title: Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital

text:
               21.2.2008

               EN

               Official Journal of the European Union

               L 46/11

      COUNCIL DIRECTIVE 2008/7/EC
   of 12 February 2008
   concerning indirect taxes on the raising of capital
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Articles 93 and 94 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 European Economic and Social Committee (2),
   Whereas:

               (1)

               Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (3) has been substantially amended several times (4). Since further amendments are to be made, it should be recast in the interests of clarity.

               (2)

               The indirect taxes on the raising of capital, namely the capital duty (the duty chargeable on contributions of capital to companies and firms), the stamp duty on securities, and duty on restructuring operations, regardless of whether those operations involve an increase in capital, give rise to discrimination, double taxation and disparities which interfere with the free movement of capital. The same applies as regards other indirect taxes with the same characteristics as capital duty and the stamp duty on securities.

               (3)

               Consequently, it is in the interests of the internal market to harmonise the legislation on indirect taxes on the raising of capital in order to eliminate, as far as possible, factors which may distort conditions of competition or hinder the free movement of capital.

               (4)

               The economic effects of capital duty are detrimental to the regrouping and development of undertakings. Such effects are particularly harmful in the present economic situation in which there is a paramount need for priority to be given to stimulating investment.

               (5)

               The best solution for attaining these objectives would be to abolish capital duty.

               (6)

               However, the losses of revenue which would result from the immediate application of such a measure are unacceptable for Member States which currently apply capital duty. Those Member States should therefore have the opportunity to continue to subject to capital duty all or part of the transactions concerned, it being understood that a single rate of tax must be charged within one and the same Member State. Once a Member State has chosen not to levy capital duty on all or part of the transactions under this Directive, it should not be possible for it to reintroduce such duties.

               (7)

               It is inherent in the concept of an internal market that a duty on the raising of capital within the internal market by a company or firm should not be charged more than once. Accordingly, if the Member State to which the taxing right is attributed does not levy capital duty on certain or all transactions covered by this Directive, no other Member State is to exercise a taxing right in respect of those transactions.

               (8)

               It is appropriate to maintain strict conditions for situations where Member States continue to levy capital duty, in particular as regards exemptions and reductions.

               (9)

               Apart from capital duty, no indirect taxes on the raising of capital should be levied. In particular, no stamp duty should be levied on securities, regardless of the origin of such securities, and regardless of whether they represent a company’s own capital or its loan capital.

               (10)

               The list of capital companies set out in Directive 69/335/EEC is incomplete and should therefore be adapted.

               (11)

               Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore 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 those objectives.

               (12)

               The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are unchanged arises under the earlier Directives.

               (13)

               This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex II, Part B.

               (14)

               In view of the detrimental effects of capital duty, the Commission should report every three years on the operation of this Directive with a view to abolishing this duty,

         HAS ADOPTED THIS DIRECTIVE:
   CHAPTER I
   SUBJECT MATTER AND SCOPE
   Article 1
   Subject matter
   This Directive regulates the levying of indirect taxes in respect of the following:

               (a)

               contributions of capital to capital companies;

               (b)

               restructuring operations involving capital companies;

               (c)

               the issue of certain securities and debentures.

         Article 2
   Capital company
   1.   For the purposes of this Directive ‘capital company’ means:

               (a)

               any company which takes one of the forms listed in Annex I;

               (b)

               any company, firm, association or legal person the shares in whose capital or assets can be dealt in on a stock exchange;

               (c)

               any company, firm, association or legal person operating for profit, whose members have the right to dispose of their shares to third parties without prior authorisation and are only responsible for the debts of the company, firm, association or legal person to the extent of their shares.

         2.   For the purposes of this Directive, any other company, firm, association or legal person operating for profit shall be deemed to be a capital company.
   Article 3
   Contributions of capital
   For the purposes of this Directive and subject to Article 4, the following transactions shall be considered to be ‘contributions of capital’:

               (a)

               the formation of a capital company;

               (b)

               the conversion into a capital company of a company, firm, association or legal person which is not a capital company;

               (c)

               an increase in the capital of a capital company by contribution of assets of any kind;

               (d)

               an increase in the assets of a capital company by contribution of assets of any kind, in consideration not of shares in the capital or assets of the company, but of rights of the same kind as those of members, such as voting rights, a share in the profits or a share in the surplus upon liquidation;

               (e)

               the transfer from a third country to a Member State of the centre of effective management of a capital company whose registered office is in a third country;

               (f)

               the transfer from a third country to a Member State of the registered office of a capital company whose centre of effective management is in a third country;

               (g)

               an increase in the capital of a capital company by capitalisation of profits or of permanent or temporary reserves;

               (h)

               an increase in the assets of a capital company through the provision of services by a member which does not entail an increase in the company’s capital, but which does result in a variation in the rights in the company or which may increase the value of the company’s shares;

               (i)

               a loan taken up by a capital company, if the creditor is entitled to a share in the profits of the company;

               (j)

               a loan taken up by a capital company with a member or a member’s spouse or child, or a loan taken up with a third party, if it is guaranteed by a member, on condition that such loans have the same function as an increase in the company’s capital.

         Article 4
   Restructuring operations
   1.   For the purposes of this Directive, the following restructuring operations shall not be considered to be contributions of capital:

               (a)

               the transfer by one or more capital companies of all their assets and liabilities, or one or more branches of activity to one or more capital companies which are in the process of being formed or which are already in existence, provided that the consideration for the transfer consists at least in part of securities representing the capital of the acquiring company;

               (b)

               the acquisition, by a capital company which is in the process of being formed or which is already in existence, of shares representing a majority of the voting rights of another capital company, provided that the consideration for the shares acquired consists at least in part of securities representing the capital of the former company. Where the majority of the voting rights is reached by means of two or more transactions, only the transaction whereby the majority of voting rights is reached and any subsequent transactions shall be regarded as restructuring operations.

