Avis juridique important

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32001L0108

Directive 2001/108/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), with regard to investments of UCITS

Official Journal L 041 , 13/02/2002 P. 0035 - 0042

Directive 2001/108/EC of the European Parliament and of the Councilof 21 January 2002amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), with regard to investments of UCITSTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 47(2) 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 251 of the Treaty(3),Whereas:(1) The scope of Council Directive 85/611/EEC(4) was confined initially to collective investment undertakings of the open-ended type which promote the sale of their units to the public in the Community and the sole object of which is investment in transferable securities (UCITS). It was envisaged in the preamble to Directive 85/611/EEC that collective investment undertakings falling outside its scope would be the subject of coordination at a later stage.(2) Taking into account market developments, it is desirable that the investment objective of UCITS be widened in order to permit them to invest in financial instruments, other than transferable securities, which are sufficiently liquid. The financial instruments which are eligible to be investment assets of the portfolio of the UCITS are listed in this Directive. The selection of investments for a portfolio by means of an index is a management technique.(3) The definition of transferable securities included in this Directive is valid only for this Directive and in no way affects the various definitions used in national legislation for other purposes such as taxation. Consequently, shares and other securities equivalent to shares issued by bodies such as building societies and industrial and provident societies, the ownership of which cannot in practice be transferred except by the issuing body buying them back, are not covered by this definition.(4) Money market instruments cover those transferable instruments which are normally not traded on regulated markets but dealt in on the money market, for example treasury and local authority bills, certificates of deposit, commercial paper, medium-term notes and bankers' acceptances.(5) It is useful to ensure that the concept of regulated market in this Directive corresponds to that in Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field(5).(6) It is desirable to permit a UCITS to invest its assets in units of UCITS and/or other collective investment undertakings of the open-ended type which also invest in liquid financial assets mentioned in this Directive and which operate on the principle of risk spreading. It is necessary that UCITS or other collective investment undertakings in which a UCITS invests be subject to effective supervision.(7) The development of opportunities for a UCITS to invest in UCITS and in other collective investment undertakings should be facilitated. It is therefore essential to ensure that such investment activity does not diminish investor protection. Owing to the enhanced possibilities for UCITS to invest in the units of other UCITS and/or collective investment undertakings, it is necessary to lay down certain rules on quantitative limits, the disclosure of information and prevention of the cascade phenomenon.(8) To take market developments into account and in consideration of the completion of economic and monetary union it is desirable to permit UCITS to invest in bank deposits. To ensure adequate liquidity of investments in deposits, these deposits are to be repayable on demand or have the right to be withdrawn. If the deposits are made with a credit institution the registered office of which is located in a non-Member State, the credit institution should be subject to prudential rules equivalent to those laid down in Community legislation.(9) In addition to the case in which a UCITS invests in bank deposits according to its fund rules or instruments of incorporation, it may be necessary to allow all UCITS to hold ancillary liquid assets, such as bank deposits at sight. The holding of such ancillary liquid assets may be justified, for example, in the following cases: in order to cover current or exceptional payments; in the case of sales, for the time necessary to reinvest in transferable securities, money market instruments and/or in other financial assets provided for in this Directive; for a period of time strictly necessary when, because of unfavourable market conditions, the investment in transferable securities, money market instruments and in other financial assets must be suspended.(10) For prudential reasons it is necessary to avoid excessive concentration by a UCITS in investments which expose them to counterparty risk to the same entity or to entities belonging to the same group.(11) UCITS should be explicitly permitted, as part of their general investment policy and/or for hedging purposes in order to reach a set financial target or the risk profile indicated in the prospectus, to invest in financial derivative instruments. In order to ensure investor protection, it is necessary to limit the maximum potential exposure relating to derivative instruments so that it does not exceed the total net value of the UCITS's portfolio. In order to ensure constant awareness of the risks and commitments arising from derivative transactions and to check compliance with investment limits, these risks and commitments will have to be measured and monitored on an ongoing basis. Finally, in order to ensure investor protection through disclosure, UCITS should describe their strategies, techniques and investment limits governing their derivative operations.(12) With regard to over-the-counter (OTC) derivatives, additional requirements should be set in terms of the eligibility of counterparties and instruments, liquidity and ongoing assessment of the position. The purpose of such additional requirements is to ensure an adequate level of investor protection, close to that which they obtain when they acquire derivatives dealt in on regulated markets.(13) Operations in derivatives may never be used to circumvent the principles and rules set out in this Directive. With regard to OTC derivatives, additional risk-spreading rules should apply to exposures to a single counterparty or group of counterparties.(14) Some portfolio management techniques for collective investment undertakings investing primarily in shares and/or debt securities are based on the replication of stock indices and/or debt-security indices. It is desirable to permit UCITS to replicate well-known and recognised stock indices and/or debt-security indices. It may therefore be necessary to introduce more flexible risk-spreading rules for UCITS investing in shares and/or debt securities to this end.(15) Collective investment undertakings falling within the scope of this Directive should not be used for purposes other than the collective investment of the money raised from the public according to the rules laid down in this Directive. In the cases identified by this Directive a UCITS may have subsidiaries only when necessary to carry out effectively on behalf of that UCITS certain activities, also defined in this Directive. It is necessary to ensure an effective supervision of UCITS. Therefore the establishment of a subsidiary of a UCITS in a third country should be permitted only in the cases and under the conditions identified in the Directive. The general obligation to act solely in the interests of unit-holders and, in particular, the objective of increasing cost efficiencies, never justify a UCITS undertaking measures which may hinder the competent authorities from exercising effectively their supervisory functions.(16) There is a need to ensure the free cross-border marketing of the units of a wider range of collective investment undertakings, while providing a uniform minimum level of investor protection. Therefore, only a binding Community Directive laying down agreed minimum standards can achieve the desired objectives. This Directive effects only the minimum harmonisation required and does not go beyond what is necessary in order to achieve the objectives pursued in accordance with the third paragraph of Article 5 of the Treaty.