Avis juridique important

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32001L0012

Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways

Official Journal L 075 , 15/03/2001 P. 0001 - 0025

Directive 2001/12/EC of the European Parliament and of the Councilof 26 February 2001amending Council Directive 91/440/EEC on the development of the Community's railwaysTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 71 thereof,Having regard to the proposal of the Commission(1),Having regard to the opinion of the Economic and Social Committee(2),Having regard to the opinion of the Committee of the Regions(3),Acting in accordance with the procedure laid down in Article 251(4) of the Treaty in the light of the joint text approved on 22 November 2000 by the Conciliation Committee,Whereas:(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways(5) should be amended to take account of experience with its implementation and of developments in the railway sector since its adoption, in order to ensure that its objectives are achieved.(2) Fair and non-discriminatory access to the infastructure needs to be guaranteed through the separation of certain essential functions and/or the creation of a rail regulator fulfilling the control and implementation functions as well as through the separation of profit and loss accounts and the balance sheets.(3) Fair and non-discriminatory access to the infrastructure needs to be guaranteed also through the separation of safety related functions and/or the creation of a rail regulator fulfilling the control and implementation functions. In any case railway undertakings may be involved in a non-discriminatory way in enforcement and monitoring of safety standards.(4) Extension of access rights should, as with other modes of transport, proceed in conjunction with the parallel implementation of the necessary accompanying harmonisation measures.(5) In accordance with the objective of completing the internal market, which will include the possibility for all licensed railway undertakings meeting the safety conditions to provide services, access rights should, for a transitional period of up to seven years, be extended to licensed railway undertakings for the international transport of goods on a defined network, called the Trans European Rail Freight Network, including access to, and supply of, services in major terminals and ports. After this transitional period, the Trans-European Rail Freight Network should cover the entire European rail network and the railway undertakings should be granted rights of access thereto for international freight transport.(6) Access right is guaranteed to the licensed railway undertaking meeting the safety conditions and seeking access, whatever the mode of operation.(7) Member States remain free to grant access rights that are more extensive than access for railway undertakings operating international combined transport to international groupings operating international services and to railway undertakings operating international freight services within the Trans-European Rail Freight Network. The use of these more extensive access rights may be limited to railway undertakings licensed in Member States where access rights of a similar nature are granted, provided that this limitation is compatible with the Treaty.(8) To promote efficient management of infrastructure in the public interest, infrastructure managers should be given a status independent of the State, and freedom to manage their internal affairs, while Member States should take the necessary measures for the development and the safe use of railway infrastructure.(9) To promote the efficient operation of passenger and freight transport services and to ensure transparency in their finances, including all financial compensation or aid paid by the State, it is necessary to separate the accounts of passenger and of freight transport services.(10) It is necessary to implement a number of measures in order better to monitor the development of the railway sector and the evolution of the market, assess the effect of the measures adopted and analyse the impact of the measures envisaged by the Commission.(11) Bodies should be established with a sufficient degree of independence to regulate competition on the rail services market where there are no entities performing that function.(12) The Commission should report on the implementation of this Directive and make appropriate proposals.(13) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(6).(14) Specific measures are required to take account of the specific geopolitical and geographical situations of certain Member States as well as a specific organisation of the railway sector in various Member States while ensuring the integrity of the internal market.(15) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Directive, namely to develop the Community's railways, cannot be sufficiently achieved by the Member States in view of the need to ensure fair and non-discriminatory terms for access to the infrastructure as well as to take account of the manifestly international dimensions involved in the operation of significant elements of the railway networks, and can therefore, by reason of the need for coordinated trans-national action, be better achieved by the Community. This Directive does not go beyond what is necessary to achieve those objectives.(16) Directive 91/440/EEC should be amended accordingly,HAVE ADOPTED THIS DIRECTIVE:Article 1Directive 91/440/EEC is hereby amended as follows:1) the title of Section I shall be replaced by the following: "Scope and Definitions";2) Article 1 shall be repealed;3) the following paragraph shall be added to Article 2:"3. Undertakings the train operations of which are limited to providing solely shuttle services for road vehicles through the Channel Tunnel are excluded from the scope of this Directive except Articles 6(1), 10 and 10a.";4) Article 3 shall be amended as follows:a) the first and second indents shall be replaced by the following:"- 'railway undertaking' shall mean any public or private undertaking licensed according to applicable Community legislation, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking must ensure traction; this also includes undertakings which provide traction only;- 'infrastructure manager' shall mean any body or undertaking responsible in particular for establishing and maintaining railway infrastructure. This may also include the management of infrastructure control and safety systems. The functions of the infrastructure manager on a network or part of a network may be allocated to different bodies or undertakings";b) the following indent shall be inserted after the fourth indent:"- 'international freight service' shall mean transport services where the train crosses at least one border of a Member State; the train may be joined and/or split and the different sections may have different origins and destinations, provided that all wagons cross at least one border";5) the title of Section II shall be replaced by the following: "Management independence";6) Article 4 shall be replaced by the following:"Article 41. Member States shall take the measures necessary to ensure that as regards management, administration and internal control over administrative, economic and accounting matters railway undertakings have independent status in accordance with which they will hold, in particular, assets, budgets and accounts which are separate from those of the State.2. While respecting the framework and specific charging and allocation rules established by the Member States, the infrastructure manager shall have responsibilities for its own management, administration and internal control";7) Article 6 shall be replaced by the following:"Article 61. Member States shall take the measures necessary to ensure that separate profit and loss accounts and balance sheets are kept and published, on the one hand, for business relating to the provision of transport services by railway undertakings and, on the other, for business relating to the management of railway infrastructure. Public funds paid to one of these two areas of activity may not be transferred to the other.The accounts for the two areas of activity shall be kept in a way that reflects this prohibition.2. Member States may also provide that this separation shall require the organisation of distinct divisions within a single undertaking or that the infrastructure shall be managed by a separate entity.3. Member States shall take the measures necessary to ensure that the functions determining equitable and non-discriminatory access to infrastructure, listed in Annex II, are entrusted to bodies or firms that do not themselves provide any rail transport