CELEX: 51982PC0441
Language: en
Date: 1982-07-12
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE COORDINATING THE REQUIREMENTS FOR THE DRAWING UP, SCRUTINY AND DISTRIBUTIONS OF THE PROSPECTUS TO BE PUBLISHED WHEN SECURITIES ARE OFFERED FOR SUBSCRIPTION OR SALE TO THE PUBLIC

No C 226/4                            Official Journal of the European Communities                                    31.8.82
                                                                II
                                                         (Preparatory Acts)
                                                 COMMISSION
              Amended proposal for a Council Directive coordinating the requirements for the drawing
              up, scrutiny and distribution of the prospectus to be published when securities are offered
                                           for subscription or sale to the public
              (Submitted by the Commission to the Council pursuant to the second paragraph of Article
                                         149 of the EEC Treaty on 19 July 1982)
                     ORIGINAL VERSION                                                          NEW VERSION
Proposal for a Council Directive coordinating the                       Amended proposal for a Council Directive coordi-
requirements for the drawing up, scrutiny and distri-                   nating the requirements for the drawing up, scrutiny
bution of the prospectus to be published when                           and distribution of the prospectus to be published
securities are offered for subscription or sale to the                  when securities are offered for subscription or sale to
                          public                                                                the public
                                         P r e a m b l e and r e c i t a l s u n c h a n g e d
                                                            SECTION I
                                                        General provisions
                         Article 1                                                              Article 1
1.     This Directive shall apply to securities which are              1.     This Directive shall apply to securities which
offered for subscription or sale to the public within a                are offered directly or indirectly by the issuer for
Member State provided that the securities are not                      subscription or sale to the public within one or more
admitted to official listing on a stock exchange                       Member States.
situated or operating in that Member State.
2.     For the purposes of applying this Directive,                    Unchanged.
securities shall be considered to be offered for sub-
scription or sale to the public where the offer is not
addressed exclusively to a restricted circle of persons.
The Member States shall determine what is meant by                     An offer shall be considered to be made to a restricted
'restricted circle of persons' having regard to the                    circle of persons where it is addressed to an
number of persons to whom the offer is addressed                       identifiable category of persons or bodies known to
and, if appropriate, having regard also to their nature,               the offeror, to whom the offer is directly
to the amount of the offer, and to the means of                        communicated by the offeror or his appointed agent,
publicity used for making the offer.                                   so that only members of that category may accept the
                                                                       offer and such members are in possession of sufficient
                                                                       information to be able to make a reasonable
                                                                       evaluation of the offer.
                                                                       Notwithstanding the foregoing, a Member State may
                                                                       consider that an offer is addressed to a restricted
                                                                       circle of persons where it is addressed to not more
                                                                       than a given number of persons to be specified by that
                                                                       Member State, which number shall not exceed 250.
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                    ORIGINAL VERSION                                                NEW VERSION
                        Article 2                                                    Article 2
This Directive shall not apply to:                            Unchanged.
(a) units issued by collective investment undertakings        Unchanged.
    other than the closed-end type; or
(b) securities issued by a State or by its regional or        Unchanged.
    local authorities; or
(c) securities issued in connection with a takeover           Unchanged.
    offer; or
(d) securities issued in connection with a merger             Unchanged.
    involving the acquisition of another company or
    the formation of a new company, the division of
    a company, the transfer of all or part of an
    undertaking's assets and liabilities or as
    consideration for the transfer of assets other than
    cash; or
(e) shares allotted free of charge to holders of shares;      Unchanged.
    or
(f) shares issued in substitution for shares if the           Unchanged.
    issuing of such new shares does not involve any
    increase in the company's issued share capital; or
(g) shares allotted directly or indirectly to employees       Unchanged.
    or to trustees holding them on behalf of
    employees.
                                                              (h) Eurobonds; or
                                                              (0 shares     resulting from the conversion of
                                                                  convertible debt securities or shares created after
                                                                  an exchange for exchangeable debt securities or
                                                                  shares resulting from the exercise of the rights
                                                                  conferred by warrants; or
                                                              (J) securities which are admitted to official listing on
                                                                  a stock exchange situated or operating in the
                                                                  Member State where the public offer is made.
