title: Commission Directive 2006/134/EC of 11 December 2006 amending Council Directive 91/414/EEC to include fenarimol as active substance Text with EEA relevance

text:
               12.12.2006

               EN

               Official Journal of the European Union

               L 349/32

      COMMISSION DIRECTIVE 2006/134/EC
   of 11 December 2006
   amending Council Directive 91/414/EEC to include fenarimol as active substance
   (Text with EEA relevance)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community,
   Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular Article 6(1) thereof,
   Whereas:

               (1)

               Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market (2), establishes a list of active substances to be assessed, with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list includes fenarimol.

               (2)

               For fenarimol the effects on human health and the environment have been assessed in accordance with the provisions laid down in Regulation (EEC) No 3600/92 for a range of uses proposed by the notifier. By Commission Regulation (EC) No 933/94 of 27 April 1994 laying down the active substances of plant protection products and designating the Rapporteur Member State for the implementation of Commission Regulation (EEC) No 3600/92 (3), the United Kingdom was designated as Rapporteur Member State. The United Kingdom submitted the relevant assessment report and recommendations to the Commission on 30 April 1996 in accordance with Article 7(1)(c) of Regulation (EEC) No 3600/92.

               (3)

               The assessment report has been reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health.

               (4)

               As regards fenarimol two questions were submitted to the Scientific Committee on Plants (the Scientific Committee). The Scientific Committee was asked to comment on the interpretation of the multi-generation studies and to consider the aromatase inhibition effects of fenarimol. In addition its opinion was sought on the establishment of a reliable acceptable daily intake (ADI) and acceptable operator exposure level (AOEL) (4). The Scientific Committee concluded that the effects of fenarimol on male fertility seen in rats had to be considered relevant for human risk assessment although man is less sensitive than rats to the effects of aromatase inhibition. It also concluded that the effects of fenarimol on parturition in rats could be considered as not relevant for human risk assessment. It was further concluded that, apart from male-mediated reduced fertility and effects associated with delayed parturition, there was no convincing evidence for other adverse reproductive effects associated with aromatase inhibition by fenarimol. Finally, the Scientific Committee agreed that the toxicological studies submitted permitted the establishment of a reliable ADI and AOEL. A second opinion (5) addressed the question whether the approach taken to calculate the Predicted Environmental Concentrations (PEC) in soil was adequate. The Committee proposed a combination of field dissipation and laboratory degradation data to calculate an accumulated soil PEC. This opinion has been examined by the rapporteur Member State who considered nevertheless that this procedure was no more scientifically justified than relying on field dissipation measurements alone. Therefore it was decided to await the outcome of the field dissipation studies that were ongoing. The interim results from these studies are consistent with the results of the model calculation and consequently the issue was considered to be adequately addressed. It is therefore concluded that in all cases, the recommendations from the Scientific Committee have been taken into consideration in formulating this Directive and the relevant review report.

               (5)

               It has appeared from the various examinations made that plant protection products containing fenarimol may be expected to satisfy the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, with regard to the uses which were examined and detailed in the Commission review report, provided that adequate risk mitigation measures are applied. As fenarimol is a hazardous substance, its use should not be unrestricted. In particular there are concerns about its intrinsic toxic effects, including potential endocrine disrupting properties. There is at present no scientific consensus on the exact extent of the risk. Applying the precautionary principle, and taking into account the current state of scientific knowledge, risk mitigation measures should be imposed in order to achieve the high level of protection of human and animal health and the environment chosen in the Community.

               (6)

               Articles 5(4) and 6(1) of Directive 91/414/EEC provide that inclusion of a substance in Annex I may be subject to restrictions and conditions. In this case, restrictions on the inclusion period and on the authorised crops are deemed necessary. The original measures presented to the Standing Committee on the Food Chain and Animal Health, proposed the restriction of the inclusion period to seven years, so that Member States would give priority to reviewing plant protection products already on the market containing fenarimol. In order to avoid discrepancies in the high level of protection sought, the inclusion in Annex I to Directive 91/414/EEC was intended to be limited to the uses of fenarimol that have been actually assessed within the Community evaluation and for which the proposed uses were considered to comply with the conditions of Directive 91/414/EEC. This implies that other uses, which were not or only partially covered by this assessment, had first to be subject to a complete assessment, before their inclusion in Annex I of Directive 91/414/EEC could be considered. Finally, due to the hazardous nature of fenarimol, it was considered necessary to provide for a minimum harmonisation at Community level of certain risk mitigation measures that were to be applied by Member States when granting authorisations.

               (7)

               Under the procedures laid down by Directive 91/414/EEC, the approval of active substances, including the definition of risk management measures, is decided by the Commission. Member States bear the responsibility for the implementation, application and control of the measures intended to mitigate the risks generated by plant protection products. Concerns expressed by several Member States reflect their judgment that additional restrictions are necessary to reduce the risk to a level that can be considered acceptable and consistent with the high level of protection that is sought within the Community. At present, it is a question of risk management to set the adequate level of safety and protection for the continued production, commercialisation and use of fenarimol.

               (8)

               As a consequence of the above, the Commission re-examined its position. In order to correctly reflect the high level of protection of human and animal health and a sustainable environment sought in the Community, it considered appropriate, in addition to the principles set out in recital 6, to further reduce the period of inclusion to 18 months instead of seven years. This further reduces any risk by ensuring a priority re-assessment of this substance.

               (9)

               It may be expected that plant protection products containing fenarimol satisfy the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, with regard to the uses which were examined and detailed in the Commission review report and providing that the necessary risk mitigation measures are applied.

               (10)

               Without prejudice to the conclusion that plant protection products containing fenarimol may be expected to satisfy the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, it is appropriate to obtain further information on certain specific points. The potential endocrine disrupting properties of fenarimol have been assessed in tests which follow the best currently available practice. The Commission is aware that the Organisation for Economic Cooperation and Development (OECD) is developing test guidelines in order to further refine the assessment of potential endocrine disrupting properties. Therefore it is appropriate to require that fenarimol should be subjected to such further testing as soon as agreed OECD Test Guidelines exist and that such studies should be presented by the notifier. In addition, Member States should require authorisation holders to provide information on the use of fenarimol including any information on incidences on operator health.

               (11)

               As with all substances included in Annex I to Directive 91/414/EEC, the status of fenarimol could be reviewed under Article 5(5) of that Directive in the light of any new data becoming available. Equally, the fact that the inclusion of this substance in Annex I expires on a particular date does not prevent the inclusion being renewed according to the procedures laid down in the Directive.

               (12)

               The experience gained from previous inclusions in Annex I to Directive 91/414/EEC of active substances assessed in the framework of Regulation (EEC) No 3600/92 has shown that difficulties can arise in interpreting the duties of holders of existing authorisations in relation to access to data. In order to avoid further difficulties it therefore appears necessary to clarify the duties of the Member States, especially the duty to verify that the holder of an authorisation demonstrates access to a dossier satisfying the requirements of Annex II to that Directive. However, this clarification does not impose any new obligations on Member States or holders of authorisations compared to the directives which have been adopted until now amending Annex I.

               (13)

               A reasonable period should be allowed to elapse before an active substance is included in Annex I in order to permit Member States and the interested parties to prepare themselves to meet the new requirements which will result from the inclusion.

               (14)

               Without prejudice to the obligations defined by Directive 91/414/EEC as a consequence of including an active substance in Annex I, Member States should be allowed a period of six months after inclusion to review existing authorisations of plant protection products containing fenarimol to ensure that the requirements laid down by Directive 91/414/EEC, in particular in its Article 13 and the relevant conditions set out in Annex I, are satisfied. Member States should vary, replace or withdraw, as appropriate, existing authorisations in accordance with the provisions of Directive 91/414/EEC. By derogation from the above deadline, a longer period should be provided for the submission and assessment of the complete Annex III dossier of each plant protection product for each intended use in accordance with the uniform principles laid down in Directive 91/414/EEC. Given the hazardous properties of fenarimol, the period for Member States to verify whether plant protection products containing fenarimol, alone or in combination with other authorised active substances, comply with the provisions of Annex VI should not exceed 18 months.

               (15)

               It is therefore appropriate to amend Directive 91/414/EEC accordingly.

