Avis juridique important

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32001L0105

Directive 2001/105/EC of the European Parliament and of the Council of 19 December 2001 amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (Text with EEA relevance)

Official Journal L 019 , 22/01/2002 P. 0009 - 0016

Directive 2001/105/EC of the European Parliament and of the Councilof 19 December 2001amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations(Text with EEA relevance)THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the Economic and Social Committee(2),Having regard to the opinion of the Committee of the Regions(3),Acting in accordance with the procedure laid down in Article 251 of the Treaty(4), in the light of the joint text approved by the Conciliation Committee on 13 November 2001,Whereas:(1) Safety and pollution prevention at sea may be enhanced by a proper and compulsory implementation by flag States of the existing relevant conventions in force at international level.(2) Council Directive 94/57/EC(5) established a system of Community-wide recognition of organisations that, in compliance with the international conventions, may be authorised to a various extent to inspect ships and issue the relevant safety certificates on behalf of the Member States.(3) The practical implementation of that Directive showed that some adjustments to the Community-wide recognition of organisations might have contributed greatly towards the strengthening of such a system while simplifying the monitoring and reporting obligations imposed on Member States.(4) Since the adoption of Directive 94/57/EC some developments have occurred in the relevant legislation at Community and international level requiring that further adjustments to Directive 94/57/EC be made.(5) In particular, for the purposes of Directive 94/57/EC, it is appropriate to apply the amendments to the international conventions together with the protocols and related codes of mandatory status, referred to in Article 2(d) of Directive 94/57/EC, which entered into force after the adoption of the Directive as well as the relevant International Maritime Organisation (IMO) Resolutions.(6) With a view to promoting the effective implementation of the obligations of the flag States laid down in the international conventions, the IMO Assembly adopted on 27 November 1997 Resolution A.847(20) on guidelines to assist flag States in the implementation of IMO instruments.(7) IMO adopted the International Safety Management (ISM) Code through Assembly Resolution A.741(18) of 4 November 1993 which was made mandatory through the new Chapter IX of the International Convention for the Safety of Life at Sea (SOLAS) Convention.(8) With a view to ensuring a uniform implementation of the ISM Code, guidelines on the implementation of the ISM Code by maritime administrations were adopted on 23 November 1995 by IMO through Resolution A.788(19).(9) With a view to harmonising the statutory surveys and inspections to be carried out by the flag administrations pursuant to the international conventions, IMO adopted Resolution A.746(18) of 4 November 1993 on Survey Guidelines under the Harmonised System of Survey and Certification.(10) A good record of safety and pollution prevention performance - measured in respect of all ships classed by an organisation, irrespective of the flag they fly - is an important indication of the performance of an organisation and is therefore essential for granting the initial recognition and maintaining it.(11) In order to grant the initial recognition to the organisations wishing to be authorised to work on behalf of the Member States, compliance with the provisions of Directive 94/57/EC can be assessed more effectively in a harmonised and centralised manner by the Commission together with the Member States requesting the recognition.(12) Similarly, the continuous a posteriori monitoring of the recognised organisations to assess their compliance with the provisions of Directive 94/57/EC can be carried out more effectively in a harmonised and centralised manner. Therefore it is appropriate that the Commission, together with the Member State requesting the recognition, be entrusted with this task on behalf of the whole Community.(13) In addition to the authority of Member States to suspend the authorisation of an organisation working on their behalf, a similar authority should apply at Community level, the Commission being allowed, on the basis of the Committee procedure, to suspend the recognition of an organisation for a limited period of time where the safety and pollution prevention performance of the organisation is worsening and it fails to take the appropriate corrective measures.(14) In accordance with the Community-wide approach, the decision to withdraw the recognition of an organisation which fails to fulfil the provisions set out in the Directive, including cases where safety and pollution prevention performance becomes unsatisfactory, has to be taken at Community level, and therefore by the Commission, on the basis of the Committee procedure.(15) Since Directive 94/57/EC ensures freedom to provide services in the Community, the Community should be entitled to negotiate with those third countries where some of the recognised organisations are located equal treatment for the recognised organisations located in the Community.(16) The divergence in the financial liability regimes of the organisations working on behalf of the Member States represented a difficulty in the proper implementation of Directive 94/57/EC. In order to contribute to solving this problem it is appropriate to bring about a degree of harmonisation at Community level of the liability arising out of any incident caused by a recognised organisation, as decided by a court of law, including settlement of a dispute through arbitration procedures.(17) The measures necessary for the implementation of Directive 94/57/EC should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(6).(18) Since transparency and exchange of information between interested parties, as well as public right of access to information, are fundamental tools for preventing accidents at sea, the recognised organisations should provide all relevant statutory information concerning the conditions of the ships in their class to the port State control authorities and make it available to the general public.(19) In an attempt to prevent ships from changing class in order to avoid carrying out necessary repairs, the recognised organisations should exchange all relevant information among themselves concerning the conditions of ships changing class.(20) An organisation should not be controlled by shipowners or shipbuilders, or by others engaged commercially in the manufacture, equipping, repair or operation of ships. An organisation should not be substantially dependent on a single commercial enterprise for its revenue. When submitting their request for recognition, classification societies and their surveyors should give an undertaking in writing on an individual basis not to accept statutory work where there is a likelihood of a conflict of interests, i.e. where there is identity with the owner or operator of the ship to be inspected or there are business, personal or family links to the owner or operator of the ship.(21) The qualitative criteria to be met by the technical organisations in order to be recognised at Community level and to maintain such recognition should include provisions to ensure that only exclusive surveyors can carry out the inspections and surveys required by international conventions, i.e. statutory tasks related to the issue of relevant safety certificates. Those organisations must have tight control over all their personnel and offices, including all branches and offices within and outside the Community, and they must establish their own safety and pollution prevention performance targets and indicators. Those organisations must put in place a system to measure the quality of their services.