                         Article 3                                                    Article 3
For the purposes of applying this Directive:                  Unchanged.
(a) 'collective investment undertakings other than the        Unchanged.
     closed-end type' shall mean unit trusts and
     investment companies:
    — the object of which is the collective investment
         of capital provided by the public, and which
         operate on the principle of risk spreading, and
    — the units of which are, at the holder's request,
         purchased or redeemed, directly or indirectly,
         out of the assets of these undertakings. Action
         taken by such undertakings to ensure that the
         stock exchange value of their units does not
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                       ORIGINAL VERSION                                                      NEW VERSION
          significantly vary from their net asset value
          shall be regarded as equivalent to such
          repurchase or redemption;
 (b) 'units of a collective investment undertaking' shall            Unchanged.
     mean securities issued by a collective investment
     undertaking as representing the rights of parti-
     cipants in the assets of such an undertaking;
 (c) 'issuers' shall mean companies and other legal                  Unchanged.
     persons and any undertakings whose securities
     are offered for subscription or sale to the public;
 (d) 'net turnover' shall comprise the amounts derived               Unchanged.
     from the sale of products and the provision of
     services falling within the undertaking's ordinary
     activities, after deduction of sales rebates and of
     value added tax and other taxes linked directly to
     the turnover;
 (e) 'credit institution' shall mean an undertaking                  Unchanged.
     whose business is to receive deposits or other
     repayable funds from the public and to grant
     credits for its own account;
 (f) 'participating interests' shall mean rights in the              Unchanged.
     capital of other undertakings, whether or not
     represented by certificates, which, by creating a
     durable link with those undertakings, are
     intended to contribute to the activities of the
     undertaking which holds these rights;
 (g) 'annual accounts' shall comprise the balance                    Unchanged.
     sheet, the profit and loss; account and the notes
     on the accounts. These documents shall constitute
     a composite whole.
                                                                     (h) 'securities' shall mean shares, debt securities or
                                                                          certificates representing shares.
                                             A r t i c l e s 4 and 5 u n c h a n g e d
                           Article 6                                                          Article 6
1.    Without prejudice to the obligation referred to                1.     Without prejudice to the obligation referred to
in Article 5, Member States shall ensure that, subject               in Article 5, Member States shall ensure that, subject
to the possibilities for exemptions provided for in                  to the possibilities for exemption provided for in
Articles 7 and 8, prospectuses contain, in as easily                 Articles 7, 7a and 8, prospectuses contain, in as easily
analyzable and comprehensible a form as possible, at                 analyzable and comprehensible a form as possible, at
least the items of information provided for in                       least the items of information provided for in
Schedules A, B or C, depending on whether shares,                    Schedules A, B or C, depending on whether shares,
debt securities or certificates representing shares are              debt securities or certificates representing shares are
involved.                                                            involved.
2.     In the specific cases covered by Articles 9 to 16             2.     In the specific cases covered by Articles 9 to 16
the prospectus is to be drawn up in accordance with                  the prospectus is to be drawn up in accordance with
the specifications given in those Articles, subject to               the specifications given in those Articles, subject to
the possibilities for exemptions provided for in                     the possibilities for exemptions provided for in
Articles 7 and 8.                                                    Articles 7, 7a and 8.
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                     ORIGINAL VERSION                                               NEW VERSION
3.    Where certain headings in Schedules A, B and C          Unchanged.
appear inappropriate to the issuer's sphere of activity
or legal form, a prospectus giving equivalent infor-
mation shall be drawn up by adapting these headings.
                         Article 7                                                    Article 7
Member States may allow the authorities responsible           Unchanged.
for checking the prospectus within the meaning of
this Directive (hereinafter referred to as 'the
competent authorities') to provide for partial or
complete exemption from the obligation to publish a
prospectus in the following cases:
1. where the securities are not offered by the issuer         1. Deleted.
    or by financial intermediaries;
2. where the securities offered are:                          2. Deleted.