         2.   Restructuring operations shall also include the transfer to a capital company of all assets and liabilities of another capital company which is wholly owned by the former company.
   CHAPTER II
   GENERAL PROVISIONS
   Article 5
   Transactions not subject to indirect tax
   1.   Member States shall not subject capital companies to any form of indirect tax whatsoever in respect of the following:

               (a)

               contributions of capital;

               (b)

               loans, or the provision of services, occurring as part of contributions of capital;

               (c)

               registration or any other formality required before the commencement of business to which a capital company may be subject by reason of its legal form;

               (d)

               alteration of the constituent instrument or regulations of a capital company, and in particular the following:

                           (i)

                           the conversion of a capital company into a different type of capital company;

                           (ii)

                           the transfer from a Member State to another Member State of the centre of effective management or of the registered office of a capital company;

                           (iii)

                           a change in the objects of a capital company;

                           (iv)

                           the extension of the period of existence of a capital company;

               (e)

               the restructuring operations referred to in Article 4.

         2.   Member States shall not subject the following to any form of indirect tax whatsoever:

               (a)

               the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in stocks, shares or other securities of the same type, or of the certificates representing such securities, by whomsoever issued;

               (b)

               loans, including government bonds, raised by the issue of debentures or other negotiable securities, by whomsoever issued, or any formalities relating thereto, or the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in such debentures or other negotiable securities.

         Article 6
   Duties and value added tax
   1.   Notwithstanding Article 5, Member States may charge the following duties and taxes:

               (a)

               duties on the transfer of securities, whether charged at a flat rate or not;

               (b)

               transfer duties, including land registration taxes, on the transfer, to a capital company, of businesses or immovable property situated within their territory;

               (c)

               transfer duties on assets of any kind transferred to a capital company, insofar as such property is transferred for a consideration other than shares in the company;

               (d)

               duties on the creation, registration or discharge of mortgages or other charges on land or other property;

               (e)

               duties in the form of fees or dues;

               (f)

               value added tax.

         2.   The amount charged by way of the duties and taxes listed in points (b) to (e) of paragraph 1 shall not vary according to whether or not the centre of effective management or the registered office of the capital company is situated within the territory of the Member State charging the duties or taxes. Those amounts may not exceed those of duties or taxes applicable to like transactions which take place within the Member State charging them.
   CHAPTER III
   SPECIAL PROVISIONS
   Article 7
   Levying of capital duty in certain Member States
   1.   Notwithstanding Article 5(1)(a), a Member State which as at 1 January 2006 charged a duty on contributions of capital to capital companies, hereinafter ‘capital duty’, may continue to do so provided that it complies with Articles 8 to 14.
   2.   If, at any time after 1 January 2006, a Member State discontinues the charging of capital duty, it may not reintroduce it.
   3.   If, at any time after 1 January 2006, a Member State discontinues the charging of capital duty on the contributions of capital referred to in Article 3(g) to (j), it may not reintroduce capital duty on such contributions of capital, notwithstanding Article 10(2).
   4.   If, at any time after 1 January 2006, a Member State discontinues the charging of capital duty on the supplying of fixed or working capital to a branch, it may not reintroduce duty on the contributions of capital concerned, notwithstanding Article 10(4).
   5.   If, at any time after 1 January 2006, a Member State allows exemptions under Article 13, it may not subsequently charge capital duty on the contributions of capital concerned.
   Article 8
   Rate of capital duty
   1.   Capital duty shall be charged at a single rate.
   2.   The rate of capital duty applied by a Member State may not exceed the rate applied by that Member State on 1 January 2006.
   Where, after that date, the Member State reduces the rate applied, it may not reintroduce a higher rate.
   3.   The rate of capital duty may not in any event exceed 1 %.
   Article 9
   Exclusion of certain entities from the scope of application
   Member States may for the purposes of levying capital duty choose not to regard as capital companies the entities referred to in Article 2(2).
   Article 10
   Transactions subject to capital duty and distribution of taxing rights
   1.   Where, pursuant to Article 7(1), a Member State continues to charge capital duty, it shall subject to capital duty the contributions of capital referred to in Article 3(a) to (d), if the centre of effective management of the capital company is situated in that Member State at the time when the contribution of capital is made.
   It shall also subject to capital duty the contributions of capital referred to in Article 3(e) and (f).
   2.   Where a Member State continues to charge capital duty, it may do so on the contributions of capital referred to in Article 3(g) to (j), if the centre of effective management of the capital company is situated in that Member State at the time when the contribution of capital is made.
   3.   Where the centre of effective management of a capital company is situated in a third country and its registered office is situated in a Member State which continues to charge capital duty, contributions of capital shall be subject to capital duty in that Member State.
   4.   Where the registered office and the centre of effective management of a capital company are situated in a third country, the supply of fixed or working capital to a branch situated in a Member State which continues to charge capital duty may be subject to capital duty in that Member State.
   Article 11
   Basis of assessment for capital duty
   1.   In the case of contributions of capital as referred to in Article 3(a), (c) and (d), the basis of assessment for capital duty shall be the actual value of assets of any kind contributed or to be contributed by the members, after the deduction of liabilities assumed and of expenses borne by the company as a result of each contribution.
   The charging of capital duty may be postponed until the contributions have been effected.
   2.   In the case of contributions of capital as referred to in Article 3(b), (e) and (f), the basis of assessment for capital duty shall be the actual value of the assets of any kind belonging to the company at the time of the conversion or transfer, after the deduction of liabilities and expenses for which the company is responsible at that time.
   3.   In the case of contributions of capital as referred to in Article 3(g), the basis of assessment for capital duty shall be the nominal amount of the increase.
   4.   In the case of contributions of capital as referred to in Article 3(h), the basis of assessment for capital duty shall be the actual value of the services provided, after deduction of the liabilities assumed and the expenses borne by the company as a result of the provision of such services.
   5.   In the case of contributions of capital as referred to in Article 3(i) and (j), the basis of assessment for capital duty shall be the nominal amount of the loan taken up.
   6.   In the cases referred to in paragraphs 1 and 2, the actual value of the shares in the company allotted or belonging to each member may be used as the basis of assessment for capital duty, except where contributions are made only in cash.
   The amount on which duty is charged shall in no circumstances be less than the nominal amount of the shares in the company allotted or belonging to each member.
   Article 12
   Exclusion from the basis of assessment for capital duty
   1.   In the case of an increase in capital, the basis of assessment for capital duty shall not include the following:

