Avis juridique important

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31992L0015

Commission Directive 92/15/EEC of 11 March 1992 amending Council Directive 83/229/EEC on the approximation of the laws of the Member States relating to materials and articles made of regenerated cellulose film intended to come into contact with foodstuffs

Official Journal L 102 , 16/04/1992 P. 0044 - 0046

COMMISSION DIRECTIVE 92/15/EEC  of 11 March 1992  amending Council Directive 83/229/EEC on the approximation of the laws of the Member States relating to materials and articles made of regenerated cellulose film intended to come into contact with  foodstuffsTHE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 89/109/EEC of 21 December 1988 on the approximation of the laws of the Member States relating to materials and articles intended to come into contact with foodstuffs (1), and in particular Article 3 (2) thereof,  Whereas Article 2 of Directive 89/109/EEC lays down that materials and articles, in their finished state, must not transfer their constituents to foodstuffs in quantities which could endanger human health or bring about an unacceptable change in the  composition of the foodstuffs;  Whereas the written declaration referred to in Article 6 (5) of Directive 89/109/EEC should be provided for in the event of professional use of regenerated cellulose film for materials and articles intended to come into contact with foodstuffs, except  those which are, by their nature, clearly intended for this use;  Whereas Article 4 (2) of Council Directive 83/229/EEC (2), as amended by Directive 86/388/EEC (3), enables Member States to decide whether to allow the use of phthalic esters pending scientific research to assess the risk associated with the use of such  substances;  Whereas the scientific data available now make it possible to lay down thresholds below which human exposure to these substances does not involve any risk to human health; whereas, therefore, these substances should be authorized throughout the  Community;  Whereas the additives authorized for use in the manufacture of coatings intended to cover regenerated cellulose film should also include the additives used in the manufacture of such film;  Whereas, on the basis of information available, the use of certain new substances may be permitted;  Whereas the Scientific Committee for Food, in accordance with Article 3 of Directive 89/109/EEC, has been consulted on the provisions liable to affect public health;  Whereas the measures provided for in this Directive are in accordance with the opinion of the Standing Committee on Foodstuffs,  HAS ADOPTED THIS DIRECTIVE:  Article 1  Directive 83/229/EEC is hereby amended as follows:  1. the following Article 3a is added:  'Article 3a  1. At the marketing stages other than the retail stage, materials and articles made of regenerated cellulose film intended to come into contact with foodstuffs shall be accompanied by a written declaration in accordance with Article 6 (5) of Directive  89/109/EEC (*).  2. Paragraph 1 does not apply to materials and articles made of regenerated cellulose film which by their nature are clearly intended to come into contact with foodstuffs.   (*) OJ No L 40, 11. 2. 1989, p. 38.';  2. paragraph 2 of Article 4 is deleted;  3. in the first part of Annex II, the letter B is added in the 'Denominations' column before the subtitles: '1. Softeners' and '2. Other additives';  4. in the first part of Annex II the following indent is inserted in the list 'B.1. Softeners'; 'Denominations' column, after sorbitol: '- tetraethyleneglycol';  5. (a) in the first part of Annex II the following indent is inserted after the first indent of subheading 'Third class - Anchoring agents' of heading 'B.2. Other additives', in the 'Denominations' column:  '- condensation products of melamine-urea-formaldehyde modified with tris (2-hydroxyethyl) amine';  (b) against this item and under the column 'Restrictions' the following is added:  'Free formaldehyde content on side in contact with foodstuffs  " 0,5 mg/dm2.  Free melamine content on side in contact with foodstuffs  " 0,3 mg/dm2';  6. (a) in the Second Part of Annex II, the letter C is added in the 'Denominations' column, before the subtitles '1. Polymes 2. Resins 3. Plasticizers';  (b) the following substances are delected from the 'Denominations' column, section 'C.3. Plasticizers':  '- butyl-methylcarboxybutyl phthalate [=butylphthalyl butyl glycolate]  - di-isobutyl phthalate  - di-(methylcyclohexyl) phthalate and its isomers [=sextolphthalate]  - methyl-methylcarboxyethyl phthalate [=methylphthalyl ethyl glycolate]';  (c) the following is added in the 'Restrictions' column for the substance '- butylbenzylphthalate':  ' " 2 mg/dm2 in the coating on the side in contact with foodstuffs';  (d) the following is added in the 'Restrictions' column section 'C.3. Plasticizers' for the substance '-di-n-butyl phthalate':  ' " 3 mg/dm2 in the coating on the side in contact with foodstuffs';  (e) the following is added in the 'Restrictions' column section 'C.3. Plasticizers' for the substance '- dicyclohexyl phthalate':  ' " 4 mg/dm2 in the coating on the side in contact with foodstuffs';  (f) the following is inserted in the 'Denominations' and 'Restrictions' columns after Section 'C.3. Plasticizers':     'C.4. Other additives  "  6 mg/dm2 in total in the uncoated regenerated cellulose film, inclusive of the coating on the side in contact with foodstuffs.    C.4.1. Additives listed in the first part  Same restrictions as in the first part  (however, the quantities in mg/dm2 refer to the uncoated regerated cellulose film, inclusive of the coating on the side in contact with foodstuffs).'; (g) heading 4 'Specific coating additives', in the 'Denominations' column is replaced by 'C.4.2.  Specific coating additives';  (h) against the heading 'C.4.2. Specific coating additives' the text in the column 'Restrictions' is replaced by the following:  'The quantity of the substance or group of substances in each indent may not exceed 2 mg/dm2 (or a lower limit where one is specified) in the coating on the side in contact with foodstuffs';  (i) heading 'D. Solvents' is replaced by 'C.5. Solvents'.  Article 2  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 1993. They shall immediately inform the Commission thereof.  Those laws, regulations and administrative provisions shall apply as follows:  Member States shall:  - permit, by 30 June 1993, the trade and use of regenerated cellulose film complying with Directive 83/229/EEC, as amended by this Directive,  - prohibit, as from 1 July 1994, the trade and use of regenerated cellulose film which is intended to come into contact with foodstuffs and which does not conform to Directive 83/229/EEC, as amended by this Directive.  2. When Member States adopt the measures reffered to in paragraph 1, the measures shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be  adopted by Member States.  Article 3  This Directive is addressed to the Member States. Done at Brussels, 11 March 1992. For the Commission  Martin BANGEMANN  Vice-President   (1) OJ No L 40, 11. 2. 1989, p. 38. (2) OJ No L 123, 11. 5. 1983, p. 31. (3) OJ No L 228, 14. 8. 1986, p. 32.