    (a) shares. resulting from the conversion of
        convertible debt securities or shares created
        after an exchange for exchangeable debt
        securities; or
    (b) shares resulting from the exercise of the rights
        conferred by warrants;
    and, where appropriate, the information provided
    for in Chapter 2 of Schedule A is published in
    accordance with Article 19 and Article 20 (1);
3. where the securities offered are:                         3. where the securities offered are:
    (a) shares of which either the number or the                 (a) shares for which admission to official listing is
        nominal value or, in the absence of a nominal                or will be applied for and of which either the
        value, the accounting par value, amount to less              number or the estimated market value or the
        than 10 % of the number or of the                            nominal value or, in the absence of a nominal
        correponding value of shares of the same class               value, the accounting par value, amounts to less
        as have already been offered to the public in                than 10 % of the number or of the
        the Member State where the offer is made,                    corresponding value of shares of the same class
        and of which the nominal value, or in the                    already listed on the same stock exchange,
        absence of a nominal value, the accounting par               provided that the issuer has complied with the
        value, is in any event less than 25 000 units of             stock exchange publicity requirements imposed
        account;                                                     by the national authorities and has produced
                                                                     annual accounts and annual and interim reports
                                                                     which these authorities have considered
                                                                     adequate.
    (b) debt securities issued by companies and other            (b) Unchanged.
        legal persons which are nationals of a Member
        State and which:
        — in carrying on their business, benefit from
            State monopolies, and
        — are set up or governed by a special law or
            pursuant to such a law or whose
            borrowings are unconditionally and irrev-
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                      ORIGINAL VERSION                                              NEW VERSION
            ocably guaranteed by a Member State or
            one of a Member State's federated States;
   (c) debt securities issued by legal persons, other            (c) Unchanged.
        than companies, which are nationals of a
        Member State and
        — are set up by special law,
        — the activities of which are governed by that
            law and consist solely in:
             (i) raising funds under state control
                 through the issue of debt securities,
                 and
            (ii) financing production by means of the
                 resources which they have raised and
                 resources provided by a Member State,
                 and
        — the debt securities of which are, for the
            purposes of admission to official listing,
            considered as debt securities issued or
            guaranteed by the State; or
   (d) supplementary certificates representing shares            (d) Unchanged.
        issued in exchange for the original securities,
        where the issuing of such new certificates has
        not brought about any increase in the
        company's issued share capital, provided that a
        document which the competent authorities
        consider to contain equivalent information to
        that contained in the prospectus required by
        this Directive and relating to the certificates
        representing such shares has already been
        published in the same Member State as that in
        which the offer to the public is made;
and where in all the cases referred to in the points          Unchanged.
mentioned above information concerning the number
and type of securities to be offered and the circums-
tances in which such securities have been issued has
been published in accordance with Articles 19 and
20 (1).
                                                              4. Where the securities offered are debt securities
                                                                 issued in a continuous or repeated manner by credit
                                                                 institutions which regularly publish their annual
                                                                 accounts and which, within the Community, are set
                                                                 up or governed by a special law, or pursuant to
                                                                 such a law, or are subject to public supervision
                                                                 designed to protect savings.
                                                              Article 7a
                                                              Where the offer relates to securities issued by an
                                                              undertaking the securities of which are not admitted
                                                              to official listing on a stock exchange situated or
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                    ORIGINAL VERSION                                                        NEW VERSION
                                                                      operating in the same Member State as that in which
                                                                      the offer is made and provided that that undertaking
                                                                      has not requested the admission of its securities to
                                                                      such listing, the competent authorities may authorize
                                                                      omission from the prospectus of certain information
                                                                      contained in Chapters 4 and 6 of Schedule A or B
                                                                      depending on whether the offer is of shares or of debt
                                                                      securities. Moreover, wherever a reference to infor-
                                                                      mation of a financial nature is made in Chapter 5 of
                                                                      Schedule A or B as the case may be, the competent
                                                                      authorities may authorize such information to be given
                                                                      merely for the last financial year, instead of for the
                                                                      last three financial years (in the case of Schedule A)
                                                                      or the last two financial years (in the case of
                                                                      Schedule B).
                         Article 8                                                            Article 8
1.    The competent authorities may authorize                         Unchanged,
omission from the prospectus of certain information
provided for by this Directive if they consider that:
(a) such information is of minor importance only and
    is not such as will influence assessment of the
    assets and liabilities, financial position, profits and
    losses and prospects of the issuer; or
(b) disclosure of such information would be contrary
    to the public interest or seriously detrimental to
    the issuer, provided that, in the latter case, such
    omission would not be likely to mislead the public
    with regard to facts and circumstances,
    knowledge of which is essential for the
    assessment of the securities in question.