services. Regardless of the organisational structures, this objective must be shown to have been achieved.Member States may, however, assign to railway undertakings or any other body the collecting of the charges and the responsibility for managing the railway infrastructure, such as investment, maintenance and funding.4. The application of paragraph 3 shall be subject to a report by the Commission in accordance with Article 10b, to be submitted by 15 March 2006.";8) Article 7 shall be replaced by the following:"Article 71. Member States shall take the necessary measures for the development of their national railway infrastructure taking into account, where necessary, the general needs of the Community.2. Member States shall ensure that safety standards and rules are laid down, rolling stock and railway undertakings are certified accordingly and accidents investigated. These tasks shall be accomplished by bodies or undertakings that do not provide rail transport services themselves and are independent of bodies or undertakings that do so, in such a way as to guarantee equitable and non-discriminatory access to infrastructure.Railway undertakings shall apply these safety standards and rules. Unless Member States mandate independent bodies with enforcement and monitoring, they may require or allow railway undertakings to be involved in ensuring the enforcement and monitoring of the safety standards and rules while guaranteeing the neutral and non-discriminatory execution of these functions.3. Member States may also accord the infrastructure manager, having due regard to Articles 73, 87 and 88 of the Treaty, financing consistent with the tasks, size and financial requirements, in particular in order to cover new investments.4. Within the framework of general policy determined by the State, the infrastructure manager shall draw up a business plan including investment and financial programmes. The plan shall be designed to ensure optimal and efficient use and development of the infrastructure while ensuring financial balance and providing means for these objectives to be achieved.";9) Article 9(3) shall be replaced by the following:"3. Aid accorded by Member States to cancel the debts referred to in this Article shall be granted in accordance with Articles 73, 87 and 88 of the Treaty.";10) the following paragraph shall be added to Article 9:"4. In the case of railway undertakings profit and loss accounts and either balance sheets or annual statement of assets and liabilities shall be kept and published for business relating to the provision of rail freight-transport services. Funds paid for activities relating to the provision of passenger-transport services as public-service remits must be shown separately in the relevant accounts and may not be transferred to activities relating to the provision of other transport services or any other business.";11) Article 10 shall be replaced by the following:"Article 101. International groupings shall be granted access and transit rights in the Member States of establishment of their constituent railway undertakings, as well as transit rights in other Member States, for international services between the Member States where the undertakings constituting the said groupings are established.2. Railway undertakings within the scope of Article 2 shall be granted, on equitable conditions, access to the infrastructure in other Member States for the purpose of operating international combined transport goods services.3. Whatever the mode of operation, railway undertakings within the scope of Article 2 shall be granted, on equitable conditions, the access that they are seeking to the Trans-European Rail Freight Network defined in Article 10(a) and in Annex I after 15 March 2008, to the entire rail network, for the purpose of operating international freight services.4. At the request of a Member State or on its own initiative the Commission shall, in a specific case, examine the application and enforcement of this Article, and within two months of receipt of such a request and after consulting the Committee referred to in Article 11a(2), decide whether the related measure may continue to be applied. The Commission shall communicate its decision to the European Parliament, the Council and to the Member States.Without prejudice to Article 226 of the Treaty, any Member State may refer the Commission's decision to the Council within a time limit of one month. The Council, acting by a qualified majority, may in exceptional circumstances take a different decision within a period of one month.5. Any railway undertaking engaged in rail transport services under paragraphs 1, 2 and 3 shall conclude the necessary administrative, technical and financial agreements on the basis of public or private law with the infrastructure managers of the railway infrastructure used with a view to regulating traffic control and safety issues concerning that transport. The conditions governing such agreements shall be non-discriminatory and, if applicable, in conformity with the provisions of Directive 2000/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification(7).6. Track access to, and supply of, services in the terminals and ports linked to rail activities referred to in paragraphs 1, 2 and 3, serving or potentially serving more than one final customer, shall be provided to all railway undertakings in a non-discriminatory manner, and requests by railway undertakings may be subject to restrictions only if viable alternatives under market conditions exist.7. Without prejudice to Community and national regulations concerning competition policy and the institutions with responsibility in that area, the regulatory body established pursuant to Article 30 of Directive 2000/14/EC, or any other body enjoying the same degree of independence shall monitor the competition in the rail services markets, including the rail freight transport market.That body shall be set up in accordance with the rules in Article 30(1) of the said Directive. Any applicant or interested party may lodge a complaint with this body if it feels that it has been treated unjustly, has been the subject of discrimination or has been injured in any other way. On the basis of the complaint and, where appropriate, on its own initiative, the regulatory body shall decide at the earliest opportunity on appropriate measures to correct undesirable developments in these markets. In order to ensure the necessary possibility of judicial control and the requisite cooperation between national regulatory bodies, Article 30(6) and Article 31 of the said Directive shall apply in this context.8. In accordance with Article 14 which provides for a report on the implementation of this Directive, accompanied by suitable proposals on continuing Community action to develop the railway market and the legal framework governing it, and in any case seven years after 15 March 2008, the Trans-European Rail Freight Network defined in Article 10a and Annex I, granting access for the international transport of goods to the railway undertakings defined in Article 3, shall be extended to cover the entire European rail network. The railway undertakings shall be granted, over that entire network and on fair conditions, guaranteed access and transit for the international transport of goods.";12) in Section V "Access to railway infrastructure" the following Article shall be added:"Article 10a1. The Trans-European Rail Freight Network consists of the following elements:a) Railway lines as indicated in the maps in Annex I.b) Diversionary routes, where appropriate, particularly around congested infrastructure within the meaning of Directive 2000/14/EC. When these routes are offered, overall journey times shall be safeguarded as far as this is feasible.c) Track access to terminals serving or potentially serving more than one final customer and to other sites and facilities, including feeder lines to and from these.d) Track access to and from ports as listed in Annex I, including feeder lines.2. The feeder lines mentioned in paragraph 1(c) and (d) cover at either end of the journey 50 km or 20 % of the length of the journey on the railway lines referred to in paragraph 1(a), whichever is greater.Belgium and Luxembourg, as Member States with a relatively small or concentrated network, may limit the length of the feeder lines in the first year after 15 March 2003 to at least 20 km and until the end of the second year to at least 40 km.";13) after Section V "Access to railway infrastructure", the following section shall be added:"SECTION VaMonitoring tasks of the CommissionArticle 10b1. Not later than 15 September 2001 the Commission shall make the necessary arrangements to monitor technical and economic conditions