(17) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(6).(18) The Commission may consider proposing codification in due course after the adoption of the proposals,HAVE ADOPTED THIS DIRECTIVE:Article 1Directive 85/611/EEC is hereby amended as follows:1. in Article 1(2), the first indent shall be replaced by the following: "- the sole object of which is the collective investment in transferable securities and/or in other liquid financial assets referred to in Article 19(1) of capital raised from the public and which operates on the principle of risk-spreading and";2. in Article 1 the following paragraphs shall be added: "8. For the purposes of this Directive, 'transferable securities' shall mean:- shares in companies and other securities equivalent to shares in companies ('shares'),- bonds and other forms of securitised debt ('debt securities'),- any other negotiable securities which carry the right to acquire any such transferable securities by subscription or exchange,excluding the techniques and instruments referred to in Article 21.9. For the purposes of this Directive 'money market instruments' shall mean instruments normally dealt in on the money market which are liquid, and have a value which can be accurately determined at any time.";3. Article 19(1)(a) shall be replaced by the following: "(a) transferable securities and money market instruments admitted to or dealt in on a regulated market within the meaning of Article 1(13) of the ISD, and/or";4. in Article 19(1)(b) and (c), the words "and money market instruments" shall be added after the words "transferable securities";5. in Article 19(1):- the terms "and/or" shall be added to the end of point (d),- the following points shall be added: "(e) units of UCITS authorised according to this Directive and/or other collective investment undertakings within the meaning of the first and second indent of Article 1(2), should they be situated in a Member State or not, provided that:- such other collective investment undertakings are authorised under laws which provide that they are subject to supervision considered by the UCITS' competent authorities to be equivalent to that laid down in Community law, and that cooperation between authorities is sufficiently ensured,- the level of protection for unit-holders in the other collective investment undertakings is equivalent to that provided for unit-holders in a UCITS, and in particular that the rules on assets segregation, borrowing, lending, and uncovered sales of transferable securities and money market instruments are equivalent to the requirements of this Directive,- the business of the other collective investment undertakings is reported in half-yearly and annual reports to enable an assessment to be made of the assets and liabilities, income and operations over the reporting period,- no more than 10 % of the UCITS' or the other collective investment undertakings' assets, whose acquisition is contemplated, can, according to their fund rules or instruments of incorporation, be invested in aggregate in units of other UCITS or other collective investment undertakings, and/or(f) deposits with credit institutions which are repayable on demand or have the right to be withdrawn, and maturing in no more than 12 months, provided that the credit institution has its registered office in a Member State or, if the registered office of the credit institution is situated in a non-Member State, provided that it is subject to prudential rules considered by the UCITS' competent authorities as equivalent to those laid down in Community law, and/or(g) financial derivative instruments, including equivalent cash-settled instruments, dealt in on a regulated market referred to in subparagraphs (a), (b) and (c); and/or financial derivative instruments dealt in over-the-counter ('OTC derivatives'), provided that:- the underlying consists of instruments covered by this paragraph, financial indices, interest rates, foreign exchange rates or currencies, in which the UCITS may invest according to its investment objectives as stated in the UCITS' fund rules or instruments of incorporation,- the counterparties to OTC derivative transactions are institutions subject to prudential supervision, and belonging to the categories approved by the UCITS' competent authorities, and- the OTC derivatives are subject to reliable and verifiable valuation on a daily basis and can be sold, liquidated or closed by an offsetting transaction at any time at their fair value at the UCITS' initiative, and/or(h) money market instruments other than those dealt in on a regulated market, which fall under Article 1(9), if the issue or issuer of such instruments is itself regulated for the purpose of protecting investors and savings, and provided that they are:- issued or guaranteed by a central, regional or local authority or central bank of a Member State, the European Central Bank, the European Union or the European Investment Bank, a non-Member State or, in the case of a Federal State, by one of the members making up the federation, or by a public international body to which one or more Member States belong, or- issued by an undertaking any securities of which are dealt in on regulated markets referred to in subparagraphs (a), (b) or (c), or- issued or guaranteed by an establishment subject to prudential supervision, in accordance with criteria defined by Community law, or by an establishment which is subject to and complies with prudential rules considered by the competent authorities to be at least as stringent as those laid down by Community law; or- issued by other bodies belonging to the categories approved by the UCITS' competent authorities provided that investments in such instruments are subject to investor protection equivalent to that laid down in the first, the second or the third indent and provided that the issuer is a company whose capital and reserves amount to at least EUR 10 million and which presents and publishes its annual accounts in accordance with Directive 78/660/EEC(7), is an entity which, within a group of companies which includes one or several listed companies, is dedicated to the financing of the group or is an entity which is dedicated to the financing of securitisation vehicles which benefit from a banking liquidity line.";6. in Article 19(2)(a), the words "and money market instruments" shall be added after the words "transferable securities";7. Article 19(2)(b) and (3) shall be deleted;8. Article 20 shall be deleted;9. Article 21 shall be replaced by the following: "Article 211. The management or investment company must employ a risk-management process which enables it to monitor and measure at any time the risk of the positions and their contribution to the overall risk profile of the portfolio; it must employ a process for accurate and independent assessment of the value of OTC derivative instruments. It must communicate to the competent authorities regularly and in accordance with the detailed rules they shall define, the types of derivative instruments, the underlying risks, the quantitative limits and the methods which are chosen in order to estimate the risks associated with transactions in derivative instruments regarding each managed UCITS.2. The Member States may authorise UCITS to employ techniques and instruments relating to transferable securities and money market instruments under the conditions and within the limits which they lay down provided that such techniques and instruments are used for the purpose of efficient portfolio management. When these operations concern the use of derivative instruments, these conditions and limits shall conform to the provisions laid down in this Directive.Under no circumstances shall these operations cause the UCITS to diverge from its investment objectives as laid down in the UCITS' fund rules, instruments of incorporation or prospectus.3. A UCITS shall ensure that its global exposure relating to derivative instruments does not exceed the total net value of its portfolio.The exposure is calculated taking into account the current value of the underlying assets, the counterparty risk, future market movements and the time available to liquidate the positions. This shall also apply to the following subparagraphs.A UCITS may invest, as a part of its investment policy and within the limit laid down