title: Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol's project mechanismsText with EEA relevance

text:
               13.11.2004

               EN

               Official Journal of the European Union

               L 338/18

      DIRECTIVE 2004/101/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 27 October 2004
   amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol's project mechanisms
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,
   Having regard to the proposal from the Commission,
   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 procedure laid down in Article 251 of the Treaty (2),
   Whereas:

               (1)

               Directive 2003/87/EC (3) establishes a scheme for greenhouse gas emission allowance trading within the Community (the Community scheme) in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner, recognising that, in the longer-term, global emissions of greenhouse gases will need to be reduced by approximately 70 % compared to 1990 levels. It aims at contributing towards fulfilling the commitments of the Community and its Member States to reduce anthropogenic greenhouse gas emissions under the Kyoto Protocol which was approved by Council Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (4).

               (2)

               Directive 2003/87/EC states that the recognition of credits from project-based mechanisms for fulfilling obligations as from 2005 will increase the cost-effectiveness of achieving reductions of global greenhouse gas emissions and shall be provided for by provisions for linking the Kyoto project-based mechanisms, including joint implementation (JI) and the clean development mechanism (CDM), with the Community scheme.

               (3)

               Linking the Kyoto project-based mechanisms to the Community scheme, while safeguarding the latter's environmental integrity, gives the opportunity to use emission credits generated through project activities eligible pursuant to Articles 6 and 12 of the Kyoto Protocol in order to fulfil Member States' obligations in accordance with Article 12(3) of Directive 2003/87/EC. As a result, this will increase the diversity of low-cost compliance options within the Community scheme leading to a reduction of the overall costs of compliance with the Kyoto Protocol while improving the liquidity of the Community market in greenhouse gas emission allowances. By stimulating demand for JI credits, Community companies will invest in the development and transfer of advanced environmentally sound technologies and know-how. The demand for CDM credits will also be stimulated and thus developing countries hosting CDM projects will be assisted in achieving their sustainable development goals.

               (4)

               In addition to the use of the Kyoto project-based mechanisms by the Community and its Member States, and by companies and individuals outside the Community scheme, those mechanisms should be linked to the Community scheme in such a way as to ensure consistency with the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol and subsequent decisions adopted thereunder as well as with the objectives and architecture of the Community scheme and provisions laid down by Directive 2003/87/EC.

               (5)

               Member States may allow operators to use, in the Community scheme, certified emission reductions (CERs) from 2005 and emission reduction units (ERUs) from 2008. The use of CERs and ERUs by operators from 2008 may be allowed up to a percentage of the allocation to each installation, to be specified by each Member State in its national allocation plan. The use will take place through the issue and immediate surrender of one allowance in exchange for one CER or ERU. An allowance issued in exchange for a CER or ERU will correspond to that CER or ERU.

               (6)

               The Commission Regulation for a standardised and secured system of registries, to be adopted pursuant to Article 19(3) of Directive 2003/87/EC and Article 6(1) of Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (5), will provide for the relevant processes and procedures in the registries system for the use of CERs during the period 2005 to 2007 and subsequent periods, and for the use of ERUs during the period 2008 to 2012 and subsequent periods.

               (7)

               Each Member State will decide on the limit for the use of CERs and ERUs from project activities, having due regard to the relevant provisions of the Kyoto Protocol and the Marrakesh Accords, to meet the requirements therein that the use of the mechanisms should be supplemental to domestic action. Domestic action will thus constitute a significant element of the effort made.

               (8)

               In accordance with the UNFCCC and the Kyoto Protocol and subsequent decisions adopted thereunder, Member States are to refrain from using CERs and ERUs generated from nuclear facilities to meet their commitments pursuant to Article 3(1) of the Kyoto Protocol and pursuant to Decision 2002/358/EC.

               (9)

               Decisions 15/CP.7 and 19/CP.7 adopted pursuant to the UNFCCC and the Kyoto Protocol emphasise that environmental integrity is to be achieved, inter alia, through sound modalities, rules and guidelines for the mechanisms, and through sound and strong principles and rules governing land use, land-use change and forestry activities, and that the issues of non-permanence, additionality, leakage, uncertainties and socioeconomic and environmental impacts, including impacts on biodiversity and natural ecosystems, associated with afforestation and reforestation project activities are to be taken into account. The Commission should consider, in its review of Directive 2003/87/EC in 2006, technical provisions relating to the temporary nature of credits and the limit of 1 % for eligibility for land use, land-use change and forestry project activities as established in Decision 17/CP.7, and also provisions relating to the outcome of the evaluation of potential risks associated with the use of genetically modified organisms and potentially invasive alien species in afforestation and reforestation project activities, to allow operators to use CERs and ERUs resulting from land use, land use change and forestry project activities in the Community scheme from 2008, in accordance with the decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.