and market developments of European rail transport. The Commission shall ensure that adequate resources are made available to enable the effective monitoring of this sector.2. In this context, the Commission shall closely involve representatives of the Member States and of the sectors concerned in its work, including users, so that they are able better to monitor the development of the railway sector and the evolution of the market, assess the effect of the measures adopted and analyse the impact of the measures planned by the Commission.3. The Commission shall monitor the use of the networks and the evolution of the framework conditions in the rail sector, in particular infrastructure charging, capacity allocation, safety regulation and licensing and the degree of harmonisation that evolves. It shall ensure an active cooperation between the appropriate regulatory bodies in the Member States.4. The Commission shall report to the European Parliament and the Council on:a) the evolution of the internal market in rail servicesb) the framework conditionsc) the state of the Trans-European Rail Freight Networkd) the utilisation of access rightse) barriers to more effective rail servicesf) infrastructure limitations, andg) the need for legislation."14) Article 11 shall be replaced by the following:"Article 111. Member States may bring any question concerning the implementation of this Directive to the attention of the Commission. Appropriate decisions shall be adopted by use of the advisory procedure referred to in Article 11a(2).2. The amendments necessary to adapt the Annexes shall be adopted by use of the regulatory procedure referred to in Article 11a(3).";15) the following Article shall be inserted:"Article 11a1. The Commission shall be assisted by a Committee.2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.3. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.4. The Committee shall adopt its rules of procedure.";16) Article 14 shall be replaced by the following:"Article 14By 15 March 2005 the Commission shall submit to the European Parliament, the Economic and Social Committee, the Committee of the Regions and the Council a report on the implementation of this Directive accompanied by suitable proposals on continuing Community action to develop the railway market and the legal framework governing it.";17) the following Article shall be inserted:"Article 14a1. For a period of five years from 15 March 2003, the following Member States:- Ireland, as a Member State located on an island with a rail link to only one other Member State- the United Kingdom, in respect of Northern Ireland, on the same basis, and- Greece, as a Member State that does not have any direct rail link to any other Member State,do not need to apply the requirement to entrust to an independent body the functions determining equitable and non-discriminatory access to infrastructure, as provided for in Article 6(3), first subparagraph and the tasks set out in Article 7(2), first subparagraph, in so far as those Articles oblige Member States to establish independent bodies performing the tasks referred to in the said Articles.2. However, where:a) more than one railway undertaking licensed in accordance with Article 4 of Directive 95/18/EC, or, in the case of Ireland and of Northern Ireland, a railway company so licensed elsewhere, submits an official application to operate competing railway services in, to or from Ireland, Northern Ireland or Greece, the continued applicability of this derogation will be decided upon in accordance with the advisory procedure referred to out in Article 11a(2); orb) a railway undertaking operating railway services in Ireland, Northern Ireland or Greece submits an official application to operate railway services on, to or from the territory of another Member State (in the case of Ireland, or the United Kingdom, in respect of Northern Ireland, or both, another Member State outside their territories), the derogation referred to in paragraph 1 shall not apply.Within one year from the receipt of either the decision referred to in point (a) adopted in accordance with the advisory procedure referred to in Article 11a(2), or notification of the official application referred to in point (b), the Member State or States concerned (Ireland, the United Kingdom with respect to Northern Ireland, or Greece) shall put in place legislation to implement the Articles referred to in paragraph 1.3. A derogation referred to in paragraph 1, may be renewed for periods not longer than five years. Not later than 12 months before the expiry date of the derogation a Member State availing itself of such derogation may address a request to the Commission for a renewed derogation. Any such request must be substantiated. The Commission shall examine such a request and adopt a decision in accordance with the advisory procedure referred to in Article 11a (2). The said advisory procedure shall apply to any decision related to the request.When adopting its decision the Commission shall take into account any development in the geopolitical situation and the development of the rail market in, from and to the Member State having requested the renewed derogation.4. Luxembourg as a Member State with a relatively small rail network does not need to apply until 31 August 2004 the requirement to award to an independent body the functions determining equitable and non-discriminatory access to infrastructure, as provided for in Article 6(3), first subparagraph, in so far as it obliges Member States to establish independent bodies performing the tasks referred to in that Article."Article 2Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 15 March 2003. They shall forthwith inform the Commission thereof.When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.Article 3This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.Article 4This Directive is addressed to the Member States.Done at Brussels, 26 February 2001.For the European ParliamentThe PresidentN. FontaineFor the CouncilThe PresidentA. Lindh(1) OJ C 321, 20.10.1998, p. 6, andOJ C 116 E, 26.4.2000, p. 21.(2) OJ C 209, 22.7.1999, p. 22.(3) OJ C 57, 29.2.2000, p. 40.(4) Opinion of the European Parliament of 10 March 1999 (OJ C 175, 21.6.1999, p. 115), confirmed on 16 September 1999 (OJ C 54, 25.2.2000, p. 56), Council Common Position of 28 March 2000 (OJ C 288, 11.10.2000, p. 1) and Decision of the European Parliament of 5 July 2000 (not yet published in the Official Journal). Decision of the European Parliament of 1 February 2001 and Council Decision of 20 December 2000.(5) OJ L 237, 24.8.1991, p. 25.(6) OJ L 184, 17.7.1999, p. 23.(7) See page 29 of this Official Journal.ANNEX IPORTSBELGIE/BELGIQUEAntwerpen/AnversGent/GandZeebrugge/ZeebrugesDANMARKÅlborgÅrhusEsbjergFredericiaKøbenhavnNyborgOdenseDEUTSCHLANDBrakeBremen/BremerhavenBrunsbüttelCuxhavenEmdenHamburgKielLübeckNordenhamPuttgardenRostockSassnitzWilhelmshavenWismarΕΛΛΑΣΑλεξανδρούπολιςΕλευσίναΠάτραΠειραιάςΘεσσαλονίκηΒόλοςESPAÑAAlgecirasAlmeríaBarcelonaBilbaoCartagena-EscombrerasGijónHuelvaTarragonaValenciaVigoFRANCEBayonneBordeauxBoulogneCalaisCherbourgDunkerqueFos-MarseilleLa RochelleLe HavreNantesPort-la-NouvelleRouenSèteSt-NazaireIRELANDCorkDublinITALIAAnconaBariBrindisiC. VecchiaGenovaGioia TauroLa SpeziaLivornoNapoliPiombinoRavennaSalernoSavonaTarantoTriesteVeneziaLUXEMBOURGNEDERLANDAmsterdam ZeehavenDelfzijl/EemshavenVlissingenRotterdam ZeehavenTerneuzenÖSTERREICHPORTUGALLeixõesLisboaSetúbalSinesSUOMI/FINLANDHaminaHankoHelsinkiKemiKokkolaKotkaOuluPoriRaumaTornioTurkuSVERIGEGöteborg-VarbergHelsingborgLuleåMalmöNorrköpingOxelösundStockholmTrelleborg-YstadUmeåUNITED KINGDOMAll rail-connected ports>PIC FILE= "L_2001075EN.000901.EPS">>PIC FILE= "L_2001075EN.001001.EPS">>PIC FILE= "L_2001075EN.001101.EPS">>PIC FILE= "L_2001075EN.001201.EPS">>PIC FILE= "L_2001075EN.001301.EPS">>PIC FILE= "L_2001075EN.001401.EPS">>PIC FILE= "L_2001075EN.001501.EPS">>PIC FILE= "L_2001075EN.001601.EPS">>PIC FILE= "L_2001075EN.001701.EPS">>PIC FILE= "L_2001075EN.001801.EPS">>PIC FILE= "L_2001075EN.001901.EPS">>PIC FILE= "L_2001075EN.002001.EPS">>PIC FILE= "L_2001075EN.002101.EPS">>PIC FILE= "L_2001075EN.002201.EPS">>PIC FILE= "L_2001075EN.002301.EPS">>PIC FILE= "L_2001075EN.002401.EPS">ANNEX IIList of essential functions referred to in Article 6(3):- preparation and decision making related to the licensing of railway undertakings including granting of individual licenses,- decision making related to the path allocation including both the definition and the assessment of availability and the allocation of individual train paths,- decision making related to infrastructure charging,- monitoring observance of public service obligations required in the provision of certain services.


