  of 
national  legislations  of  the  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  and  conformity  across  the  EU  member  states  with  the  1976  Act  on  the 
elections of the representatives of the European Parliament. 

14.7.5.  Evaluation results: Planned action (2010 and beyond) 

In  2010  and  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 technical level with the Member States in the group of experts and 
launch infringement proceedings when necessary. 

A  report  on  the  implementation  of  Directive  94/80/EC  (participation  of  EU  citizens  in 
municipal elections) is planned for 2011.  

On the basis of a study on possible developments of the EU law on electoral rights, launched 
in 2009 and to be concluded in 2010, the Commission will consider how to go forward with 
the modification of Directive 93/109. A proposal to amend the Directive was presented by the 
Commission  in  2006578,which  is  currently  with  the  Council.  The  objective  is  to  introduce 
more flexibility in the administrative procedure and enhancing participation. 

14.7.6.  Summary 

Electoral rights of the EU citizens accompany their right to free movement and are part of the 
rights attached to the Citizenship of the Union: EU law in the electoral field grants the right to 
the EU citizens to participate in municipal and European elections in the Member State where 
they  reside  without  holding  the  nationality  of  that  State  (Article  22  TFEU).  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, lays down common principles for the Member States in the 
organisation of the European elections. 

Transposition of Union law in electoral matters can generally be considered satisfactory.  

However,  the  Commission  should  continue  to  focus  on  checking  and  ensuring  correct 
transposition and implementation of Directives 93/109/EC and 94/80/EC and the Act of 1976, 
as amended by Council Decision 2002/772. This will need close work at technical level with 
the Member States and use of infringement proceedings, where necessary. 

578  COM(2006)791Proposal for a Council Directive amending Directive 93/109 

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The Commission shall report on the implementation of Directive 93/109/EC on EP elections 
in its Communication planned for 2010. 

14.8. 

Fundamental rights 

14.8.1.  Current position: General introduction 

Under  the  Treaty  on  the  Functioning  of  the  European  Union  and  the  Treaty  on  European 
Union, the European Commission has no general powers to intervene in individual cases of 
violations of fundamental rights. It shall however ensure that fundamental rights are protected 
in the application of Union law.  

Since  the  entry  into  force  of  the  Lisbon  Treaty,  the  corpus  of  rule  ensuring  the  respects  of 
fundamental  rights  within  the  Union  was  enriched  by  the  inclusion  of  the  Charter  of 
Fundamental  Rights,  which  is  now  legally  binding.  The  foreseen  adhesion  of  the  EU  to  the 
European convention of Human rights will supplement the whole framework.  

The  important  number  of  letters  received  by  the  Commission  reveals  a  strong  interest  and 
expectation  from  citizens  on  fundamental  rights  in  the  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 
Union law is involved. 

Nevertheless, the Commission shall ensure that when implementing EU legislation, Member 
states  strictly  respects  fundamental  rights  and  cases  involving  fundamental  rights  should  be 
treated as a matter of priority. This obligation will become even more essential when the EU 
will gain full membership to the European Convention of Human rights.  

14.8.2.  Current position – Report on work done in 2009 

In 2009, the Commission received a number of individual letters and parliamentary questions 
as well as petitions generally concerning alleged violations of fundamental rights by Member 
States:  approximately  950  letters  and  more  than  140  parliamentary  questions  and  petitions. 
Most  of  the  individual  cases  do  not  involve  Union  law  and  fall  outside  the  powers  of  the 
Commission to control the application of Union law. 

In  2009,  following  a  number  of  allegations  of  ill  treatment  of  migrants  at  the  border,  the 
Commission initiated an infringement procedure against one Member State for failing to fulfil 
its obligation to respect fundamental rights when implementing the Schengen Borders Code. 
The infringement procedure also concerns a breach of the EU Asylum acquis. 

14.9. 

Protection of personal data 

14.9.1.  Current position: Report on work done in 2009 

The  Commission  continued  the  monitoring  of  the  correct  application  of  the  Directive 
95/46/EC  on  data  protection,  the  main  piece  of  legislation  in  this  area.  It  continued  to  find 
pro-active  solutions  outside  or  in  parallel  with  the  infringement  procedures  through  the 

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'structured  dialogue'  or  bilateral  meetings  organised  with  Member  States  to  discuss  mainly 
infringement cases as well as through the EU Pilot (five new files opened in 2009).  

Around  160  letters  and  46  parliamentary  questions  were  received.  There  were  a  total  of  10 
petitions in 2009. 

In 2009, out of total 17 infringement cases in the data protection field, four cases were closed. 
There  were  a  higher  number  of  cases  referring  to  the  incorrect  application  of  the  data 
protection directive than to the non-conformity.  

14.9.2.  Evaluation based on the current situation 

The  situation  and  volume  of  work  in  2009  was  stable  regarding  the  infringement  cases, 
although the number of letters and enquiries has increased. 

14.9.3.  Evaluation results: Priorities and planned action (2010 and beyond) 

Due  to  the  relatively  small  number  of  infringement  cases  in  the  field  of  data  protection,  no 
prioritisation was applied to them. 

Besides  the  continuous  task  of  monitoring  the  correct  application  of  the  Data  Protection 
Directive  95/46/EC,  three  studies  will  be  launched  in  2010  and  will  form  the  basis  of  the 
future revision of the data protection legal framework: 

3rd implementation report related to Directive 95/46/EC; 

study  for  the  evaluation  and  impact  assessment  for  the  future  EU  legal  framework  for 
personal data protection; 

evaluation and an impact assessment of the data protection legal framework in all areas of the 
Union’s activities. 

14.10.  Judicial cooperation in civil matters 

14.10.1. Current position: Report on work done in 2009 

•  The  Commission  continued  the  monitoring  of  the  correct  application  of  the  civil  justice 
acquis.  In  order  to  ensure  the  proper  implementation  of  that  acquis,  the  Commission 
adopted two implementation reports in 2009. 

•  In April 2009, the Commission adopted a Report evaluating the application of Regulation 
44/2001  (Brussels  I)  and  issued  a  Green  paper  in  order  to  identify  ways  to  improve  its 
functioning. 

•  Report  from  the  Commission  to  the  European  Parliament,  the  Council  and  the  European 
Economic  and  Social  Committee  on  the  application  of  Council  Regulation  (EC)  No 
44/2001  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial matters. 

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The Report concludes that Regulation (EC) No 44/2001 has been generally well received by 
the  courts  and  the  public  and  that  it  is  generally  operating  smoothly.  Only  certain  limited 
difficulties have been reported, relating to rules on jurisdiction. They concern in particular the 
coordination  of  parallel  judicial  proceedings  before  the  courts  of  the  Member  States,  the 
autonomy of parties who agree on a choice of court to apply to and the parallel application of 
the EU rules on choice of court with the new international rules on the subject. These issues 
must  be  examined  with  a  view  to  a  revision  of  the  Regulation,  on  the  basis  of  a  public 
consultation, that would incorporate appropriate solutions to the difficulties identified. 

•  Green Paper on the review of Council Regulation (EC) No 44/2001 on jurisdiction and the 

recognition and enforcement of judgments in civil and commercial matters. 

This  Green  Paper  accompanies  the  Report  on  the  implementation  of  Regulation  (EC)  No 
44/2001, suggests possible solutions to the difficulties identified and discussed in the Report 
and  asks  a  number  of  questions.  The  Report  and  the  Green  Paper  will  form  the  basis  of  a 
wide-ranging  public  consultation  on  the  future  revision  of  Regulation  (EC)  No  44/2001 
scheduled for the year 2011. 

Also  in  April  2009,  the  Commission  issued  a  Report  on  Directive  2004/80/EC  on  crime 
victims: 

•  Report  on  the  application  of  Council  Directive  2004/80/EC  relating  to  compensation  of 

compensation to crime victims. 

The Report shows that  

–  all  Member  States  but  one  have  enacted  national  measures  transposing  the  Directive; 
infringement proceedings have been started against the one Member State that has so far 
failed to do so;  

–  not all implementing measures have been brought into line;  

–  the Member States are providing fair and appropriate compensation for victims; substantial 

degree of conformity seems to have been achieved across the Member States; 

–  although the decision-makers and those in charge of providing assistance are satisfied with 
the  way  in  which  the  present  system  is  working,  applicants  for  compensation  find  the 
application  procedure  complicated  and  time-consuming,  and  the  language  barrier  is  a 
serious obstacle to processing victims' claims.  

While  the  Directive  has  improved  cooperation  between  the  Member  States'  authorities  and 
made  it  easier  for  victims  of  crime  to  obtain  compensation,  it  has  not  yet  been  possible  to 
exploit its full potential.  

Besides the reports, the Commission supported the Member States by giving guidance in the 
form  of  the  Practice  Guides,  drafted  in  cooperation  with  the  European  Judicial  Network  in 
Civil and Commercial Matters. In 2009, a Practice Guide on the Application of the Regulation 

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on  European  Enforcement  Order  established  by  Regulation  (EC)  No  805/2004579  was 
distributed  amongst  the  legal  professionals.  A  practical  guide  "Using  videoconferencing  to 
obtain evidence in civil and commercial matters under Regulation (EC) No 1206/2001" was 
also finalised. 

14.10.2. Evaluation based on the current situation 

•  The major issue in the area of civil justice was that the Commission decided to take Greece 
to the Court under Article 260 TFEU (ex-228 TEC) demanding financial sanctions because 
Greece had failed to implement the EJC Decision issued in 2007 on the non-notification of 
national  implementing  measures  under  Council  Directive  2004/80/EC  relating  to 
compensation of compensation to crime victims. This infringement is pending at the end of 
2009. 

•  The  number  of  formal  complaints  pending  handling  decreased  from  18  in  2008  to  10  in 
2009.  Their  limited  number  does  not  require  prioritization  of  their  treatment.  Besides 
assessment  of  complaints,  the  Commission  is  contributing  to  correct  interpretation  of 
acquis through observations to the preliminary questions to the Court of Justice. In 2009, 
observations  were  given  in  around  14  civil  justice  cases,  one  of  them  being  a  "PPU" 
(urgent procedure). 

•  In 2009, as in 2008, a special attention was paid to the correct application of Regulation 
(EC) No 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  all  over  the  EU.  There  is  one  infringement  case 
relating the Brussels IIa Regulation pending at the end of 2009. 

•  The number of preliminary questions 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  EU  law  of  the 
national  court  hearing  the  case  depends  on  the  answer  to  the  question  referred  for  a 
preliminary ruling. In this context, a request for an urgent preliminary ruling (PPU) on a 
case of parental child abduction was submitted to the Court of Justice in November 2009 
(case C-403/09 PPU). The Court, in its answers to the referral questions, confirmed that the 
law of the Union does not allow a court of a Member State to take provisional measures in 
matters of parental responsibility granting custody of a child who is in the territory of that 
Member State to one parent, where a court of another Member State, which has jurisdiction 
as to the substance of the dispute relating to custody of the child, has already delivered a 
judgment provisionally giving custody of the child to the other parent, and that judgment 
has been declared enforceable in the former Member State. 

Other options for the Commission to avoid violations of the civil justice acquis are to improve 
the  knowledge  of  the  acquis  through  further  training  of  practitioners  (judges,  central 

579   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 
30.04.2004  

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authorities  and  lawyers)  as  well  to  promote  the  use  of  mediation  in  the  settlement  of  civil 
disputes,  including  family  disputes  to  prevent  that  these  disputes  are  brought  before  the 
courts.  The  Commission  is  assisted  also  by  the  European  Judicial  Network  in  Civil  and 
Commercial  Matters,  which  helps  in  the  correct  implementation  of  the  acquis  through 
collaboration  between  contact  points.  The  Commission  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 and to make it easier to ensure that 
EU legislation is properly applied in practice.  

14.10.3. Evaluation results: Priorities 

Increased  attention  needs  to  be  paid  in  the  coming  years  to  the  full  and  effective 
implementation,  enforcement  and  evaluation  of  existing  instruments.  Legal  transposition 
should be ensured using, to its fullest extent, wherever necessary, existing institutional tools. 

The  Union  should  focus  on  identifying  the  needs  of  citizens  and  practitioners  and  the 
appropriate  responses.  The  development  of  action  at  Union  level  should  involve  Member 
States’ expertise and consider a range of measures, including non-legislative solutions such as 
agreed handbooks, sharing of best practice and regional projects that address those needs, in 
particular where they can produce a fast response. 

14.10.4. Evaluation results: Planned action (2010 and beyond) 

a) Consumer legislation 

Negotiations  on  the  proposal  for  a  Directive  on  Consumer  Rights  will  continue  in  2010.  It 
may be possible to secure political agreement in Council and a first reading opinion from the 
European Parliament before the end of the year, with a view to a final adoption in 2011. Once 
adopted, this Directive will increase consumer confidence by ensuring that consumers benefit 
from the same rules wherever they shop. It will also make life easier for business by removing 
the internal market obstacles created by the fragmentation of consumer laws. 