(22) Directive 94/57/EC should be amended accordingly,HAVE ADOPTED THIS DIRECTIVE:Article 1Directive 94/57/EC is hereby amended as follows:1. in Article 2, points (b), (c), (d), (i) and (j) shall be replaced by the following: "(b) 'ship flying the flag of a Member State' means a ship registered in and flying the flag of a Member State in accordance with its legislation. Ships not corresponding to this definition are assimilated to ships flying the flag of a third country;(c) 'inspections and surveys' means inspections and surveys that it is mandatory to carry out under the international conventions;(d) 'international conventions' means the 1974 International Convention for the Safety of Life at Sea (SOLAS), the 1966 International Convention on Load Lines and the 1973/1978 International Convention for the Prevention of Pollution from Ships, together with the protocols and amendments thereto, and related codes of mandatory status in all Member States, in force on 19 December 2001;(i) 'class certificate' means a document issued by a classification society certifying the structural and mechanical fitness of a ship for a particular use or service in accordance with the rules and regulations laid down and made public by that society;(j) 'cargo ship safety radio certificate' means the certificate introduced by the amended SOLAS 1974/1978 Radio Regulations, adopted by the IMO;"2. in Article 3, the following sentence shall be added at the end of paragraph 1: "Member States shall act in accordance with the relevant provisions of the Annex and the Appendix to IMO Resolution A.847(20) on guidelines to assist flag States in the implementation of IMO instruments.";3. Article 4 shall be replaced by the following: "Article 41. Member States which wish to grant an authorisation to any organisation which is not yet recognised, shall submit a request for recognition to the Commission together with complete information on, and evidence of, compliance with the criteria set out in the Annex and on the requirement and undertaking that it will comply with the provisions of Article 15(2), (4) and (5). The Commission, together with the respective Member States submitting the request, shall carry out assessments of the organisations for which the request for recognition was received in order to verify that the organisations meet and undertake to comply with the above mentioned requirements. A decision on recognition shall take into account the safety and pollution prevention performance records of the organisation, referred to in Article 9. Recognition shall be granted by the Commission in accordance with the procedure referred to in Article 7(2).2. Member States may submit to the Commission special requests for a limited recognition of three years for organisations which meet all the criteria of the Annex other than those set out under paragraphs 2 and 3 of section A. The same procedure as that referred to in paragraph 1 will apply to these special requests with the exception that the criteria of the Annex for which compliance has to be assessed during the assessment carried out by the Commission, together with the Member State, shall be all the criteria other than those set out under paragraphs 2 and 3 of section A. The effects of these limited recognitions shall be limited exclusively to the Member State or States which have submitted a request for such recognition.3. All the organisations which are granted recognition shall be closely monitored by the committee set up under Article 7, particularly those referred to in paragraph 2 above, with a view to possible decisions concerning whether or not to extend the limited recognition. With regard to these latter organisations, a decision on the extension of such recognition shall not take into account the criteria set out under paragraphs 2 and 3 of section A of the Annex but shall take into account the safety and pollution prevention performance records of the organisation, referred to in Article 9(2). Any decision on the extension of the limited recognition shall specify under which conditions, if any, such extension is granted.4. The Commission shall draw up and update a list of the organisations recognised in compliance with paragraphs 1, 2 and 3. The list shall be published in the Official Journal of the European Communities.5. The organisations which on 22 January 2002 are already recognised on the basis of this Directive shall continue to be recognised. Nevertheless, those organisations shall be required to comply with the new provisions laid down in this Directive and their compliance shall be assessed during the first assessments referred to in Article 11.";4. Article 5 shall be amended as follows:(a) paragraph 1 shall be replaced by the following: "1. In applying Article 3(2), Member States shall in principle not refuse to authorise any of the recognised organisations to undertake such functions, subject to the provisions of paragraph 3 and Articles 6 and 11. However, they may restrict the number of organisations they authorise in accordance with their needs provided there are transparent and objective grounds for so doing. At the request of a Member State, the Commission shall, in accordance with the procedure laid down in Article 7, adopt appropriate measures.";(b) paragraph 2 shall be deleted;(c) paragraph 3 shall be replaced by the following: "3. In order for a Member State to accept that a recognised organisation located in a third State is to carry out the duties mentioned in Article 3 or part of them it may request the third State in question to grant reciprocal treatment for those recognised organisations which are located in the Community. In addition, the Community may request the third State where a recognised organisation is located to grant reciprocal treatment for those recognised organisations which are located in the Community.";5. Article 6 shall be amended as follows:(a) paragraph 2 shall be replaced by the following: "2. The working relationship shall be regulated by a formalised written and non-discriminatory agreement or equivalent legal arrangements setting out the specific duties and functions assumed by the organisations and including at least:(a) the provisions set out in Appendix II of IMO Resolution A.739(18) on guidelines for the authorisation of organisations acting on behalf of the administration, while drawing inspiration from the Annex, Appendixes and Attachment to IMO MSC/Circular 710 and MEPC/Circular 307 on model agreement for the authorisation of recognised organisations acting on behalf of the administration;(b) the following provisions concerning financial liability:(i) if liability arising out of any incident is finally and definitely imposed on the administration by a court of law or as part of the settlement of a dispute through arbitration procedures, together with a requirement to compensate the injured parties for loss or damage to property or personal injury or death, which is proved in that court of law to have been caused by a wilful act or omission or gross negligence of the recognised organisation, its bodies, employees, agents or others who act on behalf of the recognised organisation, the administration shall be entitled to financial compensation from the recognised organisation to the extent that the said loss, damage, injury or death is, as decided by that court, caused by the recognised organisation;(ii) if liability arising out of any incident is finally and definitely imposed on the administration by a court of law or as part of the settlement of a dispute through arbitration procedures, together with a requirement to compensate the injured parties for personal injury or death, which is proved in that court of law to have been caused by any negligent or reckless act or omission of the recognised organisation, its employees, agents or others who act on behalf of the recognised organisation, the administration shall be entitled to financial compensation from the recognised organisation to the extent that the said personal injury or death is, as decided by that court, caused by the recognised organisation; the Member States may limit the maximum amount payable by the recognised organisation, which must, however, be at least equal to EUR 4 million;(iii) if liability arising out of any incident is finally and definitely imposed on the administration by a court of law or as part of the settlement of a dispute through arbitration procedures, together with a requirement to compensate the injured parties for loss or damage to property, which is proved in that court of law to have been caused by any negligent or reckless act or omission of the recognised organisation, its employees, agents or others who act on behalf of the recognised organisation, the administration shall be entitled to financial compensation from the recognised organisation, to the extent that the said loss or damage is, as decided by that court, caused by the recognised organisation; the Member States may limit the maximum amount payable by the recognised organisation, which must, however, be at least equal to EUR 2 million;(c) provisions for a periodical audit by the administration or by an impartial external body appointed by the administration into the duties the organisations are undertaking on its behalf, as referred to in Article 11(1);(d) the possibility for random and detailed inspections of ships;(e) provisions for reporting essential information about their classed fleet, changes, suspensions and withdrawals of class, as referred to in Article 15(3).";(b) the following paragraph shall be added: "5. The Commission shall, not later than 22 July 2006, submit a report to the European Parliament and to the Council evaluating the economic impact of the liability regime provided for in this Article on the parties concerned and, more particularly, its consequences for the financial equilibrium of recognised organisations.This report shall be drawn up in cooperation with the competent authorities of the Member States and the parties concerned, in particular recognised organisations/classification societies. The Commission shall, if necessary in the light of this evaluation, submit a proposal amending this Directive with more specific reference to the principle of liability and the maximum liabilities.";6. Article 7 shall be replaced by the following: "Article 71. The Commission shall be assisted by a committee.2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its rules of procedure.";7. Article 8(1) shall