in Article 22(5), in financial derivative instruments provided that the exposure to the underlying assets does not exceed in aggregate the investment limits laid down in Article 22. The Member States may allow that, when a UCITS invests in index-based financial derivative instruments, these investments do not have to be combined to the limits laid down in Article 22.When a transferable security or money market instrument embeds a derivative, the latter must be taken into account when complying with the requirements of this Article.4. The Member States shall send the Commission full information and any subsequent changes in their regulation concerning the methods used to calculate the risk exposures mentioned in paragraph 3, including the risk exposure to a counterparty in OTC derivative transactions, no later than 13 February 2004. The Commission shall forward that information to the other Member States. Such information will be the subject of exchanges of views within the Contact Committee in accordance with the procedure laid down in Article 53(4).";10. Article 22 shall be replaced by the following: "Article 221. A UCITS may invest no more than 5 % of its assets in transferable securities or money market instruments issued by the same body. A UCITS may not invest more than 20 % of its assets in deposits made with the same body.The risk exposure to a counterparty of the UCITS in an OTC derivative transaction may not exceed:- 10 % of its assets when the counterpart is a credit institution referred to in Article 19(1)(f), or- 5 % of its assets, in other cases.2. Member States may raise the 5 % limit laid down in the first sentence of paragraph 1 to a maximum of 10 %. However, the total value of the transferable securities and the money market instruments held by the UCITS in the issuing bodies in each of which it invests more than 5 % of its assets must not then exceed 40 % of the value of its assets. This limitation does not apply to deposits and OTC derivative transactions made with financial institutions subject to prudential supervision.Notwithstanding the individual limits laid down in paragraph 1, a UCITS may not combine:- investments in transferable securities or money market instruments issued by,- deposits made with, and/or- exposures arising from OTC derivative transactions undertaken witha single body in excess of 20 % of its assets.3. The Member States may raise the 5 % limit laid down in the first sentence of paragraph 1 to a maximum of 35 % if the transferable securities or money market instruments are issued or guaranteed by a Member State, by its local authorities, by a non-member State or by public international bodies to which one or more Member States belong.4. Member States may raise the 5 % limit laid down in the first sentence of paragraph 1 to a maximum of 25 % in the case of certain bonds when these are issued by a credit institution which has its registered office in a Member State and is subject by law to special public supervision designed to protect bond-holders. In particular, sums deriving from the issue of these bonds must be invested in conformity with the law in assets which, during the whole period of validity of the bonds, are capable of covering claims attaching to the bonds and which, in the event of failure of the issuer, would be used on a priority basis for the reimbursement of the principal and payment of the accrued interest.When a UCITS invests more than 5 % of its assets in the bonds referred to in the first subparagraph and issued by one issuer, the total value of these investments may not exceed 80 % of the value of the assets of the UCITS.The Member States shall send the Commission a list of the aforementioned categories of bonds together with the categories of issuers authorised, in accordance with the laws and supervisory arrangements mentioned in the first subparagraph, to issue bonds complying with the criteria set out above. A notice specifying the status of the guarantees offered shall be attached to these lists. The Commission shall immediately forward that information to the other Member States together with any comments which it considers appropriate, and shall make the information available to the public. Such communications may be the subject of exchanges of views within the Contact Committee in accordance with the procedure laid down in Article 53(4).5. The transferable securities and money market instruments referred to in paragraphs 3 and 4 shall not be taken into account for the purpose of applying the limit of 40 % referred to in paragraph 2.The limits provided for in paragraphs 1, 2, 3 and 4 may not be combined, and thus investments in transferable securities or money market instruments issued by the same body or in deposits or derivative instruments made with this body carried out in accordance with paragraphs 1, 2, 3 and 4 shall under no circumstances exceed in total 35 % of the assets of the UCITS.Companies which are included in the same group for the purposes of consolidated accounts, as defined in accordance with Directive 83/349/EEC(8) or in accordance with recognised international accounting rules, are regarded as a single body for the purpose of calculating the limits contained in this Article.Member States may allow cumulative investment in transferable securities and money market instruments within the same group up to a limit of 20 %.";11. the following Article shall be inserted: "Article 22a1. Without prejudice to the limits laid down in Article 25, the Member States may raise the limits laid down in Article 22 to a maximum of 20 % for investment in shares and/or debt securities issued by the same body when, according to the fund rules or instruments of incorporation, the aim of the UCITS' investment policy is to replicate the composition of a certain stock or debt securities index which is recognised by the competent authorities, on the following basis:- its composition is sufficiently diversified,- the index represents an adequate benchmark for the market to which it refers,- it is published in an appropriate manner.2. Member States may raise the limit laid down in paragraph 1 to a maximum of 35 % where that proves to be justified by exceptional market conditions in particular in regulated markets where certain transferable securities or money market instruments are highly dominant. The investment up to this limit is only permitted for a single issuer.";12. in Article 23(1), the words "and money market instruments" shall be added after the words "transferable securities";13. Article 24 shall be replaced by the following: "Article 241. A UCITS may acquire the units of UCITS and/or other collective investment undertakings referred to in Article 19(1)(e), provided that no more than 10 % of its assets are invested in units of a single UCITS or other collective investment undertaking. The Member States may raise the limit to a maximum of 20 %.2. Investments made in units of collective investment undertakings other than UCITS may not exceed, in aggregate, 30 % of the assets of the UCITS.The Member States may allow that, when a UCITS has acquired units of UCITS and/or other collective investment undertakings, the assets of the respective UCITS or other collective investment undertakings do not have to be combined for the purposes of the limits laid down in Article 22.3. When a UCITS invests in the units of other UCITS and/or other collective investment undertakings that are managed, directly or by delegation, by the same management company or by any other company with which the management company is linked by common management or control, or by a substantial direct or indirect holding, that management company or other company may not charge subscription or redemption fees on account of the UCITS's investment in the units of such other UCITS and/or collective investment undertakings.A UCITS that invests a substantial proportion of its assets in other UCITS and/or collective investment undertakings shall disclose in its prospectus the maximum level of the management fees that may be charged both to the UCITS itself and to the other UCITS and/or collective investment undertakings in which it intends to invest. In its annual report it shall indicate the maximum proportion of management fees charged both to the UCITS itself and to the