               (16)

               The Standing Committee on the Food Chain and Animal Health did not deliver an opinion within the time limit laid down by its Chairman and the Commission therefore submitted to the Council a proposal relating to these measures. On the expiry of the period laid down in the second subparagraph of Article 19(2) of Directive 91/414/EEC, the Council had neither adopted the proposed implementing act nor indicated its opposition to the proposal for implementing measures and it is accordingly for the Commission to adopt these measures,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive.
   Article 2
   Member States shall adopt and publish by 30 June 2007 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   They shall apply those provisions from 1 July 2007.
   When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
   Article 3
   1.   Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing fenarimol as an active substance by 30 June 2007. By that date they shall in particular verify that the conditions in Annex I to that Directive relating to fenarimol are met, with the exception of those identified in part B of the entry concerning that active substance, and that the holder of the authorisation has, or has access to, a dossier satisfying the requirements of Annex II to that Directive in accordance with the conditions of Article 13.
   2.   By derogation from paragraph 1, for each authorised plant protection product containing fenarimol, Member States shall re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive and taking into account part B of the entry in Annex I to that Directive concerning fenarimol. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC.
   Following that determination Member States shall for products containing fenarimol, where necessary, amend or withdraw the authorisation by 30 June 2008.
   Article 4
   This Directive shall enter into force on 1 January 2007.
   Article 5
   This Directive is addressed to the Member States.

      Done at Brussels, 11 December 2006.

            For the Commission

         Markos KYPRIANOU

            Member of the Commission

      (1)  OJ L 230, 19.8.1991, p. 1. Directive as last amended by Commission Directive 2006/85/EC (OJ L 293, 24.10.2006, p. 3).

      (2)  OJ L 366, 15.12.1992, p. 10. Regulation as last amended by Regulation (EC) No 2266/2000 (OJ L 259, 13.10.2000, p. 10).

      (3)  OJ L 107, 28.4.1994, p. 8. Regulation as last amended by Regulation (EC) No 2230/95 (OJ L 225, 22.9.1995, p. 1).

      (4)  Opinion of the Scientific Committee on Plants regarding the possible inclusion of fenarimol in Annex 1 to Directive 91/414/EEC concerning the placing of plant protection products on the market (SCP/FENARI/005 — Final) (Opinion adopted by the Scientific Committee on Plants on 18 May 1999).

      (5)  Opinion of the Scientific Committee on Plants on a specific question from the Commission concerning the evaluation of Fenarimol in the context of Council Directive 91/414/EEC (Opinion adopted by the Scientific Committee on Plants on 8 November 2001).

      ANNEX
      The following entries shall be added at the end of the table in Annex I to Directive 91/414/EEC:

                     No

                     Common name, identification numbers

                     IUPAC name

                     Purity (1)

                     Entry into force

                     Expiration of inclusion

                     Specific provisions

                     ‘148

                     Fenarimol
                     CAS No 60168-88-9 (unstated stereochemistry)
                     CIPAC No 380

                     (±)-2,4′-dichloro-α-(pyrimidin-5-yl) benzhydryl alcohol

                     980 g/kg

                     1 January 2007

                     30 June 2008

                     PART A
                     Only uses as fungicide on the following crops may be authorised:

                                 —

                                 Tomatoes,

                                 —

                                 peppers in greenhouses,

                                 —

                                 aubergines,

                                 —

                                 cucumbers in greenhouses,

                                 —

                                 melons,

                                 —

                                 ornamentals, nursery trees and perennial plants,

                           at rates not exceeding

                                 —

                                 0,058 kg active substance per hectare per application for tomatoes in field and 0,072 kg active substance per hectare per application for tomatoes in greenhouses,

                                 —

                                 0,072 kg active substance per hectare per application for peppers,

                                 —

                                 0,038 kg active substance per hectare per application for aubergines,

                                 —

                                 0,048 kg active substance per hectare per application for cucumbers,

                                 —

                                 0,024 kg active substance per hectare per application for melons in field and 0,048 kg active substance per hectare per application for melons in greenhouse,

                                 —

                                 0,054 kg active substance per hectare per application for ornamentals, nursery trees and perennial plants in field and 0,042 kg active substance per hectare per application for ornamentals in greenhouses.

                           The following uses must not be authorised:

                                 —

                                 air application,

                                 —

                                 knapsack and hand-held applications by amateur users,

                                 —

                                 home gardening.

                           Member States shall ensure that all appropriate risk mitigation measures are applied. Particular attention must be paid to the protection of:

                                 —

                                 aquatic organisms. Where relevant, an appropriate distance must be kept between treated areas and surface water bodies. This distance may depend on the application or not of drift reducing techniques or devices,

                                 —

                                 earthworms. Conditions of authorisation shall include risk mitigation measures, such as the selection of the most appropriate combination of numbers and timing of applications, rates of application, and, if necessary, the degree of concentration of the active substance,

                                 —

                                 birds and mammals. Conditions of authorisation shall include risk mitigation measures, such as a judicious timing of the application and the selection of those formulations which, as a result of their physical presentation or the presence of agents that ensure an adequate avoidance, minimise the exposure of the concerned species,

                                 —

                                 operators, who must wear suitable protective clothing, in particular gloves, coveralls, rubber boots and face protection or safety glasses during mixing, loading, application and cleaning of the equipment, unless the exposure to the substance is adequately precluded by the design and construction of the equipment itself or by the mounting of specific protective components on such equipment,

                                 —

                                 workers, who must wear suitable protective clothing, in particular gloves, if they must enter a treated area before the specific re-entry period has expired.

                           PART B
                     For the implementation of the uniform principles of Annex VI, the conclusions of the review report on fenarimol, and in particular Appendices I and II thereof, shall be taken into account.
                     Member States must ensure that the authorisation holders report at the latest on 31 December of each year on incidences of operator health problems. Member States may require that elements, such as sales data and a survey of use patterns, are provided so that a realistic picture of the use conditions and the possible toxicological impact of fenarimol can be obtained.
                     Member States shall request the submission of further studies to address the potential endocrine disrupting properties of fenarimol within two years after the adoption of the Test Guidelines on endocrine disruption by the Organisation for Economic Cooperation and Development (OECD). They shall ensure that the notifier at whose request fenarimol has been included in this Annex provide such studies to the Commission within two years of the adoption of the above test guidelines.’

         (1)  Further details on identity and specification of active substance are provided in the review report.


Avis juridique important

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31978L0453

Council Directive 78/453/EEC of 22 May 1978 on the harmonization of provisions laid down by law, regulation or administrative action concerning deferred payment of import duties or export duties

Official Journal L 146 , 02/06/1978 P. 0019 - 0021 Greek special edition: Chapter 02 Volume 6 P. 0159  Spanish special edition: Chapter 02 Volume 4 P. 0263  Portuguese special edition Chapter 02 Volume 4 P. 0263