               (10)

               In order to avoid double counting, CERs and ERUs should not be issued as a result of project activities undertaken within the Community that also lead to a reduction in, or limitation of, emissions from installations covered by Directive 2003/87/EC, unless an equal number of allowances is cancelled from the registry of the Member State of the CERs’ or ERUs’ origin.

               (11)

               In accordance with the relevant treaties of accession, the acquis communautaire should be taken into account in the establishment of baselines for project activities undertaken in countries acceding to the Union.

               (12)

               Any Member State that authorises private or public entities to participate in project activities remains responsible for the fulfilment of its obligations under the UNFCCC and the Kyoto Protocol and should therefore ensure that such participation is consistent with the relevant guidelines, modalities and procedures adopted pursuant to the UNFCCC or the Kyoto Protocol.

               (13)

               In accordance with the UNFCCC, the Kyoto Protocol and subsequent decisions adopted for their implementation, the Commission and the Member States should support capacity building activities in developing countries and countries with economies in transition in order to help them take full advantage of JI and the CDM in a manner that supports their sustainable development strategies. The Commission should review and report on efforts in this regard.

               (14)

               Criteria and guidelines that are relevant to considering whether hydroelectric power production projects have negative environmental or social impacts have been identified by the World Commission on Dams in its November 2000 Report ‘Dams and Development — A New Framework for Decision-Making’, by the OECD and by the World Bank.

               (15)

               Since participation in JI and CDM project activities is voluntary, corporate environmental and social responsibility and accountability should be enhanced in accordance with paragraph 17 of the Plan of implementation of the world summit on sustainable development. In this connection, companies should be encouraged to improve the social and environmental performance of JI and CDM activities in which they participate.

               (16)

               Information on project activities in which a Member State participates or authorises private or public entities to participate should be made available to the public in accordance with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (6).

               (17)

               The Commission may mention impacts on the electricity market in its reports on emission allowance trading and the use of credits from project activities.

               (18)

               Following entry into force of the Kyoto Protocol, the Commission should examine whether it could be possible to conclude agreements with countries listed in Annex B to the Kyoto Protocol which have yet to ratify the Protocol, to provide for the recognition of allowances between the Community scheme and mandatory greenhouse gas emissions trading schemes capping absolute emissions established within those countries.

               (19)

               Since the objective of the proposed action, namely the establishment of a link between the Kyoto project-based mechanisms and the Community scheme, cannot be sufficiently achieved by the Member States acting individually, and can therefore by reason of the scale and effects of this action be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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 that objective.

               (20)

               Directive 2003/87/EC should therefore be amended accordingly,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Amendments to Directive 2003/87/EC
   Directive 2003/87/EC is hereby amended as follows:

               1.

               In Article 3, the following points are added:

                           ‘(k)

                           “Annex I Party” means a Party listed in Annex I to the United Nations Framework Convention on Climate Change (UNFCCC) that has ratified the Kyoto Protocol as specified in Article 1(7) of the Kyoto Protocol;

                           (l)

                           “project activity” means a project activity approved by one or more Annex I Parties in accordance with Article 6 or Article 12 of the Kyoto Protocol and the decisions adopted pursuant to the UNFCCC or the Kyoto Protocol;

                           (m)

                           “emission reduction unit” or “ERU” means a unit issued pursuant to Article 6 of the Kyoto Protocol and the decisions adopted pursuant to the UNFCCC or the Kyoto Protocol;

                           (n)

                           “certified emission reduction” or “CER” means a unit issued pursuant to Article 12 of the Kyoto Protocol and the decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.’

               2.

               The following Articles are inserted after Article 11:
               ‘Article 11a
               Use of CERs and ERUs from project activities in the Community scheme
               1.   Subject to paragraph 3, during each period referred to in Article 11(2), Member States may allow operators to use CERs and ERUs from project activities in the Community scheme up to a percentage of the allocation of allowances to each installation, to be specified by each Member State in its national allocation plan for that period. This shall take place through the issue and immediate surrender of one allowance by the Member State in exchange for one CER or ERU held by the operator in the national registry of its Member State.
               2.   Subject to paragraph 3, during the period referred to in Article 11(1), Member States may allow operators to use CERs from project activities in the Community scheme. This shall take place through the issue and immediate surrender of one allowance by the Member State in exchange for one CER. Member States shall cancel CERs that have been used by operators during the period referred to in Article 11(1).
               3.   All CERs and ERUs that are issued and may be used in accordance with the UNFCCC and the Kyoto Protocol and subsequent decisions adopted thereunder may be used in the Community scheme:

                           (a)

                           except that, in recognition of the fact that, in accordance with the UNFCCC and the Kyoto Protocol and subsequent decisions adopted thereunder, Member States are to refrain from using CERs and ERUs generated from nuclear facilities to meet their commitments pursuant to Article 3(1) of the Kyoto Protocol and in accordance with Decision 2002/358/EC, operators are to refrain from using CERs and ERUs generated from such facilities in the Community scheme during the period referred to in Article 11(1) and the first five-year period referred to in Article 11(2);
                           and

                           (b)

                           except for CERs and ERUs from land use, land use change and forestry activities.