UCITS and/or other collective investment undertaking in which it invests.";14. the following Article shall be inserted: "Article 24a1. The prospectus shall indicate in which categories of assets a UCITS is authorised to invest. It shall mention if transactions in financial derivative instruments are authorised; in this event, it must include a prominent statement indicating if these operations may be carried out for the purpose of hedging or with the aim of meeting investment goals, and the possible outcome of the use of financial derivative instruments on the risk profile.2. When a UCITS invests principally in any category of assets defined in Article 19 other than transferable securities and money market instruments or replicates a stock or debt securities index in accordance with Article 22a, its prospectus and, where necessary, any other promotional literature must include a prominent statement drawing attention to the investment policy.3. When the net asset value of a UCITS is likely to have a high volatility due to its portfolio composition or the portfolio management techniques that may be used, its prospectus and, where necessary, any other promotional literature must include a prominent statement drawing attention to this characteristic.4. Upon request of an investor, the management company must also provide supplementary information relating to the quantitative limits that apply in the risk management of the UCITS, to the methods chosen to this end and to the recent evolution of the main instrument categories' risks and yields.";15. in Article 25(2):1. the third indent shall be replaced by the following: "- 25 % of the units of any single UCITS and/or other collective investment undertaking within the meaning of the first and second indent of Article 1(2),";2. the following indent shall be added: "- 10 % of the money market instruments of any single issuing body,";16. in Article 25(2), the second sentence shall be replaced by the following: "The limits laid down in the second, third and fourth indents may be disregarded at the time of acquisition if at that time the gross amount of the debt securities or of the money market instruments, or the net amount of the securities in issue, cannot be calculated.";17. in Article 25(3)(a), (b) and (c) the words "and money market instruments" shall be added after the words "transferable securities";18. Article 25(3)(e) shall be replaced by the following: "(e) shares held by an investment company or investment companies in the capital of subsidiary companies carrying on only the business of management, advice or marketing in the country where the subsidiary is located, in regard to the repurchase of units at unit-holders' request exclusively on its or their behalf.";19. Article 26(1) shall be replaced by the following: "1. UCITS need not comply with the limits laid down in this section when exercising subscription rights attaching to transferable securities or money market instruments which form part of their assets.While ensuring observance of the principle of risk spreading, the Member States may allow recently authorised UCITS to derogate from Articles 22, 22a, 23 and 24 for six months following the date of their authorisation.";20. Article 41(2) shall be replaced by the following: "2. Paragraph 1 shall not prevent such undertakings from acquiring transferable securities, money market instruments or other financial instruments referred to in Article 19(1)(e), (g) and (h) which are not fully paid.";21. Article 42 shall be replaced by the following: "Article 42Neither:- an investment company, nor- a management company or depositary acting on behalf of a unit trustmay carry out uncovered sales of transferable securities, money market instruments or other financial instruments referred to in Article 19(1)(e), (g) and (h).";22. after Article 53 the following Article shall be inserted: "Article 53a1. In addition to its functions provided for in Article 53(1), the Contact Committee may also meet as a Regulatory Committee within the meaning of Article 5 of Decision 1999/468/EC(9) to assist the Commission in regard to the technical modifications to be made to this Directive in the following areas:- clarification of the definitions in order to ensure uniform application of this Directive throughout the Community,- alignment of terminology and the framing of definitions in accordance with subsequent acts on UCITS and related matters.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 provided for in Article 5(6) of Decision 1999/468/EC shall be set at three months.3. The Committee shall adopt its rules of procedure."Article 21. No later than 13 February 2005, the Commission shall forward to the European Parliament and the Council a report on the application of Directive 85/611/EEC as amended and proposals for amendments, where appropriate. The report shall in particular:(a) analyse how to deepen and broaden the single market for UCITS, in particular with regard to cross-border marketing of UCITS (including third-party funds), the functioning of the passport for management companies, the functioning of the simplified prospectus as an information and marketing tool, the review of the scope of ancillary activities and the possibilities for improved collaboration of supervisory authorities with respect to common interpretation and application of the Directive;(b) review the scope of the Directive in terms of how it applies to different types of products (e.g. institutional funds, real-estate funds, master-feeder funds and hedge funds); the study should in particular focus on the size of the market for such funds, the regulation, where applicable, of these funds in the Member States and an evaluation of the need for further harmonisation of these funds;(c) evaluate the organisation of funds, including the delegation rules and practices and the relationship between fund manager and depositary;(d) review the investment rules for UCITS, for example the use of derivatives and other instruments and techniques relating to securities, the regulation of index funds, the regulation of money market instruments, deposits, the regulation of "fund of fund" investments, as well as the various investment limits;(e) analyse the competitive situation between funds managed by management companies and "self-managed" investment companies.In preparing its report, the Commission shall consult as widely as possible with the various industries concerned and with consumer groups and supervisory bodies.2. Member States may grant UCITS existing on the date of entry into force of this Directive a period of not more than 60 months from that date in order to comply with the new national legislation.Article 3No later than 13 August 2003 Member States shall adopt the laws, regulations and administrative provisions necessary for them to comply with this Directive. They shall forthwith inform the Commission thereof.They shall apply these measures no later than 13 February 2004.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 a reference shall be laid down by the Member States.Article 4This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.Article 5This Directive is addressed to the Member States.Done at Brussels, 21 January 2002.For the European ParliamentThe PresidentP. CoxFor the CouncilThe PresidentM. Arias Cañete(1) OJ C 280, 9.9.1998, p. 6 and OJ C 311 E, 31.10.2000, p. 302.(2) OJ C 116, 28.4.1999, p. 44.(3) Opinion of the European Parliament of 17 February 2000 (OJ C 339, 29.11.2000, p. 220), Council Common Position of 5 June 2001 (OJ C 297, 23.10.2001, p. 35) and Decision of the European Parliament of 23 October 2001. Council Decision of 4 December 2001.(4) OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 2000/64/EC of the European Parliament and of the Council (OJ L 290, 17.11.2000, p. 27).(5) OJ L 141, 11.6.1993, p. 27. Directive as last amended by Directive 2000/64/EC.(6) OJ L 184, 17.7.1999, p. 23.(7) Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ L 222, 14.8.1978, p. 11). Directive as last amended by Directive 1999/60/EC (OJ L 162, 26.6.1999, p. 65).(8) Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 54(3)(g) of the Treaty on consolidated accounts (OJ L 193, 18.7.1983, p. 1). Directive as last amended by the 1994 Act of Accession.(9) OJ L 184, 17.7.1999, p. 23.