be replaced by the following: "1. This Directive may, without broadening its scope, be amended in accordance with the procedure laid down in Article 7(2), in order to:- apply, for the purposes of this Directive, subsequent amendments to the international conventions, protocols, codes and resolutions related thereto mentioned in Articles 2(d), 3(1) and 6(2), which have entered into force,- update the criteria in the Annex taking into account, in particular, the relevant decisions of the IMO,- alter the amounts specified in points (ii) and (iii) of Article 6(2)(b).";8. Article 9 shall be replaced by the following: "Article 91. The recognition of organisations referred to in Article 4 which no longer fulfil the criteria set out in the Annex or which fail to meet the safety and pollution prevention performance records mentioned in paragraph 2 shall be withdrawn. The withdrawal of recognition shall be decided by the Commission in accordance with the procedure referred to in Article 7(2), after the organisation concerned has been given the opportunity to submit its observations.2. In preparing drafts for a decision relating to the withdrawal of recognition as referred to in paragraph 1, the Commission shall take into account the outcome of the assessments of the recognised organisations referred to in Article 11 as well as the safety and pollution prevention performance records of the organisations, measured for all the ships they have in class irrespective of the flag the ships fly.The safety and pollution prevention performance records of the organisations shall be derived from the data produced by the Paris Memorandum of Understanding on Port State Control and/or by similar schemes. Other indications may be derived from an analysis of the casualties involving ships classed by the recognised organisations.Reports produced by Member States on the basis of Article 12 shall also be taken into consideration to assess the safety and pollution prevention performance records of the organisations.The Committee set up under Article 7 shall determine the criteria to be followed in order to decide, on the basis of the information referred to in this paragraph, when the performance of an organisation acting on behalf of a flag State can be considered an unacceptable threat to safety and the environment.Draft decisions relating to the withdrawal of recognition as referred to in paragraph 1 shall be submitted to the Committee by the Commission upon its own initiative or at the request of a Member State.";9. Article 10 shall be replaced by the following: "Article 101. Notwithstanding the criteria specified in the Annex, where a Member State considers that a recognised organisation can no longer be authorised to carry out on its behalf the tasks specified in Article 3 it may suspend such authorisation on the basis of the following procedure:(a) the Member State shall inform the Commission and the other Member States of its decision without delay, giving substantiated reasons therefor;(b) the Commission shall examine whether the suspension is justified for reasons of serious danger to safety or the environment;(c) acting in accordance with the procedure laid down in Article 7(2), the Commission shall inform the Member State whether or not its decision to suspend the authorisation is justified for reasons of serious danger to safety or the environment and, if it is not justified, request the Member State to withdraw the suspension.2. Whenever the Commission considers that the safety and pollution prevention performance records of a recognised organisation worsen, without however justifying the withdrawal of its recognition on the basis of the criteria referred to in Article 9(2), it may decide to inform the recognised organisation accordingly and request it to take appropriate measures to improve its safety and pollution prevention performance records, and inform the Member States thereof. Should the recognised organisation fail to provide the Commission with an appropriate answer or should the Commission consider that the measures taken by the recognised organisation have failed to improve its safety and pollution prevention performance records, the Commission may decide to suspend recognition of the organisation for a period of one year in accordance with the procedure referred to in Article 7(2) after the organisation concerned has been given the opportunity to submit its observations. During that period, the recognised organisation will not be allowed to issue or renew any certificate to ships flying the flag of the Member States while the certificates issued or renewed in the past by the organisation remain valid.3. The procedure referred to in paragraph 2 shall also apply where the Commission has evidence that a recognised organisation has failed to comply with the provisions of Article 15(3), (4) or (5).4. One year after the adoption of the decision of the Commission to suspend recognition of an organisation, the Commission shall assess whether the shortcomings referred to in paragraphs 2 and 3 which led to the suspension have been removed. Where such shortcomings are still present, recognition shall be withdrawn in accordance with the procedure referred to in Article 7(2).";10. Article 11 shall be replaced by the following: "Article 111. Each Member State must satisfy itself that the recognised organisations acting on its behalf for the purpose of Article 3(2) effectively carry out the functions referred to in that Article to the satisfaction of its competent administration.2. Each Member State shall carry out this task at least on a biennial basis and shall provide the other Member States and the Commission with a report of the results of this monitoring at the latest by 31 March of each year following the years for which compliance has been assessed.3. All the recognised organisations shall be assessed by the Commission, together with the Member State which submitted the relevant request for recognition, on a regular basis and at least every two years to verify that they fulfil the criteria of the Annex. In selecting the organisations for assessment, the Commission shall pay particular attention to the safety and pollution prevention performance records of the organisation, to the casualty records and to the reports produced by Member States in accordance with Article 12. The assessment may include a visit to regional branches of the organisation as well as random inspection of ships for the purpose of auditing the organisation's performance. In this case the Commission shall, where appropriate, inform the Member States where the regional branch is located. The Commission shall provide the Member States with a report of the results of the assessment.4. Each recognised organisation shall make available the results of its quality system management review to the Committee set up under Article 7, on an annual basis.";11. Article 12 shall be replaced by the following: "Article 12In exercising their inspection rights and obligations as port States, Member States shall report to the Commission and to other Member States, and inform the flag State concerned, the discovery of the issue of valid certificates by organisations acting on behalf of a flag State to a ship which does not fulfil the relevant requirements of the international conventions, or of any failure of a ship carrying a valid class certificate and relating to items covered by that certificate. Only cases of ships representing a serious threat to safety and the environment or showing evidence of particularly negligent behaviour of the organisations shall be reported for the purposes of this Article. The recognised organisation concerned shall be advised of the case at the time of the initial inspection so that it can take appropriate follow-up action immediately.";12. Article 13 shall be deleted;13. at the end of Article 14(2) the reference to Article 13 shall be replaced by Article 7(2);14. Article 15 shall be amended as follows:(a) paragraph 1 shall be replaced by the following: "1. The recognised organisations shall consult with each other periodically with a view to maintaining equivalence of their technical standards and the implementation thereof in line with the provisions of IMO Resolution A.847(20) on guidelines to assist flag States in the implementation of IMO instruments. They shall provide the Commission with periodic reports on fundamental progress in standards.";(b) paragraphs 3 and 4 shall be replaced by the following: "3. The recognised organisations shall provide to all Member States administrations which have granted any of the authorisations provided for in Article 3 and to the Commission all relevant information about their classed fleet, transfers, changes, suspensions and withdrawals of class, irrespective of the flag the vessels fly. Information on transfers, changes, suspensions, and withdrawals of class, including information on all overdue surveys, overdue recommendations, conditions of class, operating conditions or operating restrictions issued against their classed vessels - irrespective of the flag the vessels fly - shall also be communicated to the Sirenac information system for port State control inspections and shall be published on the website, if any, of