Furthermore,  the  Commission  will  finalise  the  impact  assessment  for  a  possible  future 
revision of the  Package Travel  Directive. Recent developments in the travel market such as 
the emergence of low-cost air carriers and bookings on the Internet have led to a considerable 
decrease in the market share of traditional package tours. As a consequence, fewer consumers 
are protected by the Directive when going on holiday. There is therefore a need to revise the 
Directive  to  ensure  that  it  is  adapted  to  the  current  market  situation.  Following  the  impact 
assessment a proposal could be adopted in early 2011. 

b) Contract law 

In the area of contract law, the Commission will consult in 2010 on the scope and form of a 
Common Frame of Reference, which could act as toolbox for the EU legislator when tabling 
proposals with contract law elements.  

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14.11.  Judicial cooperation in criminal matters 

14.11.1. Current position: Report on work done in 2009 

There  are  currently  12  mutual  recognition  instruments  in  Criminal  law,  out  of  which  five 
ought  to  have  been  implemented  by  2009,  or  earlier.  Legislation  in  this  sector,  formerly 
included in the third pillar, experiences belated and partial implementation by Member States, 
with  the  exception  of  Framework  Decision  2002/584/JHA  on  the  European  Arrest  Warrant, 
which has been transposed  by all Member  States. Since the  Framework Decision  came  into 
operation,  in  general  the  time  taken  to  execute  a  warrant  is  provisionally  estimated  to  have 
fallen from more than nine months to five weeks. This does not include frequent cases where 
the person consents to surrender, for which the average time taken is two weeks.  

Three other instruments out of those due have been merely partially implemented so far. More 
specifically, the situation with these instruments is the following: 

Council  Framework  Decision  2005/214/JHA  of  24  February  2005  on  the  application  of  the 
principle of mutual recognition to financial penalties580 has been implemented in 17 Member 
States, while notifications from ten Member States are still missing. The Framework Decision 
applies the principle of mutual recognition to financial penalties imposed by judicial or other 
authorities,  for  the  purpose  of  facilitating  enforcement  of  such  penalties  in  a  Member  State 
other than the one in which the penalties were imposed. The Framework Decision applies to 
all offences in relation to which financial penalties can be imposed. Dual criminality checks 
were abolished in relation to 39 offences listed in the Framework Decision. 

Besides  the  significant  delays  in  its  transposition  (by  the  time  the  report  on  implementation 
was  published  by  the  Commission  in  December  2008581  only  eleven  Member  States  had 
transposed it fully or partially), the quality of implementation leaves much to be desired.  

While  some  of  the  most  important  issues  such  as  the  abolition  of  dual  criminality  and  the 
recognition of decisions without further formality are properly reflected in the implementing 
provisions, the grounds for refusal have been implemented mostly as obligatory grounds and 
additional grounds have been added in contravention of the Framework Decision.  

Little information is available on the practical application of the provisions of the Framework 
Decision,  although  recent  workshops  organised  by  the  Commission  have  demonstrated  an 
increasing cross-border use between certain member States. 

Council  Framework  Decision  2003/577/JHA  of  22  July  2003  on  the  execution  in  the 
European  Union  of  orders  freezing  property  or  evidence582  has  been  implemented  by  23 

580  Council Framework Decision 2005/214/JHA of 24 February 2005 on  the application 
of the principle of mutual recognition to financial penalties, OJ L 76/16 of 22.3.2005. 

581  Report from the Commission based on Article 20 of the Council Framework Decision 
2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition 
to financial penalties, COM(2008) 888 final. 

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Member  States.  It  applies  the  principle  of  mutual  recognition  to  orders  freezing  property  or 
evidence. It aims at ensuring that evidence or property located in one Member State can be 
frozen on the basis of a decision taken by a judicial authority in another Member State. There 
have been significant delays in its transposition by the Member States. The report issued by 
the  Commission  in  December  2008583  shows  that  the  implementation  of  this  text  is  not 
satisfactory. By December 2008, only nineteen Member States transposed it fully or partially 
and  the  national  legislations  show  numerous  omissions  or  misinterpretations.  Little 
information  is  available  on  the  practical  application  of  the  legislation.  Feedback  from 
practitioners seems to indicate that the certificate to request the execution of freezing orders is 
rather difficult  to  complete and does not contain all the necessary fields. Therefore, judicial 
authorities tend to revert to the standard mutual legal assistance forms.  

Council  Framework  Decision  2006/783/JHA  of  October  2006  on  the  application  of  the 
principle  of  mutual  recognition  to  confiscation  orders  applies  the  principle  of  mutual 
recognition  to  confiscation  orders  issued  by  a  court  competent  in  criminal  matters  for  the 
purpose of facilitating enforcement of such confiscation orders in a Member State other than 
the  one  in  which  the  confiscation  order  was  issued.  The  Framework  Decision  applies  to  all 
offences in relation to which confiscation order can be issued. Dual criminality checks were 
abolished in relation to 32 categories of offences listed in the Framework Decision. 

At  present,  notifications  on  the  implementation  of  the  Framework  Decision  have  been 
received from twelve Member States. 

The  Framework  Decision  provides  for  the  publication  of  an  implementation  report  by  the 
Commission by 24 November 2009. The report is underway and will be issued later in 2010. 
The delay in preparing this report results from the low number of notifications received by the 
deadline  set  by  the  Framework  Decision  -  only  two  notifications  were  received  on  time. 
Besides the significant delays, it appears already now that the quality of implementation is not 
satisfactory, with most national legislations flawed by omissions or misinterpretations even of 
essential provisions. 

14.11.2. Evaluation based on the current situation 

Since  the  rules  currently  in  force  do  not  allow  the  Commission  to  initiate  infringements 
proceedings in this field (for a transitional period of five years from the entry into force of the 
Lisbon  Treaty),  DG  JLS  decided  last  year  to  launch  an  array  of  initiatives  designed  to 
improve the implementation record in this area by providing Member States' administrations 
with  guidance  and  help  during  the  implementation  stage.  These  initiatives  have  included:  a 
series  of  workshops  with  national  legislators  and  practitioners  on  Framework  Decisions 
2003/577/JHA  on  freezing  order  and  2005/214/JHA  on  financial  penalties  (two  pieces  of 
legislation  with  the  longest  overdue  implementation  deadline);  guidance  papers  for  the 

582  Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the 
European Union of orders freezing property or evidence, OJ L 196 of 2.8.2003, p. 45. 

583  Report from the Commission based on Article 14 of the Council Framework Decision 
2003/577/JHA  of  22  July  2003  on  the  execution  in  the  European  Union  of  orders  freezing 
property or evidence, COM(2008) 885 final. 

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national  legislators  and  handbooks  for  practitioners;  streamlined  contact  with  national 
authorities  responsible  for  implementation;  participation  in  national  training  for  judicial 
professions. 

14.11.3. Evaluation results: Priorities and planned action (2010 and beyond) 

Action  started  last  year  will  be  continued  and  stepped  up  in  order  to  improve  the 
implementation record of mutual recognition instruments in the EU. In an attempt to prevent 
problems stemming from implementation at an earlier stage, Implementation Workshops with 
national  legislators  and  practitioners  this  year  will  concern  not  only  Framework  Decision 
2006/783/JHA on confiscation orders (with implementation deadline already passed), but also 
Framework  Decisions  2008/947/JHA  on  probation  measures584  and  2008/909/JHA  on 
custodial  sentences585,  for  which  the  implementation  period  is  still  running.  Streamlined 
contacts  with  Member  States  may  include,  especially  from  2011,  implementation  "package 
meetings" in the capitals, where all the different services involved in the implementation work 
could benefit from the expertise of the Commission services. Handbooks on the application of 
the Framework Decisions on Freezing and Financial Penalties will be published.  

Security 

14.12.  Data Retention Directive 

14.12.1. Current position: Report on work done in 2009 

On 15 September 2007, the Member States should have brought into force legal instruments 
to comply with the Data Retention Directive 2006/24/EC586. 18 Member States587 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. This situation means that with regard to the majority of 
Member States, the procedures for infringement will happen in two steps.  

584  Council Framework Decision 2008/947/JHA of 27 November 2008 on the application 
of the principle of mutual recognition to judgments and probation decisions with a view to the 
supervision of probation measures and alternative sanctions, OJ L 337/102, 16.12.2008 

585   Council Framework Decision 2008/909/JHA of 27 November 2008 on the application 
of  the  principle  of  mutual  recognition  to  judgments  in  criminal  matters  imposing  custodial 
sentences or measures involving deprivation of liberty for the purpose of their enforcement in 
the European Union, OJ L 327/27, 5.12.2008 

586   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 , 13.04.2006 

587  The  Netherlands,  Austria,  Estonia,  United  Kingdom,  Cyprus,  Greece,  Luxemburg, 
Slovenia,  Sweden,  Lithuania,  Latvia,  Czech  Republic,  Belgium,  Poland,  Finland,  Germany 
and upoon accession Bulgaria and Romania. 

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In 2009, the Commission continued the non-communication cases against six Member States. 
In  November  2009  it  addressed  a  reasoned  opinion  to  Luxembourg.  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  and  the  evolution  of  the  transposition,  the  Commission 
referred  the  non-communication  cases  regarding  Austria,  Greece,  Ireland,  the  Netherlands, 
Sweden and Poland to the Court. After reception of the national legislation of the Netherlands 
and Poland, the cases for failure to notify legislation against these states were discontinued.  

With regard to the application of the second ('internet') part of the Directive as of 15 March 
2009,  the  Commission  is  continuing  to  examine  the  situation  in  those  Member  States  that 
might have not transposed the Directive correctly.  

14.12.2. Evaluation based on the current situation 

In  the  course  of  the  evaluation  process,  the  Commission  noted  at  many  occasions  that  the 
transposition  and  application  of  the  Directive  was  done  in  a  very  heterogeneous  manner.  In 
order  to  establish  whether  the  different  solutions  are  in  line  with  the  Directive,  the 
Commission must make an in-depth analysis of the national legislations. This, however, is a 
highly  time-consuming  task,  since  the  national  transposition  of  the  Directive  is  often 
embedded in an existing intricate web of national legislation, both in the field of transport and 
communication as well as in the field of law enforcement and criminal proceedings. 

In  that  respect,  procedural  monitoring  has  been  feasible  because  of  all  DRD-related 
infringement cases against Member States so far have been cases of non-communication. The 
legal enforcement of the correct application of this Directive requires more work.  

The Commission has observed that the Data Retention Directive is politically highly sensitive 
in most Member States. National parliaments and civil society are critical. This, and the fact 
that intensive analysis of the market impact and consultation with stakeholder groups on both 
privacy issues and complex technicalities that come with implementation of the Directive are 
necessary, suggests that the initial deadline for transposition may have been too ambitious. 

Article 10 of the Directive provides that "Member States shall ensure that the Commission is 
provided  on  a  yearly  basis  with  statistics  on  the  retention  of  data  generated  or  processed  in 
connection with the  provision  of publicly available  electronic  communications services or a 
public  communications  network  (…)".  For  this  purpose,  the  Commission  designed,  in 
consultation with stakeholder groups, a template with categories of data that Member States 
have  to  provide  to  the  Commission.  However,  only  11  Member  States  provided  the 
Commission with their statistical information over 2008. This signals that the provision in the 
Directive on statistics is not fully applied by all Member States.  

A general point of attention based on the evaluation of the operation of the Directive under its 
Article  14,  is  the  need  to  also  analyse  secondary  legislative  measures  as  part  of  legislation 
transposing a Directive without which the formally notified law does not apply. For example, 
some Member States notified legislation that would allegedly have transposed the Directive. 
However,  the  Commission  later  found  out  that  the  national  legislation  was  not  actually 

EN 

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applied in the Member State concerned, because a (royal or presidential) decree necessary for 
the transposing law to enter into force had not yet been adopted.  

On  8  October  2009,  the  Romanian  constitutional  court  ruled  that  the  Romanian  national 
legislation transposing the Directive had to be considered unconstitutional and was therewith 
void. This has created a situation where the notified transposition law as a whole is no longer 
applicable in the Member State. The German constitutional court delivered a judgement with 
similar  effect  on  2  March  2010.  The  Commission  will  ensure  that  the  Directive  is  applied 
properly in all Member States.  

Accurate  and  up-to-date  knowledge  of  the  legislation  in  force  in  the  Member  States  is 
necessary  to  monitor  the  application  of  EU  legislation  and  inform  infringement  procedures. 
An obligation for the Member States to inform the Commission not only about the formal law 
that  it  adopted  to  transpose  a  Directive,  but  also  of  subsequent  amendments  to  that  law,  or 
when  replaced  by  another  law  would  facilitate  Commission's  tasks.  As  a  matter  of  good 
governance, it would also contribute to inter alia transparent administration of the law, legal 
certainty  for  citizens  and  enterprises  and  also  to  ensure  a  level  playing  field  for  economic 
operators.  Furthermore,  national  jurisdictions,  including  constitutional  and  administrative 
courts,  may  adopt  judgements  that  substantially  affect  the  application  of  the  law  or  related 
secondary legislation. Further attention will have to be paid to these issues to reinforce current 
means available to ensure the correct application of EU law. 