Avis juridique important

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31990L0313

Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment

Official Journal L 158 , 23/06/1990 P. 0056 - 0058 Finnish special edition: Chapter 15 Volume 9 P. 0233  Swedish special edition: Chapter 15 Volume 9 P. 0233

*****COUNCIL  DIRECTIVE  of 7 June 1990  on the freedom of access to information on the environment  (90/313/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 130s thereof,  Having regard to the proposal from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Considering the principles and objectives defined by the action programmes of the European Communities on the environment of 1973 (4), 1977 (5) and 1983 (6), and more particularly the action programme of 1987 (7), which calls, in particular, for devising 'ways of improving public access to information held by environmental authorities';  Whereas the Council of the European Communities and the representatives of the Governments of the Member States, meeting within the Council, declared in their resolution of 19 October 1987 on the continuation and implementation of a European Community policy and action programme on the environment (1987 to 1992) (8) that it was important, in compliance with the respective responsibilities of the Community and the Member States, to concentrate Community action on certain priority areas, including better access to information on the environment;  Whereas the European Parliament stressed, in its opinion on the fourth action programme of the European Communities on the environment (9), that 'access to information for all must be made possible by a specific Community programme';  Whereas access to information on the environment held by public authorities will improve environmental protection;  Whereas the disparities between the laws in force in the Member States concerning access to information on the environment held by public authorities can create inequality within the Community as regards access to information and/or as regards conditions of competition;  Whereas it is necessary to guarantee to any natural or legal person throughout the Community free access to avaiblable information on the environment in written, visual, aural or data-base form held by public authorities, concerning the state of the environment, activities or measures adversely affecting, or likely so to affect the environment, and those designed to protect it;  Whereas, in certain specific and clearly defined cases, it may be justified to refuse a request for information relating to the environment;  Whereas a refusal by a public authority to forward the information requested must be justified;  Whereas it must be possible for the applicant to appeal against the public authority's decision;  Whereas access to information relating to the environment held by bodies with public responsibilities for the environment and under the control of public authorities should also be ensured;  Whereas, as part of an overall strategy to disseminate information on the environment, general information should actively be provided to the public on the state of the environment;  Whereas the operation of this Directive should be subject to a review in the light of the experience gained,  HAS ADOPTED THIS DIRECTIVE:  Article 1  The object of this Directive is to ensure freedom of access to, and dissemination of, information on the environment held by public authorities and to set out the basic terms and conditions on which such information should be made available.  Article 2  For the purposes of this Directive:  (a) 'information relating to the environment' shall mean any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including those which give rise to nuisances such as noise) or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental management programmes;  (b) 'public authorities' shall mean any public administration at national, regional or local level with responsibilities, and possessing information, relating to the environment with the exception of bodies acting in a judicial or legislative capacity.  Article 3  1. Save as provided in this Article, Member States shall ensure that public authorities are required to make available information relating to the environment to any natural or legal person at his request and without his having to prove an interest.  Member States shall define the practical arrangements under which such information is effectively made available.  2. Member States may provide for a request for such information to be refused where it affects:  - the confidentiality of the proceedings of public authorities, international relations and national defence,  - public security,  - matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings,  - commercial and industrial confidentiality, including intellectual property,  - the confidentiality of personal data and/or files,  - material supplied by a third party without that party being under a legal obligation to do so,  - material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.  Information held by public authorities shall be supplied in part where it is possible to separate out information on items concerning the interests referred to above.  3. A request for information may be refused where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.  4. A public authority shall respond to a person requesting information as soon as possible and at the latest within two months. The reasons for a refusal to provide the information requested must be given.  Article 4  A person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system.  Article 5  Member States may make a charge for supplying the information, but such charge may not exceed a reasonable cost.  Article 6  Member States shall take the necessary steps to ensure that information relating to the environment held by bodies with public responsibilities for the environment and under the control of public authorities is made available on the same terms and conditions as those set out in Articles 3, 4 and 5 either via the competent public authority or directly by the body itself.  Article 7  Member States shall take the necessary steps to provide general information to the public on the state of environment by such means as the periodic publication of descriptive reports.  Article 8  Four years after the date referred to in Article 9 (1), the Member States shall report to the Commission on the experience gained in the light of which the Commission shall make a report to the European Parliament and the Council together with any proposal for revision which it may consider appropriate. Article 9  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 1992 at the latest. They shall forthwith inform the Commission thereof.  2. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field governed by this Directive.  Article 10  This Directive is addressed to the Member States.  Done at Luxembourg, 7 June 1990.  For the Council  The President  P. FLYNN  (1) OJ No C 335, 30. 12. 1988, p. 5.  (2) OJ No C 120, 16. 5. 1989, p. 231.  (3) OJ No C 139, 5. 6. 1989, p. 47.  (4) OJ No C 112, 20. 12. 1973, p. 1.  (5) OJ No C 139, 13. 6. 1977, p. 1.  (6) OJ No C 46, 17. 2. 1983, p. 1.  (7) OJ No C 70, 18. 3. 1987, p. 3.  (8) OJ No C 289, 29. 10. 1987, p. 3.  (9) OJ No C 156, 15. 6. 1987, p. 138.