these recognised organisations.4. The recognised organisations shall not issue certificates to a ship, irrespective of its flag, which has been declassed or is changing class for safety reasons before giving the opportunity to the competent administration of the flag State to give its opinion within a reasonable time in order to determine whether a full inspection is necessary.";(c) the following paragraph shall be added: "5. In cases of transfer of class from one recognised organisation to another, the losing organisation shall inform the gaining organisation of all overdue surveys, overdue recommendations, conditions of class, operating conditions or operating restrictions issued against the vessel. On transfer, the losing organisation shall provide the gaining organisation with the complete history file of the vessel. The certificates of the ship can be issued by the gaining organisation only after all overdue surveys have been satisfactorily completed and all overdue recommendations or conditions of class previously issued against the vessel have been completed as specified by the losing organisation. Prior to the issuance of the certificates, the gaining organisation must advise the losing organisation of the date of issue of the certificates and confirm the date, location and action taken to satisfy each overdue survey, overdue recommendation and overdue condition of class. The recognised organisations shall cooperate with each other in properly implementing the provisions of this paragraph.";15. in Article 16, the following paragraph shall be added: "4. In addition, the Commission shall inform the European Parliament and the Council, on a regular basis, of progress in the implementation of the Directive within the Member States.";16. the Annex to the Directive shall be amended as follows:(a) section A shall be replaced by the following: "A. GENERAL MINIMUM CRITERIA1. The recognised organisation must be able to document extensive experience in assessing the design and construction of merchant ships.2. The organisation must have in its class a fleet of at least 1000 ocean-going vessels (over 100 GRT) totalling no less than 5 million GRT.3. The organisation must employ a technical staff commensurate with the number of vessels classed. As a minimum, 100 exclusive surveyors are needed to meet the requirements in paragraph 2.4. The organisation must have comprehensive rules and regulations for the design, construction and periodic survey of merchant ships, published and continually upgraded and improved through research and development programmes.5. The organisation must have its register of vessels published on an annual basis or maintained in an electronic base accessible to the public.6. The organisation must not be controlled by shipowners or shipbuilders, or by others engaged commercially in the manufacture, equipping, repair or operation of ships. The organisation must not be substantially dependent on a single commercial enterprise for its revenue. The recognised organisation must not carry out statutory work if it is identical with or has business, personal or family links to the shipowner or operator. This incompatibility shall also apply to surveyors employed by the recognised organisation.7. The organisation must operate in accordance with the provisions set out in the Annex to IMO Resolution A.789(19) on specifications on the survey and certification functions of recognised organisations acting on behalf of the administration, in so far as they cover matters falling within the scope of this Directive."(b) in section B:(i) the title shall be replaced by the following: "B. SPECIFIC MINIMUM CRITERIA";(ii) paragraphs 4, 5, 6, 7 and 9 shall be replaced by the following: "4. The organisation is prepared to provide relevant information to the administration, to the Commission and to the interested parties.5. The organisation's management has defined and documented its policy and objectives for, and commitment to, quality and has ensured that this policy is understood, implemented and maintained at all levels in the organisation. The organisation's policy must refer to safety and pollution prevention performance targets and indicators.6. The organisation has developed, implemented and maintains an effective internal quality system based on appropriate parts of internationally recognised quality standards and in compliance with EN 45004 (inspection bodies) and with EN 29001, as interpreted by the IACS Quality System Certification Scheme Requirements, and which, inter alia, ensures that:(a) the organisation's rules and regulations are established and maintained in a systematic manner;(b) the organisation's rules and regulations are complied with and an internal system to measure the quality of service in relation to these rules and regulations is put in place;(c) the requirements of the statutory work for which the organisation is authorised are satisfied and an internal system to measure the quality of service in relation to the compliance with the international conventions is put in place;(d) the responsibilities, authorities and interrelation of personnel whose work affects the quality of the organisation's services are defined and documented;(e) all work is carried out under controlled conditions;(f) a supervisory system is in place which monitors the actions and work carried out by surveyors and technical and administrative staff employed directly by the organisation;(g) the requirements of the statutory work for which the organisation is authorised are only carried out by its exclusive surveyors or by exclusive surveyors of other recognised organisations; in all cases, the exclusive surveyors must have an extensive knowledge of the particular type of ship on which they carry out the statutory work as relevant to the particular survey to be carried out and of the relevant applicable requirements;(h) a system for qualification of surveyors and continuous updating of their knowledge is implemented;(i) records are maintained, demonstrating achievement of the required standards in the items covered by the services performed, as well as the effective operation of the quality system;(j) a comprehensive system of planned and documented internal audits of the quality related activities is maintained in all locations;(k) the statutory surveys and inspections required by the Harmonised System of Survey and Certification for which the organisation is authorised are carried out in accordance with the provision set out in the Annex and Appendix to IMO Resolution A.746(18) on Survey Guidelines under the Harmonised System of Survey and Certification;(l) clear and direct lines of responsibility and control are established between the central and the regional offices of the society and between the recognised organisations and their surveyors.7. The organisation must demonstrate ability:(a) to develop and keep updated a full and adequate set of own rules and regulations on hull, machinery and electrical and control equipment having the quality of internationally recognised technical standards on the basis of which SOLAS Convention and Passenger Ship Safety Certificates (as regards adequacy of ship structure and essential shipboard machinery systems) and Load Line Certificates (as regards adequacy of ship strength) can be issued;(b) to carry out all inspections and surveys required by the international conventions for the issue of certificates, including the necessary means of assessing - through the use of qualified professional staff and in accordance with the provisions set out in the Annex to IMO Resolution A.788(19) on guidelines on implementation of the International Safety Management (ISM) Code by administrations - the application and maintenance of the safety management system, both shore-based and on board ships, intended to be covered in the certification."; "9. The organisation must allow participation in the development of its rules and/or regulations by representatives of the administration and other parties concerned."Article 21. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 22 July 2003. They shall forthwith inform the Commission thereof.2. 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.3. Member States shall communicate to the Commission the text of the provisions of national law which they have adopted in the field covered by this Directive.Article 3This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 4This Directive is addressed to the Member States.Done at Brussels, 19 December 2001.For the European ParliamentThe PresidentN. FontaineFor the CouncilThe PresidentA. Neyts-Uyttebroeck(1) OJ C 212 E, 25.7.2000, p. 114 and OJ C 154 E, 29.5.2001, p. 51.(2) OJ C 14, 16.1.2001, p. 22.(3) OJ C 22, 24.1.2001, p. 19.(4) Opinion of the European Parliament of 30 November 2000 (OJ C 228, 13.8.2001, p. 150), Council Common Position of 26 February 2001 (OJ C 101, 30.3.2001, p. 1), and Decision of the European Parliament of 16 May 2001 (not yet published in the Official Journal). Decision of the European Parliament of 24 October 2001 and Decision of the Council of 6 December 2001.(5) OJ L 319, 12.12.1994, p. 20. Directive as amended by Commission Directive 97/58/EC (OJ L 274, 7.10.1997, p. 8).(6) OJ L 184, 17.7.1999, p. 23.