                     Article 11b
               Project activities
               1.   Member States shall take all necessary measures to ensure that baselines for project activities, as defined by subsequent decisions adopted under the UNFCCC or the Kyoto Protocol, undertaken in countries having signed a Treaty of Accession with the Union fully comply with the acquis communautaire, including the temporary derogations set out in that Treaty of Accession.
               2.   Except as provided for in paragraphs 3 and 4, Member States hosting project activities shall ensure that no ERUs or CERs are issued for reductions or limitations of greenhouse gas emissions from installations falling within the scope of this Directive.
               3.   Until 31 December 2012, for JI and CDM project activities which reduce or limit directly the emissions of an installation falling within the scope of this Directive, ERUs and CERs may be issued only if an equal number of allowances is cancelled by the operator of that installation.
               4.   Until 31 December 2012, for JI and CDM project activities which reduce or limit indirectly the emission level of installations falling within the scope of this Directive, ERUs and CERs may be issued only if an equal number of allowances is cancelled from the national registry of the Member State of the ERUs’ or CERs’ origin.
               5.   A Member State that authorises private or public entities to participate in project activities shall remain responsible for the fulfilment of its obligations under the UNFCCC and the Kyoto Protocol and shall ensure that such participation is consistent with the relevant guidelines, modalities and procedures adopted pursuant to the UNFCCC or the Kyoto Protocol.
               6.   In the case of hydroelectric power production project activities with a generating capacity exceeding 20 MW, Member States shall, when approving such project activities, ensure that relevant international criteria and guidelines, including those contained in the World Commission on Dams November 2000 Report “Dams and Development — A New Framework for Decision-Making”, will be respected during the development of such project activities.
               7.   Provisions for the implementation of paragraphs 3 and 4, particularly in respect of the avoidance of double counting, and any provisions necessary for the implementation of paragraph 5 where the host party meets all eligibility requirements for JI project activities shall be adopted in accordance with Article 23(2).’

               3.

               Article 17 is replaced by the following:
               ‘Article 17
               Access to information
               Decisions relating to the allocation of allowances, information on project activities in which a Member State participates or authorises private or public entities to participate, and the reports of emissions required under the greenhouse gas emissions permit and held by the competent authority, shall be made available to the public in accordance with Directive 2003/4/EC.’

               4.

               In Article 18 the following subparagraph is added:
               ‘Member States shall in particular ensure coordination between their designated focal point for approving project activities pursuant to Article 6 (1)(a) of the Kyoto Protocol and their designated national authority for the implementation of Article 12 of the Kyoto Protocol respectively designated in accordance with subsequent decisions adopted under the UNFCCC or the Kyoto Protocol.’

               5.

               In Article 19(3) the following sentence is added:
               ‘That Regulation shall also include provisions concerning the use and identification of CERs and ERUs in the Community scheme and the monitoring of the level of such use.’

               6.

               Article 21 is amended as follows:

                           (a)

                           in paragraph 1 the second sentence is replaced by the following:
                           ‘This report shall pay particular attention to the arrangements for the allocation of allowances, the use of ERUs and CERs in the Community scheme, the operation of registries, the application of the monitoring and reporting guidelines, verification and issues relating to compliance with the Directive and the fiscal treatment of allowances, if any.’

                           (b)

                           paragraph 3 is replaced by the following:
                           ‘3.   The Commission shall organise an exchange of information between the competent authorities of the Member States concerning developments relating to issues of allocation, the use of ERUs and CERs in the Community scheme, the operation of registries, monitoring, reporting, verification and compliance with this Directive.’

               7.

               The following Article is inserted after Article 21:
               ‘Article 21a
               Support of capacity-building activities
               In accordance with the UNFCCC, the Kyoto Protocol and any subsequent decision adopted for their implementation, the Commission and the Member States shall endeavour to support capacity-building activities in developing countries and countries with economies in transition in order to help them take full advantage of JI and the CDM in a manner that supports their sustainable development strategies and to facilitate the engagement of entities in JI and CDM project development and implementation.’

               8.

               Article 30 is amended as follows:

                           (a)

                           in paragraph 2, point (d) is replaced by the following:

                                       ‘(d)

                                       the use of credits from project activities, including the need for harmonisation of the allowed use of ERUs and CERs in the Community scheme;’

                           (b)

                           in paragraph 2 the following points are added:

                                       ‘(l)

                                       the impact of project mechanisms on host countries, particularly on their development objectives, whether JI and CDM hydroelectric power production project activities with a generating capacity exceeding 500 MW and having negative environmental or social impacts have been approved, and the future use of CERs or ERUs resulting from any such hydroelectric power production project activities in the Community scheme;

                                       (m)

                                       the support for capacity-building efforts in developing countries and countries with economies in transition;

                                       (n)

                                       the modalities and procedures for Member States' approval of domestic project activities and for the issuing of allowances in respect of emission reductions or limitations resulting from such activities from 2008;

                                       (o)

                                       technical provisions relating to the temporary nature of credits and the limit of 1 % for eligibility for land use, land-use change and forestry project activities as established in Decision 17/CP.7, and provisions relating to the outcome of the evaluation of potential risks associated with the use of genetically modified organisms and potentially invasive alien species by afforestation and reforestation project activities, to allow operators to use CERs and ERUs resulting from land use, land-use change and forestry project activities in the Community scheme from 2008, in accordance with the decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.’