14.12.3. Evaluation results: Priorities and planned action (2010 and beyond) 

Article 14 of the Directive 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. 

The Commission will advance its infringement cases. 

14.13.  European Programme for Critical Infrastructure Protection 

14.13.1. Current position: General introduction 

Directive  2008/114/EC  on 
the  Identification  and  Designation  of  European  critical 
infrastructures and the assessment of the need to improve their protection588 was adopted in 
December 2008 and entered into force in January 2009.  

The objectives of the Directive are: 

–  establishment of a procedure to identify European Critical Infrastructures (ECIs); 

–  establishment of a procedure to designate infrastructures as European Critical 

Infrastructures; 

588   OJ L 345 of 23.12.2008 

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–  devising a common approach to assess whether it is necessary to improve the protection of 

such infrastructures. 

14.13.2. Current position – Report on work done in 2009 

As the deadline for the implementation of the Directive 2008/114/EC is January 2011, most of 
the  Member  States  are  working  on  the  identification  of  potential  ECIs  in  the  energy  and 
transport  sectors.  Generally,  either  already  existing  or  new  fora/working-groups,  bringing 
together  the  relevant  national  ministries  or  agencies  as  well  as  association  of  operators,  are 
proceeding with the first stages of the identification procedure at national level. 

The  Commission  continued  offering  its  support  to  this  process.  Two  implementation 
workshops  have  already  taken  place  at  the  Joint  Research  Centre  in  Ispra,  with  the  view  to 
exchange practices and information on the implementation procedure in Member States. Both 
workshops also provided fora to discuss the general framework of the review of the Directive, 
and  both  Member  States  and  Commission  made  preliminary  contributions  as  regards  the 
structure and content of the process leading to the review. 

14.13.3. Evaluation based on the current situation 

The situation and volume of work in 2009 was stable and focused on exchanging information 
and  good  practices  on  the  identification  and  designation  of  ECI  experience  in  the  Member 
States. 

14.13.4. Evaluation results: Priorities and planned action (2010 and beyond) 

The review of the Council Directive 2008/114/EC  will begin on  12 January 2012, i.e. three 
years  after  its  entry  into  force.  For  a  smooth  review  process  mutual  trust  and  a  sound 
discussion basis between Member States, the Commission and the European Parliament must 
be  established  as  early  as  possible.  This  is  particularly  important  as  the  legal  basis  of  the 
Directive changed since the entry into force of the Lisbon Treaty.  

The  voluntary  "implementation"  workshops  and  the  CIP  contact  point  meetings  will  remain 
the  backbone  of  the  review  process  throughout  2010  and  beyond.  If  needed,  extra  meetings 
could be added, or side-events dedicated to preparing the review could be organised.  

The  Commission  will  deliver  summary  reports  providing  the  results  from  these  workshops. 
Shortly  before  the  actual  start  of  the  review  process  (12  January  2012),  the  Commission 
supported  by  the  Member  States  will  put  forward  a  general  report  summarising  the  overall 
preparatory  activities.  This  report  will  be  the  starting  point  for  the  political  discussions  at 
Council level. 

14.14.  Third pillar instruments – police and criminal justice cooperation 

14.14.1. Current position: Report on work done in 2009 

Monitoring  in  the  context  of  third  pillar  instruments  was  mainly  done  on  the  basis  of 
implementation reports. These had to be produced following specific provisions in articles in 
the legal instrument itself.  

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Similarly,  under  Article  11  of  the  Framework  Decision  2002/475/JHA  of  13  June  2002  on 
combating terrorism, the Commission has to draw up a written report on the measures taken 
by the Member States to comply with this instrument. 

In  accordance  with  that  Article,  a  first  implementation  report  from  the  Commission  was 
adopted on 8 June 2004. The Council's response to the Commission's report was adopted on 
25 and 26 October 2004 and it decided to invite those Member States which had not yet fully 
complied  with  the  Framework  Decision  to  do  so  as  soon  as  possible  and  to  provide 
information  on  progress  made;  invite  the  Member  States  concerned  to  provide  further 
information  as  asked  for  in  the  Commission's  report;  and  invite  the  new  Member  States  to 
provide information on their implementation of the Framework Decision. On the basis of the 
Council's  response,  a  second  evaluation  report  from  the  Commission  was  adopted  on  6 
November 2007.  

In  the  case  of  the  Council  Framework  Decision  2008/919/JHA  of  28  November  2008 
amending Framework Decision 2002/475/JHA, Article 3 requests Member States to take the 
necessary  measures  to  comply  with  the  Framework  Decision  by  9  December  2010.  During 
2010, the Commission intends to assist Member States by organising an expert meeting on the 
implementation of the Framework Decision. If there is a need, the Commission will organise 
a follow-up meeting. 

The  Commission  is  currently  preparing  an  update  of  the  first  implementation  report  on  the 
application of Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption 
in the private sector. 

The  Swedish  Framework  Decision  (Council  Framework  Decision  2006/960/JHA589) 
concerning the simplification of the exchange of information and criminal intelligence across 
the European Union requires that the Commission submit an evaluation report to the Council 
before  18  December  2010.  Just  four  months  after  the  original  implementation  deadline  had 
expired,  the  Commission  organised  a  conference  that  sought  to  review  the  implementation 
experience of this instrument. The outcome of that 2009 conference, including detailed replies 
to the Commission's questionnaire, will feed into a second conference on implementation, to 
be  organised  in  the  second  half  of  2010.  The  Commission  will  then  finalise  its  evaluation 
report before 18 December 2010. 

The Prüm Decisions (Council Decision 2008/615/JHA590 and 2008/616/JHA591) concerning 
the  automated  exchange  of  DNA,  fingerprints  and  car  registration  data  are  currently  being 

589   Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the 
exchange of information and intelligence between law enforcement authorities of the Member 
States of the European Union, OJ L 386/89 of 29.12.2006 

590   Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border 
cooperation, particularly in combating terrorism and cross-border crime, OJ L 210/1 of 6.8.2008 

591   Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 
2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation,  particularly  in  combating 
terrorism and cross-border crime, OJ L 210/12 of 6.8.2008 

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implemented by Member States. As of this date, 10 Member States have been authorised by 
the Prüm Treaty's Council of Ministers to exchange DNA; five to exchange fingerprints data; 
and seven to exchange car registration data. The Commission is playing an active role in the 
rolling  evaluation  of  this  instrument  and  has  recently  launched  its  ambitious  European 
Information  Exchange  Model  exercise,  which  seeks  to  'map'  the  current  landscape  of 
information exchange in the EU. This mapping exercise will later feed into the Commission's 
evaluation of the Prüm Decisions, which must be completed before 28 July 2012.  

14.14.2. Evaluation based on the current situation 

It is to be noted that due to particular nature of the third pillar legislation, it takes a long time 
and several reminders - through Council Working groups - before the Commission obtains the 
requested information, which often vary in terms of quality 

14.14.3. Evaluation results: Priorities and planned action (2010 and beyond) 

A second Report on the implementation of the Framework Decision 2003/568 on combating 
corruption  in  the  private  sector  and  a  Report  on  the  implementation  of  the  Decision 
2007/845/JHA concerning cooperation between Asset Recovery Offices of the Member States 
in the field of tracing and identification of proceeds from, or other property related to, crime, 
are foreseen for 2010.  

With the entry into force of the Lisbon Treaty, other measures in support of implementation 
of former third pillar legislation could be envisaged (developing guidelines, regular meetings 
of  national  experts,  using  a  network  of  contact  points  or  expert  groups)  depending  on  the 
particular  instruments.  As  regards  the  Framework  Decision  2005/222  on  attacks  against 
information systems, the annual meeting of cyber crime experts of Member States is likely to 
be partially used to discuss the state of play as regards the implementation. 

15. 

TRADE 

Trade  policy  is  governed  by  Article  207  of  the  Treaty  on  the  Functioning  of  the  Eruopean 
Union.  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.592    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 

592   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. 

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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.  There were no infringements cases open during 2009 in the field of 
trade policy. 

It is not expected that there will be any significant work required on the transposition of these 
directives or other potential infringements in 2010. 

16. 

ENLARGEMENT 

16.1.  Current  position  -  Most  important  legal  instruments  and  related  work  and 

reporting on 2009 

16.1.1.  General instruction 

Enlargement  policy  is  based  on  Article  49  TEU.  Association  agreements  with  candidate 
countries or potential candidates may contain certain rights and obligations which are directly 
applicable under EU law. Violation of such provisions by a Member State could therefore be 
subject to infringement proceedings. 

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), Croatia (2005), Albania (2009) and Montenegro (2010) fall into the same 
category  of  EU  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  Serbia  and  Bosnia  and  Herzegovina  have  not  yet  entered  into 
force. 

16.1.2.  Report of work done in 2009 

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 EU law by Member States. Recourse to 
infringement proceedings is therefore very limited in the area of enlargement. 

In  a  case  on  the  interpretation  of  standstill  clauses  under  the  EEC-Turkey  Association 
Agreement referred by a Dutch Court for preliminary ruling, the ECJ found in its judgement 
of  September  2009  that  the  Dutch  legislation  and  practice  to  charge  Turkish  workers  in  the 
Netherlands markedly higher fees for issuing or prolonging their residence permits than those 
required for EU nationals in a comparable situation violates EU law. In a similar case referred 
to  the  Court  by  the  Commission,  a  hearing  was  organised  in  November  2009,  providing  the 
basis for the Court to confirm and further develop its jurisprudence on standstill clauses also 
with  regard  to  Turkish  nationals  benefiting  from  the  Association  Agreement's  provisions  on 
freedom  of  establishment  and  freedom  to  provide  services,  in  full  compliance  with  the 
Commission's submissions . 

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In 2009, 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  being  examined  with  the  governments  concerned.  Following  comprehensive 
explanations  by  the  government,  the  Commission  continued  to  thoroughly  assess  possible 
infringements in several other cases, which concern the compatibility of mandatory integration 
exams for Turkish nationals working in a Member State as well as the increase of the minimum 
age of Turkish citizens for issuing residence permits. 

16.2.  Evaluation based on the current situation 

Since EU enlargement in 2004 and 2007, the 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. One of the 
reasons  may  be  that  Member  States aim to limit the migration of third country nationals and 
their family members without differentiating between various categories of third countries and 
established rights of their nationals. 

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 has slightly increased but does 
not yet require additional prioritisation among them. 

16.3.  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. However, given the number of pending cases and the expected increase of 
complaints  following  recent  judgements  of  the  Court  on  standstill  clauses  under  the 
EEC/Turkey Association Agreement, Enlargement DG will increase in 2010 its resources in 
order to accelerate the handling of cases. 

16.4. 

Summary by sector 

Infringement  procedures  in  the  area  of  enlargement  are  rare  in  comparison  to  other  policy 
areas.  All  pending  cases  at  the  Court  and  the  Commission  concern  the  alleged  violation  of 
theEEC/Turkey 
directly  applicable  provisions,  particularly  standstill  clauses,  under 
Association Agreement. 

17. 

EUROSTAT 

17.1.  Current position- 

The  objective  of  having  statistics  of  quality  is  both  an  operational  and  a  legal  requirement 
insofar as European statistics production must respect the principles set out in Article 338 of 
the  EU  Treaty  and  in  Regulation  (EC)  No  223/2009  of  the  European  Parliament  and  of  the 

EN 

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Council  of  11 March  2009  on  European  statistics593,  and  in  the  various  sectoral  legislative 
instruments594 and responds to the following general approach. 

Moreover,  in  accordance  with  Decision  1578/2007/EC  on  the  Community  statistical 
programme 2008 to 2012595, compliance monitoring of European legislation in the field of 
statistics  is  a  specific  objective  of  strategic  importance  for  the  medium  to  long-term 
development of European statistics: 

"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". 

17.2.  Report on 2009 

Since  2006,  several  Reports  (annual  or  biannual)  inform  about  the  state  of  play  and  to 
recommend possible follow-up actions. In addition, the ESS Committee (European Statistical 
System Committee) has been informed in 2009 of the actions recently carried out in the field 
of compliance monitoring.  

Main outcome of the 2009 report: 

As  for  the  previous  years,  the  non-compliance  with  the  transmission  deadlines  remains  the 
principal problem. However, and even if a large part of the statistical legislation is affected by 
this  transmission  problem,  constant  work  and  frequent  operational  contacts  allow  a  regular 
improvement of the respect of legislation.  

Furthermore, it appears also that the evaluation of quality remains a difficult exercise, even at 
operational level. However, Regulation (EC) No  223/2009  establishes a new framework  for 
quality (article 12) with a list of specific criteria which should be used for the assessment of 
quality.  Those  criteria  should  be  systematically  included  in  all  new  statistical  legislation 
through a standard article. 