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31983L0182

Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another

Official Journal L 105 , 23/04/1983 P. 0059 - 0063 Finnish special edition: Chapter 9 Volume 1 P. 0112  Spanish special edition: Chapter 09 Volume 1 P. 0156  Swedish special edition: Chapter 9 Volume 1 P. 0112  Portuguese special edition Chapter 09 Volume 1 P. 0156

COUNCIL DIRECTIVE of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (83/182/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 99 thereof,  Having regard to the proposal from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas the freedom of movement of Community residents within the Community is hampered by the taxation arrangements applied to the temporary importation of certain means of transport for private or business use;  Whereas the elimination of the obstacles resulting from these taxation arrangements is particularly necessary if an economic market having features similar to those of a domestic market is to be established;  Whereas it must be possible in certain cases to establish definitely whether or not a person is in fact resident in a given Member State;  Whereas it appears desirable in a first stage to limit the scope of this Directive concerning certain means of transport to those acquired or imported in accordance with the general conditions of taxation in force on the domestic market of a Member State.  HAS ADOPTED THIS DIRECTIVE:    Article 1 Scope  1. Member States shall, under the conditions laid down below, exempt temporary imports from another Member State of motor-driven road vehicles (including their trailers), caravans, pleasure boats, private aircraft, bicycles, tricycles and saddle-horses from:    - turnover tax, excise duties and any other consumption tax,       - the taxes listed in the Annex hereto.         2. The exemption referred to in paragraph 1 shall also apply to the normal spare parts, accessories and equipment imported with these means of transport.  3. Commercial vehicles shall be excluded from the exemption referred to in paragraph 1.  4.    (a) The scope of this Directive shall not extend to the temporary importation of private vehicles, caravans, pleasure boats, private aircraft, bicycles and tricycles for private use which have not been acquired or imported in accordance with the general conditions of taxation in force on the domestic market of a Member State and/or which are subject by reason of their exportation to any exemption from or refund of turnover tax, excise duty or any other consumption tax.  For the purposes of this Directive, means of transport acquired under the conditions referred to in Article 15 (10) of Directive 77/388/EEC (4) shall be deemed to have satisfied the general conditions of taxation in force on the domestic market of a Member State ; however, Member States may deem means of transport acquired under the conditions referred to in the third indent of the said point 10 not to have satisfied these conditions.       (b) The Council, acting unanimously on a proposal from the Commission, shall, before 31 December 1985, adopt Community rules on the grant of exemption to the means of transport referred to in the first paragraph of (a) above, taking into account the need to avoid cases of double taxation and the need to ensure normal, full taxation of means of transport for private use.  (1) OJ No C 267, 21.11.1975, p. 8. (2) OJ No C 53, 8.3.1976, p. 37. (3) OJ No C 131, 12.6.1976, p. 50. (4) OJ No L 145, 13.6.1977, p. 1.           Article 2 Definitions  For the purpose of this Directive:    (a) "commercial vehicle" means any road vehicle which, by its design or equipment, is suitable for and intended for transporting, whether for payment or not:      - more than nine persons, including the driver,           - goods,             as well as any road vehicle for special use other than transport as such;       (b) "private vehicle" means any road vehicle, including its trailer, if any, other than those referred to in subparagraph (a);       (c) "business use" of a means of transport means the use thereof in the direct exercise of an activity carried out for consideration or financial gain;       (d) "private use" means any use other than business use.          Article 3 Temporary importation of certain means of transport for private use  Where a private vehicle, caravan, pleasure boat, private aircraft, tricycle or bicycle is imported temporarily, the item imported shall be exempt from the taxes specified in Article 1 for a period, continuous or otherwise, of not more than six months in any 12 months, provided that:    (a) the individual importing such goods:  (aa) has his normal residence in a Member State other than the Member State of temporary importation;       (bb) employs the means of transport in question for his private use;          (b) the said means of transport is not disposed of or hired out in the Member State of temporary importation or lent to a resident of that State. However, private vehicles belonging to a car-hire firm having its head office in the Community may be re-hired to non-residents with a view to being re-exported, if they are in the country as a result of a hire contract which ended in that country. They may also be returned by an employee of the car-hire firm to the Member State where they were originally hired, even if such employee is resident in the Member State of temporary importation.   Article 4 Temporary importation of private vehicles for business use  1. A private vehicle imported temporarily for business use shall be exempt from the taxes specified in Article 1, provided that:    (a) the individual importing the private vehicle:  (aa) has his normal residence in a Member State other than the Member State of temporary importation;       (bb) does not use the vehicle within the Member State of temporary importation in order to carry passengers for hire or material reward of any kind, or for the industrial and/or commercial transport of goods, whether for reward or not;   (b) the private vehicle is not disposed of, hired out or lent in the Member State of temporary importation;       (c) the private vehicle has been acquired or imported in accordance with the general conditions of taxation in force on the domestic market of the Member State of normal residence of the user and is not subject by reason of its exportation to any exemption from or refund of turnover tax, excise duty or any other consumption tax.  This condition shall be presumed to be satisfied if the private vehicle bears a standard registration plate of the Member State of registration, all types of temporary plate being excluded.         However, in the case of private vehicles registered in a Member State where the issue of standard registration plates is not conditional upon compliance with the general conditions of taxation in force on the domestic market, users shall be required to produce any appropriate evidence as proof of payment of consumption taxes.  2. The exemption provided for in paragraph 1 shall apply for a period, whether continuous or not, of:    - seven months in any 12, in the case of private vehicles imported by one of the commercial  intermediaries referred to in Article 3 of Directive 64/224/EEC (1),       - six months in any 12 in all other cases.          Article 5 Specific cases of temporary importation of private vehicles  1. Private vehicles imported temporarily shall be exempt from the taxes referred to in Article 1 in the following cases:    (a) where a private vehicle registered in the country of normal residence of the user is used regularly for the journey from his residence to his place of work in an undertaking in the territory of another Member State, and vice versa. Exemptions under this head shall not be subject to any time limit;       (b) where a student uses a private vehicle registered in the Member State of his normal residence in the territory of another Member State in which the student is residing for the sole purpose of pursuing his studies.         