2.    Where the person making the offer is a person                   Deleted.
other than the issuer or a person acting on his behalf,
the competent authorities may authorize omission
from the prospectus of certain information which
would not normally be in his possession.
                                                              SECTION II
                                    Contents of the prospectus in certain specific cases
                                              A r t i c l e s 9 to 11 u n c h a n g e d
                         Article 12                                                          Article 12
 1.   Where the offer relates to debt securities issued               1.     Deleted.
in a continuous or repeated manner by credit
institutions which regularly publish their annual
accounts and which, within the Community, are set
up or governed by a special law, or pursuant to such
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                      ORIGINAL VERSION                                                       NEW VERSION
 a law, or are subject to public supervision designed to
 protect savings, the Member States may provide that
 the prospectus shall contain only:
 — the information provided for in heading 1.1 and
     Chapter 2 of Schedule B, and
 — information concerning any events of importance
     for the assessment of the securities in question
     which have occurred since the end of the financial
     year in respect of which the last annual accounts
     were published. Such accounts must be made
     available to the public at the issuer's offices and at
     those of the financial organizations retained to act
     as the latter's paying agents.
 2.    Where the debt securities referred to in                       2.       Deleted.
 paragraph 1 are issued at very short intervals, the
 Member States may provide that the prospectus shall
 only contain information on the characteristics of
 such debt securities.
                                                 A r t i c l e 13 u n c h a n g e d
                         Article 14                                                           Article 14
 1.    Where the offer relates to convertible debt                     1.     Where the offer relates to convertible debt
 securities, exchangeable debt securities or debt                     securities, exchangeable debt securities or debt
 securities with warrants, the prospectus must include:               securities with warrants the prospectus must include:
 — information concerning the nature of the shares                    — Unchanged.
     offered by way of conversion, exchange or sub-
     scription, and the rights attaching thereto,
 — the information provided for in heading 1.3 and                    — the information provided for in Chapter 1 and in
     Chapters 3 to 7 of Schedule A,                                        Chapters 3 to 7 of Schedule A,
— the information provided for in Chapter 2 of                        — Unchanged.
     Schedule B, and
— the conditions of and procedures for conversion,                    — Unchanged.
    exchange or subscription and details of the
    situations in which they may be amended.
2.     When the issuer of the convertible debt                        2.      Unchanged.
securities, the exchangeable debt securities or the debt
securities with warrants is not the issuer of the shares,
the prospectus must include:
 — information concerning the nature of the shares
     offered by way of conversion, exchange or sub-
     scription and the rights attaching thereto, and
 — in respect of the issuer of the securities, the infor-
     mation provided for in Schedule B,
 — in respect of the issuer of the shares, that provided
     for in heading 1.3 and Chapters 3 to 7 of
     Schedule A, and
 — the conditions of and procedures for conversion,
     exchange or subscription and details of the
     situations in which they may be amended.
However, where the issuer of the debt securities is a
finance company within the meaning of Article 11
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                      ORIGINAL VERSION-                                                             NEW VERSION
(3), the prospectus need contain, in relation to that
company, only the information provided for in
Chapters 1, 2 and 3 and headings 5.1.0 to 5.1.5 and
6.1 of Schedule B.
                          Article 15                                                                 Article 15
1.     Where the offer            relates to         certificates                  Unchanged.
representing shares, the prospectus must contain the
information, as regards certificates, provided for in
Schedule C and the information, as regards the shares
represented, provided for in Schedule A.
2.     However, the competent authorities may relieve                              Unchanged.
the issuer of the certificates of the requirement to
publish details of its own financial position, when
then issuer is:
— a credit institution which is a national of a                            — Unchanged.