 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 with the National Institutes.  

593   OJ L 87, 31.3.2009, p. 164 

594  
As an indication, the legal corpus in the field of statistics comprises around 300 acts of 
secondary legislation, of which about one third are basic acts, i.e. acts of the Council and/or of 
the EP. 

595  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 

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It  is  important  to  notice  that  in  order  to  assure  a  complete  follow  up  of compliance  with 
European 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. 

Nevertheless, the Annual Compliance Monitoring Reports do not encompass the issue of non-
compliance with methodological requirements established by European statistical legislation. 

17.3.  Evaluation Results 

European statistical legislation is mainly composed of Regulations. In this area there only are 
5 Directives.  

Possible  difficulties  to  apply  European  statistical  legislation  are  anticipated  and  addressed 
when preparing any draft legislative proposal, which is always the result of close cooperation 
with Member States. In addition, the measures of implementation of the basic acts (as adopted 
by comitology procedures) are prepared and discussed with 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, 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.  

The partnership approach has so far led to clear improvements. The administrative letters sent 
in  the  pre-infringement  phase  have  indeed  had  a  positive  effect  and  the  encouraging  results 
show  how  useful  and  effective  this  strategy  is.  The  successive  reports  confirmed  that  the 
Member  States  at  fault  are  making  a  serious  effort  to  comply  when  they  are  challenged  at 
suitable level and that, in the majority of the cases, Member States react positively to formal 
reminders. Thus a solution to the difficulties could be found thanks to reciprocal collaboration 
between the National Institutes and Eurostat's services. 

It is worth noting that in May 2009, the European Statistical System Committee expressed its 
support to this approach. 

17.3.1.  Priorities 

The main priority in this area concerns the efficient co-operation with the Member States to 
improve  the  quality  of  European  statistics  (accuracy,  timeliness  and  comparability  being 
priorities for the ESS).  

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.  

17.3.2.  Planned action 

The  objective  of  having  statistics  of  quality  is  both  an  operational  objective  and  a  legal 
requirement  insofar  as  European  statistics  production  must  respect  the  principles  set  out  in 
Article 338 of the EU Treaty and in Regulation (EC) No 223/2009 of the European Parliament 

EN 

461 

   EN 

and  of  the  Council  of  11 March  2009  on  European  statistics596  as  well  as  in  the  various 
sectoral legislative instruments.  

In  the  field  of  statistics,  Commission  services  will  continue  to  monitor  the  application  of 
European  legislation  especially  through  bilateral  meetings  and  discussions  with  Member 
States. 

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. 

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. 

18. 

HUMAN RESOURCES AND SECURITY 

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

reporting on 2009 

18.1.1.   Existing measures in force 

In  the  field  of  Human  Resources,  the  Commission  seeks  to  guarantee  that Community  law is 
correctly  applied  to  the  staff  of  the  EU  by  ensuring  that  Member  States  adopt  legislation  and 
implementing provisions in compliance with the Protocol on Privileges and Immunities of the 
European Union and the Regulations and Rules applicable to officials and other servants of the 
EU. 

In particular, the following legal texts are applicable: 

Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 and amendments 
thereto, 

The  Protocol  on  the  Privileges  and  Immunities  of  EU  (PPI),  annexed  to  the  Treaty  on  the 
European Union of 1965, 

Other  agreements  between  the  European  Commission  and  Member  States  regarding  the 
functioning of the Institutions' services. 

18.1.2.  Report of work done in 2009 

In 2009, the Commission pursued infringement proceedings launched in 2007 against Belgium 
in a case on the application of the Headquarters Agreement with the Commission and in another 
case the application of Article 3 of the PPI.  

An appeal was lodged with the Court of Justice (Case C-132/09) seeking a judgment to confirm 
that  Belgium  should  comply  with  its  undertaking,  to  subsidise  the  cost  of  equipment  for 
European Schools.  

596  OJ L 87, 31.3.2009, p. 164 

EN 

462 

   EN 

                                                 
Proceedings are on going which are directed against national rules providing for the imposition 
of  taxes  on  EU  Institutions  based  in  Brussels  contrary  to  provisions  providing  for  a  tax 
exemption under Article 3 of the PPI. 

The  Commission  has  continued  to  make  additional  arrangements  for  the  transfer  of  pension 
rights for 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.  

18.2.  Evaluation based on the current situation  

The measures which may require specific implementation / transposition work 

The Commission closely follows the evolution of policy in Member States as regards European 
Schools. As regards the transfer of pension rights, taking into account the direct applicability of 
the  Staff  Regulations,  it  has  not  so  far  been  necessary  to  launch  infringement  proceedings 
against  Member  States  which  refuse  or  delay  coming  to  an  agreement  regarding  the 
implementation of the necessary procedures for such transfers. 

The  Commission  continues  to  seek  pro-active  solutions  outside  or  in  parallel  with  the 
infringement  procedure  under  Article  258  of  the  Treaty  on  the  functioning  of  the  European 
Union.  Contacts  are  regularly  organised  between  the  institution's  administration  and  the 
competent authorities of Member States to anticipate and resolve matters which could otherwise 
lead to such proceedings.  

19. 

BUDGET 

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

on 2009 

19.1.1.  Existing measures in force 

The EU budget is mainly financed through three own resources: traditional own resources, the 
VAT-based own resource and the complementary resource based on Member States' GNI.  

In particular, the following legal texts are applicable: 

Article 311 of the consolidated Treaty (ex Article 269 TEC),  

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. 

Additional  budgetary  receipts  are  obtained  under  Articles  3  and  4  of  the  Protocol  on  the 
Privileges and Immunities of EC (PPI), annexed to the consolidated Treaty as Protocol n° 7. 

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463 

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The main rules for budget execution are contained in Council Regulation (EC, Euratom) 
No  1605/2002  of  25  June  2002  on  the  Financial  Regulation  applicable  to  the  general 
budget  of  the  European  Communities  in  its  version  of  Commission  Regulation  (EC, 
Euratom) No 652/2008 of 9 July 2008. This Regulation is at present under review. 

19.1.2.  Report of work done in 2009 

19.1.2.1. Main 2009 activities 

The  area  of  Own  resources  is  based  upon  directly  applicable  Council  Regulations  and 
Decisions.  Member  States  therefore  need  not  implement  and  transpose  the  concerned  EU 
legislation into their national law. However, conformity of application may be at risk due to 
different  interpretation  and  non  compliance.  DG  Budget  aims  at  preventing  irregularities  in 
Member States mainly via comprehensive control activities and legal and accounting follow-
up of detected anomalies, in view of ensuring the correct functioning of the EU own resources 
system.  Consequently,  the  number  of  infringement  files  to  be  managed  (ca.  30  or  less  on 
average)  can  be  kept  on  a  low  level.  In  addition,  Article  11  of  Regulation  1150/2000  is  a 
useful  ally  in  assuring  that  Member  States  in  general  make  available  own  resources  in  due 
time  since  the  amount  of  default  interest  to  be  paid  under  Article11  progressively  increases 
and may often exceed the principal claim depending upon the period of delay. 

In 2009, DG Budget detected 155 anomalies in the area of traditional own resources (of which 
115 in the course of on-the-spot inspections) and set 72 reservations in the area of VAT/GNI 
(= 72 VAT+ 0 GNI). Correspondingly, 240 accounting actions for traditional own resources 
and  201  for  VAT/GNI  (130  set  and  71  lifted)  were  generated  for  potential  corrective 
payments  (principal  amounts  and  belated  interest)  by  Member  States.  Most  of  the  newly 
detected  anomalies  could  be  solved  at  an  initial  stage  in  bilateral  discussions  with  Member 
States, including senior level management meetings, or in the Advisory Committee on Own 
Resources. 

Regarding  infringements,  the  principal  activities  in  2009  concerned  the  follow-up  of  earlier 
Court  decisions  and  the  contribution  to  pending  ECJ  cases,  mainly  relating  to  the 
infringement procedures concerning duty-free military importations which the Court decided 
in  favour  of  the  Commission  on  15.12.2009  (apart  from  the  case  concerning  Portugal  for 
which  a  comparable  outcome  is  expected  in  the  run  of  2010)  and  a  priority  case  against 
Germany  where  a  rapid  Court  answer  is  desirable  to  whether  the  German  authorities  may 
refuse  a  request  of  the  European  Court  of  Auditors,  for  auditing  the  administrative  VAT 
cooperation of Member States under Council Regulation (EC) No 1798/2003.  

Where  Member  States  do  not  establish  own  resources  or  omit  the  recovery  of  established 
amounts, this failure risks to increase the contributory charge of the other Member States. An 
equal  treatment  of  Member  States  can  only  be  assured  via  a  strictly  monitoring  by  the 
Commission  services  and,  if  necessary,  making  use  of  infringement  proceedings.  There  is 
hardly room for discretion under the aspect of political opportunity, and the waiving of claims 
due  vis-à-vis  Member  States  (Article  73(2)  of  Financial  Regulation)  seems  unlikely,  if  not 
impossible.  DG  Budget  takes  however  legal  action  only  if  a  satisfactory  solution  cannot  be 
found in bilateral contacts and discussions with Member States in the Advisory Committee for 
Own  Resources.  Where  infringement  situations  subsist  and  rare  resources  request  for 
prioritization  of  treatment,  the  proceedings  are  followed-up  according  to  their  gravity  and 
their impact on the budget.  

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464 

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19.2.  Evaluation based on the current situation 

As already underlined in earlier Annual Reports, Member States in general fully respect the 
budgetary  legislation  by  contributing  timely  and  correctly  to  the  EU  budget.  The  Court 
findings  in  decisions  of  the  last  decade  in  the  area  of  own  resources  have  contributed  to 
clarify still open interpretation divergences mostly by confirming the Commission's point of 
view.  The  common  financing  system  of  the  EU  budget  thus  has  a  stable  fundament  and 
infringement  cases  detected  by  the  Commission  controllers  usually  do  not  reflect  any 
particular systemic problems in the application of EU law.  

19.3.  Evaluation results 

19.3.1.  Priorities 

Taking  into  account  the  current  situation  as  well  as  the  constraint  to  preserve  a  fair 
distribution  of  the  budget  financing  charge  between  Member  States  and  estimating  that  the 
number of infringement files can be kept at a low level by preventive control activities, DG 
Budget priorities will remain the same: since any shortage of financing due to an infringement 
by  one  Member  State  may  increase  the  budgetary  charge  for  the  other  Member  States,  no 
discretion will be available whether to start  and to continue infringement proceedings while 
prioritization of infringements will be made according to their gravity and their impact on the 
budget. 

19.4. 

 Summary 

The number of infringement cases managed by DG Budget has still decreased. In general, the 
legislative  framework  is  stable  since  Member  States  take  satisfactorily  account  of  the  EU 
budgetary rules. Court case-law provides valuable guidance for their future application.  

EN 

465 

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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. 

Chemicals 

REACH and its implementing legislation are available through the following link: 

http://ec.europa.eu/enterprise/sectors/chemicals/documents/reach/index_en.htm 

REACH and its links to previous legislation on restrictions is available here:  

http://ec.europa.eu/enterprise/sectors/chemicals/documents/reach/archives/market-
restrictions/index_en.htm 

Legislation  and  documents  related  to  the  specific  chemical  sectors  are  available  at: 
http://ec.europa.eu/enterprise/sectors/chemicals/documents/specific-chemicals/index_en.htm 

I.2. 

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 (EC) No 470/2009 of the European Parliament and of the Council of laying 
down  Community  procedures 
limits  of 
pharmacologically active substances in foodstuffs of animal origin, repealing Council 
Regulation (EEC) No 2377/90. 

the  establishment  of 

residue 

for 

EN 

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I.3.  Medical devices 

Regulatory Framework:  

http://ec.europa.eu/enterprise/sectors/medical-devices/regulatory-framework/index_en.htm 

I.4. 

Cosmetics 

Cosmetics Regulatory Framework: 

http://ec.europa.eu/enterprise/sectors/cosmetics/regulatory-framework/index_en.htm 

I.5. 

Textiles/clothing 

The relevant legislation can be found at the following webpage: 

http://ec.europa.eu/enterprise/sectors/textiles/single-market/textiles-names-
legislation/index_en.htm  

I.6.  Non-harmonised area 

Treaty Articles: 

http://ec.europa.eu/enterprise/policies/single-market-goods/files/treaties/tfeu_en.pdf#page=15  

Regulation Mutual recognition regulation 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:218:0021:0029:en:PDF 

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. 45 TFEU (ex-39 TEC) 

–  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement 
for workers within the Community. A codification of this regulation is under way and the 
preparatory work is in an advanced stage.  

EN 

467 

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–  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 48 TFUE (ex-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. 

–  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 

2004 on the coordination of social security schemes. 

Recently adopted measures due to enter into force in the sector of the coordination of social 
security systems 

–  Regulation  (EC)  No  987/2009  of  the  European  Parliament  and  of  the  Council  of  16 
September  2009  laying  down  the  procedure  for  implementing  Regulation  (EC)  No 
883/2004 on the coordination of social security systems. 