               (a)

               the amount of the assets belonging to the capital company which are allocated to the increase in capital and which have already been subjected to capital duty;

               (b)

               the amount of the loans taken up by the capital company which are converted into shares in the company and which have already been subjected to capital duty.

         2.   A Member State may exclude from the basis of assessment for capital duty the amount of the capital contributed by a member with unlimited liability for the obligations of a capital company as well as the share of such a member in the company’s assets.
   Where a Member State exercises that power, any transaction as a result of which the liability of a member is limited to his share in the company’s capital, in particular when the limitation of liability results from the conversion of a capital company into a different type of capital company, shall be subject to capital duty.
   Capital duty shall be charged in all such cases on the value of the share in the company’s assets belonging to members with unlimited liability for the company’s obligations.
   3.   In the case of a contribution of capital as referred to in Article 3(c), following a reduction in the company’s capital as a result of losses sustained, that part of the contribution of capital which corresponds to the reduction in capital may be excluded from the basis of assessment, provided that the contribution of capital occurs within four years of the reduction in capital.
   Article 13
   Exemption of contributions of capital to certain capital companies
   Member States may exempt from capital duty contributions of capital made to the following:

               (a)

               capital companies which supply public services, such as public transport undertakings, port authorities or undertakings supplying water, gas or electricity, in cases where the State or regional or local authorities own at least half of the company’s capital;

               (b)

               capital companies which, in accordance with their regulations and in fact, pursue exclusively and directly cultural, social, relief or educational objectives.

         Member States which exempt such contributions of capital from capital duty shall also apply the exemption to the supply of fixed or working capital to a branch within its territory as referred to in Article 10(4).
   Article 14
   Derogation procedure
   Certain types of contributions of capital or of capital companies may be the subject of exemptions or reductions in rates in order to achieve fairness in taxation, or for social considerations, or to enable a Member State to deal with special situations.
   The Member State which proposes to take such a measure shall refer the matter to the Commission in good time, having regard to the application of Article 97 of the Treaty.
   CHAPTER IV
   FINAL PROVISIONS
   Article 15
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 3, 4, 5, 7, 8, 12, 13 and 14 by 31 December 2008 at the latest. They shall forthwith communicate to the Commission the texts of those provisions and a correlation table between those provisions and this Directive.
   When they are adopted by Member States, these measures shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the directives repealed by this Directive shall be construed as references to this Directive. The methods of making such reference and how that statement is to be formulated shall be laid down by Member States.
   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 16
   Repeal
   Directive 69/355/EEC, as amended by the Directives listed in Part A of Annex II, is repealed with effect from 1 January 2009, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Part B of Annex II.
   References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.
   Article 17
   Review
   The Commission shall report to the Council every three years on the operation of this Directive notably with the view to abolish capital duty. In order to assist the Commission with the review, Member States shall provide the Commission with information in respect of the revenue from capital duty.
   Article 18
   Entry into force
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Articles 1, 2, 6, 9, 10 and 11 shall apply from 1 January 2009.
   Article 19
   Addressees
   This Directive is addressed to the Member States.

      Done at Brussels, 12 February 2008.

            For the Council

            The President

         A. BAJUK

      (1)  Opinion of the European Parliament of 12 December 2007 (not yet published in the Official Journal).

      (2)  OJ C 126, 7.6.2007, p. 6.

      (3)  OJ L 249, 3.10.1969, p. 25. Directive as last amended by Directive 2006/98/EC (OJ L 363, 20.12.2006, p. 129).

      (4)  See Annex II, Part A.

      ANNEX I
      LIST OF COMPANIES REFERRED TO IN ARTICLE 2(1)(A)

                  (1)

                  Companies incorporated under Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) (1)

                  (2)

                  companies under Belgian law known as:

                              (i)

                              société anonyme/naamloze vennootschap

                              (ii)

                              société en commandite par actions/commanditaire vennootschap op aandelen

                              (iii)

                              société privée à responsabilité limitée/besloten vennootschap met beperkte aansprakelijkheid

                  (3)

                  companies under Bulgarian law known as:

                              (i)

                              ‘Акционерно дружество’

                              (ii)

                              ‘Командитно дружество с акции’

                              (iii)

                              ‘Дружество с ограничена отговорност’

                  (4)

                  companies under Czech law known as:

                              (i)

                              akciová společnost

                              (ii)

                              komanditní společnost

                              (iii)