Avis juridique important

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31988L0194

Commission Directive 88/194/EEC of 24 March 1988 adapting to technical progress Council Directive 71/320/EEC on the approximation of the laws of the Member States relating to the braking devices of certain categories of motor vehicles and their trailers

Official Journal L 092 , 09/04/1988 P. 0047 - 0049 Finnish special edition: Chapter 13 Volume 17 P. 0045  Swedish special edition: Chapter 13 Volume 17 P. 0045

COMMISSION DIRECTIVE  of 24 March 1988  adapting to technical progress Council Directive 71/320/EEC on the approximation of the laws of the Member States relating to the braking devices of certain categories of motor vehicles and their trailers   (88/194/EEC)  (88/194/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 71/320/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to the braking devices of certain categories of motor vehicles and their trailers (1), as last amended by Commission Directive  85/647/EEC (2), and in particular Article 5 thereof,  Whereas in the light of the progress made in braking technology in general, and in the production of anti-lock devices in particular, it is now possible to make it compulsory to fit certain heavy vehicles and trailers with such devices meeting the  corresponding specifications of this Directive with a view to increasing road safety;  Whereas the provisions of this Directive are in accordance with the opinion of the Committee for the Adaptation to Technical Progress of the Directives on Motor Vehicles,  HAS ADOPTED THIS DIRECTIVE:    Article 1   Annexes I and X to Directive 71/320/EEC are hereby amended in accordance with the Annex to this Directive.  Article 2   1. As from 1 October 1988 no Member State may, on grounds relating to braking devices:  - refuse, in respect of a type of vehicle, to grant EEC type-approval, or to issue the copy of the certificate provided for in the last indent of Article 10 (1) of Council Directive 70/156/EEC (3), or to grant national type-approval, or  - prohibit the entry into service of vehicles  where the braking devices of such type of vehicle or of such vehicles comply with the provisions of Directive 71/320/EEC, as last amended by this Directive.  2. As from 1 October 1989 Member States:  - shall no longer issue the copy of the certificate provided for in the last indent of Article 10 (1) of Directive 70/156/EEC in respect of a type of vehicle of which the braking devices do not comply with the provisions of Directive 71/320/EEC, as last  amended by this Directive,  - may refuse to grant national type-approval of a type of vehicle of which the braking devices do not comply with the provisions of Directive 71/320/EEC, as last amended by this Directive.  3. As from 1 October 1991 Member States may prohibit the entry into service of vehicles of which the braking devices do not comply with the provisions of Directive 71/320/EEC, as last amended by this Directive.  Article 3   Before 1 October 1988, Member States shall bring into force the provisions necessary in order to comply with this Directive. They shall forthwith inform the Commission thereof.  Article 4   This Directive is addressed to the Member States.   Done at Brussels, 24 March 1988.  For the Commission  COCKFIELD  Vice-President   (1) OJ No L 202, 6. 9. 1971, p. 37.  (2) OJ No L 380, 31. 12. 1985, p. 1.  (3) OJ No L 42, 23. 2. 1970, p. 1.    ANNEX  Amendments to the Annexes to Directive 71/320/EEC, as amended by Directives 74/132/EEC, 75/524/EEC, 79/489/EEC and 85/647/EEC      ANNEX I: DEFINITIONS, REQUIREMENTS, CONSTRUCTION AND FITTING   After item 1.17 the following new items 1.18, 1.19 and 1.20 are added:   ´1.18.   Inter-urban motor coach   ´´Inter-urban motor coach'' means a vehicle designed and equipped for inter-urban transport, having no spaces specifically intended for standing passengers, but able to carry for short distances passengers standing in the  gangway.  1.19.  Long-distance touring motor-coach   ´´Long distance touring motor-coach'' means a vehicle designed and equipped for long-distance journeys, arranged to ensure the comfort of its seated passengers and which does not carry standing  passengers.  1.20.  Anti-lock devices   See Annex X, item 2.1.' After item 2.2.1.21 the following new items 2.2.1.22 and 2.2.1.23 are added:   ´2.2.1.22.  Certain motor vehicles shall be fitted with anti-lock devices in accordance with Annex X, as shown in the following table:   Vehicle    Maximum  mass  Anti-lock  category    Category  Description          M3  Inter-urban motor coaches and long distance touring motor coaches >  12 tonnes  1  N3  Motor vehicles authorized to tow category O4 trailers >  16 tonnes  1       2.2.1.23.  If motor vehicles not mentioned in item 2.2.1.22 above are fitted  with anti-lock devices, they shall comply with the requirements of Annex X.' After item 2.2.2.12 the following new items 2.2.2.13 and 2.2.2.14 are added:   ´2.2.2.13.  Trailers of category O4 shall be fitted with anti-lock devices in accordance with Annex X.   2.2.2.14.  If trailers not mentioned in item 2.2.2.13 above are fitted with anti-lock devices, they shall comply with the requirements of Annex X.'    ANNEX X: REQUIREMENTS APPLICABLE TO TESTS FOR VEHICLES EQUIPPED WITH ANTI-LOCK DEVICES   Item 1.1 is replaced by the following:   ´1.1.  The purpose of this Annex is to define the required performances for braking systems with anti-lock devices fitted to road vehicles. In addition, motor vehicles which are authorized to draw a trailer, and trailers equipped with compressed-air  braking systems, shall, when the vehicles are laden, meet the requirements for compatibility set out in the Appendix to item 1 .1.4.2 of Annex II.' Item 3.2 is replaced by the following:   ´3.2.  A towed vehicle is deemed to be equipped with an anti-lock device within the meaning of item 1  of the Appendix to item 1.1.4.2 to Annex II, if at least two wheels on opposite sides of the vehicle are directly controlled by an anti-lock device, and all the relevant requirements of this Annex are satisfied. Furthermore, in the case of full  trailers, at least one wheel on one front axle and one (diagonally opposite) wheel on one rear axle must be directly controlled by independent modulators.'


title: Commission Directive 2009/121/EC of 14 September 2009 amending, for the purposes of their adaptation to technical progress, Annexes I and V to Directive 2008/121/EC of the European Parliament and of the Council on textile names (Text with EEA relevance)

text:
               15.9.2009

               EN

               Official Journal of the European Union

               L 242/13

      COMMISSION DIRECTIVE 2009/121/EC
   of 14 September 2009
   amending, for the purposes of their adaptation to technical progress, Annexes I and V to Directive 2008/121/EC of the European Parliament and of the Council on textile names
   (Text with EEA relevance)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community,
   Having regard to Directive 2008/121/EC of the European Parliament and of the Council of 14 January 2009 on textile names (1), and in particular Article 15(1) thereof,
   Whereas:

               (1)

               Directive 2008/121/EC lays down rules governing the labelling or marking of products as regards their textile fibre content, in order to ensure that consumer interests are thereby protected. Textile products may be placed on the market within the Community only if they comply with the provisions of that Directive.

               (2)

               In view of recent findings by a technical working group, it is necessary, for the purposes of adapting Directive 2008/121/EC to technical progress, to add the fibre melamine to the list of fibres set out in the Annexes I and V to that Directive.

               (3)

               Directive 2008/121/EC should therefore be amended accordingly

               (4)

               The measures provided for in this Directive are in accordance with the opinion of the Committee for Directives relating to Textile Names and Labelling,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Directive 2008/121/EC is amended as follows:

               1.

               in Annex I the following row 48 is added:

                           ‘48

                           melamine

                           fibre formed of at least 85 % by mass of cross-linked macromolecules made up of melamine derivatives’;

               2.

               in Annex V the following entry 48 is added:

                           ‘48

                           Melamine

                           7,00’.

         Article 2
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 15 September 2010 at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 3
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 14 September 2009.

            For the Commission

         Günter VERHEUGEN

            Vice-President

      (1)  OJ L 19, 23.1.2009, p. 29.


title: Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty

text:
               6.11.2013

               EN

               Official Journal of the European Union

               L 294/1

         DIRECTIVE 2013/48/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
   of 22 October 2013
   on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular point (b) of Article 82(2) thereof,
   Having regard to the proposal from the European Commission,
   After transmission of the draft legislative act to the national parliaments,
   Having regard to the opinion of the European Economic and Social Committee (1),
   After consulting the Committee of the Regions,
   Acting in accordance with the ordinary legislative procedure (2),
   Whereas:

               (1)

               Article 47 of the Charter of Fundamental Rights of the European Union (the Charter), Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR) and Article 14 of the International Covenant on Civil and Political Rights (the ICCPR) enshrine the right to a fair trial. Article 48(2) of the Charter guarantees respect for the rights of the defence.

               (2)

               The Union has set itself the objective of maintaining and developing an area of freedom, security and justice. According to the Presidency conclusions of the European Council in Tampere of 15 and 16 October 1999, and in particular point (33) thereof, the principle of mutual recognition of judgments and other decisions of judicial authorities should become the cornerstone of judicial cooperation in civil and criminal matters within the Union because enhanced mutual recognition and the necessary approximation of legislation would facilitate cooperation between competent authorities and the judicial protection of individual rights.

               (3)

               Pursuant to Article 82(1) of the Treaty on the Functioning of the European Union (TFEU), ‘judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions…’.

               (4)

               The implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States trust in each other’s criminal justice systems. The extent of the mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons and common minimum standards necessary to facilitate the application of the principle of mutual recognition.

               (5)

               Although the Member States are party to the ECHR and to the ICCPR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States.

               (6)

               Mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial authorities, but all actors in the criminal process consider decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those rules are correctly applied. Strengthening mutual trust requires detailed rules on the protection of the procedural rights and guarantees arising from the Charter, the ECHR and the ICCPR. It also requires, by means of this Directive and by means of other measures, further development within the Union of the minimum standards set out in the Charter and in the ECHR.

               (7)

               Article 82(2) TFEU provides for the establishment of minimum rules applicable in the Member States so as to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. That Article refers to ‘the rights of individuals in criminal procedure’ as one of the areas in which minimum rules may be established.