–  Regulation  (EC)  No  988/2009  of  the  European  Parliament  and  of  the  Council  of  16 
September  2009  amending  Regulation  (EC)  No  883/2004  on  the  coordination  of  social 
security systems, and determining the content of its Annexes. 

New measures already proposed and due to be adopted in the sector of the coordination of 
social security systems 

–  Proposal for a Regulation of the Council extending the provisions of Regulation (EC) No 
883/2004 and of Regulation (EC) No 987/2009 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/EC597  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/EC598  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; 

597  OJ L 18, 21.1.1997, p. 1–6 

EN 

468 

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–  Council Directive 98/23/EC599 of 7 April 1998 on the extension of Directive 97/81/EC on 
the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC 
to the United Kingdom of Great Britain and Northern Ireland; 

–  Council Directive 1999/70/EC600 of 28 June 1999  concerning  the  framework  agreement 

on fixed-term work concluded by ETUC, UNICE and CEEP; 

–  Council  Directive  1999/63/EC601  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/EC602  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/EC603 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/EC604  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/EC605  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 

598  OJ L 14, 20.1.1998, p. 9–14 

599  OJ L 131, 5.5.1998, p. 10–10 

600  OJ L 244, 16.9.1999, p. 64–64 

601  OJ L 167, 2.7.1999, p. 33–37 

602  OJ L 302, 1.12.2000, p. 57–60 

603  OJ L 299, 18.11.2003, p. 9–19 

604  OJ L 195, 27.7.2005, p. 15–17 

605  OJ L 327, 5.12.2008, p. 9-14 

EN 

469 

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–  Council Directive 94/45/EC606 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/EC607 of 15 December 1997 extending, to the United Kingdom 
of  Great  Britain  and  Northern  Ireland,  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 

–  Council Directive 2006/109/EC608 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/EC609  of  8  October  2001  supplementing  the  Statute  for  a 

European company with regard to the involvement of employees; 

–  Council  Directive  2003/72/EC610  of  22  July  2003  supplementing  the  Statute  for  a 

European Cooperative Society with regard to the involvement of employees; 

–  Directive  2002/14/EC611  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/EEC612  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; 

606  OJ L 254, 30.9.1994, p. 64–72 

607  OJ L 365, 31.12.1994, p. 46–51 

608  OJ L 363, 20.12.2006, p. 416–417 

609  OJ L 294, 10.11.2001, p. 22–32 

610  OJ L 207, 18.8.2003, p. 25–36 

611  OJ L 80, 23.3.2002, p. 29–34 

612  OJ L 206, 29.7.1991, p. 19–21 

EN 

470 

   EN 

                                                 
–  Council  Directive  91/533/EEC613  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/EC614  of  22  June  1994  on  the  protection  of  young  people  at 

work; 

–  Council Directive 98/59/EC615  of 20  July 1998 on the approximation of  the  laws of  the 

Member States relating to collective redundancies; 

–  Directive  2008/94/EC616  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/EC617 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 

613  OJ L 288, 18.10.1991, p. 32–35 

614  OJ L 216, 20.8.1994, p. 12–20 

615  OJ L 225, 12.8.1998, p. 16–21 

616  OJ L 283, 28.10.2008, p. 36-42 

617  OJ L 82, 22.3.2001, p. 16–20 

EN 

471 

   EN 

                                                 
–  Directive  89/391/EEC618  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/EEC619  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/EC620 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 
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/EEC621 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/EEC622  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/EEC623  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/EC624 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/EC625 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);  

618   OJ L 183, 29.6.1989, p.1. 

619   OJ L 393, 30.12.1989, p.1. 

620   OJ L 260, 3.10.2009, p. 5. 

621   OJ L 393, 30.12.1989, p.18. 

622   OJ L 156, 21.6.1990, p.9. 

623   OJ L 156,21.6.1990, p.14. 

624   OJ L 229, 29.6.2004, p.23. 

625   OJ L 262, 17.10.2000, p.21. 

EN 

472 

   EN 

                                                 
–  Council Directive 92/57/EEC626 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/EEC627  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/EEC628  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/EEC629  of  3  December  1992  on  the  minimum  requirements  for 
improving the safety and health protection of workers in surface and underground mineral-
extracting  industries  (twelfth  individual  directive  within  the  meaning  of  Article  16(1)  of 
Directive 89/391/EEC);          

–  Council Directive 93/103/EC630 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/EC631 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/EEC632  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/EC633 of 8 June 2000 establishing a first list of indicative 
occupational exposure limit values in implementation of Council Directive 98/24/E on the 

626   OJ L 245, 26.8.1992, p.6. 

627   OJ L 245, 26.8.1992, p.23. 

628   OJ L 348, 28.11.1992, p.9. 

629   OJ L 404, 31.12.1992, p.10. 

630   OJ L 307, 13.12.1993, p.1. 

631   OJ L131, 5.5. 1998, p.11. 

632   OJ L177, 5.7. 1991, p.22. 

633   OJ L 142, 16.6.2000, p.47. 

EN 

473 

   EN 

                                                 
protection of the health and safety of workers from the risks related to chemical agents at 
work 

–   Commission  Directive  2006/15/EC634  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 

–  Commission  Directive  2009/161/EU635  of  17  December  2009  establishing  a  third  list  of 
indicative  occupational  exposure  limit  values  in  implementation  of  Council  Directive 
98/24/EC and amending Commission Directive 2000/39/EC 

–  Directive  1999/92/EC636  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/EC637 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/EC638  of  the  European  Parliament  and  of  the  Council  of  6  February 
2003 on the minimum health and safety requirements regarding the exposure of workers to 
the  risk  arising  from  physical  agents  (noise)  (seventeenth  individual  directive  within  the 
meaning of Article 16(1) of Directive 89/391/EEC); 

–  Directive 2004/40/EC639 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/EC640 

–  Directive 2006/25/EC641 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 

634   OJ L 38, 9.2.2006, p.36. 

635   OJ L 338 of 19.12.2009, p. 87. 

636   OJ L 23, 28.1.2000, p.57. 

637   OJ L 177, 6.7.2002, p.13. 

638   OJ L 42, 15.2.2003, p.38. 

639   OJ L 184, 24.5.2004, p.1. 

640   OJ L 114, 26.4.2008, p. 88 

641   OJ L 114, 27.4.2006, p.38. 

EN 

474 

   EN 

                                                 
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/EEC642  of  31  March  1992  on  the  minimum  safety  and  health 

requirements for improved medical treatment on board vessels; 

–  Council Directive 83/477/EEC643 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/EEC644 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/EC645, 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/EC646 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. 

II.4.  Gender equality and anti-discrimination 

II.4.1.  Gender equality 

–  Article 157 TFUE 

–  Directive 2006/54/EC647 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/EC648  of  13  December  2004  implementing  the  principle  of 
equal treatment between men and women in the access to and supply of goods and services 

–  Council  Directive  96/34/EC649  of  3  June  1996  on  the  framework  agreement  on  parental 

leave concluded by UNICE, CEEP and the ETUC 

642   OJ L 113, 30.4.1992, p.19. 

643   OJ L 263, 24.9.1983, p.25. 

644   OJ L 206, 29.7.1991, p.16. 

645   OJ L 97, 15.4.2003, p.48. 

646   OJ L 165, 27.6.2007, p.21. 

647  OJ L 204, 26.7.2006 

648  OJ L 373, 21.12.2004 

EN 

475 

   EN 

                                                 
–  Council  Directive  92/85/EEC650  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/EEC651 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 79/7/EEC652 of 19 December 1978 on the progressive implementation 

of the principle of equal treatment for men and women in matters of social security 

II.4.2.  Anti-discrimination 

–  Article 19 TFUE 

–  Council Directive 2000/78/EC653 of 27 November 2000 establishing a general framework 

for equal treatment in employment and occupation 

–  Council  Directive  2000/43/EC654  of  29  June  2000  implementing  the  principle  of  equal 

treatment between persons irrespective of racial or ethnic origin 

III. 

 ENERGY 

III.1.  Legislation in force 

A full description of the legal basis for controlling the application of the Community acquis 
on energy was provided in the context of the 25th Report (Annex I, paragraph 2.1). 

The texts of current Community legislation on energy are available in section 12 of the EUR-
Lex database 

http://eur-lex.europa.eu/en/legis/20100301/chap12.htm 

649  OJ L 145, 19.6.1996 

650  OJ L 348, 28.11.1992 

651  OJ L 359, 19.12.1986 

652  OJ L 6, 10.1.1979 

653  OJ L 303, 2.12.2000 

654  OJ L 180, 19.7.2000 

EN 

476 

   EN 

 
 
                                                                                                                                                         
Euratom 

Primary Law: Euratom Treaty 

A number of provisions of the Treaties vest the Commission with specific powers: 

–  Article 33 Euratom Treaty: Verification of conformity of draft legislation in the field of 
radiation  protection  and  education  and 
issue 
recommendations). 

(the  Commission  may 

training 

–  Article 37 Euratom Treaty:  Assessment of national plans for the release of radioactive 
waste into the environment, before approval by the national authorities (the Commission shall 
deliver an opinion). 

–  Article 38 Euratom Treaty: In cases of urgency, the Commission shall issue a directive 
requiring the Member State concerned to take, within a period laid down by the Commission, 
all  necessary  measures  to  prevent  infringement  of  the  basic  standards  and  to  ensure 
compliance  with  regulations.  Article  38  of  the  Euratom  Treaty  institutes  also  a  special 
derogative procedure from the general infringement procedure, allowing the Commission or 
any  Member  State  concerned  to  bring  the  matter  before  the  Court  of  Justice  if  the  State  in 
question fails to comply with the Commission directive within the period laid down therein. 

–  Articles  41/43  Euratom  Treaty:  This  notification  procedure  on  nuclear  investments 
requires that any new investment related to nuclear activities has to be communicated to the 
Commission which shall, in return, send its views to the Member State concerned. 

–  Article 77 Euratom Treaty:  The Commission shall satisfy itself that, in the territories of 
member  states,  (a)  ores,  source  materials  and  special  fissile  materials  are  not  diverted  from 
their  intended  uses  as  declared  by  the  users;  (b)  the  provisions  relating  to  supply  and  any 
particular  safeguarding  obligations  assumed  by  the  Community  under  an  agreement 
concluded with a third state or an international organisation are complied with. 

–  Article  78  Euratom  Treaty:    Operators  shall  declare  to  the  Commission  the  basic 
technical  characteristics  of  the  installations,  to  the  extent  that  knowledge  of  these 
characteristics is necessary for the attainment of the objectives set out in Article 77. 

–  Article 81 Euratom Treaty:  The Commission's nuclear inspectors (Commission's staff!) 
shall at all times have access to all places and data and to all persons who, by reason of their 
occupation,  deal  with  materials,  equipment  or  installations  subject  to  the  safeguards.  If  the 
carrying out of an inspection is opposed, it can be carried out compulsorily (after decision of 
the  president  of  the  Court  of  Justice;  or,  even,  after  Commission's  written  order,  if  there  is 
danger in delay). 

–  Article  82  Euratom  Treaty:  In  case  of  infringement  to  the  safeguards  provisions 
established by its safeguards inspectors, the Commission may issue  a  directive  calling  upon 
the  Member  State  concerned  to  take,  by  a  time  limit  set  by  the  Commission,  all  measures 
necessary  to  bring  such  infringement  to  an  end.  Possible  direct  referral  of  the  matter  to  the 
Court  of  Justice,  if  the  Member  State  in  question  does  not  comply  with  the  Commission 
directive  in  the  timeframe  set  up  therein,  in  derogation  from  the  general  infringement 
procedure. 

EN 

477 

   EN 

–  Article  83  Euratom  Treaty:  In  the  event  of  an  infringement  on  the  part  of  persons  or 
undertakings  of  the  obligations  on  nuclear  safeguards,  the  Commission  may  impose  the 
following sanctions, in order of severity : (a) a warning ; (b) the withdrawal of special benefits 
such as financial or technical assistance ; (c) the placing of the undertaking for a period not 
exceeding four months under the administration of a person or board appointed by common 
accord of the Commission and the state having jurisdiction over the undertaking; (d) total or 
partial withdrawal of source materials or special fissile materials. 

–  Article 103 Euratom Treaty: assessment of draft international agreements in the fields of 
the Euratom Treaty (the Commission may issue comments on the drafts) 

–  Article  145  Euratom  Treaty:  if  the  Commission  considers  that  a  person  or  undertaking 
has committed an infringement of this Treaty (other than to the safeguards provisions), it shall 
call  upon  the  member  state  having  jurisdiction  over  that  person  or  undertaking  to  cause 
sanctions to be imposed in respect of the infringement in accordance with its national law. If 
the state concerned does not comply with such a request within the period laid down by the 
Commission,  the  latter  may  bring  an  action  before  the  Court  of  Justice  to  have  the 
infringement of which the person or undertaking is accused established. 