                              společnost s ručením omezeným

                  (5)

                  companies under Danish law known as:

                              (i)

                              aktieselskab

                              (ii)

                              kommandit-aktieselskab

                  (6)

                  companies under German law known as:

                              (i)

                              Aktiengesellschaft

                              (ii)

                              Kommanditgesellschaft auf Aktien

                              (iii)

                              Gesellschaft mit beschränkter Haftung

                  (7)

                  companies under Estonian law known as:

                              (i)

                              täisühing

                              (ii)

                              usaldusühing

                              (iii)

                              osaühing

                              (iv)

                              aktsiaselts

                              (v)

                              tulundusühistu

                  (8)

                  companies under Irish law known as: companies incorporated with limited liability

                  (9)

                  companies under Greek law known as:

                              (i)

                              Ανώνυμος Εταιρία

                              (ii)

                              Ετερόρρυθμος κατά μετοχάς Εταιρία

                              (iii)

                              Εταιρία Περιωρισμένης Ευθύνης

                  (10)

                  companies under Spanish law known as:

                              (i)

                              sociedad anónima

                              (ii)

                              sociedad comanditaria por acciones

                              (iii)

                              sociedad de responsabilidad limitada

                  (11)

                  companies under French law known as:

                              (i)

                              société anonyme

                              (ii)

                              société en commandite par actions

                              (iii)

                              société à responsabilité limitée

                  (12)

                  companies under Italian law known as:

                              (i)

                              società per azioni

                              (ii)

                              società in accomandita per azioni

                              (iii)

                              società a responsabilità limitata

                  (13)

                  companies under Cypriot law known as: εταιρείες περιορισμένης ευθύνης

                  (14)

                  companies under Latvian law known as: kapitālsabiedrība

                  (15)

                  companies under Lithuanian law known as:

                              (i)

                              akcinė bendrovė

                              (ii)

                              uždaroji akcinė bendrovė

                  (16)

                  companies under Luxembourg law known as:

                              (i)

                              société anonyme

                              (ii)

                              société en commandite par actions

                              (iii)

                              société à responsabilité limitée

                  (17)

                  companies under Hungarian law known as:

                              (i)

                              részvénytársaság

                              (ii)

                              korlátolt felelősségű társaság

                  (18)

                  companies under Maltese law known as:

                              (i)

                              Kumpaniji ta’ Responsabilità Limitata

                              (ii)

                              Soċjetajiet in akkomandita li l-kapital tagħhom jkun maqsum f’azzjonijiet

                  (19)

                  companies under Dutch law known as:

                              (i)

                              naamloze vennootschap

                              (ii)

                              besloten vennootschap met beperkte aansprakelijkheid

                              (iii)

                              open commanditaire vennootschap

                  (20)

                  companies under Austrian law known as:

                              (i)

                              Aktiengesellschaft

                              (ii)

                              Gesellschaft mit beschränkter Haftung

                  (21)

                  companies under Polish law known as:

                              (i)

                              spółka akcyjna

                              (ii)

                              spółka z ograniczoną odpowiedzialnością

                  (22)

                  companies under Portuguese law known as:

                              (i)

                              sociedade anónima

                              (ii)

                              sociedade em comandita por acções

                              (iii)

                              sociedade por quotas

                  (23)

                  companies under Romanian law known as:

                              (i)

                              ‘societăți în nume colectiv’

                              (ii)

                              ‘societăți în comandită simplă’

                              (iii)

                              ‘societăți pe acțiuni’

                              (iv)

                              ‘societăți în comandită pe acțiuni’

                              (v)

                              ‘societăți cu răspundere limitată’

                  (24)

                  companies under Slovenian law known as:

                              (i)

                              delniška družba

                              (ii)

                              komanditna delniška družba

                              (iii)

                              družba z omejeno odgovornostjo

                  (25)

                  companies under Slovak law known as:

                              (i)

                              akciová spoločnosť

                              (ii)

                              poločnosť s ručením obmedzeným

                              (iii)

                              komanditná spoločnosť

                  (26)

                  companies under Finnish law known as:

                              (i)

                              osakeyhtiö – aktiebolag

                              (ii)

                              osuuskunta – andelslag

                              (iii)

                              säästöpankki – sparbank

                              (iv)

                              vakuutusyhtiö – försäkringsbolag

                  (27)

                  companies under Swedish law known as:

                              (i)

                              aktiebolag

                              (ii)

                              försäkringsaktiebolag

                  (28)

                  companies under the law of the United Kingdom known as: companies incorporated with limited liability.

         (1)  OJ L 294, 10.11.2001, p. 1. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

      ANNEX II
      PART A
      Repealed Directive with list of its successive amendments
      (referred to in Article 16(1))

                  Council Directive 69/335/EEC

                  (OJ L 249, 3.10.1969, p. 25).

                  Point VI.1 of Annex I to 1972 Act of Accession

                  (OJ L 73, 27.3.1972, p. 93).

                  Council Directive 73/79/EEC

                  (OJ L 103, 18.4.1973, p. 13).

                  Council Directive 73/80/EEC

                  (OJ L 103, 18.4.1973, p. 15).

                  Council Directive 74/553/EEC

                  (OJ L 303, 13.11.1974, p. 9).

                  Point VI.1 of Annex I to 1979 Act of Accession

                  (OJ L 291, 19.11.1979, p. 95).

                  Council Directive 85/303/EEC

                  (OJ L 156, 15.6.1985, p. 23).

                  Point V.1 of Annex I to 1985 Act of Accession

                  (OJ L 302, 15.11.1985, p. 167).