    Member State and is set up or governed by a
    special law or pursuant to such law or is subject to
    public supervision designed to protect savings, or
— a subsidiary 95 % or more of which is owned by a                               a subsidiary 95 % or more of which is owned by
    credit institution within the meaning of the                                one or more credit institutions within the meaning
     preceding indent, the commitments of which                                  of the preceding indent, the commitments of
     towards      the    holders      of    certificates          are           which towards the holders of certificates are
     unconditionally guaranteed            by that credit                        unconditionally guaranteed          by that     credit
     institution and which is subject, de jure or de facto,                      institution or those credit institutions and which is
     to the same supervision; or                                                 subject, de jure or de facto, to the same
                                                                                 supervision; or
— an 'Administratiekantoor' in the Netherlands                                   Unchanged.
     governed, for the safe custody of the original
     securities, by special regulations laid down by the
     competent authorities.
 3.    In the case of certificates issued by a securities                  3.      Unchanged.
transfer organization or by an auxiliary institution set
up by such organization, the competent authorities
may dispense with the publication of the information
provided for in Chapter 1 of Schedule C.
                                                       A r t i c l e 16 u n c h a n g e d
                                                                  SECTION III
                              Arrangements for the scrutiny and publication of the prospectus
                                               A r t i c l e s 17 and 18 u n c h a n g e d
                          Article 19                                                                 Article 19
The prospectus must be published and be made                                1.     The prospectus must be published and       be made
 permanently available to the public in accordance                          permanently available to the public in the        Member
 with conditions laid down by the Member State in                           State in which the offer to the public is         made in
 which the offer to the public is made.                                     accordance with conditions laid down by that      Member
                                                                            State.
                                                                            2.     The prospectus must be drawn up in the official
                                                                            language or languages or in one of the official
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                    ORIGINAL VERSION                                                       NEW VERSION
                                                                    languages or in another language, provided that, in
                                                                    the Member State concerned, such official language or
                                                                    languages or such other language are customary in the
                                                                    sphere of finance and are accepted by the competent
                                                                    authorities.
                        Article 20                                                           Article 20
1.    The prospectus must be published no later than                1.     Unchanged.
the time of opening of the offer.
Moreover, where the offer is preceded by trading of
the pre-emptive subscription rights, the prospectus
must be published within a reasonable period, to be
laid down by the competent authorities, before such
trading starts.
2.     In exceptional, properly justified cases, the                2.    Unchanged.
competent authorities may allow the postponement of
the publication of the prospectus until after the date
of the opening of trading in pre-emptive subscription
rights.
                                                                    3.    If the public offer relates to debt securities and if
                                                                    some of the terms of the issue are not finalized until
                                                                    the last moment, the competent authorities may
                                                                    merely require the publication of a prospectus
                                                                    omitting information as to these terms but indicating
                                                                    how it will be given. Such information must be
                                                                    published before the date on which the public offer
                                                                    opens.
                                         A r t i c l e s 21 a n d 22 u n c h a n g e d
                                                          SECTION IV
         Cooperation between the Member States                          Offers concerning more than one Member State
                        Article 23                                                           Article 23
 1.   Where offers of the same securities are made                  1.    The competent authorities shall provide each
simultaneously, or within short intervals of one                    other with such cooperation as is necessary for the
another within several Member States, the competent                 carrying out of their task and shall in this connection
 authorities shall exchange information and use their               provide each other with all relevant information.
 best endeavours to achieve maximum coordination of                 Notwithstanding Article 17 (2), where offers of the
 their requirements concerning the prospectus, to                   same securities are made simultaneously within more
 avoid a multiplicity of formalities and to agree to a              than one Member State the prospectus need only be
 single text requiring at the most translation, where               approved by the competent authorities of the Member
 appropriate, and the issue of supplements as necessary             State in which the issuer has its registered office, or in
 to meet the individual requirements of each Member                 cases where the issuer has no registered office in the
 State concerned.                                                   Community, by the competent authorities to which the
                                                                    financial institution with principal responsibility for
                                                                    the transaction applies. Once so approved, subject
                                                                    only to any need for translation and to any changes of
                                                                    a purely formal nature to adapt the prospectus to the
                                                                    particular circumstances of the other Member State,
                                                                    the prospectus must be recognized by the other
                                                                    Member States in which the offer is made without the
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                        ORIGINAL VERSION                                                      NEW VERSION
                                                                        need to obtain further approval from the competent
                                                                        authorities of those Member States.