Secondary law 

The  Community  acquis  related  to  Title  II,  Chapter  3,  can  be  consulted  in  section  15  of  the 
EUR-Lex  database,  the  Community  acquis  (heading  15.10.20.10  "Nuclear  Safety  and 
Radioactive Waste"). 

http://eur-lex.europa.eu/en/legis/20100301/chap15102010.htm 

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  

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC0347:EN:NOT 

III.2.  Legislation adopted in 2009 

Internal electricity and gas market 

Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 
concerning  common  rules  for  the  internal  market  in  electricity  and  repealing 
Directive 2003/54/EC (OJ L 211, 14.8.2009) 

Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 
concerning  common  rules  for  the  internal  market  in  natural  gas  and  repealing 
Directive 2003/5(/EC (OJ L 211, 14.8.2009) 

Regulation (EC) No 713/2009/EC of the European Parliament and of the Council of 
13  July  2009  establishing  an  Agency  for  the  Cooperation  of  Energy  Regulators 
(OJ L 211, 14.8.2009) 

EN 

478 

   EN 

 
Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 
July 2009 on conditions for access to the network for cross-border exchanges in 
electricity and repealing Regulation (EC) No 1228/2003 (OJ L 211, 14.8.2009) 

Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 
July 2009 on conditions for access to the natural gas transmissions networks and 
repealing Regulation (EC) No 1775/2005 (OJ L 211, 14.8.2009) 

Coal and Oil 

Council  Directive  2009/119/EC  of  14  September  2009  imposing  an  obligation  on 
Member  States  to  maintain  minimum  stocks  of  crude  oil  and/or  petroleum 
products (OJ L 265, 9.10.2009) 

Renewable energy sources 

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  (OJ  L  140, 
5.6.2009) 

Energy efficiency of products 

Directive 2009/125/EC of the European Parliament and of the Council of 21 October 
2009  establishing  a  framework  for  the  setting  of  ecodesign  requirements  for 
energy-related products (OJ L 285, 21.10.2009) 

Regulation (EC) No 1222/2009 of the European Parliament and of the Council of 25 
November 2009 on the labelling of tyres with respect to fuel efficiency and other 
essential parameters (OJ L 342, 22.12.2009) 

Commission Regulation (EC) No 643/2009 of 22 July 2009 implementing Directive 
2005/32/EC  of  the  European  Parliament  and  of  the  Council  with  regard  to 
ecodesign  requirements  for  household  refrigerating  appliances  (OJ  L  191, 
23.7.2009) 

Commission Regulation (EC) No 642/2009 of 22 July 2009 implementing Directive 
2005/32/EC  of  the  European  Parliament  and  of  the  Council  with  regard  to 
ecodesign requirements for televisions (OJ L 191, 23.7.2009) 

Commission Regulation (EC) No 641/2009 of 22 July 2009 implementing Directive 
2005/32/EC  of  the  European  Parliament  and  of  the  Council  with  regard  to 
ecodesign  requirements  for  glandless  standalone  circulators  and  glandless 
circulators integrated in products (OJ L 191, 23.7.2009) 

Commission Regulation (EC) No 640/2009 of 22 July 2009 implementing Directive 
2005/32/EC  of  the  European  Parliament  and  of  the  Council  with  regard  to 
ecodesign requirements for electric motors (OJ L 191, 23.7.2009) 

Commission Regulation (EC) No 278/2009 of 6 April 2009 implementing Directive 
2005/32/EC  of  the  European  Parliament  and  of  the  Council  with  regard  to 

EN 

479 

   EN 

ecodesign  requirements  for  no-load  condition  electric  power  consumption  and 
average active efficiency of external power supplies (OJ L 93, 7.4.2009) 

Commission  Regulation  (EC)  No  245/2009  of  18  March  2009  implementing 
Directive 2005/32/EC of the European Parliament and of the Council with regard 
to  ecodesign  requirements  for  fluorescent  lamps  without  integrated  ballast,  for 
high  intensity  discharge  lamps,  and  for  ballasts  and  luminaires  able  to  operate 
such lamps, and repealing Directive 2000/55/EC of the European Parliament and 
of the Council (OJ L 76, 24.3.2009) 

Commission  Regulation  (EC)  No  244/2009  of  18  March  2009  implementing 
Directive 2005/32/EC of the European Parliament and of the Council with regard 
to  ecodesign  requirements  for  non-directional  household  lamps  (OJ  L  76, 
24.3.2009) 

Commission  Regulation  (EC)  No  107/2009  of  4  February  2009  implementing 
Directive 2005/32/EC of the European Parliament and of the Council with regard 
to ecodesign requirements for simple set-top boxes (OJ L 36, 5.2.2009) 

Euratom 

Binding acquis 

Council  Directive  2009/71/Euratom  of  25 June  2009  establishing  a  Community 
framework for the nuclear safety of nuclear installations (OJ L 172, 2.7.2009) 

Council  Regulation  (EC)  No 1048/2009  of  23 October  2009  amending  Regulation 
(EC)  No  733/2008  on  the  conditions  governing  imports  of  agricultural  products 
originating  in  third  countries  following  the  accident  at  the  Chernobyl  nuclear 
power station (OJ L 290, 6.11.2009) 

Commission  Decision  on  financing  for  the  decommissioning  programmes  for 

Ignalina, Bohunice and Kozloduy (C(2009) 7614) 

Non-binding acquis 

Communication from the Commission to the Council and the European Parliament - 

Communication on nuclear non-proliferation (COM(2009) 143 final) 

Commission  Recommendation  2009/120/Euratom  of  11  February  2009  on  the 
implementation of a nuclear material accountancy and control system by operators 
of nuclear installations (OJ L 41, 12.2.2009) 

Commission  Recommendation  2009/527/Euratom  of  7 July  2009  for  a  secure  and 
effective  system  of  transmission  of  documents  and  information  relating  to  the 
provisions of Council Directive 2006/117/Euratom (OJ L 177, 8.7.2009) 

Council Decision issuing directives to the Commission for the re-negotiation of the 
Agreement between the European Atomic Energy Agency Community (Euratom) 
and  the  Government  of  Canada  for  cooperation  in  the  peaceful  uses  of  atomic 
energy (not public) 

EN 

480 

   EN 

Council Decision for the negotiation of an Agreement between the European Atomic 
Energy  Community  and  the  Russian  Federation  for  cooperation  in  the  peaceful 
uses of nuclear energy (not public) 

III.3.  New measures proposed or in preparation in 2009 

Security of supply – gas 

Proposal for a Regulation of the European Parliament and of the Council concerning 
measures to safeguard security of gas supply and repealing Directive 2004/67/EC 
(COM(2009)363) 

Euratom 

Legislative  proposal  on  the  management  of  spent  fuel  and  radioactive  waste: 
Based  on  the  2004  proposal  for  a  Council  Directive  (Euratom)655,  a  revised 
legislative  proposal  on  the  management  of  spent  nuclear  fuel  and  radioactive 
waste  is  being  prepared.  The  revised  legislative  proposal  is  aiming  at  achieving 
and  maintaining  a  high  uniform  level  of  safe  management  of  radioactive  waste 
and  spent  fuel  throughout  the  Community as  well  as  providing  requirements  for 
the establishment of comprehensive national programmes for the management of 
radioactive  waste  and  spent  fuel.  The  drafting  of  an  Impact  Assessment  Report 
has been started, supported by an Inter-Service Steering Group.  In addition to the 
broad  and  very  positive  stakeholder  input  received  already  further  consultations 
are underway. In addition, a public consultation is planned for early 2010. A first 
draft report could be submitted to the Impact Assessment Board in May 2010. 

Proposal  of  Revision  and  recast  of  the  Basic  Safety  Standards:  The  revision  of 
the Basic Safety Standards is also the opportunity for the consolidation of existing 
radiation protection legislation  involving  four other Directives and incorporating 
one  Commission  Recommendation.  In  2009  the  revision  and  recast  of  the  BSS 
Directive made very good progress. The draft text of the Directive is complete and 
in an advanced stage. The Article 31 Group of Experts is expected to finalise their 
opinion in February 2010.  

Proposal for a Council Regulation (Euratom) establishing a community system 
for  Registration  of  carriers  of  radioactive  materials:  The  objective  is  to 
harmonise  reporting  and  authorisation  requirements  of  carriers  of  radioactive 
materials  under  the  Basic  Safety  Standards  Directive  and  thereby  in  particular 
facilitate transports of life-saving radioisotopes while keeping up the high safety 
standards reached and increasing transparency of carriers and authorities involved. 
The  Impact  Assessment  Board  and  the  Art.  31  Group  of  experts  have  approved 
the impact assessment report and the first draft of the proposal. 

Revision of the Commission recommendation on the implementation of Art. 37 
of  the  Euratom  Treaty:  The  aim  of  the  revision  of  the  recommendation 
1999/829/Euratom  is,  on  the  basis  of  the  experience  gained,  to  clarify,  simplify 
and  improve  the  provisions  of  the  current  Commission  recommendation.  The 

655   COM(2004)526final 

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consolidated  draft  revised  text  is  planned  to  be  presented  in  April  2010  to  the 
Article  37  Group  of  Experts.  The  final  revised  Commission  recommendation 
should be adopted mid 2010.  

Negotiating  mandate  for  a  Euratom-Australia  cooperation  agreement:  The 
proposal of a Council Decision on the new mandate to renegotiate the Euratom-
Australia  agreement,  due  to  expire  in  2012,  was  prepared  by  inter-service 
consultation. It is to be adopted during first half of 2010. 

Negotiating  mandate  for  a  Euratom-South  Africa  cooperation  agreement:  The 
proposal of a Council Decision on a mandate to negotiate a Euratom-South Africa 
agreement is under preparation. 

Proposal for a Council Regulation on Community financial assistance with respect to 
the  decommissioning  of  Units  1  to  4  of  the  Kozloduy  Nuclear  Power  Plant  in 
Bulgaria “Kozloduy Programme” (COM(2009)581 final). 

IV. 

 ENVIRONMENT – Climate sector 

The applicable legislation to the Climate sector is: 

•  Articles 114 and 191-193 of TFEU (ex 95 and 174-176 of TEC) 

•  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). 

•  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). 

•  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  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  166/2006  of  the  European  Parliament  and  of  the  Council  of  18 
January  2006  concerning  the  establishment  of  a  European  Pollutant  Release  and 
Transfer Register and amending Council Directives 91/689/EEC and 96/61/EC (OJ L 
33, 4.2.2006, p.1-17.) 

EN 

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•  Regulation  (EC)  No  842/2006  of  the  European  Parliament  and  of  the  Council  of  17 
May 2006 on certain fluorinated greenhouse gases (OJ L 161, 14.6.2006, p. 1–11) 

•  Directive  2008/1/EC  of  the  European  Parliament  and  of  the  Council  of  15  January 
2008 concerning integrated pollution prevention and control (Codified version) (OJ L 
24, 29.1.2008, p.8-29) 

•  Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 
September 2009 on substances that deplete the ozone layer (OJ L 286, 31.10.2009, p. 
1–30)  

V. 

INTERNAL MARKET AND SERVICES 

V.1.   Existing and in force acquis 

A list of the existing acquis under the remit of DG Internal Market and services is available at 
the following web address: 

http://ec.europa.eu/dgs/internal_market/mission_en.htm 

V.2.   Recently adopted measures 

–  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.  