2. Grant of the exemptions provided for in paragraph 1 shall be subject to the sole condition that the provisions of Article 4 (1) (a), (b) and (c) are satisfied.   Article 6 Exemption for the temporary importation of saddle-horses on horse-riding excursions  Saddle-horses imported temporarily into a Member State shall be exempt for three months from the taxes specified in Article 1, provided that:    (a) the said horses enter the territory of the Member State of temporary importation for the purposes of and/or in the course of horse-riding excursions by their riders. Member States may exclude from this exemption the importation by their residents of horses carried on board means of transport;       (b) exemption is requested not later than the time of entry into the territory of the Member State of temporary importation. Where exemption is requested before temporary importation, the rider may be exempted from the requirement to enter the territory of the Member State of temporary importation via a frontier post;       (c) the said horses are not hired out, lent, or disposed of to a third party in the Member State of temporary importation, or used for purposes other than that of the excursion.          Article 7 General rules for determining residence  1. For the purposes of this Directive, "normal residence" means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties because of personal ties which show close links between that person and the place where he is living.  However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.  2. Individuals shall give proof of their place of normal residence by any appropriate means, such as their identity card or any other valid document.  3. Where the competent authorities of the Member State of importation have doubts as to the validity of a statement as to normal residence made in accordance with paragraph 2, or for the purpose of certain specific controls, they may request any additional information or evidence.   Article 8 Supplementary rules for determination of residence in the case of business use of a private vehicle  In exceptional cases where, despite the supply of the additional information referred to in Article 7 (3) to the competent authorities of the Member State of importation, serious doubts still remain, temporary importation of a private vehicle for business use may be made conditional upon payment of a security.  However, when the user of the vehicle produces evidence that he has his normal residence in another  (1) OJ No 56, 4.4.1964, p. 869/64.  Member State, the authorities of the Member State of temporary importation shall refund the security within two months following the date on which the evidence is produced.   Article 9 Special arrangements  1. Member States may maintain and/or introduce more liberal arrangements than those provided for in this Directive. In particular, they may, at the request of the importer, permit temporary importation for a period longer than those referred to in Articles 3 and 4 (2). In the latter event, Member States may levy the taxes mentioned in the Annex for periods exceeding those laid down by this Directive. Member States may also permit the private vehicles referred to in the second sentence of Article 3 (b) to be re-hired to a resident of the Member State of importation with a view to their re-exportation.  2. Member States may under no circumstances apply, in pursuance of this Directive, tax exemptions within the Community which are less favourable than those which they would grant in respect of means of transport originating in a third country.  3. The Kingdom of Denmark is authorized to maintain the rules applying in that country in connection with normal residence according to which any person, including a student, in respect of the case referred to in Article 5 (1) (b), is regarded as having his normal residence in Denmark if he lives there for a year or 365 days in a period of 24 months.  However, to avoid double taxation:    - where, as a result of the application of these rules, a person is considered to have two residences, the normal residence of that person is situated where his spouse and children live,       - in similar cases, the Kingdom of Denmark shall consult with the other Member State concerned to decide which of the two residences should be used for the purposes of taxation.         Before a period of three years has elapsed, the Council, on the basis of a report by the Commission, will re-examine the derogation covered by this paragraph and, if necessary, will adopt measures, on a proposal from the Commission based on Article 99 of the Treaty, to ensure the abolition of the derogation.  4. Member States shall inform the Commission of the arrangements referred to in paragraph 1 at the same time as they fulfil the obligations laid down in Article 10. The Commission shall subsequently communicate these arrangements to the other Member States.   Article 10 Final provisions  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 1984. They shall forthwith inform the Commission thereof.  2. Where the practical application of this Directive gives rise to difficulties, the competent authorities of the Member States concerned shall take the necessary decisions by mutual agreement, particularly in the light of the Conventions and Community Directives on mutual assistance.  3. Member States shall see to it that they communicate to the Commission the texts of the main subsequent provisions of national law which they adopt in the field governed by this Directive.  4. Every two years the Commission shall, after consulting the Member States, submit to the Council and the European Parliament a report on the application of this Directive in the Member States, with particular reference to the concept of "normal residence", and shall propose the necessary Community provisions to bring about the establishment of a uniform system in all the Member States.   Article 11 This Directive is addressed to the Member States.     Done at Brussels, 28 March 1983.  For the Council  The President  J. ERTL     ANNEX List of taxes referred to in the second indent of Article 1(1)  BELGIUM    - Taxe de circulation sur les véhicules automobiles (Arrêté royal du 23 novembre 1965 portant codification des dispositions légales relatives aux taxes assimilées aux impôts sur les revenus - Moniteur belge du 18 janvier 1966)       - Verkeersbelasting op de autovoertuigen (Koninklijk Besluit van 23 november 1965 houdende codificatie van de wettelijke bepalingen betreffende de met de inkomstenbelastingen gelijkgestelde belastingen - Belgisch Staatsblad van 18 januari 1966)         DENMARK     - Vægtafgift af motorkøretøjer (Bekendtgørelse Nr. 658 af 28. december 1977)  FEDERAL REPUBLIC OF GERMANY     - Kraftfahrzeugsteuer (Kraftfahrzeugsteuergesetz - 1979) Kraftfahrzeugsteuer (Durchführungsverordnung - 1979)  GREECE >PIC FILE= "T0023050">   FRANCE    - Taxe différentielle sur les véhicules à moteur (Loi n° 77-1467 du 30 décembre 1977)       - Taxe sur les véhicules d'une puissance fiscale supérieure à 16 CV immatriculés dans la catégorie des voitures particulières (Loi de finances 1979 - Article 1007 du code général des impôts         IRELAND     - Motor vehicle excise duties (Finance (Excise Duties) (Vehicles) Act 1952 as amended, and Section 94, Finance Act 1973 as amended)  ITALY     - Tassa sulla circolazione degli autoveicoli (TU delle leggi sulle tasse automobilistiche approvato con DPR n. 39 del 5 febbraio 1953 e successive modificazioni)  LUXEMBOURG     - Taxe sur les véhicules automoteurs Loi allemande du 23 mars 1935 (Kraftfahrzeugsteuergesetz) maintenue en vigueur par l'arrêté grand-ducal du 26 octobre 1944, modifiée par la loi du 4 août 1975 et les règlements grand-ducaux du 15 septembre 1975 et du 31 octobre 1975  NETHERLANDS     - Motorrijtuigenbelasting (wet op de motorrijtuigenbelasting 21 juli 1966, Stb 332 - wet van 18 december 1969/Stb 548)  UNITED KINGDOM     - Vehicle excise duty (Vehicles (Excise) Act 1971)