****( 1 ) OJ NO C 7 , 12 . 1 . 1976 , P . 73 .  ( 2 ) OJ NO C 15 , 22 . 1 . 1976 , P . 2 .  ( 3 ) OJ NO L 58 , 8 . 3 . 1969 , P . 14 .        COUNCIL DIRECTIVE   OF 22 MAY 1978   ON THE HARMONIZATION OF PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION CONCERNING DEFERRED PAYMENT OF IMPORT DUTIES OR EXPORT DUTIES  ( 78/453/EEC )   THE COUNCIL OF THE EUROPEAN   COMMUNITIES ,   HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , AND IN PARTICULAR ARTICLE 100 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 COUNCIL DIRECTIVE 69/76/EEC OF 4 MARCH 1969 ON THE HARMONIZATION OF PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION FOR DEFERRED PAYMENT OF CUSTOMS DUTIES , CHARGES HAVING EQUIVALENT EFFECT AND AGRICULTURAL LEVIES ( 3 ), FIXED THE CONDITIONS ON WHICH MEMBER STATES MAY DEFER PAYMENT OF AMOUNTS DUE IN RESPECT OF CUSTOMS DUTIES , CHARGES HAVING EQUIVALENT EFFECT OR AGRICULTURAL LEVIES ON GOODS WHICH HAVE BEEN THE SUBJECT OF A CUSTOMS DECLARATION ;   WHEREAS , SINCE THE DATE OF ENTRY INTO FORCE OF DIRECTIVE 69/76/EEC , MONETARY COMPENSATORY AMOUNTS HAVE BEEN INTRODUCED WHICH ARE APPLICABLE TO CERTAIN IMPORTED AGRICULTURAL PRODUCTS OR TO CERTAIN GOODS RESULTING FROM THE PROCESSING THEREOF ; WHEREAS IT IS NECESSARY TO EXTEND THE APPLICATION OF THE SAID DIRECTIVE TO THESE IMPORT CHARGES ;   WHEREAS SINCE THAT DATE LEVIES , CHARGES AND MONETARY COMPENSATORY AMOUNTS ON THE EXPORTATION OF CERTAIN AGRICULTURAL PRODUCTS OR CERTAIN GOODS RESULTING FROM THE PROCESSING THEREOF HAVE ALSO BEEN INTRODUCED ; WHEREAS IT IS DESIRABLE THAT PROVISION SHOULD BE MADE FOR GRANTING DEFERRED PAYMENT OF AMOUNTS DUE IN RESPECT OF THESE EXPORT CHARGES ON THE SAME CONDITIONS AS THOSE LAID DOWN FOR THE PAYMENT OF THE DIFFERENT IMPORT CHARGES APPLICABLE ;   WHEREAS ALL THE MEASURES WHICH ARE HENCEFORTH APPLICABLE WITH REGARD TO DEFERRED PAYMENT OF THE CUSTOMS DEBT ON IMPORTATION AND ON EXPORTATION SHOULD , IN THE INTERESTS OF CLARITY , BE INCLUDED IN A SINGLE TEXT , AND , IN CONSEQUENCE , DIRECTIVE 69/76/EEC SHOULD BE REPEALED ,   HAS ADOPTED THIS DIRECTIVE :   ARTICLE 1   1 .  THIS DIRECTIVE DETERMINES THE RULES WHICH MUST BE LAID DOWN IN THE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS OF MEMBER STATES CONCERNING DEFERRED PAYMENT OF IMPORT DUTIES OR EXPORT DUTIES IN RESPECT OF GOODS WHICH HAVE BEEN DECLARED UNDER CUSTOMS PROCEDURE WHICH ENTAILS THE OBLIGATION TO PAY SUCH DUTIES .   2 .  FOR THE PURPOSES OF THIS DIRECTIVE :  ( A ) ' IMPORT DUTIES '  MEANS CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT , AS WELL AS AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES LAID DOWN WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY , OR IN THAT OF SPECIFIC ARRANGEMENTS APPLICABLE , PURSUANT TO ARTICLE 235 OF THE TREATY , TO CERTAIN GOODS RESULTING FROM THE PROCESSING OF AGRICULTURAL PRODUCTS ;  ( B ) ' EXPORT DUTIES '  MEANS AGRICULTURAL LEVIES , AND OTHER EXPORT CHARGES LAID DOWN WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY , OR IN THAT OF SPECIFIC ARRANGEMENTS APPLICABLE , PURSUANT TO ARTICLE 235 OF THE TREATY , TO CERTAIN GOODS RESULTING FROM THE PROCESSING OF AGRICULTURAL PRODUCTS ;  ( C ) ' ENTRY IN THE ACCOUNTS '  MEANS THE OFFICIAL ACT BY WHICH THE AMOUNT OF THE IMPORT DUTIES OR EXPORT DUTIES TO BE COLLECTED BY THE COMPETENT AUTHORITIES IS DULY DETERMINED .   ARTICLE 2   1 .  SUBJECT TO THE APPLICANT GIVING APPROPRIATE SECURITY , THE FORM OF WHICH SHALL BE SPECIFIED BY THE COMPETENT AUTHORITIES OF THE MEMBER STATES , THEY SHALL , ON THE CONDITIONS LAID DOWN IN THIS DIRECTIVE , GRANT HIM DEFERMENT OF PAYMENT OF THE IMPORT DUTIES OR EXPORT DUTIES FOR WHICH HE IS LIABLE . WITHOUT PREJUDICE TO CERTAIN COSTS WHICH MAY RESULT FOR THE BENEFICIARY , THE GRANTING OF THIS DEFERMENT OF PAYMENT SHALL NOT GIVE RISE TO THE IMPOSITION OF ANY INTEREST CHARGES .   2 .  FOR THE PURPOSE OF PARAGRAPH 1 , ' APPROPRIATE SECURITY ' MEANS A SECURITY OF AN AMOUNT FIXED BY THE COMPETENT AUTHORITIES ON THE BASIS OF EACH IMPORT OR EXPORT TRANSACTION  -  OR , IF APPROPRIATE , OF A NUMBER OF IMPORT OR EXPORT TRANSACTIONS  -  AND FURNISHED BY A NATURAL OR LEGAL PERSON APPROVED BY THE SAID COMPETENT AUTHORITIES .   ARTICLE 3   1 .  WITHOUT PREJUDICE TO ARTICLES 4 , 5 AND 6 , THE DEFERMENT OF PAYMENT REFERRED TO IN ARTICLE 2 SHALL BE 30 DAYS FOLLOWING THE DATE ON WHICH THE AMOUNTS DUE BY THE PERSON LIABLE FOR PAYMENT ARE ENTERED IN THE ACCOUNTS BY THE COMPETENT AUTHORITIES .   2 .  THE ENTRY IN THE ACCOUNTS REFERRED TO IN PARAGRAPH 1 MUST BE MADE LATER THAN THE SECOND DAY FOLLOWING THAT ON WHICH THE AUTHORIZATION WAS GIVEN TO REMOVE THE GOODS TO WHICH THE AMOUNTS CONCERNED APPLY OR NOT LATER THAN THE SECOND DAY FOLLOWING ANY OTHER ACT IN LIEU OF SUCH AUTHORIZATION IN ACCORDANCE WITH THE CUSTOMS PROVISIONS IN FORCE .   HOWEVER , IF THE COMPETENT AUTHORITIES DEEM IT NECESSARY , THE ENTRY IN THE ACCOUNTS MAY BE MADE WITHIN A FURTHER PERIOD WHICH MAY NOT EXCEED 12 DAYS . IN SUCH A CASE , THE DEFERMENT OF PAYMENT REFERRED TO IN PARAGRAPH 1 SHALL BE REDUCED BY THE NUMBER OF DAYS CORRESPONDING TO THE LENGTH OF THE ADDITIONAL PERIOD .   ARTICLE 4   1 .  THE AMOUNTS DUE AS IMPORT DUTIES OR EXPORT DUTIES FOR GOODS FOR WHICH REMOVAL HAS BEEN AUTHORIZED DURING A GIVEN PERIOD , WHICH MAY NOT EXCEED 31 DAYS , MAY BE DEALT WITH BY ONE SINGLE ENTRY IN THE ACCOUNTS AT THE END OF THE PERIOD BY THE COMPETENT AUTHORITIES . IN THIS CASE :   -  THIS ENTRY IN THE ACCOUNTS MUST BE MADE WITHIN THE TIME LIMITS LAID DOWN IN ARTICLE 3 ( 2 );   -  THE LENGTH OF THE DEFERMENT REFERRED TO IN ARTICLE 3 ( 1 ) SHALL BE REDUCED BY THE NUMBER OF DAYS EQUAL TO ONE HALF OF THE NUMBER OF DAYS IN THE PERIOD IN QUESTION . IN THOSE CASES WHERE THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 2 ) IS APPLIED THE LENGTH OF THE DEFERMENT THUS CALCULATED SHALL BE REDUCED BY THE NUMBER OF DAYS EQUAL TO THE ADDITIONAL PERIOD FOR ENTRY INTO THE ACCOUNTS OF THE VARIOUS AMOUNTS CONCERNED ;   -  THE DEFERMENT SHALL BE CALCULATED FROM THE DATE OF THE ENTRY IN THE ACCOUNTS .   2 .  WHERE THE NUMBER OF DAYS IN THE PERIOD REFERRED TO IN PARAGRAPH 1 IS AN ODD NUMBER , THE NUMBER OF DAYS TO BE DEDUCTED SHALL BE EQUAL TO ONE HALF OF THE EVEN NUMBER IMMEDIATELY BELOW THAT ODD NUMBER .   ARTICLE 5   1 .  DEFERRED PAYMENT OF IMPORT DUTIES OR EXPORT DUTIES MAY BE GRANTED GENERALLY BY THE COMPETENT AUTHORITIES , IN RESPECT OF THE TOTAL AMOUNTS ENTERED IN THE ACCOUNTS , ON THE CONDITIONS SPECIFIED IN ARTICLE 3 ( 2 ), OVER A GIVEN PERIOD WHICH MAY NOT EXCEED 31 DAYS . IN THIS CASE , THE LENGTH OF THE DEFERMENT REFERRED TO IN ARTICLE 3 ( 1 ) SHALL BE REDUCED BY THE NUMBER OF DAYS EQUAL TO ONE HALF OF THE NUMBER OF DAYS IN THE PERIOD IN QUESTION . THE DEFERMENT SHALL BE CALCULATED FROM THE EXPIRY OF THE PERIOD . IN THOSE CASES WHERE THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 2 ) IS APPLIED THE LENGTH OF THE DEFERMENT THUS CALCULATED SHALL BE REDUCED BY THE NUMBER OF DAYS EQUAL TO THE ADDITIONAL PERIOD FOR ENTRY INTO THE ACCOUNTS OF THE VARIOUS AMOUNTS CONCERNED .   2 .  WHERE THE NUMBER OF DAYS IN THE PERIOD REFERRED TO IN PARAGRAPH 1 IS AN ODD NUMBER , THE NUMBER OF DAYS TO BE DEDUCTED SHALL BE EQUAL TO ONE HALF OF THE EVEN NUMBER IMMEDIATELY BELOW THAT ODD NUMBER .   ARTICLE 6   IF THE DATE FOR PAYMENT , DETERMINED IN ACCORDANCE WITH ARTICLES 3 , 4 AND 5 , FALLS ON A NON-WORKING DAY , THE DEFERMENT SHALL BE EXTENDED UNTIL THE FIRST WORKING DAY FOLLOWING THAT DATE .   ARTICLE 7   WHERE A MEMBER STATE GRANTS FURTHER PAYMENT FACILITIES IN ADDITION TO THE DEFERRED PAYMENT REFERRED TO IN ARTICLES 1 TO 6 , THE EXPENSES BORNE BY THE PERSON LIABLE FOR PAYMENT FOR THE GRANTING OF THESE FACILITIES , AND IN PARTICULAR ANY INTEREST , MUST BE CALCULATED IN SUCH A WAY THAT THE AMOUNTS ARE EQUIVALENT TO THOSE WHICH WOULD BE CHARGED FOR THIS PURPOSE ON THE MONEY MARKET OR FINANCIAL MARKET IN THE STATE CONCERNED .   ARTICLE 8   THIS DIRECTIVE SHALL NOT APPLY TO AMOUNTS DUE AS IMPORT DUTIES OR EXPORT DUTIES FROM THE PERSON LIABLE FOR PAYMENT WHEN THESE AMOUNTS , AS A RESULT OF SPECIAL CIRCUMSTANCES ARE NOT ENTERED IN THE ACCOUNTS BY THE COMPETENT AUTHORITIES WITHIN THE TIME LIMIT LAID DOWN IN ARTICLE 3 ( 2 ).   HOWEVER , THESE AMOUNTS MAY GIVE RISE TO THE APPLICATION OF ARTICLE 7 .   ARTICLE 9   THE MEMBER STATES SHALL BRING INTO FORCE NOT LATER THAN 1 JANUARY 1979 THE MEASURES NECESSARY TO COMPLY WITH THIS DIRECTIVE .   ARTICLE 10   EACH MEMBER STATE SHALL INFORM THE COMMISSION OF THE PROVISIONS IT ADOPTS IN IMPLEMENTATION OF THIS DIRECTIVE .   THE COMMISSION SHALL COMMUNICATE THIS INFORMATION TO THE OTHER MEMBER STATES .   ARTICLE 11   DIRECTIVE 69/76/EEC SHALL BE REPEALED WITH EFFECT FROM 1 JANUARY 1979 .   REFERENCES TO THAT DIRECTIVE SHOULD BE READ AS REFERENCES TO THE PRESENT DIRECTIVE .   ARTICLE 12   THIS DIRECTIVE IS ADDRESSED TO THE MEMBER STATES .   DONE AT BRUSSELS , 22 MAY 1978 .   FOR THE COUNCIL   THE PRESIDENT   K . HEINESEN