–  Commission Directive 2009/27/EC of 7 April 2009 amending certain Annexes to Directive 
2006/49/EC of the European Parliament and of the Council as regards technical provisions 
concerning risk management (2009 L 94 31/10/2010) 

–  Commission Directive 2009/83/EC of 27 July 2009 amending certain Annexes to Directive 
2006/48/EC of the European Parliament and of the Council as regards technical provisions 
concerning risk management (2009 L 196 31/10/2010) 

–  Directive  2009/111/EC  of  the  European  Parliament  and  of  the  Council  of  16  September 
2009  amending  Directives  2006/48/EC,  2006/49/EC  and  2007/64/EC  as  regards  banks 
affiliated  to  central  institutions,  certain  own  funds  items,  large  exposures,  supervisory 
arrangements, and crisis management (2009 L 302 31/10/2010) 

–  Directive  2009/44/EC  of  the  European  Parliament  and  of  the  Council  of  6  May  2009 
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 2009 L 146 30/12/2010 

EN 

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–  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 2008 L 52 31/12/2010 

–  Directive  2009/49/EC  of  the  European  Parliament  and  of  the  Council  of  18  June  2009 
amending  Council  Directives  78/660/EEC  and  83/349/EEC  as  regards  certain  disclosure 
requirements  for  medium-sized  companies  and  the  obligation  to  draw  up  consolidated 
accounts 2009 L 164 01/01/2011 

–  Directive  2009/110/EC  of  the  European  Parliament  and  of  the  Council  of  16  September 
2009  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 2009 L 267 30/04/2011 

–  Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on 
the coordination of laws, regulations and administrative provisions relating to undertakings 
for collective investment in transferable securities (UCITS) 2009 L 302 30/06/2011 

–  Directive  2009/109/EC  of  the  European  Parliament  and  of  the  Council  of  16  September 
2009  amending  Council  Directives  77/91/EEC,  78/855/EEC  and  82/891/EEC,  and 
Directive 2005/56/EC as regards reporting and documentation requirements in the case of 
mergers and divisions 2009 L 259 30/06/2011 

–  Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on 
the coordination of procedures for the award of certain works contracts, supply contracts 
and  service  contracts  by  contracting  authorities  or  entities  in  the  fields  of  defence  and 
security, and amending Directives 2004/17/EC and 2004/18/EC  

–  Directive  2009/138/EC  of  the  European  Parliament  and  of  the  Council  of  25  November 
2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency 
II) 2009 L 335 31/10/2012 

–  Regulation  924/2009  of  the  European  Parliament  and  of  the  Council  on  cross-border 

payments in the Community,  

–  Regulation  1060/2009  of  the  European  Parliament  and  of  the  Council  on  Credit  Rating 

Agencies  

V.3.   New measures already proposed and due to be adopted 

Proposals in co-decision 

–  Proposals for Council Decisions conferring jurisdiction on the Court of Justice in disputes 

relating to the Community patent, COM/2003/0827 final and COM/2003/0828 final 

–  Proposal for a Community Patent Regulation,  COM(2000)0412   of 01/08/2000 

–  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),  COM(2004)582      of 
14/09/2004 

–  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 */ 

EN 

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–  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 */ 

–  Term of protection of copyright and related rights Proposal for a Directive of the European 

Parliament and of the Council amending Dir. 2006/116/EC), COM(2008)464 of 16/7/2008 

–  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  Alternative 

Investment Fund Managers, COM(2009)207 

–  Directive amending Council Directive 78/660/EEC on the annual accounts of certain types 

of companies as regards micro-entities, COM(2009)83 

–  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  Amending 
Directives  2006/48/EC  and  2006/49/EC  as  regards  capital  requirements  for  the  trading 
book  and  for  re-securitisations,  and  the  supervisory  review  of  remuneration  policies, 
COM(2009)362 

–  Proposals for Regulations establishing a European Banking Authority (EBA), a European 
Insurance  and  Occupational  Pensions  Authority  (EIOPA)  and  a  European  Securities  and 
Markets Authority (ESMA), COM(2009) 501 (EBA), COM(2009) 502 (EIOPA), COM(2009) 503 (ESMA) 

–  Amendment 

to  Directives  2003/71/EC 

(Prospectus  Directive)  and  2004/109/EC 
(Transparency  Directive)  in  relation  to  information  about  issuers  whose  securities  are 
admitted to trading on a regulated market, COM(2009)491 

V.4.   Other relevant legal documents adopted in 2009 by the Commission 

–  Recommendation on remuneration policies in the financial services sector, COM(2009)3159 

–  Recommendation on the remuneration of directors of listed companies, COM(2009)3177 

VI. 

TAXATION AND CUSTOMS UNION 

VI.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; 

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Art 135. 

•  Relevant secondary Community law acts: 

Council Regulation (EEC) N° 2913/92 (Council Regulation (EEC) No 2913/92 establishing the Community 
Customs Code) 

Commission  Regulation  (EEC)  N°  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) N° 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) N° 1383/2003; 

Council Regulation (EC) N° 111/2005; 

Council Regulation (EEC) N° 3911/92. 

VI.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 31/12/2009) 

•  Relevant Treaty (TFEU) provisions:  

Mainly:  

Art 110 (ex Art 90);  

Additional:  

Art 45 (ex Art 39); 

Art 49 (ex Art 43); 

Art 56 (ex Art 49); 

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Art 63 (ex Art 56);  

Art 113 (ex Art 93).  

•  Relevant secondary Community law acts:   

Directive 2009/132/EC; 

Directive 2009/55/EC; 

Directive 2008/55/EC; 

Directive 2007/74/EC; 

Directive 2006/112/EC (+ amending directives); 

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; 

Directive 92/79/EEC (+ amending directives); 

Directive 92/12/EEC (+ amending directives); 

Directive 86/560/EEC; 

Directive 79/1072/EEC; 

Directive 68/297/EEC (+ amending directive). 

Council Regulation (EC) 1798/2003 (+ amending regulations); 

Commission Regulation (EC) 1174/2009; 

Commission Regulation (EC) 1179/2008; 

Commission Regulation (EC) 1925/2004. 

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VI.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 31/12/2009) 

•  Relevant Treaty (TFEU) provisions:  

Art 21 (ex Art 18);     

Art 45 (to 48) (ex Art 39 to 42);    

Art 49 (to 54) (ex Art 43 to 48);           

Art 56 (to 62) (ex Art 49 to 55);  

Art 63 (to 66) (ex Art 56 to 60); 

Art 115 (ex Art 94);  

•  Relevant secondary Community law acts:  

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);  

Directive 2008/7/EC; 

Directive 2008/55/EC; 

Directive 2009/133/EC. 

VII.  EDUCATION AND CULTURE 

A full list of relevant provisions, which also includes non-binding provisions, can be found at: 

http://eur-lex.europa.eu/en/legis/20100101/chap1630.htm 
training 

for 

education 

and 

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http://eur-lex.europa.eu/en/legis/20100101/chap1640.htm for culture 

http://ec.europa.eu/sport/white-paper/doc/wp_on_sport_en.pdf for sport 

VIII. 

HEALTH AND CONSUMERS 

Main Measures in Force 31/12/2009 

VIII.1. Public Health 

Relevant EU Treaty provisions: 

•  Art 114 TFEU 

•  Art 168(4) TFEU 

Relevant secondary EU 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 

•  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 

EN 

489 

   EN 

 
 
 
 
 
 
 
•  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 

•  Commission Directive 2009/135/EC of 3 November 2009 allowing temporary derogations 
to  certain  eligibility  criteria  for  whole  blood  and  blood  components  donors  laid  down  in 
Annex  III  to  Directive  2004/33/EC  in  the  context  of  a  risk  of  shortage  caused  by  the 
Influenza A(H1N1) pandemic 

•  Regulation (EC) No 596/2009 of the European Parliament and of the Council of 18 June 
2009 adapting a number of instruments subject to the procedure referred to in Article 251 

EN 

490 

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of  the  Treaty  to  Council  Decision  1999/468/EC  with  regard  to  the  regulatory  procedure 
with scrutiny 

•  2009/312/EC:  Commission  Decision  of  2  April  2009  amending  Decision  2000/96/EC  as 

regards dedicated surveillance networks for communicable diseases 

•  2009/539/EC:  Commission  Decision  of  10  July  2009  amending  Decision  2000/96/EC  on 
communicable  diseases  to  be  progressively  covered  by  the  Community  network  under 
Decision No 2119/98/EC of the European Parliament and of the Council 

VIII.2. Consumers 

Relevant EU Treaty provisions: 

•  Art 169 TFEU 

Relevant secondary EU 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 

EN 

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•  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 
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 

•  Regulation  (EC)  No  765/2008  of  the  European  Parliament  and  of  the  Council  of  9  July 
2008 setting out the requirements for accreditation and market surveillance relating to the 
marketing of products and repealing Regulation (EEC) No 339/93 

•  Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on 

injunctions for the protection of consumers' interests (Codified version) 

•  2009/251/EC: Commission Decision of 17 March 2009 requiring Member States to ensure 
that products containing the biocide dimethyl fumarate are not placed or made available on 
the market 

•  2009/298/EC: Commission Decision of 26 March 2009 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 

EN 

492 

   EN 

•  2009/490/EC: Commission Decision of 23 June 2009 on the safety requirements to be met 
by European standards for personal music players pursuant to Directive 2001/95/EC of the 
European Parliament and of the Council 

•  2010/15/EU: Commission Decision of 16 December 2009 laying down guidelines for the 
management  of  the  Community  Rapid  Information  System  RAPEX  established  under 
Article  12  and  of  the  notification  procedure  established  under  Article  11  of  Directive 
2001/95/EC (the General Product Safety Directive) 

VIII.3. Food Safety 

Relevant EU Treaty provisions: 

•  Art 43 TFEU 

•  Art 114 TFEU 

•  Art 168 TFEU 

Relevant secondary EU law acts: 

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 

•  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 

•  Commission Regulation (EC) No 669/2009 of 24 July 2009 implementing Regulation (EC) 
No 882/2004 of the European Parliament and of the Council as regards the increased level 
of official controls on imports of certain feed and food of non-animal origin and amending 
Decision 2006/504/EC 

•  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 

•  Regulation  (EC)  No  852/2004  of  the  European  Parliament  and  of  the  Council  of  29  April 

2004 on the hygiene of foodstuffs 

•  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 

EN 

493 

   EN 

 
 
•  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 

•  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 

•  Commission  Regulation  (EC)  No  2075/2005  of  5  December  2005  laying  down  specific 

rules on official controls for Trichinella in meat  

•  Commission Regulation (EC) No 2076/2005 of 5 December 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 

Food Hygiene 

Overview: http://ec.europa.eu/food/food/biosafety/hygienelegislation/index_en.htm. 

Guidance documents: 

http://ec.europa.eu/food/food/biosafety/hygienelegislation/guide_en.htm 

FOOD 

•  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 

•  Council Directive 90/496/EEC on nutrition labelling for foodstuffs 

•  Directive  2009/39/EC  of  the  European  Parliament  and  of  the  Council  of  6  May  2009  on 

foodstuffs intended for particular nutritional uses (recast) 

EN 

494 

   EN 

 
 
 
 
 
•  Commission Regulation (EC) No 953/2009 of 13 October 2009 on substances that may be 

added for specific nutritional purposes in foods for particular nutritional uses 

•  Commission  Regulation  (EC)  No  1170/2009  of  30  November  2009  amending  Directive 
2002/46/EC  of  the  European  Parliament  and  of  Council  and  Regulation  (EC)  No 
1925/2006  of  the  European  Parliament  and  of  the  Council  as  regards  the  lists  of  vitamin 
and minerals and their forms that can be added to foods, including food supplements 

•  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 

•  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 

•  Commission Directive 2009/163/EU of 22 December 2009 amending Directive 94/35/EC 
of  the  European  Parliament  and  of  the  Council  on  sweeteners  for  use  in  foodstuffs  with 
regard to neotame 

•  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 

•  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 

EN 

495 

   EN 

•  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  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 

•  2009/184/EC:  Commission  Decision  of  10  March  2009  authorising  the  placing  on  the 
market  of  products  containing  or  produced  from  genetically  modified  oilseed  rape  T45 
(ACS-BNØØ8-2)  resulting  from  the  commercialisation  of  this  oilseed  rape  in  third 
countries  until  2005  pursuant  to  Regulation  (EC)  No  1829/2003  of  the  European 
Parliament and of the Council 

•  2009/813/EC:  Commission  Decision  of  30  October  2009  authorising  the  placing  on  the 
market of products containing, consisting of, or produced from genetically modified maize 
MON 89034 (MON-89Ø34-3) pursuant to Regulation (EC) No 1829/2003 of the European 
Parliament and of the Council 

•  2009/814/EC:  Commission  Decision  of  30  October  2009  authorising  the  placing  on  the 
market of products containing, consisting of, or produced from genetically modified maize 

EN 

496 

   EN 

MON 88017 (MON-88Ø17-3) pursuant to Regulation (EC) No 1829/2003 of the European 
Parliament and of the Council 

•  2009/815/EC:  Commission  Decision  of  30  October  2009  authorising  the  placing  on  the 
market of products containing, consisting of, or produced from genetically modified maize 
to  Regulation  (EC)  No 
59122xNK603  (DAS-59122-7xMON-ØØ6Ø3-6)  pursuant 
1829/2003 of the European Parliament and of the Council 

•  2009/866/EC: Commission Decision of 30 November 2009 authorising the placing on the 
market of products containing, consisting of, or produced from genetically modified maize 
MIR604  (SYN-IR6Ø4-5)  pursuant  to  Regulation  (EC)  No  1829/2003  of  the  European 
Parliament and of the Council 

•  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 

•  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 

•  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 

•  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  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 

•  Commission  Regulation  (EC)  No  1881/2006  of  19  December  2006  setting  maximum 

levels for certain contaminants in foodstuffs 

•  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 

EN 

497 

   EN 

•  Commission  Regulation  (EC)  No  1151/2009  of  27  November  2009  imposing  special 
conditions governing the import of sunflower oil originating in or consigned from Ukraine 
due to contamination risks by mineral oil and repealing Decision 2008/433/EC 

•  Commission  Regulation  (EC)  No  1152/2009  of  27  November  2009  imposing  special 
conditions  governing  the  import  of  certain  foodstuffs  from  certain  third  countries  due  to 
contamination risk by aflatoxins and repealing Decision 2006/504/EC 

•  Commission  Regulation  (EC)  No  1135/2009  of  25  November  2009  imposing  special 
conditions  governing  the  import  of  certain  products  originating  in  or  consigned  from 
China, and repealing Commission Decision 2008/798/EC 

•  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 

•  Commission proposal for a Regulation of the European Parliament and of the Council on 

the provision of food information to consumers (COM 2008(40) final). 