                                                                        The approved version of the prospectus together with
                                                                        any translation shall be sent by the person making the
                                                                        offer to the competent authorities in such other
                                                                        Member States not later than the time when the offer
                                                                        is open in such other Member States.
2.     Where an offer is made in a Member State of                      2.      Deleted.
securities which have been offered in another
Member State less than six months previously, the
competent authorities of the former Member State
shall contact the competent authorities of the latter
and shall, as far as possible, exempt the issuer of
those securities from the preparation of a new pros-
pectus, subject to any need for updating, translation
or the issue of supplements in accordance with the
individual requirements of the Member State
concerned.
                                                   A r t i c l e 24 u n c h a n g e d
                                                               SECTION V
                                                       Contact Committee
                            Article 25                                                         Article 25
1.     The Contact Committee set up by Article 20 of                    1.      Unchanged.
Council Directive 79/279/EEC of 5 March 1979
coordinating the conditions for the admission of
securities to official stock exchange listing ('), shall
also have as its function:
(a) without prejudice to Articles 169 and 170 of the                    (a) Unchanged.
     EEC Treaty to facilitate the harmonized
     implementation of this Directive through regular
     consultations on any practical problems arising
     from its application on which exchanges of views
     .ire deemed useful;
(b) to facilitate consultation between the Member                       (b) Unchanged.
     States on the supplements and improvements to
     the prospectus which the competent authorities
     are entitled to require or recommend at national
     level;
(c) to advise the Commission, if necessary, on any                      (c) to advise the Commission, if necessary, on any
     additions or amendments to be made to this                               additions or amendments to be made to this
     Directive or on any adaptation to be made in                             Directive.
     accordance with Article 26.
2.     It shall not be the function of the Contact                      2.      Unchanged.
Committee to appraise the merits of decisions taken
by the competent authorities in individual cases.
(') O J N 0 L 6 6 , 16. 3. 1979 p. 21.
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                    ORIGINAL VERSION                                                       NEW VERSION
                       Article 26                                                           Article 26
1.    For the purpose of adjusting, in the light of                   1.    Deleted.
economic requirements, the amount referred to in
Article 7 (3) (a), the Commission shall submit to the
Committee a draft of the measures to be taken. The
Committee shall deliver its opinion within the period
laid down by its chairman. Its decisions shall require
41 votes in favour, the votes of the Member States
being weighted as provided for in Article 148 (2) of
the Treaty.
2.    When the Committee has delivered an opinion                     2.    Deleted.
in favour of the draft of the measures envisaged by
the Commission the latter shall adopt them.
Where the opinion of the Committee is not in
accordance with the draft of the measures envisaged
by the Commission or where the Committee has not
delivered an opinion within the required period, the
Commission shall without delay lay before the
Council, which shall act by qualified majority, a
proposal concerning the measures to be taken.
Where the Council fails to act on the proposal within
three months of its receipt, the measures proposed
shall be adopted by the Commission.
                                                           SECTION VI
                                                          Final provisions
                                          A r t i c l e s 27 and 28 u n c h a n g e d
                                       S c h e d u l e s A, B and C u n c h a n g e d
              Proposal for a Council Regulation on the granting of limited financial support in the field
                                                  of transport infrastructure
                            (Submitted by the Commission to the Council on 20 July 1982)
THE COUNCIL OF THE EUROPEAN                                          Whereas the Commission has undertaken the
COMMUNITIES,                                                         preparatory work called for by the Council at its
                                                                     meeting on 23 November 1978;
Having regard to the Treaty establishing the
European Economic Community, and in particular
Article 75 thereof,                                                  Whereas a limited amount of financial support should
Having regard to the proposal from the Commission,                   be provided, in order to assess how useful this might
                                                                      be in developing a transport network of interest to
Having regard to the opinion of the European                          the Community and the whole of the operational
Parliament,                                                           appropriation included in the 1982 budget should be
Having regard to the opinion of the Economic and                      used;
Social Committee,
Whereas a proposal for a Regulation on support                       Whereas in this experimental phase eligible projects
for projects of Community interest in transport                      must concern routes of prime importance to
infrastructure has been submitted to the Council;                    Community traffic and must be urgent,