               (8)

               Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust and to the promotion of a fundamental rights culture in the Union. Such common minimum rules should also remove obstacles to the free movement of citizens throughout the territory of the Member States. Such common minimum rules should be established in relation to the right of access to a lawyer in criminal proceedings, the right to have a third party informed upon deprivation of liberty and the right to communicate with third persons and with consular authorities while deprived of liberty.

               (9)

               On 30 November 2009, the Council adopted a Resolution on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (‘the Roadmap’) (3). Taking a step-by-step approach, the Roadmap calls for the adoption of measures regarding the right to translation and interpretation (measure A), the right to information on rights and information about the charges (measure B), the right to legal advice and legal aid (measure C), the right to communicate with relatives, employers and consular authorities (measure D), and special safeguards for suspects or accused persons who are vulnerable (measure E). The Roadmap emphasises that the order of the rights is only indicative and thus implies that it may be changed in accordance with priorities. The Roadmap is designed to operate as a whole; only when all its components are implemented will its benefits be felt in full.

               (10)

               On 11 December 2009, the European Council welcomed the Roadmap and made it part of the Stockholm programme — An open and secure Europe serving and protecting citizens (4) (point 2.4). The European Council underlined the non-exhaustive character of the Roadmap, by inviting the Commission to examine further elements of minimum procedural rights for suspects and accused persons, and to assess whether other issues, for instance the presumption of innocence, need to be addressed, in order to promote better cooperation in that area.

               (11)

               Two measures have been adopted pursuant to the Roadmap to date, namely Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (5) and Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (6).

               (12)

               This Directive lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant pursuant to Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (7) (European arrest warrant proceedings) and the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the European Court of Human Rights, which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer. That case-law provides, inter alia, that the fairness of proceedings requires that a suspect or accused person be able to obtain the whole range of services specifically associated with legal assistance. In that regard, the lawyers of suspects or accused persons should be able to secure without restriction, the fundamental aspects of the defence.

               (13)

               Without prejudice to the obligations of Member States under the ECHR to ensure the right to a fair trial, proceedings in relation to minor offending which take place within a prison and proceedings in relation to offences committed in a military context which are dealt with by a commanding officer should not be considered to be criminal proceedings for the purposes of this Directive.

               (14)

               This Directive should be implemented taking into account the provisions of Directive 2012/13/EU, which provide that suspects or accused persons are provided promptly with information concerning the right of access to a lawyer, and that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights containing information about the right of access to a lawyer.

               (15)

               The term ‘lawyer’ in this Directive refers to any person who, in accordance with national law, is qualified and entitled, including by means of accreditation by an authorised body, to provide legal advice and assistance to suspects or accused persons.

               (16)

               In some Member States an authority other than a court having jurisdiction in criminal matters has competence for imposing sanctions other than deprivation of liberty in relation to relatively minor offences. That may be the case, for example, in relation to traffic offences which are committed on a large scale and which might be established following a traffic control. In such situations, it would be unreasonable to require that the competent authorities ensure all the rights under this Directive. Where the law of a Member State provides for the imposition of a sanction regarding minor offences by such an authority and there is either a right of appeal or the possibility for the case to be otherwise referred to a court having jurisdiction in criminal matters, this Directive should therefore apply only to the proceedings before that court following such an appeal or referral.

               (17)

               In some Member States certain minor offences, in particular minor traffic offences, minor offences in relation to general municipal regulations and minor public order offences, are considered to be criminal offences. In such situations, it would be unreasonable to require that the competent authorities ensure all the rights under this Directive. Where the law of a Member State provides in respect of minor offences that deprivation of liberty cannot be imposed as a sanction, this Directive should therefore apply only to the proceedings before a court having jurisdiction in criminal matters.

               (18)

               The scope of application of this Directive in respect of certain minor offences should not affect the obligations of Member States under the ECHR to ensure the right to a fair trial including obtaining legal assistance from a lawyer.

               (19)

               Member States should ensure that suspects or accused persons have the right of access to a lawyer without undue delay in accordance with this Directive. In any event, suspects or accused persons should be granted access to a lawyer during criminal proceedings before a court, if they have not waived that right.

               (20)

               For the purposes of this Directive, questioning does not include preliminary questioning by the police or by another law enforcement authority the purpose of which is to identify the person concerned, to verify the possession of weapons or other similar safety issues or to determine whether an investigation should be started, for example in the course of a road-side check, or during regular random checks when a suspect or accused person has not yet been identified.

               (21)

               Where a person other than a suspect or accused person, such as a witness, becomes a suspect or accused person, that person should be protected against self-incrimination and has the right to remain silent, as confirmed by the case-law of the European Court of Human Rights. This Directive therefore makes express reference to the practical situation where such a person becomes a suspect or accused person during questioning by the police or by another law enforcement authority in the context of criminal proceedings. Where, in the course of such questioning, a person other than a suspect or accused person becomes a suspect or accused person, questioning should be suspended immediately. However, questioning may be continued if the person concerned has been made aware that he or she is a suspect or accused person and is able to fully exercise the rights provided for in this Directive.

               (22)

               Suspects or accused persons should have the right to meet in private with the lawyer representing them. Member States may make practical arrangements concerning the duration and frequency of such meetings, taking into account the circumstances of the proceedings, in particular the complexity of the case and the procedural steps applicable. Member States may also make practical arrangements to ensure safety and security, in particular of the lawyer and of the suspect or accused person, in the place where such a meeting is conducted. Such practical arrangements should not prejudice the effective exercise or essence of the right of suspects or accused persons to meet their lawyer.

               (23)

               Suspects or accused persons should have the right to communicate with the lawyer representing them. Such communication may take place at any stage, including before any exercise of the right to meet that lawyer. Member States may make practical arrangements concerning the duration, frequency and means of such communication, including concerning the use of videoconferencing and other communication technology in order to allow such communications to take place. Such practical arrangements should not prejudice the effective exercise or essence of the right of suspects or accused persons to communicate with their lawyer.

               (24)

               In respect of certain minor offences, this Directive should not prevent Member States from organising the right of suspects or accused persons to have access to a lawyer by telephone. However, limiting the right in this way should be restricted to cases where a suspect or accused person will not be questioned by the police or by another law enforcement authority.

               (25)

               Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings. Such participation should be in accordance with any procedures under national law which may regulate the participation of a lawyer during questioning of the suspect or accused person by the police or by another law enforcement or judicial authority, including during court hearings, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. During questioning by the police or by another law enforcement or judicial authority of the suspect or accused person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law.

               (26)

               Suspects or accused persons have the right for their lawyer to attend investigative or evidence-gathering acts, insofar as they are provided for in the national law concerned and in so far as the suspects or accused persons are required or permitted to attend. Such acts should at least include identity parades, at which the suspect or accused person figures among other persons in order to be identified by a victim or witness; confrontations, where a suspect or accused person is brought together with one or more witnesses or victims where there is disagreement between them on important facts or issues; and reconstructions of the scene of a crime in the presence of the suspect or accused person, in order to better understand the manner and circumstances under which a crime was committed and to be able to ask specific questions to the suspect or accused person. Member States may make practical arrangements concerning the presence of a lawyer during investigative or evidence-gathering acts. Such practical arrangements should not prejudice the effective exercise and essence of the rights concerned. Where the lawyer is present during an investigative or evidence-gathering act, this should be noted using the recording procedure in accordance with the law of the Member State concerned.

               (27)

               Member States should endeavour to make general information available, for instance on a website or by means of a leaflet that is available at police stations, to facilitate the obtaining of a lawyer by suspects or accused persons. However, Member States would not need to take active steps to ensure that suspects or accused persons who are not deprived of liberty will be assisted by a lawyer if they have not themselves arranged to be assisted by a lawyer. The suspect or accused person concerned should be able freely to contact, consult and be assisted by a lawyer.