                  Point XI.B.I.1 of Annex I to 1994 Act of Accession

                  (OJ C 241, 29.8.1994, p. 196).

                  Point 9.1 of Annex II to 2003 Act of Accession

                  (OJ L 236, 23.9.2003, p. 555).

            PART B
      List of time limits for transposition into national law
      (referred to in Article 16(1))

                  Directive

                  Time-limits for transposition

                  Council Directive 69/335/EEC

                  1 January 1972

                  Council Directive 73/79/EEC

                  —

                  Council Directive 73/80/EEC

                  —

                  Council Directive 74/553/EEC

                  —

                  Council Directive 85/303/EEC

                  1 January 1986

      ANNEX III
      Correlation Table

                  Directive 69/335/EEC

                  This Directive

                  Article 1

                  Article 7

                  —

                  Article 1

                  Article 2(1)

                  Article 10(1), first subparagraph, and Article 10(2)

                  Article 2(2)

                  Article 10(3)

                  Article 2(3)

                  Article 10(4)

                  Article 3(1), introductory words

                  Article 2(1), introductory words

                  Article 3(1)(a)

                  Article 2(1)(a) and Annex I

                  Article 3(1)(b)

                  Article 2(1)(b)

                  Article 3(1)(c)

                  Article 2(1)(c)

                  Article 3(2), first sentence

                  Article 2(2)

                  Article 3(2), second sentence

                  Article 9

                  Article 4(1)(a)-(f)

                  Article 3(a)-(f) and Article 10(1)

                  Article 4(1)(g) and (h)

                  Article 5(1)(d)(ii)

                  Article 4(2), first subparagraph

                  Article 3(g)-(j), Article 7(3) and Article 10(2)

                  Article 4(2), second subparagraph

                  —

                  Article 4(3)

                  Article 5(1)(d)

                  Article 5(1)(a)

                  Article 11(1)

                  Article 5(1)(b)

                  Article 11(2)

                  Article 5(1)(c)

                  Article 11(3)

                  Article 5(1)(d)

                  Article 11(4)

                  Article 5(1)(e)

                  Article 11(5)

                  Article 5(2)

                  Article 11(6)

                  Article 5(3)

                  Article 12(1)

                  Article 6(1)

                  Article 12(2), first subparagraph

                  Article 6(2)

                  Article 12(2), second and third subparagraphs

                  Article 7(1), first and second subparagraphs

                  Article 4, Article 5(1)(e)

                  Repealed Article 7(1)(b)

                  Article 4(a)

                  Repealed Article 7(1)(bb)

                  Article 4(b)

                  Article 7(1), third subparagraph

                  —

                  Article 7(2)

                  Articles 7 and 8

                  Article 7(3)

                  Article 12(3)

                  Article 8

                  Article 7(5) and Article 13, first subparagraph

                  —

                  Article 13, second subparagraph

                  Article 9

                  Article 14

                  Article 10

                  Article 5(1)(a)-(c)

                  Article 11

                  Article 5(2)

                  Article 12

                  Article 6

                  Article 13

                  Article 15(1)

                  Article 14

                  Article 15(2)

                  —

                  Article 16

                  —

                  Article 17

                  Article 15

                  Article 18

                  Article 3(1)(a)

                  Annex I

                  —

                  Annex II

                  —

                  Annex III


Avis juridique important

|

31999L0003

Directive 1999/3/EC of the European Parliament and of the Council of 22 February 1999 on the establishment of a Community list of foods and food ingredients treated with ionising radiation

Official Journal L 066 , 13/03/1999 P. 0024 - 0025

DIRECTIVE 1999/3/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 February 1999 on the establishment of a Community list of foods and food ingredients treated with ionising radiationTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,Having regard to the proposal from the Commission (1),Having regard to the opinion of the Economic and Social Committee (2),Acting in accordance with the procedure laid down in Article 189b of the Treaty (3), in the light of the joint text approved by the Conciliation Committee on 9 December 1998,Whereas Article 4(1) and (2) of Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation (4) hereinafter referred to as 'the framework Directive` provides for the adoption of a list of foodstuffs which, to the exclusion of all other, may be treated with ionising radiation; whereas this list shall be established in stages;Whereas dried aromatic herbs, spices and vegetable seasonings are frequently contaminated and/or infested with organisms and their metabolites which are harmful to public health;Whereas such contamination and/or infestation can no longer be treated with fumigants such as ethylene oxide because of the toxic potential of their residues;Whereas the use of ionising radiation is an effective means of replacing the said substances;Whereas such treatment has been accepted by the Scientific Committee for Food;Whereas such treatment is therefore in the interest of public health protection,HAVE ADOPTED THIS DIRECTIVE:Article 1 1. Without prejudice to the Community positive list to be established in accordance with the second subparagraph of Article 4(3) of the framework Directive, this Directive establishes a Community initial positive list of food and food ingredients, hereinafter referred to as 'foodstuffs`, that may be treated with ionising radiation, together with the maximum doses authorised for the intended purpose.2. Treatment of the products in question with ionising radiation may be carried out only in accordance with the provisions of the framework Directive. In particular, test methods shall be used in accordance with Article 7(3) of the framework Directive.3. The foodstuffs that may be treated with ionising radiation and the maximum overall average dose that may be imparted are listed in the Annex.Article 2 Member States may not prohibit, resrict or hinder the marketing of foodstuffs irradiated in accordance with the general provisions of the framework Directive and the provisions of this Directive on the grounds that they have been so treated.Article 3 Any amendments to this Directive, shall be made in accordance with the procedures laid down in Article 100a of the Treaty.Article 4 Member States shall bring into force the laws, regulations and administrative provisions to comply with this Directive in such a way as to permit the marketing and use of irradiated foodstuffs which comply with this Directive by 20 September 2000.They shall inform the Commission thereof.When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.Article 5 This Directive shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.Article 6 This Directive is addressed to the Member States.Done at Brussels, 22 February 1999.For the European ParliamentThe PresidentJ.M. GIL-ROBLESFor the CouncilThe PresidentK.-H. FUNKE(1) OJ C 336, 30. 12. 1988, p. 7 and OJ C 303, 2. 12. 1989, p. 15.(2) OJ C 194, 31. 7. 1989, p. 14.(3) Opinion of the European Parliament of 11 October 1989 (OJ C 291, 20. 11. 1989, p. 58), Council Common Position of 27 October 1997 (OJ C 389, 22. 12. 1997, p.47) and Decision of the European Parliament of 18 February 1998 (OJ C 80, 16. 3. 1998, p. 133). Council Decision of 25 January 1999. Decision of the European Parliament of 28 January 1999.(4) See page 16 of this Official Journal.ANNEX >TABLE>