Avis juridique important

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31997L0063

Directive 97/63/EC of the European Parliament and of the Council of 24 November 1997 amending Directives 76/116/EEC, 80/876/EEC, 89/284/EEC and 89/530/EEC on the approximation of the laws of the Member States relating to fertilizers

Official Journal L 335 , 06/12/1997 P. 0015 - 0016

DIRECTIVE 97/63/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 24 November 1997 amending Directives 76/116/EEC, 80/876/EEC, 89/284/EEC and 89/530/EEC on the approximation of the laws of the Member States relating to fertilizersTHE 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),Whereas Article G of the Treaty on European Union replaced the term 'European Economic Community` by the term 'European Community`; whereas the initials 'EEC` should therefore be replaced by the initials 'EC`;Whereas the term 'EEC fertilizer` is contained in certain provisions of Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilizers (4), Council Directive 80/876/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to straight ammonium nitrate fertilizers of high nitrogen content (5), Council Directive 89/284/EEC of 13 April 1989 supplementing and amending Directive 76/116/EEC in respect of the calcium, magnesium, sodium and sulphur content of fertilizers (6) and Council Directive 89/530/EEC of 18 September 1989 supplementing and amending Directive 76/116/EEC in respect of the trace elements boron, cobalt, copper, iron, manganese, molybdenum and zinc contained in fertilizers (7); whereas, in consequence, the term 'EEC fertilizer` should be replaced in these provisions by the term 'EC fertilizer`;Whereas, however, manufacturers normally keep in stock large quantities of packagings, labels and accompanying documents, thereby exposing themselves to the risk of incurring additional expenditure in the event of such a change being implemented with immediate effect; whereas, therefore, a period should be fixed during which packagings, labels and accompanying documents marked 'EEC fertilizer` can continue to be used,HAVE ADOPTED THIS DIRECTIVE:Article 1 1. Directive 76/116/EEC is hereby amended as follows:(a) in Article 1, the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(b) in Article 2, the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(c) in Article 7, the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(d) in Article 8 (1), the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(e) in Annex II, point 1 (a), the term 'EEC FERTILIZER` shall be replaced by the term 'EC FERTILIZER`.2. Directive 80/876/EEC is hereby amended as follows:(a) in Article 2, the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(b) in Article 4, the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(c) in Article 6, the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(d) in Article 7 (1), the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`;(e) in Article 7 (3), the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`.3. Directive 89/284/EEC is hereby amended as follows:(a) in Article 1, the term 'EEC fertilizers` shall be replaced by the term 'EC fertilizers`;(b) in Article 2, the term 'EEC fertilizers` shall be replaced by the term 'EC fertilizers`;(c) in Article 4, the term 'EEC FERTILIZER` shall be replaced by the term 'EC FERTILIZER`;(d) in Article 6 (a), the term 'EEC FERTILIZER` shall be replaced by the term 'EC FERTILIZER`;(e) in Article 9 (1) and (2), the term 'EEC fertilizer` shall be replaced by the term 'EC fertilizer`.4. Directive 89/530/EEC is hereby amended as follows:(a) in Article 1 (1), the term 'EEC FERTILIZER` shall be replaced by the term 'EC FERTILIZER`;(b) in Article 1 (2), the term 'EEC FERTILIZER` shall be replaced by the term 'EC FERTILIZER`;(c) in Article 2, the term 'EEC fertilizers` shall be replaced by the term 'EC fertilizers`;(d) in the introductory wording to Article 3 (1), the term 'EEC fertilizers` shall be replaced by the term 'EC fertilizers`;(e) in Article 3 (1) (b), the term 'EEC fertilizers` shall be replaced by the term 'EC fertilizers`;(f) in Article 4 (a), the term 'EEC FERTILIZER` shall be replaced by the term 'EC FERTILIZER`;(g) in the first subparagraph of Article 6, the term 'EEC fertilizers` shall be replaced by the term 'EC fertilizers`;(h) in Chapters C and D of the Annex, the term 'EEC FERTILIZERS` shall be replaced by the term 'EC FERTILIZERS`.Article 2 Packagings, labels and accompanying documents marked 'EEC FERTILIZER` can continue to be used until 31 December 1998.Article 3 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 1998 at the latest. They shall forthwith inform the Commission thereof.When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods for making such reference shall be laid down by Member States.2. Member States shall forthwith communicate to the Commission the text of all provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States accordingly.Article 4 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.Article 5 This Directive is addressed to the Member States.Done at Brussels, 24 November 1997.For the European ParliamentThe PresidentJ. M. GIL-ROBLESFor the CouncilThe PresidentJ. POOS(1) OJ C 19, 18. 1. 1997, p. 6.(2) OJ C 89, 19. 3. 1997, p. 17.(3) Opinion of the European Parliament of 11 March 1997 (OJ C 115, 14. 4. 1997, p. 24), Council Common Position of 17 June 1997 (OJ C 237, 4. 8. 1997, p. 14) and Decision of the European Parliament of 17 September 1997 (OJ C 304, 6. 10. 1997, p. 79). Council Decision of 27 October 1997.(4) OJ L 24, 30. 1. 1976, p. 21. Directive as last amended by Commission Directive 96/28/EC (OJ L 140, 13. 6. 1996, p. 30).(5) OJ L 250, 23. 9. 1980, p. 7.(6) OJ L 111, 22. 4. 1989, p. 34. Directive as last amended by Commission Directive 93/69/EEC (OJ L 185, 28. 7. 1993, p. 30).(7) OJ L 281, 30. 9. 1989, p. 116.