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31979L0116

Council Directive 79/116/EEC of 21 December 1978 concerning minimum requirements for certain tankers entering or leaving Community ports

Official Journal L 033 , 08/02/1979 P. 0033 - 0035 Greek special edition: Chapter 07 Volume 2 P. 0096  Spanish special edition: Chapter 07 Volume 2 P. 0164  Portuguese special edition Chapter 07 Volume 2 P. 0164

++++COUNCIL DIRECTIVE  OF 21 DECEMBER 1978  CONCERNING MINIMUM REQUIREMENTS FOR CERTAIN TANKERS ENTERING OR LEAVING COMMUNITY PORTS   ( 79/116/EEC )  THE COUNCIL OF THE EUROPEAN COMMUNITIES ,  HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , AND IN PARTICULAR ARTICLE 84 ( 2 ) THEREOF ,  WHEREAS , TO REDUCE THE RISK OF INCIDENTS INVOLVING TANKERS ENTERING OR LEAVING MEMBER STATES' PORTS , THE SAID TANKERS SHOULD BE REQUIRED TO COMPLY IN ADVANCE WITH CERTAIN MINIMUM REQUIREMENTS BEFORE ENTERING AND WHILE TRAVERSING THE TERRITORIAL WATERS ADJACENT TO THE PORT OF DESTINATION OR DEPARTURE ;  WHEREAS THE COMPETENT AUTHORITIES SHOULD BE INFORMED OF ANY DEFICIENCY POTENTIALLY DELETERIOUS TO THE SAFETY OF SHIPPING AND TO THE MARINE ENVIRONMENT ; WHEREAS A MEMBER STATE IN WHICH THE COMPETENT AUTHORITIES ARE INFORMED OF CIRCUMSTANCES INVOLVING OR INCREASING THE RISK THAT ANOTHER MEMBER STATE'S SEA AND COASTAL AREAS MAY BE ENDANGERED SHOULD INFORM THAT MEMBER STATE FORTHWITH ,  HAS ADOPTED THIS DIRECTIVE :  ARTICLE 1  1 . MEMBER STATES SHALL TAKE ALL NECESSARY AND APPROPRIATE MEASURES TO ENSURE THAT OIL , GAS AND CHEMICAL TANKERS OF 1 600 GROSS REGISTERED TONS AND OVER - WHETHER FULLY OR PARTLY LADEN - AND INCLUDING THOSE EMPTY BUT NOT YET DEGASSED OR PURGED OF HAZARDOUS RESIDUES , ENTERING OR LEAVING THE SEAPORTS OF THEIR TERRITORY SHALL , AS A MINIMUM :  A . IN ADVANCE OF ENTERING ,   ( I ) NOTIFY THE COMPETENT AUTHORITY OF THE MEMBER STATE IN WHICH THE PORT IS SITUATED OF THE FOLLOWING INFORMATION ( " NOTIFICATION " ) :   ( A ) NAME AND CALL SIGN OF THE VESSEL ,   ( B ) NATIONALITY OF THE VESSEL ,   ( C ) LENGTH AND DRAUGHT OF THE VESSEL ,   ( D ) PORT OF DESTINATION ,   ( E ) ESTIMATED TIME OF ARRIVAL AT THE PORT OF DESTINATION OR THE PILOT STATION , AS REQUIRED BY THE COMPETENT AUTHORITY ,   ( F ) GENERAL INFORMATION ON THE NATURE AND QUANTITY OF CARGO ,   ( G ) WHERE CHEMICALS ARE BEING TRANSPORTED , INFORMATION ON WHETHER OR NOT THE VESSEL IS IN POSSESSION OF A CERTIFICATE STATING THAT IT IS A " NEW VESSEL " UNDER THE TERMS OF THE IMCO CODE FOR THE CONSTRUCTION AND EQUIPMENT OF SHIPS CARRYING DANGEROUS' CHEMICALS IN BULK ,   ( H ) WHETHER OR NOT THERE ARE ANY DEFICIENCIES OR INCIDENTS WHICH MAY DECREASE THE NORMAL SAFE MANOEUVRABILITY OF THE VESSEL , AFFECT THE SAFETY AND EASY FLOW OF TRAFFIC OR CONSTITUTE A HAZARD TO THE MARINE EVIRONMENT AND ADJACENT AREAS ;   ( II ) COMPLETE TRULY AND ACCURATELY A TANKER CHECK LIST AS REPRODUCED IN THE ANNEX TO THIS DIRECTIVE AND MAKE IT AVAILABLE TO THE PILOT FOR HIS INFORMATION AND TO THE COMPETENT AUTHORITY , IF IT SO REQUESTS .  B . WHILE TRAVERSING THE TERRITORIAL WATERS ADJACENT TO THE PORT OF ENTRY OR DEPARTURE ,   ( I ) INFORM THE COMPETENT AUTHORITIES OF ANY DEFICIENCIES AND INCIDENTS WHICH MAY DECREASE THE NORMAL SAFE MANOEUVRABILITY OF THE VESSEL , AFFECT THE SAFETY AND EASY FLOW OF TRAFFIC OR CONSTITUTE A HAZARD TO THE MARINE ENVIRONMENT AND ADJACENT AREAS ,   ( II ) AS SOON AS POSSIBLE ESTABLISH RADIOTELEPHONY COMMUNICATION WITH THE COASTAL RADIO STATIONS DESIGNATED FOR THAT PURPOSE , PREFERABLY ON VHF - IN PARTICULAR , WITH THE NEAREST RADAR STATION , IF AVAILABLE - AND MAINTAIN SUCH COMMUNICATION ,   ( III ) MAKE USE , AS FAR AS POSSIBLE , ESPECIALLY IN CONDITIONS OF RESTRICTED VISIBILITY , OF THE SERVICES PROVIDED BY RADAR STATIONS ,   ( IV ) MAKE USE OF PILOTS , IN ACCORDANCE WITH PRACTICE AND WITH THE REGULATIONS DETERMINED BY THE COMPETENT AUTHORITIES .  2 . IF THE PILOT LEARNS THAT THERE ARE ANY DEFICIENCIES WHICH MAY PREJUDICE THE SAFE NAVIGATION OF THE VESSEL , HE SHALL IMMEDIATELY REPORT THESE TO THE COMPETENT AUTHORITY .  3 . MEMBER STATES MAY DEROGATE FROM PARAGRAPHS 1 AND 2 WHERE THE STATE OF NAVIGATIONAL AIDS , THE LOCAL SITUATION OR THE TRAFFIC CONDITIONS SO REQUIRE OR PERMIT .  ARTICLE 2  ANY MEMBER STATE THE COMPETENT AUTHORITIES OF WHICH HAVE BEEN INFORMED , IN ACCORDANCE WITH ARTICLE 1 OR IN SOME OTHER WAY , OF FACTS WHICH INVOLVE OR INCREASE THE RISK FOR ANOTHER MEMBER STATE OF A HAZARD BEING POSED TO CERTAIN MARITIME AND COASTAL ZONES , SHALL TAKE WHATEVER MEASURES ARE APPROPRIATE TO INFORM THE MEMBER STATE CONCERNED THEREOF AS SOON AS POSSIBLE .  ARTICLE 3  BEFORE 1 JANUARY 1980 , MEMBER STATES SHALL , AFTER CONSULTING THE COMMISSION , ADOPT THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY TO IMPLEMENT THIS DIRECTIVE . THEY SHALL INFORM THE COMMISSION AND THE OTHER MEMBER STATES OF THE MEASURES TAKEN , AS WELL AS OF ANY PROVISIONS PROVIDING FOR DEROGATIONS UNDER ARTICLE 1 ( 3 ) .  ARTICLE 4  THIS DIRECTIVE IS ADDRESSED TO THE MEMBER STATES .  DONE AT BRUSSELS , 21 DECEMBER 1978 .  FOR THE COUNCIL  THE PRESIDENT  OTTO GRAF LAMBSDORFF  ANNEX  TANKER CHECK LIST  A . VESSEL IDENTIFICATION***  NAME OF VESSEL*OWNER**  FLAG*CALL SIGN*YEAR BUILT*  PORT OF REGISTRY*LENGTH OVERALL*GROSS TONNAGE*  CLASSIFICATION SOCIETY***  CLASS NOTATION*HULL*MACHINERY*  PROPULSION MACHINERY*OUTPUT**  AGENT***  DRAUGHT : FORWARD*AMIDSHIPS*AFT*  KIND OF CARGO LOADED ( ACCORDING TO TANK LOADING PLAN ) **VOLUME OF CARGO LOADED*  B . SAFETY INSTALLATIONS ABOARD*IN GOOD WORKING ORDER*DEFICIENCIES*  1 . CONSTRUCTION AND TECHNICAL EQUIPMENT*YES*NO**  MAIN AND AUXILIARY ENGINES *...*...**  MAIN STEERING GEAR *...*...**  AUXILIARY STEERING GEAR *...*...**  ANCHOR GEAR *...*...**  FIXED FIRE-EXTINGUISHING SYSTEM *...*...**  2 . NAVIGATIONAL EQUIPMENT****  MANOEUVRING CHARACTERISTICS AVAILABLE *...*...**  FIRST RADAR INSTALLATION *...*...**  SECOND RADAR INSTALLATION *...*...**  GYRO COMPASS *...*...**  STANDARD MAGNETIC COMPASS *...*...**  RADIO DIRECTION-FINDING APPARATUS *...*...**  ECHO-SOUNDING DEVICE *...*...**  OTHER ELECTRONIC POSITION FIXING AIDS *...*...**  3 . RADIO EQUIPMENT****  RADIOTELEGRAPHY INSTALLATION *...*...**  RADIOTELEPHONY INSTALLATION ( VHF ) *...*...**  *CERTIFICATES/DOCUMENTS VALID ON BOARD*  C . SAFETY CERTIFICATES AND OTHER DOCUMENTS*YES*NO*  CARGO SHIP SAFETY CONSTRUCTION CERTIFICATE *...*...*  CARGO SHIP SAFETY EQUIPMENT CERTIFICATE *...*...*  CARGO SHIP SAFETY RADIOTELEGRAPHY CERTIFICATE *...*...*  SHIP SAFETY RADIOTELEPHONY CERTIFICATE *...*...*  LOAD LINE CERTIFICATE *...*...*  CLASSIFICATION CERTIFICATE *...*...*  OIL LIABILITY CERTIFICATE *...*...*  OIL RECORD BOOK FILLED IN *...*...*  *CERTIFICATE OF COMPETENCY ( DETAILED DESCRIPTION AND SERIAL NUMBER ) *NAME , PLACE , COUNTRY OF ISSUING AUTHORITY ( 1 )*  D . OFFICERS AND RATINGS*YES*NO**  MASTER *...*...**  CHIEF MATE *...*...**  SECOND MATE *...*...**  THIRD MATE *...*...**  CHIEF ENGINEER *...*...**  FIRST ENGINEER OFFICER *...*...**  SECOND ENGINEER OFFICER *...*...**  THIRD ENGINEER OFFICER *...*...**  RADIO OFFICER *...*...**  TOTAL NUMBER OF RATINGS*DECK*ENGINE ROOM**  DEEP-SEA PILOT TAKEN ABOARD *...*...**  DATE ...  SIGNATURE OF THE MASTER OR , IF HE IS INDISPOSED , OF THE DEPUTY ...  ( 1 ) MEMBER STATES MAY DECIDE TO EXCLUDE FROM THE CHECK LIST THE PART OF SECTION D RELATING TO CERTIFICATES OF COMPETENCY .