Avis juridique important

|

32002L0032

Directive 2002/32/EC of the European Parliament and of the Council of 7 May 2002 on undesirable substances in animal feed - Council statement

Official Journal L 140 , 30/05/2002 P. 0010 - 0022

Directive 2002/32/EC of the European Parliament and of the Councilof 7 May 2002on undesirable substances in animal feedTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 152(4)(b) thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the Economic and Social Committee(2),After consulting the Committee of the Regions,Acting in accordance with the procedure laid down in Article 251 of the Treaty(3), in the light of the joint text approved by the Conciliation Committee on 26 March 2002,Whereas:(1) Many amendments need to be made to Council Directive 1999/29/EC of 22 April 1999 on the undesirable substances and products in animal nutrition(4). In the interests of clarity and efficiency the said Directive should be recast.(2) Livestock production occupies a very important place in farming in the Community and satisfactory results in terms of public and animal health, animal welfare, the environment and the livestock producers' finances depend to a large extent on the use of appropriate good quality feedingstuffs.(3) Rules on feedingstuffs are needed to ensure agricultural productivity and sustainability and to make it possible to ensure public and animal health, animal welfare and the environment. In addition, there is a need for comprehensive regulation on hygiene in order to guarantee good quality feedingstuffs on individual farms even when they are not commercially produced.(4) The same rules concerning the quality and safety of products intended for animal feed have to apply to the quality and safety of water consumed by the animals. Although the definition of feedingstuffs does not preclude water being considered as feedingstuff, it is not included in the non-exhaustive list of main feed materials, laid down by Council Directive 96/25/EC of 29 April 1996 on the circulation and use of feed materials(5). The issue of water to be considered as feedingstuffs needs to be examined in the framework of that Directive.(5) It has been established that additives can contain undesirable substances. The scope of the Directive should therefore be extended to cover additives.(6) Products intended for animal feed may contain undesirable substances which can endanger animal health or, because of their presence in livestock products, human health or the environment.(7) It is impossible to eliminate fully the presence of undesirable substances but it is important that their content in products intended for animal feed should be reduced, with due regard to the substances' acute toxicity, bio-accumulability and degradability, in order to prevent undesirable and harmful effects. It is at present inappropriate to fix this content below the levels detectable by methods of analysis to be defined for the Community.(8) The methods for determining residues of undesirable substances are becoming increasingly sophisticated, so that even quantities of residues which are negligible for animal and human health can be detected.(9) Undesirable substances may be present in products intended for animal feed only in accordance with the conditions laid down in this Directive and may not be used in any other way for the purposes of animal feed. This Directive should therefore apply without affecting other Community provisions on feedingstuffs, and particularly the rules applicable to compound feedingstuffs.(10) This Directive must apply to products intended for animal feed as soon as they enter the Community. It must therefore be stipulated that the maximum levels of undesirable substances that are set apply in general from the date on which the products intended for animal feed are put into circulation or used, at all stages, and in particular as soon as they are imported.(11) Products intended for animal feed must be sound, genuine and of merchantable quality and therefore when correctly used must not represent any danger to human health, animal health or to the environment or adversely affect livestock production. Using or putting into circulation products intended for animal feed which contain levels of undesirable substances that exceed the maximum levels laid down in Annex I must therefore be prohibited.(12) The presence of certain undesirable substances in complementary feedingstuffs must be limited by fixing appropriate maximum levels.(13) While in certain cases a maximum level is fixed, taking account of background levels, continued effort is still needed to restrict the presence of some specific undesirable substances to the lowest possible levels in products intended for animal feed so as to reduce their presence in the feed and food chain. It should therefore be permitted, under this Directive, to lay down action thresholds well below the maximum levels fixed. Where such action thresholds are exceeded, investigations must be carried out to identify the sources of the undesirable substances and steps taken to reduce or eliminate such sources.(14) Where animal or human health or the environment is endangered, Member States should be allowed temporarily to reduce the fixed maximum permissible levels, to fix maximum levels for other substances or to prohibit the presence of such substances in products intended for animal feed. In order to ensure a uniform application, any amendments to Annex I to this Directive should be decided on by emergency Community procedure, on the basis of supporting documents and the precautionary principle.(15) Products intended for animal feed that satisfy the requirements of this Directive may not be subject to restrictions on entry into circulation, as regards the level of undesirable substances they contain, other than those provided for in this Directive and in Council Directive 95/53/EC of 25 October 1995 fixing the principles governing the organisation of official inspections in the field of animal nutrition(6).(16) Member States must make appropriate monitoring arrangements pursuant to Directive 95/53/EC to ensure that the requirements regarding undesirable substances are met when products intended for animal feed are used or circulated.(17) An appropriate Community procedure is needed for adapting the technical provisions in the Annexes to this Directive in the light of developments in scientific and technical knowledge.