               (28)

               Where suspects or accused persons are deprived of liberty, Member States should make the necessary arrangements to ensure that such persons are in a position to exercise effectively the right of access to a lawyer, including by arranging for the assistance of a lawyer when the person concerned does not have one, unless they have waived that right. Such arrangements could imply, inter alia, that the competent authorities arrange for the assistance of a lawyer on the basis of a list of available lawyers from which the suspect or accused person could choose. Such arrangements could include those on legal aid if applicable.

               (29)

               The conditions in which suspects or accused persons are deprived of liberty should fully respect the standards set out in the ECHR, in the Charter, and in the case-law of the Court of Justice of the European Union (the Court of Justice) and of the European Court of Human Rights. When providing assistance under this Directive to a suspect or to an accused person who is deprived of liberty, the lawyer concerned should be able to raise a question with the competent authorities regarding the conditions in which that person is deprived of liberty.

               (30)

               In cases of geographical remoteness of the suspect or accused person, such as in overseas territories or where the Member State undertakes or participates in military operations outside its territory, Member States are permitted to derogate temporarily from the right of the suspect or accused person to have access to a lawyer without undue delay after deprivation of liberty. During such a temporary derogation, the competent authorities should not question the person concerned or carry out any of the investigative or evidence-gathering acts provided for in this Directive. Where immediate access to a lawyer is not possible because of the geographical remoteness of the suspect or accused person, Member States should arrange for communication via telephone or video conference unless this is impossible.

               (31)

               Member States should be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase when there is a need, in cases of urgency, to avert serious adverse consequences for the life, liberty or physical integrity of a person. During a temporary derogation on that ground, the competent authorities may question suspects or accused persons without the lawyer being present, provided that they have been informed of their right to remain silent and can exercise that right, and provided that such questioning does not prejudice the rights of the defence, including the privilege against self-incrimination. Questioning may be carried out for the sole purpose and to the extent necessary to obtain information that is essential to avert serious adverse consequences for the life, liberty or physical integrity of a person. Any abuse of this derogation would in principle irretrievably prejudice the rights of the defence.

               (32)

               Member States should also be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings, in particular to prevent destruction or alteration of essential evidence, or to prevent interference with witnesses. During a temporary derogation on that ground, the competent authorities may question suspects or accused persons without a lawyer being present, provided that they have been informed of their right to remain silent and can exercise that right, and provided that such questioning does not prejudice the rights of the defence, including the privilege against self-incrimination. Questioning may be carried out for the sole purpose and to the extent necessary to obtain information that is essential to prevent substantial jeopardy to criminal proceedings. Any abuse of this derogation would in principle irretrievably prejudice the rights of the defence.

               (33)

               Confidentiality of communication between suspects or accused persons and their lawyer is key to ensuring the effective exercise of the rights of the defence and is an essential part of the right to a fair trial. Member States should therefore respect the confidentiality of meetings and other forms of communication between the lawyer and the suspect or accused person in the exercise of the right of access to a lawyer provided for in this Directive, without derogation. This Directive is without prejudice to procedures that address the situation where there are objective and factual circumstances giving rise to the suspicion that the lawyer is involved with the suspect or accused person in a criminal offence. Any criminal activity on the part of a lawyer should not be considered to be legitimate assistance to suspects or accused persons within the framework of this Directive. The obligation to respect confidentiality not only implies that Member States should refrain from interfering with or accessing such communication but also that, where suspects or accused persons are deprived of liberty or otherwise find themselves in a place under the control of the State, Member States should ensure that arrangements for communication uphold and protect confidentiality. This is without prejudice to any mechanisms that are in place in detention facilities with the purpose of avoiding illicit enclosures being sent to detainees, such as screening correspondence, provided that such mechanisms do not allow the competent authorities to read the communication between suspects or accused persons and their lawyer. This Directive is also without prejudice to procedures under national law according to which forwarding correspondence may be rejected if the sender does not agree to the correspondence first being submitted to a competent court.

               (34)

               This Directive should be without prejudice to a breach of confidentiality which is incidental to a lawful surveillance operation by competent authorities. This Directive should also be without prejudice to the work that is carried out, for example, by national intelligence services to safeguard national security in accordance with Article 4(2) of the Treaty on European Union (TEU) or that falls within the scope of Article 72 TFEU, pursuant to which Title V on an area of Freedom, Security and Justice must not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

               (35)

               Suspects or accused persons who are deprived of liberty should have the right to have at least one person, such as a relative or an employer, nominated by them, informed of their deprivation of liberty without undue delay, provided that this does not prejudice the due course of the criminal proceedings against the person concerned or any other criminal proceedings. Member States may make practical arrangements in relation to the application of that right. Such practical arrangements should not prejudice the effective exercise and essence of the right. In limited, exceptional circumstances, however, it should be possible to derogate temporarily from that right when this is justified, in the light of the particular circumstances of the case, by a compelling reason as specified in this Directive. When the competent authorities envisage making such a temporary derogation in respect of a specific third person, they should firstly consider whether another third person, nominated by the suspect or accused person, could be informed of the deprivation of liberty.

               (36)

               Suspects or accused persons should, while deprived of liberty, have the right to communicate without undue delay with at least one third person, such as a relative, nominated by them. Member States may limit or defer the exercise of that right in view of imperative requirements or proportionate operational requirements. Such requirements could include, inter alia, the need to avert serious adverse consequences for the life, liberty or physical integrity of a person, the need to prevent prejudice to criminal proceedings, the need to prevent a criminal offence, the need to await a court hearing, and the need to protect victims of crime. When the competent authorities envisage limiting or deferring the exercise of the right to communicate in respect of a specific third person, they should first consider whether the suspects or accused persons could communicate with another third person nominated by them. Member States may make practical arrangements concerning the timing, means, duration and frequency of communication with third persons, taking account of the need to maintain good order, safety and security in the place where the person is being deprived of liberty.

               (37)

               The right of suspects and accused persons who are deprived of liberty to consular assistance is enshrined in Article 36 of the 1963 Vienna Convention on Consular Relations where it is a right conferred on States to have access to their nationals. This Directive confers a corresponding right on suspects or accused persons who are deprived of liberty, subject to their wishes. Consular protection may be exercised by diplomatic authorities where such authorities act as consular authorities.

               (38)

               Member States should clearly set out in their national law the grounds and criteria for any temporary derogations from the rights granted under this Directive, and they should make restricted use of those temporary derogations. Any such temporary derogations should be proportional, should be strictly limited in time, should not be based exclusively on the type or the seriousness of the alleged offence, and should not prejudice the overall fairness of the proceedings. Member States should ensure that where a temporary derogation has been authorised under this Directive by a judicial authority which is not a judge or a court, the decision on authorising the temporary derogation can be assessed by a court, at least during the trial stage.

               (39)

               Suspects or accused persons should be able to waive a right granted under this Directive provided that they have been given information about the content of the right concerned and the possible consequences of waiving that right. When providing such information, the specific conditions of the suspects or accused persons concerned should be taken into account, including their age and their mental and physical condition.

               (40)

               A waiver and the circumstances in which it was given should be noted using the recording procedure in accordance with the law of the Member State concerned. This should not lead to any additional obligation for Member States to introduce new mechanisms or to any additional administrative burden.

               (41)

               Where a suspect or accused person revokes a waiver in accordance with this Directive, it should not be necessary to proceed again with questioning or any procedural acts that have been carried out during the period when the right concerned was waived.