title: Directive 2006/68/EC of the European Parliament and of the Council of 6 September 2006 amending Council Directive 77/91/EEC as regards the formation of public limited liability companies and the maintenance and alteration of their capital   (Text with EEA relevance)

text:
               25.9.2006

               EN

               Official Journal of the European Union

               L 264/32

      DIRECTIVE 2006/68/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 6 September 2006
   amending Council Directive 77/91/EEC as regards the formation of public limited liability companies and the maintenance and alteration of their capital
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 44(1) thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
   Whereas:

               (1)

               The second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (3), sets out the requirements for several capital-related measures taken by such companies.

               (2)

               In its Communication of 21 May 2003 to the Council and the European Parliament entitled ‘Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward’ the Commission draws the conclusion that a simplification and modernisation of Directive 77/91/EEC would significantly contribute to the promotion of business efficiency and competitiveness without reducing the protection offered to shareholders and creditors. Those objectives have the first priority but do not affect the need to proceed without delay to a general examination of the feasibility of alternatives to the capital maintenance regime which would adequately protect the interests of creditors and shareholders of a public limited liability company.

               (3)

               Member States should be able to permit public limited liability companies to allot shares for consideration other than in cash without requiring them to obtain a special expert valuation in cases in which there is a clear point of reference for the valuation of such consideration. Nonetheless, the right of minority shareholders to require such valuation should be guaranteed.

               (4)

               Public limited liability companies should be allowed to acquire their own shares up to the limit of the company's distributable reserves and the period for which such an acquisition may be authorised by the general meeting should be increased so as to enhance flexibility and reduce the administrative burden for companies which have to react promptly to market developments affecting the price of their shares.

               (5)

               Member States should be able to permit public limited liability companies to grant financial assistance with a view to the acquisition of their shares by a third party up to the limit of the company's distributable reserves so as to increase flexibility with regard to changes in the ownership structure of the share capital of companies. This possibility should be subject to safeguards, having regard to this Directive's objective of protecting both shareholders and third parties.

               (6)

               In order to enhance standardised creditor protection in all Member States, creditors should be able to resort, under certain conditions, to judicial or administrative proceedings where their claims are at stake as a consequence of a reduction in the capital of a public limited liability company.

               (7)

               In order to ensure that market abuse is prevented, Member States should take into account, for the purpose of implementation of this Directive, the provisions of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (4), Commission Regulation (EC) No 2273/2003 of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards exemptions for buy-back programmes and stabilisation of financial instruments (5) and Commission Directive 2004/72/EC of 29 April 2004 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers' transactions and the notification of suspicious transactions (6).

               (8)

               Directive 77/91/EEC should therefore be amended accordingly.