Avis juridique important

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31995L0006

Commission Directive 95/6/EC of 20 March 1995 amending Annexes I and II to Council Directive 66/402/EEC on the marketing of cereal seed

Official Journal L 067 , 25/03/1995 P. 0030 - 0032

COMMISSION DIRECTIVE 95/6/EC of 20 March 1995 amending Annexes I and II to Council Directive 66/402/EEC on the marketing of cereal seed THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed (1), as last amended by Commission Directive 93/2/EEC (2), and in particular Article 21a thereof,Whereas hybrids of rye are included in the scope of Directive 66/402/EEC, but the Directive does not establish the conditions to be satisfied by the crop and the seed of hybrids of rye;Whereas in order to establish such conditions Commission Decision 89/374/EEC of 2 June 1989 on the organization of a temporary experiment under Council Directive 66/402/EEC on the marketing of cereal seed, in order to establish the conditions to be satisfied by the crop and the seed of hybrids of rye (3), as amended by Decision 92/520/EEC (4), was adopted;Whereas that experiment ended on 30 June 1994;Whereas on the basis of the results of that experiment the conditions to be satisfied by the crop and the seed of hybrids of rye may now be established and Annexes I and II to Directive 66/402/EEC should be amended accordingly;Whereas the measures provided for in this Directive are in accordance with the opinion of the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry,HAS ADOPTED THIS DIRECTIVE:Article 1 Annexes I and II to Directive 66/402/EEC are amended as set out in the Annex hereto.Article 2 1. Member States shall bring into force the laws, regulations or administrative provisions necessary to comply with this Directive not later than 30 June 1995. They shall immediately inform the Commission thereof.When Member States adopt these provisions, these 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.2. Member States shall communicate to the Commission the text of the main provisions of national law they adopt in the field covered by this Directive.Article 3 This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Communities.Article 4 This Directive is addressed to the Member States.Done at Brussels, 20 March 1995.For the CommissionFranz FISCHLERMember of the Commission(1) OJ No 125, 11. 7. 1966, p. 2309/66.(2) OJ No L 54, 5. 3. 1993, p. 20.(3) OJ No L 166, 16. 6. 1989, p. 66.(4) OJ No L 325, 11. 11. 1992, p. 25.ANNEX 1. Annex I is amended as follows:(a) In points 2 and 3, the words 'other than hybrids` are added after the words Secale cereale.(b) The following point 3a is inserted:'3a. Hybrids of rye.(a) The crop shall conform to the following standards as regards distances from neighbouring sources of pollen which may result in undesirable foreign pollination.>TABLE>(b) The crop shall have sufficient identity and purity as regards the characteristics of the components, including male sterility.In particular, the crop shall conform to the following standards or other conditions:(i) the number of plants or the crop species, which are recognizable as obviously not being true to the component shall not exceed,- one per 30 m² for the production of basic seed,- one per 10 m² for the production of certified seed, this standard to apply in official field inspections to the female component only,(ii) in the case of basic seed, where male sterility is used, the level of sterility of the male-sterile component shall be at least 98 %.(c) Where appropriate, certified seed shall be produced in mixed cultivation of a female male-sterile component with a male component which restores male fertility.`2. Annex II is amended as follows:(a) In point 1, the words 'hybrid varieties of Sorghum spp. and Zea Mays` are replaced by the words 'hybrid varieties of Secale Cereale, Sorghum spp. and Zea Mays`.(b) The following is added to point 1:'C. Hybrids of ryeSeed shall not be certified as certified seed unless due account has been taken of the results of an official post-control test, on samples of basic seed taken officially and carried out during the growing season of the seed entered for certification as certified seed to ascertain whether the basic seed met the requirements for basic seed laid down in this Decision in respect of identity and purity as regards the characters of the components, including male sterility.`(c) Point 3 is replaced by the following:'3. Harmful organisms which reduce the usefulness of the seed shall be at the lowest possible level.In particular, the seed shall conform to the following standards in respect of Claviceps purpurea (maximum number of sclerotia or fragments of sclerotia in a sample of the weight specified in column 3 of Annex III).>TABLE>


title: Council Directive 2005/19/EC of 17 February 2005 amending Directive 90/434/EEC 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States

text:
               4.3.2005

               EN

               Official Journal of the European Union

               L 58/19

      COUNCIL DIRECTIVE 2005/19/EC
   of 17 February 2005
   amending Directive 90/434/EEC 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 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)

               Directive 90/434/EEC (3) introduced common rules applicable to business restructuring which are neutral from the point of view of competition.

               (2)

               The objective of Directive 90/434/EEC is that taxation of the income, profits and capital gains from business reorganisations should be deferred and Member States taxing rights safeguarded.

               (3)

               One of the aims of Directive 90/434/EEC is to eliminate obstacles to the functioning of the internal market, such as double taxation. In so far as this is not fully achieved by the provisions of that Directive, Member States should take the necessary measures to achieve this aim.

               (4)

               The experience gained following implementation of Directive 90/434/EEC in January 1992 has demonstrated different ways in which the Directive can be improved and how the beneficial effects of the common rules as adopted in 1990 could be extended.

               (5)

               On 8 October 2001 the Council adopted Regulation (EC) No 2157/2001 on the Statute for a European Company (SE) (4) and Directive 2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees (5). Similarly, on 22 July 2003 the Council adopted Regulation (EC) No 1435/2003 on the Statute for a European Cooperative Society (SCE) (6) and Directive 2003/72/EC supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (7). One of the most important features of these instruments is that both the SE and the SCE will be able to transfer their respective registered offices between Member States without being dissolved and going into liquidation.

               (6)

               The transfer of the registered office is a means of exercising freedom of establishment as provided for in Articles 43 and 48 of the Treaty. No assets are transferred and the company and its shareholders do not derive any income, profits or capital gains from it. The company decision to reorganise its business by transferring its registered office should not be hampered by discriminatory tax rules or by restrictions, disadvantages or distortions arising from national tax legislation which is contrary to Community Law. The transfer of the registered office of an SE or an SCE from one Member State to another may not always lead to the SE or SCE ceasing to be resident in the first Member State. The tax residence of the SE or SCE continues to be determined by national legislation and tax treaties.