                           (c)

                           paragraph 3 is replaced by the following:
                           ‘3.   In advance of each period referred to in Article 11(2), each Member State shall publish in its national allocation plan its intended use of ERUs and CERs and the percentage of the allocation to each installation up to which operators are allowed to use ERUs and CERs in the Community scheme for that period. The total use of ERUs and CERs shall be consistent with the relevant supplementarity obligations under the Kyoto Protocol and the UNFCCC and the decisions adopted thereunder.
                           Member States shall, in accordance with Article 3 of Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (7), report to the Commission every two years on the extent to which domestic action actually constitutes a significant element of the efforts undertaken at national level, as well as the extent to which use of the project mechanisms is actually supplemental to domestic action, and the ratio between them, in accordance with the relevant provisions of the Kyoto Protocol and the decisions adopted thereunder. The Commission shall report on this in accordance with Article 5 of the said Decision. In the light of this report, the Commission shall, if appropriate, make legislative or other proposals to complement provisions adopted by Member States to ensure that use of the mechanisms is supplemental to domestic action within the Community.’

               9.

               In Annex III the following point is added:

                           ‘12.

                           The plan shall specify the maximum amount of CERs and ERUs which may be used by operators in the Community scheme as a percentage of the allocation of the allowances to each installation. The percentage shall be consistent with the Member State’s supplementarity obligations under the Kyoto Protocol and decisions adopted pursuant to the UNFCCC or the Kyoto Protocol.’

         Article 2
   Implementation
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 13 November 2005. 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 a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.
   2.   Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive. The Commission shall inform the other Member States thereof.
   Article 3
   Entry into force
   This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
   Article 4
   Addressees
   This Directive is addressed to the Member States.

      Done at Strasbourg, 27 October 2004.

            For the European Parliament

         J. BORRELL FONTELLES

            The President

            For the Council

         A. NICOLAI

            The President

      (1)  OJ C 80, 30.3.2004, p. 61.

      (2)  Opinion of the European Parliament of 20 April 2004 (not yet published in the Official Journal) and Council Decision of 13 September 2004 (not yet published in the Official Journal).

      (3)  OJ L 275, 25.10.2003, p. 32.

      (4)  OJ L 130, 15.5.2002, p. 1.

      (5)  OJ L 49, 19.2.2004, p. 1.

      (6)  OJ L 41, 14.2.2003, p. 26.

      (7)  OJ L 49, 19.2.2004, p. 1.


title: Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

text:
               24.12.2008

               EN

               Official Journal of the European Union

               L 348/98

      DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 16 December 2008
   on common standards and procedures in Member States for returning illegally staying third-country nationals
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) thereof,
   Having regard to the proposal from the Commission,
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (1),
   Whereas:

               (1)

               The Tampere European Council of 15 and 16 October 1999 established a coherent approach in the field of immigration and asylum, dealing together with the creation of a common asylum system, a legal immigration policy and the fight against illegal immigration.

               (2)

               The Brussels European Council of 4 and 5 November 2004 called for the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.

               (3)

               On 4 May 2005 the Committee of Ministers of the Council of Europe adopted ‘Twenty guidelines on forced return’.

               (4)

               Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy.

               (5)

               This Directive should establish a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State.

               (6)

               Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal, Member States should respect that principle and fully comply with all applicable provisions of this Directive.

               (7)

               The need for Community and bilateral readmission agreements with third countries to facilitate the return process is underlined. International cooperation with countries of origin at all stages of the return process is a prerequisite to achieving sustainable return.

               (8)

               It is recognised that it is legitimate for Member States to return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement.

               (9)

               In accordance with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (2), a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force.

               (10)

               Where there are no reasons to believe that this would undermine the purpose of a return procedure, voluntary return should be preferred over forced return and a period for voluntary departure should be granted. An extension of the period for voluntary departure should be provided for when considered necessary because of the specific circumstances of an individual case. In order to promote voluntary return, Member States should provide for enhanced return assistance and counselling and make best use of the relevant funding possibilities offered under the European Return Fund.

               (11)

               A common minimum set of legal safeguards on decisions related to return should be established to guarantee effective protection of the interests of the individuals concerned. The necessary legal aid should be made available to those who lack sufficient resources. Member States should provide in their national legislation for which cases legal aid is to be considered necessary.

               (12)

               The situation of third-country nationals who are staying illegally but who cannot yet be removed should be addressed. Their basic conditions of subsistence should be defined according to national legislation. In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmation of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directive.

               (13)

               The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. Minimum safeguards for the conduct of forced return should be established, taking into account Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders (3). Member States should be able to rely on various possibilities to monitor forced return.

               (14)

               The effects of national return measures should be given a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. The length of the entry ban should be determined with due regard to all relevant circumstances of an individual case and should not normally exceed five years. In this context, particular account should be taken of the fact that the third-country national concerned has already been the subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban.

               (15)

               It should be for the Member States to decide whether or not the review of decisions related to return implies the power for the reviewing authority or body to substitute its own decision related to the return for the earlier decision.

               (16)

               The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.

               (17)

               Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension by law-enforcement authorities, regulated by national legislation, detention should, as a rule, take place in specialised detention facilities.

               (18)

               Member States should have rapid access to information on entry bans issued by other Member States. This information sharing should take place in accordance with Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (4).

               (19)

               Cooperation between the institutions involved at all levels in the return process and the exchange and promotion of best practices should accompany the implementation of this Directive and provide European added value.

               (20)

               Since the objective of this Directive, namely to establish common rules concerning return, removal, use of coercive measures, detention and entry bans, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

               (21)

               Member States should implement this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation.