               (9)

               In accordance with point 34 of the Interinstitutional Agreement on better law-making (7), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Directive 77/91/EEC is hereby amended as follows:

               1.

               in Article 1(1), the 21st indent shall be replaced by the following:

                           ‘—

                           in Hungary:
                           nyilvánosan működő részvénytársaság;’

                     ;

               2.

               the following Articles shall be inserted:
               ‘Article 10a
               1.   Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of the administrative or management body, transferable securities as defined in point 18 of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (8) or money-market instruments as defined in point 19 of Article 4(1) of that Directive are contributed as consideration other than in cash, and those securities or money-market instruments are valued at the weighted average price at which they have been traded on one or more regulated market(s) as defined in point 14 of Article 4(1) of that Directive during a sufficient period, to be determined by national law, preceding the effective date of the contribution of the respective consideration other than in cash.
               However, where that price has been affected by exceptional circumstances that would significantly change the value of the asset at the effective date of its contribution, including situations where the market for such transferable securities or money-market instruments has become illiquid, a revaluation shall be carried out on the initiative and under the responsibility of the administrative or management body. For the purposes of the aforementioned revaluation, Article 10(1), (2) and (3) shall apply.
               2.   Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of the administrative or management body, assets, other than the transferable securities and money-market instruments referred to in paragraph 1, are contributed as consideration other than in cash which have already been subject to a fair value opinion by a recognised independent expert and where the following conditions are fulfilled:

                           (a)

                           the fair value is determined for a date not more than six months before the effective date of the asset contribution;

                           (b)

                           the valuation has been performed in accordance with generally accepted valuation standards and principles in the Member State, which are applicable to the kind of assets to be contributed.

                     In the case of new qualifying circumstances that would significantly change the fair value of the asset at the effective date of its contribution, a revaluation shall be carried out on the initiative and under the responsibility of the administrative or management body. For the purposes of the aforementioned revaluation, Article 10(1), (2) and (3) shall apply.
               In the absence of such a revaluation, one or more shareholders holding an aggregate percentage of at least 5 % of the company's subscribed capital on the day the decision on the increase in the capital is taken may demand a valuation by an independent expert, in which case Article 10(1), (2) and (3) shall apply. Such shareholder(s) may submit a demand up until the effective date of the asset contribution, provided that, at the date of the demand, the shareholder(s) in question still hold(s) an aggregate percentage of at least 5 % of the company's subscribed capital, as it was on the day the decision on the increase in the capital was taken.
               3.   Member States may decide not to apply Article 10(1), (2) and (3) where, upon a decision of the administrative or management body, assets, other than the transferable securities and money-market instruments referred to in paragraph 1, are contributed as consideration other than in cash whose fair value is derived by individual asset from the statutory accounts of the previous financial year provided that the statutory accounts have been subject to an audit in accordance with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts (9).
               The second and third subparagraphs of paragraph 2 shall apply mutatis mutandis.
               Article 10b
               1.   Where consideration other than in cash as referred to in Article 10a occurs without an expert's report as referred to in Article 10(1), (2) and (3), in addition to the requirements set out in point (h) of Article 3 and within one month after the effective date of the asset contribution, a declaration containing the following shall be published:

                           (a)

                           a description of the consideration other than in cash at issue;

                           (b)

                           its value, the source of this valuation and, where appropriate, the method of valuation;

                           (c)

                           a statement whether the value arrived at corresponds at least to the number, to the nominal value or, where there is no nominal value, the accountable par and, where appropriate, to the premium on the shares to be issued for such consideration;

                           (d)

                           a statement that no new qualifying circumstances with regard to the original valuation have occurred.

                     That publication shall be effected in the manner laid down by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC.
               2.   Where consideration other than in cash is proposed to be made without an expert's report as referred to in Article 10(1), (2) and (3) in relation to an increase in the capital proposed to be made under Article 25(2), an announcement containing the date when the decision on the increase was taken and the information listed in paragraph 1 shall be published, in the manner laid down by the laws of each Member State in accordance with Article 3 of Directive 68/151/EEC, before the contribution of the asset as consideration other than in cash is to become effective. In that event, the declaration pursuant to paragraph 1 shall be limited to the statement that no new qualifying circumstances have occurred since the aforementioned announcement was published.
               3.   Each Member State shall provide for adequate safeguards ensuring compliance with the procedure set out in Article 10a and in this Article where a contribution for a consideration other than in cash is made without an expert's report as referred to in Article 10(1), (2) and (3).

               3.

               in Article 11(1), the first subparagraph shall be amended as follows:

                           (a)

                           ‘Article 10’ shall be replaced by ‘Article 10(1), (2) and (3)’;

                           (b)

                           the following sentence shall be added:
                           ‘Articles 10a and 10b shall apply mutatis mutandis.’;

               4.

               in Article 19, paragraph 1 shall be replaced by the following:
               ‘1.   Without prejudice to the principle of equal treatment of all shareholders who are in the same position, and to Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (10), Member States may permit a company to acquire its own shares, either itself or through a person acting in his own name but on the company's behalf. To the extent that the acquisitions are permitted, Member States shall make such acquisitions subject to the following conditions:

                           (a)

                           authorisation shall be given by the general meeting, which shall determine the terms and conditions of such acquisitions, and, in particular, the maximum number of shares to be acquired, the duration of the period for which the authorisation is given, the maximum length of which shall be determined by national law without, however, exceeding five years, and, in the case of acquisition for value, the maximum and minimum consideration. Members of the administrative or management body shall satisfy themselves that, at the time when each authorised acquisition is effected, the conditions referred to in points (b) and (c) are respected;

                           (b)

                           the acquisitions, including shares previously acquired by the company and held by it, and shares acquired by a person acting in his own name but on the company's behalf, may not have the effect of reducing the net assets below the amount mentioned in points (a) and (b) of Article 15(1);

                           (c)

                           only fully paid-up shares may be included in the transaction.

                     Furthermore, Member States may subject acquisitions within the meaning of the first subparagraph to any of the following conditions:

                           (i)

                           that the nominal value or, in the absence thereof, the accountable par of the acquired shares, including shares previously acquired by the company and held by it, and shares acquired by a person acting in his own name but on the company's behalf, may not exceed a limit to be determined by Member States. This limit may not be lower than 10 % of the subscribed capital;

                           (ii)

                           that the power of the company to acquire its own shares within the meaning of the first subparagraph, the maximum number of shares to be acquired, the duration of the period for which the power is given and the maximum or minimum consideration are laid down in the statutes or in the instrument of incorporation of the company;

                           (iii)

                           that the company complies with appropriate reporting and notification requirements;

                           (iv)

                           that certain companies, as determined by Member States, may be required to cancel the acquired shares provided that an amount equal to the nominal value of the shares cancelled must be included in a reserve which cannot be distributed to the shareholders, except in the event of a reduction in the subscribed capital. This reserve may be used only for the purposes of increasing the subscribed capital by the capitalisation of reserves;

                           (v)

                           that the acquisition shall not prejudice the satisfaction of creditors' claims.

               5.

               in Article 20(3), the words ‘Article 15(1)(a)’ shall be replaced by the words ‘points (a) and (b) of Article 15(1)’;

               6.