               (42)

               Persons subject to a European arrest warrant (‘requested persons’) should have the right of access to a lawyer in the executing Member State in order to allow them to exercise their rights effectively under Framework Decision 2002/584/JHA. Where a lawyer participates in a hearing of a requested person by an executing judicial authority, that lawyer may, inter alia, in accordance with procedures provided for under national law, ask questions, request clarification and make statements. The fact that the lawyer has participated in such a hearing should be noted using the recording procedure in accordance with the law of the Member State concerned.

               (43)

               Requested persons should have the right to meet in private with the lawyer representing them in the executing Member State. Member States may make practical arrangements concerning the duration and frequency of such meetings, taking into account the particular circumstances of the case. Member States may also make practical arrangements to ensure safety and security, in particular of the lawyer and of the requested person, in the place where the meeting between the lawyer and the requested person is conducted. Such practical arrangements should not prejudice the effective exercise and essence of the right of requested persons to meet with their lawyer.

               (44)

               Requested persons should have the right to communicate with the lawyer representing them in the executing Member State. It should be possible for such communication to take place at any stage, including before any exercise of the right to meet with the lawyer. Member States may make practical arrangements concerning the duration, frequency and means of communication between requested persons and their lawyer, including concerning the use of videoconferencing and other communication technology in order to allow such communications to take place. Such practical arrangements should not prejudice the effective exercise and essence of the right of requested persons to communicate with their lawyer.

               (45)

               Executing Member States should make the necessary arrangements to ensure that requested persons are in a position to exercise effectively their right of access to a lawyer in the executing Member State, including by arranging for the assistance of a lawyer when requested persons do not have one, unless they have waived that right. Such arrangements, including those on legal aid if applicable, should be governed by national law. They could imply, inter alia, that the competent authorities arrange for the assistance of a lawyer on the basis of a list of available lawyers from which requested persons could choose.

               (46)

               Without undue delay after being informed that a requested person wishes to appoint a lawyer in the issuing Member State, the competent authority of that Member State should provide the requested person with information to facilitate the appointment of a lawyer in that Member State. Such information could, for example, include a current list of lawyers, or the name of a lawyer on duty in the issuing State, who can provide information and advice in European arrest warrant cases. Member States could request that the appropriate bar association draw up such a list.

               (47)

               The surrender procedure is crucial for cooperation in criminal matters between the Member States. Observance of the time-limits contained in Framework Decision 2002/584/JHA is essential for such cooperation. Therefore, while requested persons should be able to exercise fully their rights under this Directive in European arrest warrant proceedings, those time-limits should be respected.

               (48)

               Pending a legislative act of the Union on legal aid, Member States should apply their national law in relation to legal aid, which should be in line with the Charter, the ECHR and the case-law of the European Court of Human Rights.

               (49)

               In accordance with the principle of effectiveness of Union law, Member States should put in place adequate and effective remedies to protect the rights that are conferred upon individuals by this Directive.

               (50)

               Member States should ensure that in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer, or in cases where a derogation from that right was authorised in accordance with this Directive, the rights of the defence and the fairness of the proceedings are respected. In this context, regard should be had to the case-law of the European Court of Human Rights, which has established that the rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. This should be without prejudice to the use of statements for other purposes permitted under national law, such as the need to execute urgent investigative acts to avoid the perpetration of other offences or serious adverse consequences for any person or related to an urgent need to prevent substantial jeopardy to criminal proceedings where access to a lawyer or delaying the investigation would irretrievably prejudice the ongoing investigations regarding a serious crime. Further, this should be without prejudice to national rules or systems regarding admissibility of evidence, and should not prevent Member States from maintaining a system whereby all existing evidence can be adduced before a court or a judge, without there being any separate or prior assessment as to admissibility of such evidence.

               (51)

               The duty of care towards suspects or accused persons who are in a potentially weak position underpins a fair administration of justice. The prosecution, law enforcement and judicial authorities should therefore facilitate the effective exercise by such persons of the rights provided for in this Directive, for example by taking into account any potential vulnerability that affects their ability to exercise the right of access to a lawyer and to have a third party informed upon deprivation of liberty, and by taking appropriate steps to ensure those rights are guaranteed.

               (52)

               This Directive upholds the fundamental rights and principles recognised by the Charter, including the prohibition of torture and inhuman and degrading treatment, the right to liberty and security, respect for private and family life, the right to the integrity of the person, the rights of the child, integration of persons with disabilities, the right to an effective remedy and the right to a fair trial, the presumption of innocence and the rights of the defence. This Directive should be implemented in accordance with those rights and principles.

               (53)

               Member States should ensure that the provisions of this Directive, where they correspond to rights guaranteed by the ECHR, are implemented consistently with those of the ECHR and as developed by case-law of the European Court of Human Rights.

               (54)

               This Directive sets minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection. Such higher level of protection should not constitute an obstacle to the mutual recognition of judicial decisions that those minimum rules are designed to facilitate. The level of protection should never fall below the standards provided by the Charter or by the ECHR, as interpreted by the case-law of the Court of Justice and of the European Court of Human Rights.

               (55)

               This Directive promotes the rights of children and takes into account the Guidelines of the Council of Europe on child friendly justice, in particular its provisions on information and advice to be given to children. This Directive ensures that suspects and accused persons, including children, are provided with adequate information to understand the consequences of waiving a right under this Directive and that any such waiver is made voluntarily and unequivocally. Where the suspect or accused person is a child, the holder of parental responsibility should be notified as soon as possible after the child’s deprivation of liberty and should be provided with the reasons therefor. If providing such information to the holder of parental responsibility is contrary to the best interests of the child, another suitable adult such as a relative should be informed instead. This should be without prejudice to provisions of national law which require that any specified authorities, institutions or individuals, in particular those that are responsible for the protection or welfare of children, should be informed of the deprivation of liberty of a child. Member States should refrain from limiting or deferring the exercise of the right to communicate with a third party in respect of suspects or accused persons who are children and who are deprived of liberty, save in the most exceptional circumstances. Where a deferral is applied the child should, however, not be held incommunicado and should be permitted to communicate, for example with an institution or an individual responsible for the protection or welfare of children.

               (56)

               In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (8), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

               (57)

               Since the objectives of this Directive, namely setting common minimum rules for the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings and the right to have a third person informed of the deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale of the measure, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

               (58)

               In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

               (59)

               In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject matter
   This Directive lays down minimum rules concerning the rights of suspects and accused persons in criminal proceedings and of persons subject to proceedings pursuant to Framework Decision 2002/584/JHA (‘European arrest warrant proceedings’) to have access to a lawyer, to have a third party informed of the deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.
   Article 2
   Scope
   1.   This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.
   2.   This Directive applies to persons subject to European arrest warrant proceedings (requested persons) from the time of their arrest in the executing Member State in accordance with Article 10.
   3.   This Directive also applies, under the same conditions as provided for in paragraph 1, to persons other than suspects or accused persons who, in the course of questioning by the police or by another law enforcement authority, become suspects or accused persons.
   4.   Without prejudice to the right to a fair trial, in respect of minor offences:

               (a)

               where the law of a Member State provides for the imposition of a sanction by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed or referred to such a court; or

               (b)

               where deprivation of liberty cannot be imposed as a sanction;

         this Directive shall only apply to the proceedings before a court having jurisdiction in criminal matters.
   In any event, this Directive shall fully apply where the suspect or accused person is deprived of liberty, irrespective of the stage of the criminal proceedings.
   Article 3
   The right of access to a lawyer in criminal proceedings
   1.   Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.
   2.   Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:

               (a)

               before they are questioned by the police or by another law enforcement or judicial authority;

               (b)

               upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;

               (c)

               without undue delay after deprivation of liberty;

               (d)

               where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.