(18) In order to facilitate implementation of the proposed measures, there should be a procedure for close cooperation between the Member States and the Commission within the Standing Committee for Feedingstuffs set up by Decision 70/372/EEC(7).(19) 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(8),HAVE ADOPTED THIS DIRECTIVE:Article 11. This Directive deals with undesirable substances in products intended for animal feed.2. This Directive shall apply without prejudice to the provisions in:(a) Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs(9);(b) Council Directive 96/25/EC and Council Directive 79/373/EEC of 2 April 1979 on the marketing of compound feedingstuffs(10);(c) Council Directive 76/895/EEC of 23 November 1976 relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables(11), Council Directive 86/362/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on cereals(12), Council Directive 86/363/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on foodstuffs of animal origin(13) and Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables(14), where these residues are not listed in Annex I to this Directive;(d) Community legislation concerning veterinary matters relating to public health and animal health;(e) Council Directive 82/471/EEC of 30 June 1982 concerning certain products used in animal nutrition(15);(f) Council Directive 93/74/EEC of 13 September 1993 on feedingstuffs intended for particular nutritional purposes(16).Article 2For the purposes of this Directive:(a) "feedingstuffs" shall mean products of vegetable or animal origin, in their natural state, fresh or preserved, and products derived from the industrial processing thereof, and organic or inorganic substances, used singly or in mixtures, whether or not containing additives, for oral animal feeding;(b) "feed materials" shall mean various products of vegetable or animal origin, in their natural state, fresh or preserved, and products derived from the industrial processing thereof, and organic or inorganic substances, whether or not containing additives, which are intended for use in oral animal feeding either directly as such or, after processing, in the preparation of compound feedingstuffs or as substrates for premixtures;(c) "additives" shall mean additives as defined in Article 2(a) of Council Directive 70/524/EEC;(d) "premixtures" shall mean mixtures of additives or mixtures of one or more additives with substances used as carriers, intended for the manufacture of feedingstuffs;(e) "compound feedingstuffs" shall mean mixtures of feed materials, whether or not containing additives, which are intended for oral animal feeding as complete or complementary feedingstuffs;(f) "complementary feedingstuffs" shall mean mixtures of feedingstuffs which have a high content of certain substances and which, by reason of their composition, are sufficient for a daily ration only if used in combination with other feedingstuffs;(g) "complete feedingstuffs" shall mean mixtures of feedingstuffs which, by reason of their composition, are sufficient for a daily ration;(h) "products intended for animal feed" shall mean feed materials, premixtures, additives, feedingstuffs and all other products intended for use or used in animal feed;(i) "daily ration" shall mean the average total quantity of feedingstuffs, calculated on a moisture content of 12 %, required daily by an animal of a given species, age class and yield, to satisfy all its needs;(j) "animals" shall mean animals belonging to species normally fed and kept or consumed by man as well as animals living freely in the wild in cases where they are fed with feedingstuffs;(k) "putting into circulation" or "circulation" shall mean the holding of products intended for animal feed for the purposes of sale, including offering for sale, or any other form of transfer, whether free or not, to third parties, and the sale or other forms of transfer themselves;(l) "undesirable substance" shall mean any substance or product, with the exception of pathogenic agents, which is present in and/or on the product intended for animal feed and which presents a potential danger to animal or human health or to the environment or could adversely affect livestock production.Article 31. Products intended for animal feed may enter for use in the Community from third countries, be put into circulation and/or used in the Community only if they are sound, genuine and of merchantable quality and therefore when correctly used do not represent any danger to human health, animal health or to the environment or could adversely affect livestock production.2. In particular, products intended for animal feed shall be deemed not to be in conformity with paragraph 1 if the level of undesirable substances they contain does not comply with the maximum levels laid down in Annex I.Article 41. Member States shall prescribe that the undesirable substances listed in Annex I may be tolerated in products intended for animal feed only subject to the conditions laid down therein.2. In order to reduce or eliminate sources of undesirable substances of products intended for animal feed, Member States, in cooperation with economic operators, shall carry out investigations to identify the sources of undesirable substances, in cases where the maximum levels are exceeded and in cases where increased levels of such substances are detected, taking into account background levels. For a uniform approach in cases of increased levels it may be necessary to set action thresholds to trigger such investigations. These may be laid down in Annex II.Member States shall transmit to the Commission and the other Member States all relevant information and findings of the source and the measures taken to reduce the level or elimination of the undesirable substances. This information shall be transmitted in the frame of the annual report to be transmitted to the Commission according to the provisions of Article 22 of Directive 95/53/EC except in those cases where the information is of immediate relevance for the other Member States. In this latter case, the information shall be transmitted immediately.Article 5Member States shall prescribe that products intended for animal feed containing levels of an undesirable substance that exceed the maximum level fixed in Annex I may not be mixed for dilution purposes with the same, or other, products intended for animal feed.Article 6In so far as there are no special provisions for complementary feedingstuffs, Member States shall prescribe that complementary feedingstuffs may not, taking into