Directorate general for Health and Consumers' Website 

http://ec.europa.eu/food/food/labellingnutrition/foodlabelling/index_en.htm 

Nutrition profiles and health claims 

The basic act as well as all related legislation and measures adopted may be found at 
the following address. 

http://ec.europa.eu/food/food/labellingnutrition/claims/index_en.htm 

The  legislation  on  dietetic  foods  is  based  on  Article  114  of  the  TFEU  and  can  be 
found on the following web link: 

http://ec.europa.eu/food/food/labellingnutrition/nutritional/index_en.htm. 

EN 

498 

   EN 

 
 
 
 
The legislation on food supplements and on the addition of vitamins and minerals 
and of certain other substances to foodstuffs is based on Article 114 of the TFEU 
and can be found on the following web links: 

http://ec.europa.eu/food/food/labellingnutrition/supplements/index_en.htm 

http://ec.europa.eu/food/food/labellingnutrition/vitamins/index_en.htm 

The information related to novel foods can be found at the following address: 

http://ec.europa.eu/food/food/biotechnology/novelfood/index_en.htm 

Labelling of foodstuffs: 

– 

General  food labelling, legislation and decisions on draft national measures 
notified by Member States: 

http://ec.europa.eu/food/food/labellingnutrition/foodlabelling/index_en.htm 

Nutrition Labelling: 

http://ec.europa.eu/food/food/labellingnutrition/nutritionlabel/index_en.htm  

– 

Information  on  the  Commission  proposal  for  a  Regulation  of  the  European 
Parliament  and  of  the  Council  on  the  provision  of  food  information  to 
consumers: 

http://ec.europa.eu/food/food/labellingnutrition/foodlabelling/proposed_legislation_en.
htm 

ANIMAL HEALTH 

•  Council Decision 2009/470/EC of 25 May 2009 on expenditure in the veterinary field 

•  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 

•  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 

EN 

499 

   EN 

 
 
 
•  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  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 

•  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 

EN 

500 

   EN 

•  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 220/2009 of the European Parliament and of the Council of 11 March 
2009  amending  Regulation  (EC)  No  999/2001  laying  down  rules  for  the  prevention, 
control  and  eradication  of  certain  transmissible  spongiform  encephalopathies,  as  regards 
the implementing powers conferred on the Commission 

•  Commission Regulation (EC) No 103/2009 of 3 February 2009 amending Annexes VII and 
IX to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying 
down rules for the prevention, control and eradication of certain transmissible spongiform 
encephalopathies 

•  Commission  Regulation  (EC)  No  162/2009  of  26  February  2009  amending  Annexes  III 
and  X  to  Regulation  (EC)  No  999/2001  of  the  European  Parliament  and  of  the  Council 
laying  down  rules  for  the  prevention,  control  and  eradication  of  certain  transmissible 
spongiform encephalopathies 

•  Commission  Regulation  (EC)  No  163/2009  of  26  February  2009  amending  Annex  IV  to 
Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down 
rules  for  the  prevention,  control  and  eradication  of  certain  transmissible  spongiform 
encephalopathies 

•  2009/719/EC:  Commission  Decision  of  28  September  2009  authorising  certain  Member 

States to revise their annual BSE monitoring programmes 

•  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 

•  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 

•  Zoonoses and Antimicrobial Resistance (AMR): 

Zoonoses: http://ec.europa.eu/food/food/biosafety/salmonella/index_en.htm 

AMR: http://ec.europa.eu/food/food/biosafety/public_consultation_AMR_en.htm 

•  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 

EN 

501 

   EN 

•  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 
not subject to animal health requirements laid down in specific Community rules referred 
to in Annex A (I) to Directive 90/425/EEC 

•  Regulation (EC) No 998/2003 of the European Parliament and of the Council of 26 May 2003 
on  the  animal  health  requirements  applicable  to  the  non-commercial  movement  of  pet 
animals and amending Council Directive 92/65/EEC 

•  Council  Directive  96/22/EC  of  29  April  1996  concerning  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  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 

•  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 

•  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 

EN 

502 

   EN 

•  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 77/504/EEC on pure-bred 
breeding animals of the bovine species 

•  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  1069/2009  of  the  European  Parliament  and  of  the  Council  of  21 
October 2009 laying down health rules as regards animal by-products and derived products 
not  intended  for  human  consumption  and  repealing  Regulation  (EC)  No  1774/2002 
(Animal by-products Regulation) 

Further information related to animal health and animal welfare can be found at the following 
address: 

•  Animal Health and Welfare website: http://ec.europa.eu/food/animal/index_en.htm 

•  The new EU Animal Health Strategy where "Prevention is better than cure": 

http://ec.europa.eu/food/animal/diseases/strategy/index_en.htm 

•  The Animal Health Action Plan to implement the Strategy: 

http://ec.europa.eu/food/animal/diseases/strategy/actionplan_en.htm 

ANIMAL WELFARE 

Relevant EU Treaty provisions: 

•  Article 13 TFEU 

Relevant secondary EU law acts: 

EN 

503 

   EN 

 
 
•  Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for 

farming purposes. 

•  Council Directive 91/629/EEC of 19 November 1991 laying down the minimum standards 

for the protection of calves codified in Council Directive 2008/119/EC. 

•  Council Directive 91/630/EEC of 19 November 1991 laying down minimum standards for 

the protection of pigs codified in Council Directive 2008/120/EC. 

•  Council  Directive  2007/43/EC  of  28  June  2007  laying  down  minimum  rules  for  the 

protection of chickens kept for meat production. 

•  Council  Directive  1999/74/EC  of  19  July  1999  laying  down  minimum  standards  for  the 

protection of laying hens. 

•  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,  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. 

•  Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time 

of slaughter or killing. 

•  Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals 

at the time of killing. 

•  Regulation  (EC)  No  1523/2007  of  the  European  Parliament  and  of  the  Council  of  11 
December 2007 banning the placing on the market and the import to, or export from, the 
Community of cat and dog fur, and products containing such fur. 

•  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. 

FEED 

Relevant EU Treaty provisions: 

•  Articles 43 and 168(4)(b) TFEU  

Relevant secondary EU law acts: 

•  Regulation (EC) No 767/2009 of the European Parliament and of the Council of 13  July 
2009  on  the  placing  on  the  market  and  use  of  feed,  amending  European  Parliament  and 
Council  Regulation  (EC)  No  1831/2003  and  repealing  Council  Directive  79/373/EEC, 
Commission  Directive  80/511/EEC,  Council  Directives  82/471/EEC,  83/228/EEC, 
93/74/EEC, 93/113/EC and 96/25/EC and Commission Decision 2004/217/EC 

•  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 30/8/2010. 

EN 

504 

   EN 

•  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 

•  Commission  Directive  2009/8/CE  of  10  February  2009  amending  Annex  I  to  Directive 
2002/32/EC of the European Parliament and of the Council as regards maximum levels of 
unavoidable carry-over of coccidiostats or histomonostats in non-target feed 

•  Commission Regulation (EC) No 124/2009 of 10 February 2009 setting maximum levels 
for the presence of coccidiostats or histomonostats in food resulting from the unavoidable 
carry-over of these substances in non-target 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 

PLANT HEALTH 

•  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 

•  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 

EN 

505 

   EN 

•  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 

•  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 

EN 

506 

   EN 

•  Regulation  (EC)  No  1107/2009  of  the  European  Parliament  and  of  the  Council  of  21 
October  2009  concerning  the  placing  of  plant  protection  products  on  the  market  and 
repealing Council Directives 79/117/EEC and 91/414/EEC 

•  Commission Regulation (EC) No 1097/2009 of 16 November 2009 amending Annex II to 
Regulation  (EC)  No  396/2005  of  the  European  Parliament  and  of  the  Council  as  regards 
maximum 
fenarimol, 
methamidophos, methomyl, omethoate, oxydemeton-methyl, procymidone, thiodicarb and 
vinclozolin in or on certain products 

for  dimethoate, 

fenamiphos, 

ethephon, 

residue 

levels 

•  2009/835/EC:  Commission  Decision  of  12  November  2009  on  emergency  measures 
imposing special conditions on official controls governing the import of pears originating 
in or consigned from Turkey due to high residue levels of amitraz 

SEEDS – PLANT VARIETY 

•  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  

EN 

507 

   EN 

•  Council  Directive  2002/57/EC  of  13  June  2002  on  the  marketing  of  seed  of  oil  and  fibre 

plants 

•  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 

508 

   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 

509 

   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 

•  Commission  Directive  2009/145/EC  of  26  November  2009  providing  for  certain 
derogations,  for  acceptance  of  vegetable  landraces  and  varieties  which  have  been 

EN 

510 

   EN 

traditionally  grown  in  particular  localities  and  regions  and  are  threatened  by  genetic 
erosion and of vegetable varieties with no intrinsic value for commercial crop production 
but developed for growing under particular conditions and for marketing of seed of those 
landraces and varieties. 

IX. 

EUROSTAT 

•  Legislation in application in the sector 

http://eur-lex.europa.eu/fr/legis/legis-statistiques.htm 

•  New measure already proposed by the Commission and due to be adopted in the sector: 

Draft Proposal for a Council Regulation amending Regulation (EC) No 479/2009 as regards 
the quality of statistical data in the context of the excessive deficit procedure (COM(2010) 53) 

http://intragate.ec.europa.eu/egreffe/greffe/servlet/FrameCreator?init=true&ticket=ECAS_ST-
486923-yxYe6nF8PLkDTcKhPqQzTRDt8tdt15Q7igIWJO0MmKX-
wkGjxchnStjMueiTZpKjZG-7UU9zzdBzjGlAo9WaiEywkm 

X. 

BUDGET 

In particular, the following legal texts are applicable: 

●    Article 311 ((ex Article 269 TEC) 

The Union shall provide itself with the means necessary to attain its objectives and 
carry through its policies. 

Without  prejudice  to  other  revenue,  the  budget  shall  be  financed  wholly  from  own 
resources.  

The  Council,  acting  in  accordance  with  a  special  legislative  procedure,  shall 
unanimously  and  after  consulting  the  European  Parliament  adopt  a  decision  laying 
down  the  provisions  relating  to  the  system  of  own  resources  of  the  Union.  In  this 
context  it  may  establish  new  categories  of  own  resources  or  abolish  an  existing 
category. That decision shall not enter into force until it is approved by the Member 
States in accordance with their respective constitutional requirements. 

The Council, acting by means of regulations in accordance with a special legislative 
procedure,  shall  lay  down  implementing  measures  for  the  Union's  own  resources 
system  in  so  far  as  this  is  provided  for  in  the  decision  adopted  on  the  basis  of  the 
third  paragraph.  The  Council  shall  act  after  obtaining  the  consent  of  the  European 
Parliament. 

●      Council  Decision  2007/436/EC,  Euratom  on  the  system  of  the  Communities'  own 

resources.  

EN 

511 

   EN 

 
 
 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:163:0017:01:EN:HTML 

●            Council  Regulation  (EEC,  Euratom)  No  1553/89  of  29  May  1989  on  the  definitive 
uniform arrangements for the collection of own resources accruing from value added tax 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31989R1553:EN:HTML 

● Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 
94/728/EC, Euratom on the system of the Communities' own resources 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000R1150:EN:HTML 

●  PROTOCOL  (No  7)  ON  THE  PRIVILEGES  AND  IMMUNITIES  OF  THE  EUROPEAN 

UNION 

Article 3 

The Union, its assets, revenues and other property shall be exempt from all direct taxes. 

The  governments  of  the  Member  States  shall,  wherever  possible,  take  the  appropriate  measures  to 
remit  or  refund  the  amount  of  indirect  taxes  or  sales  taxes  included  in  the  price  of  movable  or 
immovable  property,  where  the  Union  makes,  for  its  official  use,  substantial  purchases  the  price  of 
which  includes  taxes  of  this  kind.  These  provisions  shall  not  be  applied,  however,  so  as  to  have  the 
effect of distorting competition within the Union. 

No exemption shall be granted in respect of taxes and dues which amount merely to charges for public 
utility services. 

Article 4 

The  Union  shall  be  exempt  from  all  customs  duties,  prohibitions  and  restrictions  on  imports  and 
exports in respect of articles intended for its official use: articles so imported shall not be disposed of, 
whether  or  not  in  return  for  payment,  in  the  territory  of  the  country  into  which  they  have  been 
imported, except under conditions approved by the government of that country. 

The  Union  shall  also  be  exempt  from  any  customs  duties  and  any  prohibitions  and  restrictions  on 
import and exports in respect of its publications. 

EN 

512 

   EN