         3.   The right of access to a lawyer shall entail the following:

               (a)

               Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;

               (b)

               Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;

               (c)

               Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:

                           (i)

                           identity parades;

                           (ii)

                           confrontations;

                           (iii)

                           reconstructions of the scene of a crime.

         4.   Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.
   Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.
   5.   In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty.
   6.   In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons:

               (a)

               where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;

               (b)

               where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.

         Article 4
   Confidentiality
   Member States shall respect the confidentiality of communication between suspects or accused persons and their lawyer in the exercise of the right of access to a lawyer provided for under this Directive. Such communication shall include meetings, correspondence, telephone conversations and other forms of communication permitted under national law.
   Article 5
   The right to have a third person informed of the deprivation of liberty
   1.   Member States shall ensure that suspects or accused persons who are deprived of liberty have the right to have at least one person, such as a relative or an employer, nominated by them, informed of their deprivation of liberty without undue delay if they so wish.
   2.   If the suspect or accused person is a child, Member States shall ensure that the holder of parental responsibility of the child is informed as soon as possible of the deprivation of liberty and of the reasons pertaining thereto, unless it would be contrary to the best interests of the child, in which case another appropriate adult shall be informed. For the purposes of this paragraph, a person below the age of 18 years shall be considered to be a child.
   3.   Member States may temporarily derogate from the application of the rights set out in paragraphs 1 and 2 where justified in the light of the particular circumstances of the case on the basis of one of the following compelling reasons:

               (a)

               where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;

               (b)

               where there is an urgent need to prevent a situation where criminal proceedings could be substantially jeopardised.

         4.   Where Member States temporarily derogate from the application of the right set out in paragraph 2, they shall ensure that an authority responsible for the protection or welfare of children is informed without undue delay of the deprivation of liberty of the child.
   Article 6
   The right to communicate, while deprived of liberty, with third persons
   1.   Member States shall ensure that suspects or accused persons who are deprived of liberty have the right to communicate without undue delay with at least one third person, such as a relative, nominated by them.
   2.   Member States may limit or defer the exercise of the right referred to in paragraph 1 in view of imperative requirements or proportionate operational requirements.
   Article 7
   The right to communicate with consular authorities
   1.   Member States shall ensure that suspects or accused persons who are non-nationals and who are deprived of liberty have the right to have the consular authorities of their State of nationality informed of the deprivation of liberty without undue delay and to communicate with those authorities, if they so wish. However, where suspects or accused persons have two or more nationalities, they may choose which consular authorities, if any, are to be informed of the deprivation of liberty and with whom they wish to communicate.
   2.   Suspects or accused persons also have the right to be visited by their consular authorities, the right to converse and correspond with them and the right to have legal representation arranged for by their consular authorities, subject to the agreement of those authorities and the wishes of the suspects or accused persons concerned.
   3.   The exercise of the rights laid down in this Article may be regulated by national law or procedures, provided that such law or procedures enable full effect to be given to the purposes for which these rights are intended.
   Article 8
   General conditions for applying temporary derogations
   1.   Any temporary derogation under Article 3(5) or (6) or under Article 5(3) shall

               (a)

               be proportionate and not go beyond what is necessary;

               (b)

               be strictly limited in time;

               (c)

               not be based exclusively on the type or the seriousness of the alleged offence; and

               (d)

               not prejudice the overall fairness of the proceedings.

         2.   Temporary derogations under Article 3(5) or (6) may be authorised only by a duly reasoned decision taken on a case-by-case basis, either by a judicial authority, or by another competent authority on condition that the decision can be submitted to judicial review. The duly reasoned decision shall be recorded using the recording procedure in accordance with the law of the Member State concerned.
   3.   Temporary derogations under Article 5(3) may be authorised only on a case-by-case basis, either by a judicial authority, or by another competent authority on condition that the decision can be submitted to judicial review.
   Article 9
   Waiver
   1.   Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10:

               (a)

               the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and

               (b)

               the waiver is given voluntarily and unequivocally.

         2.   The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned.
   3.   Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.
   Article 10
   The right of access to a lawyer in European arrest warrant proceedings
   1.   Member States shall ensure that a requested person has the right of access to a lawyer in the executing Member State upon arrest pursuant to the European arrest warrant.
   2.   With regard to the content of the right of access to a lawyer in the executing Member State, requested persons shall have the following rights in that Member State:

               (a)

               the right of access to a lawyer in such time and in such a manner as to allow the requested persons to exercise their rights effectively and in any event without undue delay from deprivation of liberty;

               (b)

               the right to meet and communicate with the lawyer representing them;

               (c)

               the right for their lawyer to be present and, in accordance with procedures in national law, participate during a hearing of a requested person by the executing judicial authority. Where a lawyer participates during the hearing this shall be noted using the recording procedure in accordance with the law of the Member State concerned.

         3.   The rights provided for in Articles 4, 5, 6, 7, 9, and, where a temporary derogation under Article 5(3) is applied, in Article 8, shall apply, mutatis mutandis, to European arrest warrant proceedings in the executing Member State.
   4.   The competent authority in the executing Member State shall, without undue delay after deprivation of liberty, inform requested persons that they have the right to appoint a lawyer in the issuing Member State. The role of that lawyer in the issuing Member State is to assist the lawyer in the executing Member State by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons under Framework Decision 2002/584/JHA.
   5.   Where requested persons wish to exercise the right to appoint a lawyer in the issuing Member State and do not already have such a lawyer, the competent authority in the executing Member State shall promptly inform the competent authority in the issuing Member State. The competent authority of that Member State shall, without undue delay, provide the requested persons with information to facilitate them in appointing a lawyer there.
   6.   The right of a requested person to appoint a lawyer in the issuing Member State is without prejudice to the time-limits set out in Framework Decision 2002/584/JHA or the obligation on the executing judicial authority to decide, within those time-limits and the conditions defined under that Framework Decision, whether the person is to be surrendered.
   Article 11
   Legal aid
   This Directive is without prejudice to national law in relation to legal aid, which shall apply in accordance with the Charter and the ECHR.
   Article 12
   Remedies
   1.   Member States shall ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European arrest warrant proceedings, have an effective remedy under national law in the event of a breach of the rights under this Directive.
   2.   Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights of the defence and the fairness of the proceedings are respected.
   Article 13
   Vulnerable persons
   Member States shall ensure that the particular needs of vulnerable suspects and vulnerable accused persons are taken into account in the application of this Directive.
   Article 14
   Non-regression clause
   Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the Charter, the ECHR, or other relevant provisions of international law or the law of any Member State which provides a higher level of protection.
   Article 15
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 27 November 2016. They shall immediately inform the Commission thereof.
   2.   When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.
   3.   Member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered by this Directive.
   Article 16
   Report
   The Commission shall, by 28 November 2019, submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive, including an evaluation of the application of Article 3(6) in conjunction with Article 8(1) and (2), accompanied, if necessary, by legislative proposals.
   Article 17
   Entry into force
   This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
   Article 18
   Addressees
   This Directive is addressed to the Member States in accordance with the Treaties.

      Done at Strasbourg, 22 October 2013.

            For the European Parliament

            The President

         M. SCHULZ

            For the Council

            The President

         V. LEŠKEVIČIUS

      (1)  OJ C 43, 15.2.2012, p. 51.

      (2)  Position of the European Parliament of 10 September 2013 (not yet published in the Official Journal) and decision of the Council of 7 October 2013.

      (3)  OJ C 295, 4.12.2009, p. 1.

      (4)  OJ C 115, 4.5.2010, p. 1.

      (5)  OJ L 280, 26.10.2010, p. 1.

      (6)  OJ L 142, 1.6.2012, p. 1.

      (7)  OJ L 190, 18.7.2002, p. 1.

      (8)  OJ C 369, 17.12.2011, p. 14.