               (22)

               In line with the 1989 United Nations Convention on the Rights of the Child, the ‘best interests of the child’ should be a primary consideration of Member States when implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, respect for family life should be a primary consideration of Member States when implementing this Directive.

               (23)

               Application of this Directive is without prejudice to the obligations resulting from the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967.

               (24)

               This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

               (25)

               In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. Given that this Directive builds — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code (5) — upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide, within a period of six months after the adoption of this Directive, whether it will implement it in its national law.

               (26)

               To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code, this Directive constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (6); moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application.

               (27)

               To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code, this Directive constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (7); moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, Ireland is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application.

               (28)

               As regards Iceland and Norway, this Directive constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code — a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Council Decision 1999/437/EC (8) on certain arrangements for the application of that Agreement.

               (29)

               As regards Switzerland, this Directive constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code — a development of provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (9) on the conclusion, on behalf of the European Community, of that Agreement.

               (30)

               As regards Liechtenstein, this Directive constitutes — to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code — a development of provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC (10) on the signature, on behalf of the European Community, and on the provisional application of, certain provisions of that Protocol,

         HAVE ADOPTED THIS DIRECTIVE:
   CHAPTER I
   GENERAL PROVISIONS
   Article 1
   Subject matter
   This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.
   Article 2
   Scope
   1.   This Directive applies to third-country nationals staying illegally on the territory of a Member State.
   2.   Member States may decide not to apply this Directive to third-country nationals who:

               (a)

               are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;

               (b)

               are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.

         3.   This Directive shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders Code.
   Article 3
   Definitions
   For the purpose of this Directive the following definitions shall apply:

               1.

               ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code;

               2.

               ‘illegal stay’ means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State;

               3.

               ‘return’ means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to:

                           —

                           his or her country of origin, or

                           —

                           a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or

                           —

                           another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;

               4.

               ‘return decision’ means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return;

               5.

               ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State;

               6.

               ‘entry ban’ means an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision;

               7.

               ‘risk of absconding’ means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond;

               8.

               ‘voluntary departure’ means compliance with the obligation to return within the time-limit fixed for that purpose in the return decision;

               9.

               ‘vulnerable persons’ means minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

         Article 4
   More favourable provisions
   1.   This Directive shall be without prejudice to more favourable provisions of:

               (a)

               bilateral or multilateral agreements between the Community or the Community and its Member States and one or more third countries;

               (b)

               bilateral or multilateral agreements between one or more Member States and one or more third countries.

         2.   This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum.
   3.   This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive.
   4.   With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall:

               (a)

               ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1) (b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and

               (b)

               respect the principle of non-refoulement.

         Article 5
   Non-refoulement, best interests of the child, family life and state of health
   When implementing this Directive, Member States shall take due account of:

               (a)

               the best interests of the child;

               (b)

               family life;

               (c)

               the state of health of the third-country national concerned,

         and respect the principle of non-refoulement.
   CHAPTER II
   TERMINATION OF ILLEGAL STAY
   Article 6
   Return decision
   1.   Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.
   2.   Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.
   3.   Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1.
   4.   Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.
   5.   If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6.
   6.   This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law.
   Article 7
   Voluntary departure
   1.   A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the third-country national concerned. In such a case, Member States shall inform the third-country nationals concerned of the possibility of submitting such an application.
   The time period provided for in the first subparagraph shall not exclude the possibility for the third-country nationals concerned to leave earlier.
   2.   Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links.
   3.   Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure.
   4.   If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.
   Article 8
   Removal
   1.   Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.
   2.   If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period.
   3.   Member States may adopt a separate administrative or judicial decision or act ordering the removal.
   4.   Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.
   5.   In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC.
   6.   Member States shall provide for an effective forced-return monitoring system.
   Article 9
   Postponement of removal
   1.   Member States shall postpone removal:

               (a)

               when it would violate the principle of non-refoulement, or

               (b)

               for as long as a suspensory effect is granted in accordance with Article 13(2).

         2.   Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account:

               (a)

               the third-country national’s physical state or mental capacity;

               (b)

               technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.

         3.   If a removal is postponed as provided for in paragraphs 1 and 2, the obligations set out in Article 7(3) may be imposed on the third-country national concerned.
   Article 10
   Return and removal of unaccompanied minors
   1.   Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child.
   2.   Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return.
   Article 11
   Entry ban
   1.   Return decisions shall be accompanied by an entry ban:

               (a)

               if no period for voluntary departure has been granted, or

               (b)

               if the obligation to return has not been complied with.

         In other cases return decisions may be accompanied by an entry ban.
   2.   The length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed five years. It may however exceed five years if the third-country national represents a serious threat to public policy, public security or national security.
   3.   Member States shall consider withdrawing or suspending an entry ban where a third-country national who is the subject of an entry ban issued in accordance with paragraph 1, second subparagraph, can demonstrate that he or she has left the territory of a Member State in full compliance with a return decision.
   Victims of trafficking in human beings who have been granted a residence permit pursuant to Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (11) shall not be subject of an entry ban without prejudice to paragraph 1, first subparagraph, point (b), and provided that the third-country national concerned does not represent a threat to public policy, public security or national security.
   Member States may refrain from issuing, withdraw or suspend an entry ban in individual cases for humanitarian reasons.
   Member States may withdraw or suspend an entry ban in individual cases or certain categories of cases for other reasons.
   4.   Where a Member State is considering issuing a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban and shall take account of its interests in accordance with Article 25 of the Convention implementing the Schengen Agreement (12).
   5.   Paragraphs 1 to 4 shall apply without prejudice to the right to international protection, as defined in Article 2(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (13), in the Member States.
   CHAPTER III
   PROCEDURAL SAFEGUARDS
   Article 12
   Form
   1.   Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.
   The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.
   2.   Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand.
   3.   Member States may decide not to apply paragraph 2 to third country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.
   In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation.
   Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned.
   Article 13
   Remedies
   1.   The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.
   2.   The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.
   3.   The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance.
   4.   Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.
   Article 14
   Safeguards pending return
   1.   Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9:

               (a)

               family unity with family members present in their territory is maintained;

               (b)

               emergency health care and essential treatment of illness are provided;

               (c)

               minors are granted access to the basic education system subject to the length of their stay;

               (d)

               special needs of vulnerable persons are taken into account.