               (7)

               The transfer of the registered office of a company, or an event connected with that transfer, that brings about a change in tax residence, may give rise to some form of taxation in the Member State from which the office is transferred. Taxation may also occur in a case where the transfer of the registered office, or an event connected with that transfer, does not lead to a change in tax residence. In order to deal with that eventuality as far as the SE or SCE is concerned, a number of new rules have been introduced into Directive 90/434/EEC. In a case where, following the transfer of the registered office, the assets of the SE or of the SCE remain effectively connected with a permanent establishment belonging to the SE or SCE and situated in the Member State from which the registered office was transferred, that permanent establishment should enjoy benefits similar to those provided for in Articles 4, 5 and 6 of Directive 90/434/EEC. Those articles concern tax-exempted provisions and reserves, and the take-over of losses. Moreover, in accordance with Treaty principles, the taxation of shareholders on the occasion of the transfer of the registered office should be excluded. Having regard to the obligation on Member States under the Treaty to take all necessary measures to abolish double taxation, it is not necessary at this stage to establish common rules governing the tax residence of the SE or SCE.

               (8)

               Directive 90/434/EEC does not deal with losses of a permanent establishment in another Member State recognised in the Member State of residence of an SE or SCE. In particular, where the registered office of an SE or SCE is transferred to another Member State, such transfer does not prevent the former Member State of residence from reinstating losses of the permanent establishment in due time.

               (9)

               Directive 90/434/EEC does not cover a type of division where the company transferring branches of activity is not dissolved. Article 4 of that Directive should therefore be extended to cover such cases.

               (10)

               Article 3 of Directive 90/434/EEC defines the companies falling within its scope and the Annex thereto lists the forms of company to which the Directive applies. However, certain forms of company are not listed in that Annex even though they are resident for tax purposes in a Member State and are subject to corporation tax there. In the light of the experience, this appears to be an unjustifiable lacuna and the scope of the Directive should therefore be extended to cover entities which can carry out cross-border activities in the Community and which meet all the relevant requirements.

               (11)

               Since the SE is a public limited liability company and since the SCE is a cooperative society, both similar in nature to other forms of company already covered by Directive 90/434/EEC, the SE and the SCE should be added to the list set out in the Annex to Directive 90/434/EEC.

               (12)

               The other new companies included in the list of the Annex to this Directive are corporate taxpayers in their Member State of residence but some of them are considered fiscally transparent by other Member States. In order for the benefits of Directive 90/434/EEC to be effective, Member States treating non-resident corporate taxpayers as fiscally transparent should apply the benefits of the Directive to them. However, given the difference in tax treatment by Member States of these particular corporate taxpayers, Member States should have the option not to apply the relevant provisions in the Directive when taxing a direct or indirect shareholder of those taxpayers.

               (13)

               Where shareholders of companies entering into the transactions governed by Directive 90/434/EEC are treated as fiscally transparent, persons having an interest in the shareholder should not suffer taxation on the occasion of restructuring transactions.

               (14)

               Some doubts exist as to the application of Directive 90/434/EEC to the conversion of branches into subsidiaries. In these operations, the assets connected to a permanent establishment and constituting a ‘branch of activity’, as defined in Article 2(i) of Directive 90/434/EEC, are transferred to a newly set up company which will be a subsidiary of the transferring company and it should be made clear that this transaction, being the transfer of assets from a company of a Member State of a permanent establishment located in a different Member State to a company of the latter Member State, is covered by the Directive.

               (15)

               The current definition of ‘exchange of shares’ in Article 2(d) of Directive 90/434/EEC does not state whether the term encompasses further acquisitions beyond that granting a simple majority of voting rights. It is not uncommon for company statutes and voting rules to be drafted in such a way that further acquisitions are needed before the acquirer can obtain complete control over the target company. The definition of ‘exchange of shares’ should therefore be amended to state that that term covers all such further acquisitions.

               (16)

               In the case of mergers and divisions, the receiving company may derive gains from the difference in value between the assets and liabilities received and the shares that it may have held in the transferring company that are annulled following these operations. Article 7 of Directive 90/434/EEC provides for the exemption of these capital gains since these profits may be derived just as easily in the form of distributed profits from the transferring company that would have been exempted under Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (8). The objectives of both Directive 90/434/EEC and Directive 90/435/EEC coincide with regard to this particular issue but the conditions required are not the same. Directive 90/434/EEC should therefore be amended to assimilate its requirements to those of Directive 90/435/EEC and to take into account the lower shareholding threshold included in that Directive.

               (17)

               Given the extension of Directive 90/434/EEC to include partial divisions and the transfer of a registered office of an SE or an SCE, the scope of the provision regarding the countering of tax avoidance and tax evasion should be amended accordingly.

               (18)

               Directive 90/434/EEC should therefore be amended accordingly,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Directive 90/434/EEC is hereby amended as follows:

               1.

               the title shall be replaced by the following:

               2.

               Article 1 shall replaced by the following:
               ‘Article 1
               Each Member State shall apply this Directive to the following:

                           (a)

                           mergers, divisions, partial divisions, transfers of assets and exchanges of shares in which companies from two or more Member States are involved,

                           (b)

                           transfers of the registered office from one Member State to another Member State of European companies (Societas Europaea or SE), as established in Council Regulation (EC) No 2157/2001 of 8 October 2001, on the statute for a European Company (SE) (9), and European Cooperative Societies (SCE), as established in Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (10).’;

               3.

               Article 2 shall be amended as follows:

                           (a)

                           The following paragraph shall be added:

                                       ‘(b)(a)

                                       “partial division” shall mean an operation whereby a company transfers, without being dissolved, one or more branches of activity, to one or more existing or new companies, leaving at least one branch of activity in the transferring company, in exchange for the pro-rata issue to its shareholders of securities representing the capital of the companies receiving the assets and liabilities, and, if applicable, a cash payment not exceeding 10 % of the nominal value or, in the absence of a nominal value, of the accounting par value of those securities;’

                           (b)

                           Paragraph (d) shall be replaced as follows:

                                       ‘(d)

                                       “exchange of shares” shall mean an operation whereby a company acquires a holding in the capital of another company such that it obtains a majority of the voting rights in that company, or, holding such a majority, acquires a further holding, in exchange for the issue to the shareholders of the latter company, in exchange for their securities, of securities representing the capital of the former company, and, if applicable, a cash payment not exceeding 10 % of the nominal value, in the absence of a nominal value, of the accounting par value of the securities issued in exchange;’

                           (c)

                           The following paragraph shall be added:

                                       ‘(j)

                                       “transfer of the registered office” shall mean an operation whereby an SE or an SCE, without winding up or creating a new legal person, transfers its registered office from one Member State to another Member State’;

               4.

               the eighth indent of Article 3(c) with respect to Italy shall be replaced as follows:

                           ‘—

                           imposta sul reddito delle società in Italy,’

               5.

               the heading of Title II shall be replaced by the following:

               6.

               Article 4 shall be replaced by the following:
               ‘Article 4
               1.   A merger, division or partial division shall not give rise to any taxation of capital gains calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes.
               For the purpose of this Article the following definitions shall apply:

                           (a)

                           “value for tax purposes”: the value on the basis of which any gain or loss would have been computed for the purposes of tax upon the income, profits or capital gains of the transferring company if such assets or liabilities had been sold at the time of the merger, division or partial division but independently of it;

                           (b)

                           “transferred assets and liabilities”: those assets and liabilities of the transferring company which, in consequence of the merger, division or partial division, are effectively connected with a permanent establishment of the receiving company in the Member State of the transferring company and play a part in generating the profits or losses taken into account for tax purposes.

                     2.   Where paragraph 1 applies and where a Member State considers a non-resident transferring company as fiscally transparent on the basis of that State’s assessment of the legal characteristics of that company arising from the law under which it is constituted and therefore taxes the shareholders on their share of the profits of the transferring company as and when those profits arise, that State shall not tax any income, profits or capital gains calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes.
               3.   Paragraphs 1 and 2 shall apply only if the receiving company computes any new depreciation and any gains or losses in respect of the assets and liabilities transferred according to the rules that would have applied to the transferring company or companies if the merger, division or partial division had not taken place.
               4.   Where, under the laws of the Member State of the transferring company, the receiving company is entitled to have any new depreciation or any gains or losses in respect of the assets and liabilities transferred computed on a basis different from that set out in paragraph 3, paragraph 1 shall not apply to the assets and liabilities in respect of which that option is exercised.’;

               7.