account the proportion prescribed for their use in a daily ration, contain levels of the undesirable substances listed in Annex I that exceed those fixed for complete feedingstuffs.Article 71. Where a Member State has grounds, based on new information or a reassessment of existing information made since the provisions in question were adopted, demonstrating that a maximum level fixed in Annex I or an undesirable substance not listed therein present a danger to animal or human health or to the environment, that Member State may provisionally reduce the existing maximum level, fix a maximum level or prohibit the presence of that undesirable substance in products intended for animal feed. It shall immediately inform the other Member States and the Commission thereof, stating the grounds for its decision.2. An immediate decision shall be taken, in accordance with the procedure laid down in Article 12, as to whether Annexes I and II should be amended.So long as neither the Council nor the Commission has taken a decision, the Member State may maintain the measures it has implemented.The Member State must ensure that the decision taken is made public.Article 81. In accordance with the procedure laid down in Article 11, the Commission, in the light of developments in scientific and technical knowledge, shall adapt Annexes I and II.2. Furthermore, in accordance with the procedure laid down in Article 11, the Commission:- shall periodically adopt consolidated versions of Annexes I and II incorporating any adaptations made pursuant to paragraph 1,- may define acceptability criteria for detoxification processes as a complement to the criteria provided for products intended for animal feed which have undergone such processes.3. Member States shall ensure that measures are taken to guarantee the correct application of any acceptable processes pursuant to paragraph 2 and the conformity of the detoxified products intended for animal feed with the provisions of Annex I.Article 9Member States shall ensure that products intended for animal feed which comply with this Directive are not subject to any other restrictions on circulation as regards the presence of undesirable substances other than those provided for in this Directive and Directive 95/53/EC.Article 10Provisions that may have an effect upon public or animal health or on the environment shall be adopted after consultation with the appropriate Scientific Committee(s).Article 111. The Commission shall be assisted by the Standing Committee for Feedingstuffs, set up by Article 1 of Decision 70/372/EEC.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.3. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.Article 121. The Commission shall be assisted by the Standing Committee for Feedingstuffs, set up by Article 1 of Decision 70/372/EEC.2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.3. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at fifteen days.Article 131. The Member States shall apply at least the provisions of this Directive to products intended for animal feed produced in the Community to be exported to third countries.2. Paragraph 1 shall not affect the right of Member States to authorise re-exportation under the conditions laid down in Article 12 of Regulation (EC) No 178/2002(17). The provisions of Article 20 thereof shall apply mutatis mutandis.Article 141. Directive 1999/29/EC is hereby repealed as from 1 August 2003, without prejudice to the obligations of the Member States to comply with the deadlines set out in Part B of Annex III thereto for the transposition of the Directives listed in Part A of that Annex.2. References to Directive 1999/29/EC shall be construed as references to this Directive and should be read in accordance with the correlation table in Annex III.Article 15Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive before 1 May 2003. They shall forthwith inform the Commission thereof.The measures adopted shall apply as from 1 August 2003.When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The procedure for making such reference shall be adopted by Member States.Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.Article 16This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 17The Directive is addressed to the Member States.Done at Brussels, 7 May 2002.For the European ParliamentThe PresidentP. CoxFor the CouncilThe PresidentR. De Rato Y Figaredo(1) OJ C 89 E, 28.3.2000, p. 70 and OJ C 96 E, 27.3.2001, p. 346.(2) OJ C 140, 18.5.2000, p. 9.(3) Opinion of the European Parliament of 4 October 2000 (OJ C 178, 22.6.2001, p. 160), Council Common Position of 17 September 2001 (OJ C 4, 7.1.2002, p. 1) and Decision of the European Parliament of 12 December 2001 (not yet published in the Official Journal). Decision of the European Parliament of 10 April 2002 and Decision of the Council of 22 April 2002.(4) OJ L 115, 4.5.1999, p. 32.(5) OJ L 125, 23.5.1996, p. 35. Directive as last amended by European Parliament and Council Directive 2000/16/EC (OJ L 105, 3.5.2000, p. 36).(6) OJ L 265, 8.11.1995, p. 17. Directive as last amended by Directive 2001/46/EC of the European Parliament and of the Council (OJ L 234, 1.9.2001, p. 55).(7) OJ L 170, 3.8.1970, p. 1.(8) OJ L 184, 17.7.1999, p. 23.(9) OJ L 270, 14.12.1970, p. 1. Directive as last amended by Commission Regulation (EC) No 2205/2001 (OJ L 297, 15.11.2001, p. 3).(10) OJ L 86, 6.4.1979, p. 30. Directive as last amended by the European Parliament and Council Directive 2002/2/EC (OJ L 63, 6.3.2002, p. 23).(11) OJ L 340, 9.12.1976, p. 26. Directive as last amended by Commission Directive 2000/57/EC (OJ L 244, 29.9.2000, p. 76).(12) OJ L 221, 7.8.1986, p. 37. Directive as last amended by Commission Directive 2002/23/EC (OJ L 64, 7.3.2002, p. 13).(13) OJ L 221, 7.8.1986, p. 43. Directive as last amended by Directive 2002/23/EC.(14) OJ L 350, 14.12.1990, p. 71. Directive as last amended by Directive 2002/23/EC.(15) OJ L 213, 21.7.1982, p. 8. Directive as last amended by Directive 1999/20/EC (OJ L 80, 25.3.1999, p. 20).(16) OJ L 237, 22.9.1993, p. 23. Directive as last amended by Directive 1999/29/EC (OJ L 115, 4.5.1999, p. 32).(17) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1).ANNEX I>TABLE>ANNEX II>PIC FILE= "L_2002140EN.001902.TIF">ANNEX IIICORRELATION TABLE>TABLE>Council statementThe Member States confirm that they shall do their utmost to ensure that the relevant measures needed to implement the Directive are adopted expeditiously within the time period laid down in Articles 14 and 15.