         2.   Member States shall provide the persons referred to in paragraph 1 with a written confirmation in accordance with national legislation that the period for voluntary departure has been extended in accordance with Article 7(2) or that the return decision will temporarily not be enforced.
   CHAPTER IV
   DETENTION FOR THE PURPOSE OF REMOVAL
   Article 15
   Detention
   1.   Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

               (a)

               there is a risk of absconding or

               (b)

               the third-country national concerned avoids or hampers the preparation of return or the removal process.

         Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
   2.   Detention shall be ordered by administrative or judicial authorities.
   Detention shall be ordered in writing with reasons being given in fact and in law.
   When detention has been ordered by administrative authorities, Member States shall:

               (a)

               either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;

               (b)

               or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.

         The third-country national concerned shall be released immediately if the detention is not lawful.
   3.   In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.
   4.   When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
   5.   Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.
   6.   Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:

               (a)

               a lack of cooperation by the third-country national concerned, or

               (b)

               delays in obtaining the necessary documentation from third countries.

         Article 16
   Conditions of detention
   1.   Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.
   2.   Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities.
   3.   Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided.
   4.   Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation.
   5.   Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.
   Article 17
   Detention of minors and families
   1.   Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time.
   2.   Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy.
   3.   Minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age, and shall have, depending on the length of their stay, access to education.
   4.   Unaccompanied minors shall as far as possible be provided with accommodation in institutions provided with personnel and facilities which take into account the needs of persons of their age.
   5.   The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal.
   Article 18
   Emergency situations
   1.   In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2).
   2.   When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist.
   3.   Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.
   CHAPTER V
   FINAL PROVISIONS
   Article 19
   Reporting
   The Commission shall report every three years to the European Parliament and the Council on the application of this Directive in the Member States and, if appropriate, propose amendments.
   The Commission shall report for the first time by 24 December 2013 and focus on that occasion in particular on the application of Article 11, Article 13(4) and Article 15 in Member States. In relation to Article 13(4) the Commission shall assess in particular the additional financial and administrative impact in Member States.
   Article 20
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2010. In relation to Article 13(4), Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2011. They shall forthwith communicate to the Commission the text of those measures.
   When Member States adopt those measures, 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 21
   Relationship with the Schengen Convention
   This Directive replaces the provisions of Articles 23 and 24 of the Convention implementing the Schengen Agreement.
   Article 22
   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 23
   Addressees
   This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.

      Done at Strasbourg, 16 December 2008.

            For the European Parliament

            The President

         H.-G. PÖTTERING

            For the Council

            The President

         B. LE MAIRE

      (1)  Opinion of the European Parliament of 18 June 2008 (not yet published in the Official Journal) and Council Decision of 9 December 2008.

      (2)  OJ L 326, 13.12.2005, p. 13.

      (3)  OJ L 261, 6.8.2004, p. 28.

      (4)  OJ L 381, 28.12.2006, p. 4.

      (5)  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1).

      (6)  OJ L 131, 1.6.2000, p. 43.

      (7)  OJ L 64, 7.3.2002, p. 20.

      (8)  OJ L 176, 10.7.1999, p. 31.

      (9)  OJ L 53, 27.2.2008, p. 1.

      (10)  OJ L 83, 26.3.2008, p. 3.

      (11)  OJ L 261, 6.8.2004, p. 19.

      (12)  OJ L 239, 22.9.2000, p. 19.

      (13)  OJ L 304, 30.9.2004, p. 12.


Avis juridique important

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31975L0439

Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils

Official Journal L 194 , 25/07/1975 P. 0023 - 0025 Greek special edition: Chapter 15 Volume 1 P. 0077  Spanish special edition: Chapter 15 Volume 1 P. 0091  Portuguese special edition Chapter 15 Volume 1 P. 0091  Finnish special edition: Chapter 15 Volume 1 P. 0229  Swedish special edition: Chapter 15 Volume 1 P. 0229