               Article 6 shall be replaced by the following:
               ‘Article 6
               To the extent that, if the operations referred to in Article 1, paragraph a, were effected between companies from the Member State of the transferring company, the Member State would apply provisions allowing the receiving company to take over the losses of the transferring company which had not yet been exhausted for tax purposes, it shall extend those provisions to cover the take-over of such losses by the receiving company’s permanent establishments situated within its territory.’;

               8.

               in Article 7, paragraph 2 shall be replaced by the following:
               ‘2.   The Member States may derogate from paragraph 1 where the receiving company has a holding of less than 20 % in the capital of the transferring company.
               From 1 January 2007 the minimum holding percentage shall be 15 %. From 1 January 2009 the minimum holding percentage shall be 10 %.’;

               9.

               Article 8 shall be replaced by the following:
               ‘Article 8
               1.   On a merger, division or exchange of shares, the allotment of securities representing the capital of the receiving or acquiring company to a shareholder of the transferring or acquired company in exchange for securities representing the capital of the latter company shall not, of itself, give rise to any taxation of the income, profits or capital gains of that shareholder.
               2.   On a partial division, the allotment to a shareholder of the transferring company of securities representing the capital of the receiving company shall not, of itself, give rise to any taxation of the income, profits or capital gains of that shareholder.
               3.   Where a Member State considers a shareholder as fiscally transparent on the basis of that State’s assessment of the legal characteristics of that shareholder arising from the law under which it is constituted and therefore taxes those persons having an interest in the shareholders on their share of the profits of the shareholder as and when those profits arise, that State shall not tax those persons on income, profits or capital gains from the allotment of securities representing the capital of the receiving or acquiring company to the shareholder.
               4.   Paragraphs 1 and 3 shall apply only if the shareholder does not attribute to the securities received a value for tax purposes higher than the value the securities exchanged had immediately before the merger, division or exchange of shares.
               5.   Paragraphs 2 and 3 shall apply only if the shareholder does not attribute to the sum of the securities received and those held in the transferring company, a value for tax purposes higher than the value the securities held in the transferring company had immediately before the partial division.
               6.   The application of paragraphs 1, 2 and 3 shall not prevent the Member States from taxing the gain arising out of the subsequent transfer of securities received in the same way as the gain arising out of the transfer of securities existing before the acquisition.
               7.   In this Article the expression “value for tax purposes” means the value on the basis of which any gain or loss would be computed for the purposes of tax upon the income, profits or capital gains of a shareholder of the company.
               8.   Where, under the law of the Member State in which he is resident, a shareholder may opt for tax treatment different from that set out in paragraphs 4 and 5, paragraphs 1, 2 and 3 shall not apply to the securities in respect of which such an option is exercised.
               9.   Paragraphs 1, 2 and 3 shall not prevent a Member State from taking into account when taxing shareholders any cash payment that may be made on the merger, division, partial division or exchange of shares.’;

               10.

               Article 10 shall be replaced by the following:
               ‘Article 10
               1.   Where the assets transferred in a merger, a division, a partial division or a transfer of assets include a permanent establishment of the transferring company which is situated in a Member State other than that of the transferring company, the Member State of the transferring company shall renounce any right to tax that permanent establishment.
               The Member State of the transferring company may reinstate in the taxable profits of that company such losses of the permanent establishment as may previously have been set off against the taxable profits of the company in that State and which have not been recovered.
               The Member State in which the permanent establishment is situated and the Member State of the receiving company shall apply the provisions of this Directive to such a transfer as if the Member State where the permanent establishment is situated were the Member State of the transferring company.
               These provisions shall also apply in the case where the permanent establishment is situated in the same Member State as that in which the receiving company is resident.
               2.   By way of derogation from paragraph 1, where the Member State of the transferring company applies a system of taxing worldwide profits, that Member State shall have the right to tax any profits or capital gains of the permanent establishment resulting from the merger, division, partial division or transfer of assets, on condition that it gives relief for the tax that, but for the provisions of this Directive, would have been charged on those profits or capital gains in the Member State in which that permanent establishment is situated, in the same way and in the same amount as it would have done if that tax had actually been charged and paid.’;

               11.

               the following Title shall be inserted:
               ‘TITLE IVa
               Special case of transparent entities
               Article 10a
               1.   Where a Member State considers a non-resident transferring or acquired company to be fiscally transparent on the basis of that State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply the provisions of this Directive when taxing a direct or indirect shareholder of that company in respect of the income, profits or capital gains of that company.
               2.   A Member State exercising the right referred to in paragraph 1 shall give relief for the tax which, but for the provisions of this Directive, would have been charged on the fiscally transparent company on its income, profits or capital gains, in the same way and in the same amount as that State would have done if that tax had actually been charged and paid.
               3.   Where a Member State considers a non-resident receiving or acquiring company to be fiscally transparent on the basis of that State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply Article 8 paragraphs 1, 2 and 3.
               4.   Where a Member State considers a non-resident receiving company to be fiscally transparent on the basis of that State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, that Member State may apply to any direct or indirect shareholders the same treatment for tax purposes as it would if the receiving company were resident in that Member State.’;

               12.

               the following Title shall be inserted.
               ‘TITLE IVb
               Rules applicable to the transfer of the registered office of an SE or an SCE
               Article 10b
               1.   Where,

                           (a)

                           an SE or an SCE transfers its registered office from one Member State to another Member State, or

                           (b)

                           in connection with the transfer of its registered office from one Member State to another Member State, an SE or an SCE, which is resident in the first Member State, ceases to be resident in that Member State and becomes resident in another Member State,

                     that transfer of registered office or the cessation of residence shall not give rise to any taxation of capital gains, calculated in accordance with of Article 4(1), in the Member State from which the registered office has been transferred, derived from those assets and liabilities of the SE or SCE which, in consequence, remain effectively connected with a permanent establishment of the SE or of the SCE in the Member State from which the registered office has been transferred and play a part in generating the profits or losses taken into account for tax purposes.
               2.   Paragraph 1 shall apply only if the SE or the SCE computes any new depreciation and any gains or losses in respect of the assets and liabilities that remain effectively connected with that permanent establishment, as though the transfer of the registered office had not taken place or the SE or the SCE had not so ceased to be tax resident.
               3.   Where, under the laws of that Member State, the SE or the SCE is entitled to have any new depreciation or any gains or losses in respect of the assets and liabilities remaining in that Member State computed on a basis different from that set out in paragraph 2, paragraph 1 shall not apply to the assets and liabilities in respect of which that option is exercised.
               Article 10c
               1.   Where,

                           (a)

                           an SE or an SCE transfers its registered office from one Member State to another Member State, or

                           (b)

                           in connection with the transfer of its registered office from one Member State to another Member State, an SE or an SCE, which is resident in the first Member State, ceases to be resident in that Member State and becomes resident in another Member State,

                     the Member States shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the SE or the SCE before the transfer of the registered office are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by a permanent establishment of the SE or the SCE which is situated within the territory of the Member State from which the registered office was transferred.
               2.   To the extent that a company transferring its registered office within the territory of a Member State would be allowed to carry forward or carry back losses which had not been exhausted for tax purposes, that Member State shall allow the permanent establishment, situated within its territory, of the SE or of the SCE transferring its registered office, to take over those losses of the SE or SCE which have not been exhausted for tax purposes, provided that the loss carry forward or carry back would have been available in comparable circumstances to a company which continued to have its registered office or which continued to be tax resident in that Member State.
               Article 10d
               1.   The transfer of the registered office of an SE or of an SCE shall not, of itself, give rise to any taxation of the income, profits or capital gains of the shareholders.
               2.   The application of paragraph 1 shall not prevent the Member States from taxing the gain arising out of the subsequent transfer of the securities representing the capital of the SE or of the SCE that transfers its registered office.’

               13.

               In Article 11, paragraph 1 shall be replaced by the following:
               ‘1.   A Member State may refuse to apply or withdraw the benefit of all or any part of the provisions of Titles II, III, IV and IVb where it appears that the merger, division, partial division, transfer of assets, exchange of shares or transfer of the registered office of an SE or an SCE:

                           (a)

                           has as its principal objective or as one of its principal objectives tax evasion or tax avoidance; the fact that one of the operations referred to in Article 1 is not carried out for valid commercial reasons such as the restructuring or rationalisation of the activities of the companies participating in the operation may constitute a presumption that the operation has tax evasion or tax avoidance as its principal objective or as one of its principal objectives;

                           (b)

                           results in a company, whether participating in the operation or not, no longer fulfilling the necessary conditions for the representation of employees on company organs according to the arrangements which were in force prior to that operation.’