               Article 23(1) shall be replaced by the following:
               ‘1.   Where Member States permit a company to, either directly or indirectly, advance funds or make loans or provide security, with a view to the acquisition of its shares by a third party, they shall make such transactions subject to the conditions set out in the second, third, fourth and fifth subparagraphs.
               The transactions shall take place under the responsibility of the administrative or management body at fair market conditions, especially with regard to interest received by the company and with regard to security provided to the company for the loans and advances referred to in the first subparagraph. The credit standing of the third party or, in the case of multiparty transactions, of each counterparty thereto shall have been duly investigated.
               The transactions shall be submitted by the administrative or management body to the general meeting for prior approval, whereby the general meeting shall act in accordance with the rules for a quorum and a majority laid down in Article 40. The administrative or management body shall present a written report to the general meeting, indicating the reasons for the transaction, the interest of the company in entering into such a transaction, the conditions on which the transaction is entered into, the risks involved in the transaction for the liquidity and solvency of the company and the price at which the third party is to acquire the shares. This report shall be submitted to the register for publication in accordance with Article 3 of Directive 68/151/EEC.
               The aggregate financial assistance granted to third parties shall at no time result in the reduction of the net assets below the amount specified in points (a) and (b) of Article 15(1), taking into account also any reduction of the net assets that may have occurred through the acquisition, by the company or on behalf of the company, of its own shares in accordance with Article 19(1). The company shall include, among the liabilities in the balance sheet, a reserve, unavailable for distribution, of the amount of the aggregate financial assistance.
               Where a third party by means of financial assistance from a company acquires that company's own shares within the meaning of Article 19(1) or subscribes for shares issued in the course of an increase in the subscribed capital, such acquisition or subscription shall be made at a fair price.’;

               7.

               the following Article shall be inserted:
               ‘Article 23a
               In cases where individual members of the administrative or management body of the company being party to a transaction referred to in Article 23(1), or of the administrative or management body of a parent undertaking within the meaning of Article 1 of Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts (11) or such parent undertaking itself, or individuals acting in their own name, but on behalf of the members of such bodies or on behalf of such undertaking, are counterparties to such a transaction, Member States shall ensure through adequate safeguards that such transaction does not conflict with the company's best interests.

               8.

               in Article 27(2), the second subparagraph shall be replaced by the following:
               ‘Article 10(2) and (3) and Articles 10a and 10b shall apply.’;

               9.

               Article 32(1) shall be replaced by the following:
               ‘1.   In the event of a reduction in the subscribed capital, at least the creditors whose claims antedate the publication of the decision on the reduction shall at least have the right to obtain security for claims which have not fallen due by the date of that publication. Member States may not set aside such a right unless the creditor has adequate safeguards, or unless such safeguards are not necessary having regard to the assets of the company.
               Member States shall lay down the conditions for the exercise of the right provided for in the first subparagraph. In any event, Member States shall ensure that the creditors are authorised to apply to the appropriate administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the reduction in the subscribed capital the satisfaction of their claims is at stake, and that no adequate safeguards have been obtained from the company.’;

               10.

               Article 41(1) shall be replaced by the following:
               ‘1.   Member States may derogate from Article 9(1), the first sentence of point (a) of Article 19(1), and Articles 25, 26 and 29 to the extent that such derogations are necessary for the adoption or application of provisions designed to encourage the participation of employees, or other groups of persons defined by national law, in the capital of undertakings.’.
         Article 2
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 15 April 2008.
   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.
   2.   Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 3
   This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.
   Article 4
   This Directive is addressed to the Member States.

      Done at Strasbourg, 6 September 2006.

            For the European Parliament

            The President

         J. BORRELL FONTELLES

            For the Council

            The President

         P. LEHTOMÄKI

      (1)  OJ C 294, 25.11.2005, p. 1.

      (2)  Opinion of the European Parliament of 14 March 2006 (not yet published in the Official Journal) and Council Decision of 24 July 2006.

      (3)  OJ L 26, 31.1.1977, p. 1. Directive as last amended by the 2003 Act of Accession.

      (4)  OJ L 96, 12.4.2003, p. 16.

      (5)  OJ L 336, 23.12.2003, p. 33.

      (6)  OJ L 162, 30.4.2004, p. 70.

      (7)  OJ C 321, 31.12.2003, p. 1.

      (8)  OJ L 145, 30.4.2004, p. 1. Directive as last amended by Directive 2006/31/EC (OJ L 114, 27.4.2006, p. 60).

      (9)  OJ L 157, 9.6.2006, p. 87.’;

      (10)  OJ L 96, 12.4.2003, p. 16.’;

      (11)  OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive 2006/43/EC.’;


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Commission Directive 88/411/EEC of 21 June 1988 adapting to technical progress Council Directive 75/321/EEC on the approximation of the laws of the Member States relating to the steering equipment of wheeled agricultural or forestry tractors

Official Journal L 200 , 26/07/1988 P. 0030 - 0030 Finnish special edition: Chapter 13 Volume 17 P. 0104  Swedish special edition: Chapter 13 Volume 17 P. 0104

*****COMMISSION  DIRECTIVE  of 21 June 1988  adapting to technical progress Council Directive 75/321/EEC on the approximation of the laws of the Member States relating to the steering equipment of wheeled agricultural or forestry tractors  (88/411/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 74/150/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors (1), as last amended by Directive 88/297/EEC (2), and in particular Article 11 thereof,  Whereas, in view of the experience acquired and taking account of the current state of the art, it is now possible to make certain provisions of Council Directive 75/321/EEC (3), as amended by Directive 82/890/EEC (4), more precise and complete;  Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee on the Adaptation to Technical Progress of the Directive aimed at the removal of technical barriers to trade in the agricultural or forestry tractor sector,  HAS ADOPTED THIS DIRECTIVE:  Article 1  The Annex to Directive 75/321/EEC is hereby amended as follows:  - In point 2.2.1.2 after 'In the case of assisted steering equipment', 'that is not connected to other equipment' is added.  - The penultimate sentence of the first paragraph of point 2.2.4.1.1, i.e. 'The steering and braking systems must not have a common source of energy', is replaced by the following: 'Without prejudice to the provisions of Directive 76/432/EEC regarding braking, if there is a hydraulic connection between the hydraulic steering equipment and the hydraulic braking equipment, and if both are supplied from the same energy source, the force required to activate the steering equipment shall not exceed 40 daN if either of the systems should fail'.  Article 2  1. From 1 October 1988 no Member State may:  - refuse, in respect of a type of tractor, to grant EEC type-approval, to issue the document referred to in Article 10 (1), final indent, of Directive 74/150/EEC, or to grant national type approval, or  - prohibit the entry into service of tractors;  if the steering equipment of this type of tractor or tractors complies with the provisions of this Directive.  2. From 1 October 1989 Member States:  - shall no longer issue the document referred to in Article 10 (1), final indent of Directive 74/150/EEC for a type of tractor the steering equipment of which does not comply with the provisions of this Directive;  - may refuse to grant national type approval for a type of tractor, the steering equipment of which does not comply with the provisions of this Directive.  Article 3  Member States shall bring into force the provisions necessary in order to comply with this Directive not later than 30 September 1988. They shall forthwith inform the Commission thereof.  Article 4  This Directive is addressed to the Member States.  Done at Brussels, 21 June 1988.  For the Commission  COCKFIELD  Vice-President  (1) OJ No L 84, 28. 3. 1974, p. 10.  (2) OJ No L 126, 20. 5. 1988, p. 52.  (3) OJ No L 147, 9. 6. 1975, p. 24.  (4) OJ No L 378, 31. 12. 1982, p. 45.