COUNCIL DIRECTIVE  of 16 June 1975  on the disposal of waste oils  (75/439/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 100 and 235 thereof;  Having regard to the proposal from the Commission;  Having regard to the Opinion of the European Parliament (1);  Having regard to the Opinion of the Economic and Social Committee (2);  Whereas any disparity between the provisions on the disposal of waste oils already applicable or in preparation in the various Member States may create unequal conditions of competition and thus directly affect the functioning of the common market ; whereas it is therefore necessary to approximate laws in this field as provided for in Article 100 of the Treaty;  Whereas it seems necessary for this approximation of laws to be accompanied by Community action so that one of the aims of the Community in the sphere of protection of the environment can be achieved by wider regulations ; whereas certain specific provisions to this effect should therefore be laid down ; whereas Article 235 of the Treaty should be invoked as the powers required for this purpose have not been provided by the Treaty;  Whereas all provisions relating to the disposal of waste oils should have as one of their essential objectives the protection of the environment against the harmful effects caused by the discharge, deposit or treatment of these oils;  Whereas the recycling of waste oils may he conducive to a fuel supply policy;  Whereas the programme of action of the European Communities on the environment (3) underlines the importance of the problem of the disposal of waste oils without harmful effects upon the environment;  Whereas the quantities of waste oils and in particular of emulsions have increased in the Community;  Whereas an efficient and coherent system of treatment for waste oils, which will neither create barriers to intra-Community trade nor affect competition, should apply to all such products, even those which are composed only in part of oil, and should provide for their safe treatment under economically satisfactory conditions;  Whereas such a system should regulate the treatment, discharge, deposit and collection of waste oils and provide for a system of permits for undertakings which dispose of such oils, for compulsory collection and/or disposal of such oils in certain cases and for suitable inspection procedures;  Whereas in cases where certain undertakings are required to collect and/or dispose of waste oils, compensation by indemnities of that part of their costs relating thereto and not covered by their earnings should be possible and whereas these indemnities may be financed, among other methods, by a charge on new or regenerated oils,  HAS ADOPTED THIS DIRECTIVE:    Article 1 For the purposes of this Directive, the term "waste oils" shall be taken to mean any semi-liquid or liquid used product totally or partially consisting  (1)OJ No C 85, 18.7.1974, p. 6. (2)OJ No C 125, 16.10.1974, p. 33. (3)OJ No C 112, 20.12.1973, p. 3.   of mineral or synthetic oil, including the oily residues from tanks, oil-water mixtures and emulsions.   Article 2 Member States shall take the necessary measures to ensure the safe collection and disposal of waste oils.   Article 3 Member States shall take the necessary measures to ensure that, as far as possible, the disposal of waste oils is carried out by recycling (regeneration and/or combustion other than for destruction).   Article 4 Member States shall take the necessary measures to ensure the prohibition of:    1. any discharge of waste oils into internal surface waters, ground water, coastal waters and drainage systems;       2. any deposit and/or discharge of waste oils harmful to the soil and any uncontrolled discharge of residues resulting from the processing of waste oils;       3. any processing of waste oils causing air pollution which exceeds the level prescribed by existing provisions.          Article 5 Where the aims defined in Articles 2, 3 and 4 cannot otherwise be achieved, Member States shall take the necessary measures to ensure that one or more undertakings carry out the collection and/or disposal of the products offered to them by holders, where appropriate in the zone assigned to them by the competent authorities.   Article 6 In order to comply with the measures taken pursuant to Article 4, any undertaking which disposes of waste oils must obtain a permit.  This permit shall be granted by the competent authorities after examination of the installations, if necessary. These authorities shall impose the conditions required by the state of technical development.   Article 7 A person holding waste oils must, if he is unable to comply with the measures taken pursuant to Article 4, place them at the disposal of the undertaking or undertakings referred to in Article 5.   Article 8 The holders of certain quantities of waste oils containing impurities in excess of certain percentages must handle and stock them separately.  The competent authorities shall fix the quantities and percentages, which may differ according to category of product, referred to in the first subparagraph.   Article 9 Undertakings collecting and/or disposing of waste oils must carry out these operations in such a way that there will be no avoidable risk of water, air or soil pollution.   Article 10 Any establishment producing, collecting and/or disposing of more than a given quantity of waste oils per year, to be specified by each Member State but not higher than 500 litres, must:    - keep a record of the quantity, quality, origin and location of such oils and of their despatch and receipt, including the dates of the latter and/or       - convey such information to the competent authorities on request.         Member States are authorized to fix the quantity of waste oils in accordance with the first subparagraph in terms of an equivalent quantity of new oil calculated according to a reasonable conversion factor.   Article 11 Any undertaking which disposes of waste oils must convey to the competent authorities, at their request, any information concerning the disposal or deposit of such waste oils or residues thereof.    Article 12 The undertakings referred to in Article 6 shall be inspected periodically by the competent authorities, particularly as regards their compliance with the conditions of their permits.   Article 13 As a reciprocal concession for the obligations imposed on them by the Member States pursuant to Article 5, indemnities may be granted to collection and/or disposal undertakings for the service rendered. Such indemnities must not exceed annual uncovered costs actually recorded by the undertaking taking into account a reasonable profit.  The amount of these indemnities must be such as not to cause any significant distortion of competition or to give rise to artificial patterns of trade in the products.   Article 14 The indemnities may be financed, among other methods, by a charge imposed on products which after use are transformed into waste oils, or on waste oils.  The financing of indemnities must be in accordance with the "polluter pays" principle.   Article 15 Each Member State shall periodically convey to the Commission information concerning its technical expertise and the experience gained and results obtained through the application of measures taken pursuant to this Directive.  The Commission shall send an overall summary of such information to the Member States.   Article 16 Every three years, Member States shall draw up a situation report on the disposal of waste oils in their respective countries and shall send it to the Commission.   Article 17 Member States shall implement the measures necessary to comply with this Directive within 24 months of its notification, and shall forthwith inform the Commission thereof.   Article 18 The provisions adopted by the Member States pursuant to this Directive may be progressively applied to the undertakings referred to in Article 6, existing at the time of notification of this Directive, within four years of the said notification.   Article 19 Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.   Article 20 This Directive is addressed to the Member States.     Done at Luxembourg, 16 June 1975.  For the Council  The President  R. RYAN