               14.

               The Annex shall be replaced by the text in the Annex to this Directive.

         Article 2
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply both with the provisions of this Directive regarding the transfer of the registered office of an SE or of an SCE, and with the entry (a) in the Annex to this Directive by 1 January 2006. Member States shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   When Member States adopt 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 Member States.
   2.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive, as regards the provisions other than those referred to in paragraph 1, by 1 January 2007. Member States shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   When Member States adopt 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 Member States.
   3.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 3
   This Directive is addressed to the Member States.

      Done at Brussels, 17 February 2005.

            For the Council

            The President

         J.-C. JUNCKER

      (1)  Opinion delivered on 10 March 2004 (not yet published in the Official Journal).

      (2)  OJ C 110, 30.4.2004, p. 30.

      (3)  OJ L 225, 20.8.1990, p. 1. Directive as last amended by the 2003 Act of Accession.

      (4)  OJ L 294, 10.11.2001, p. 1. Regulation as amended by Regulation (EC) No 885/2004 (OJ L 168, 1.5.2004, p. 1).

      (5)  OJ L 294, 10.11.2001, p. 22.

      (6)  OJ L 207, 18.8.2003, p. 1. Regulation as amended by Decision of the EEA Joint Committee No 15/2004 (OJ L 116, 22.4.2004, p. 68).

      (7)  OJ L 207, 18.8.2003, p. 25.

      (8)  OJ L 225, 20.8.1990, p. 6. Directive as last amended by Directive 2003/123/EC (OJ L 7, 13.1.2004, p. 41).

      (9)  OJ L 294, 10.11.2001, p. 1. Regulation as amended by Regulation (EC) No 885/2004 (OJ L 168, 1.5.2004, p. 1).

      (10)  OJ L 207, 18.8.2003, p. 1. Regulation as amended by Decision of the EEA Joint Committee No 15/2004 (OJ L 116, 22.4.2004, p. 68).

      ANNEX

            ‘ANNEX
            LIST OF COMPANIES REFERRED TO IN ARTICLE 3(a)

                        (a)

                        companies incorporated under Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, and cooperative societies incorporated under Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees;

                        (b)

                        companies under Belgian law known as “société anonyme”/“naamloze vennootschap”, “société en commandite par actions”/“commanditaire vennootschap op aandelen”, “société privée à responsabilité limitée”/“besloten vennootschap met beperkte aansprakelijkheid”“société coopérative à responsabilité limitée”/“coöperatieve vennootschap met beperkte aansprakelijkheid”, “société coopérative à responsabilité illimitée”/“coöperatieve vennootschap met onbeperkte aansprakelijkheid”, “société en nom collectif”/“vennootschap onder firma”, “société en commandite simple”/ “gewone commanditaire vennootschap”, public undertakings which have adopted one of the abovementioned legal forms, and other companies constituted under Belgian law subject to the Belgian Corporate Tax;

                        (c)

                        companies under Czech law known as: “akciová společnost”, “společnost s ručením omezeným”;

                        (d)

                        companies under Danish law known as “aktieselskab” and “anpartsselskab”. Other companies subject to tax under the Corporation Tax Act, in so far as their taxable income is calculated and taxed in accordance with the general tax legislation rules applicable to “aktieselskaber”;

                        (e)

                        companies under German law known as “Aktiengesellschaft”, “Kommanditgesellschaft auf Aktien”, “Gesellschaft mit beschränkter Haftung”, “Versicherungsverein auf Gegenseitigkeit”, “Erwerbs- und Wirtschaftsgenossenschaft”, “Betriebe gewerblicher Art von juristischen Personen des öffentlichen Rechts”, and other companies constituted under German law subject to German corporate tax;

                        (f)

                        companies under Estonian law known as: “täisühing”, “usaldusühing”, “osaühing”, “aktsiaselts”, “tulundusühistu”;

                        (g)

                        companies under Greek law known as “αvώvυμη εταιρεία”, “εταιρεία περιoρισμέvης ευθύvης (Ε.Π.Ε.)”;

                        (h)

                        companies under Spanish law known as “sociedad anónima”, “sociedad comanditaria por acciones”, “sociedad de responsabilidad limitada”, and those public law bodies which operate under private law;

                        (i)

                        companies under French law known as “société anonyme”, “société en commandite par actions”, “société à responsabilité limitée”, “sociétés par actions simplifiées”, “sociétés d’assurances mutuelles”, “caisses d’épargne et de prévoyance”, “sociétés civiles” which are automatically subject to corporation tax, “coopératives”, “unions de coopératives”, industrial and commercial public establishments and undertakings, and other companies constituted under French law subject to the French Corporate Tax;

                        (j)

                        companies incorporated or existing under Irish laws, bodies registered under the Industrial and Provident Societies Act, building societies incorporated under the Building Societies Acts and trustee savings banks within the meaning of the Trustee Savings Banks Act, 1989;

                        (k)

                        companies under Italian law known as “società per azioni”, “società in accomandita per azioni”, “società a responsabilità limitata”, “società cooperative”, “società di mutua assicurazione”, and private and public entities whose activity is wholly or principally commercial;

                        (l)

                        under Cypriot law: “εταιρείες” as defined in the Income Tax laws;

                        (m)

                        companies under Latvian law known as: “akciju sabiedrība”, “sabiedrība ar ierobežotu atbildību”;

                        (n)

                        companies incorporated under the law of Lithuania;

                        (o)

                        companies under Luxembourg law known as “société anonyme”, “société en commandite par actions”, “société à responsabilité limitée”, “société coopérative”, “société coopérative organisée comme une société anonyme”, “association d’assurances mutuelles”, “association d’épargne-pension”, “entreprise de nature commerciale, industrielle ou minière de l’État, des communes, des syndicats de communes, des établissements publics et des autres personnes morales de droit public”, and other companies constituted under Luxembourg law subject to the Luxembourg Corporate Tax;

                        (p)

                        companies under Hungarian law known as: “közkereseti társaság”, “betéti társaság”, “közös vállalat”, “korlátolt felelősségű társaság”, “részvénytársaság”, “egyesülés”, “közhasznú társaság”, “szövetkezet”;

                        (q)

                        companies under Maltese law known as: “Kumpaniji ta’ Responsabilita Limitata”, “Soċjetajiet en commandite li l-kapital tagħhom maqsum f’azzjonijiet”;

                        (r)

                        companies under Dutch law known as “naamloze vennootschap”, “besloten vennootschap met beperkte aansprakelijkheid”, “Open commanditaire vennootschap”, “Coöperatie”, “onderlinge waarborgmaatschappij”, “Fonds voor gemene rekening”, “vereniging op coöperatieve grondslag” and “vereniging welke op onderlinge grondslag als verzekeraar of kredietinstelling optreedt”, and other companies constituted under Dutch law subject to the Dutch Corporate Tax;

                        (s)

                        companies under Austrian law known as “Aktiengesellschaft”, “Gesellschaft mit beschränkter Haftung”, “Erwerbs- und Wirtschaftsgenossenschaften”;

                        (t)

                        companies under Polish law known as: “spółka akcyjna”, “spółka z ograniczoną odpowiedzialnością”;

                        (u)

                        commercial companies or civil law companies having a commercial form as well as other legal persons carrying on commercial or industrial activities, which are incorporated under Portuguese law;

                        (v)

                        companies under Slovenian law known as: “delniška družba”, “komanditna družba”, “družba z omejeno odgovornostjo”;

                        (w)

                        companies under Slovak law known as: “akciová spoločnosť ”, “spoločnosť s ručením obmedzeným”, “komanditná spoločnosť ”.

                        (x)

                        companies under Finnish law known as “osakeyhtiö”/“aktiebolag”, “osuuskunta”/“andelslag”, “säästöpankki”/“sparbank” and “vakuutusyhtiö”/“försäkringsbolag”;

                        (y)

                        companies under Swedish law known as “aktiebolag”, “försäkringsaktiebolag”, “ekonomiska föreningar”, “sparbanker”, “ömsesidiga försäkringsbolag”;

                        (z)

                        companies incorporated under the law of the United Kingdom.’