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31978L0176

Council Directive 78/176/EEC of 20 February 1978 on waste from the titanium dioxide industry

Official Journal L 054 , 25/02/1978 P. 0019 - 0024 Finnish special edition: Chapter 15 Volume 2 P. 0079  Greek special edition: Chapter 15 Volume 1 P. 0154  Swedish special edition: Chapter 15 Volume 2 P. 0079  Spanish special edition: Chapter 15 Volume 1 P. 0092  Portuguese special edition Chapter 15 Volume 1 P. 0092

COUNCIL DIRECTIVE  of 20 February 1978  on waste from the titanium dioxide industry  (78/176/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 100 and 235 thereof,  Having regard to the proposal from the Commission,  Having regard to the opinion of the European Parliament (1),  Having regard to the opinion of the Economic and Social Committee (2),  Whereas waste from the titanium dioxide industry is liable to be harmful to human health and the environment ; whereas it is therefore necessary to prevent and gradually reduce pollution caused by such waste with a view to eliminating it;  Whereas the 1973 (3) and 1977 (4) European Communities' Programmes of Action on the Environment refer to the need to undertake Community action against waste from the titanium dioxide industry;  Whereas any disparity between the provisions on waste from the titanium dioxide industry already applicable or in preparation in the various Member States may create unequal conditions of competition and thus directly affect the functioning of the common market ; whereas it is therefore necessary to approximate laws in this field, as provided for in Article 100 of the Treaty;  Whereas it seems necessary for this approximation of laws to be accompanied by Community action so that one of the aims of the Community in the sphere of protection of the environment and improvement of the quality of life can be achieved by more extensive rules ; whereas certain specific provisions to this effect should therefore be laid down ; whereas Article 235 of the Treaty should be invoked as the powers required for this purpose have not been provided for by the Treaty;  Whereas Directive 75/442/EEC (5), concerns waste disposal in general ; whereas for waste from the titanium dioxide industry it is advisable to lay down a special system which will ensure that human health and the environment are protected against the harmful effects caused by the uncontrolled discharge, dumping or tipping of such waste;  Whereas in order to attain these objectives there should be a system of prior authorization as regards the discharge, dumping, storage, tipping or injecting of waste ; whereas the issue of this authorization should be made subject to specific conditions;  Whereas discharge, dumping, storage, tipping and injecting of waste must be accompanied both by monitoring of the waste and monitoring and surveillance of the environment concerned;  Whereas for existing industrial establishments Member States must, by 1 July 1980, draw up programmes for the progressive reduction of pollution caused by such waste with a view to its elimination ; whereas these programmes must fix the general reduction targets to be attained by 1 July 1987 at the latest and indicate the measures to be taken for each establishment;  Whereas for new industrial establishments Member States must issue a prior authorization ; whereas such authorization must be preceded by an environmental impact study and may be granted only to firms which undertake to use only those materials, processes and techniques available on the market that are least damaging to the environment,  HAS ADOPTED THIS DIRECTIVE:    Article 1 1. The aim of this Directive is the prevention and progressive reduction, with a view to its elimination, of pollution caused by waste from the titanium dioxide industry.  (1)OJ No C 28, 9.2.1976, p. 16. (2)OJ No C 131, 12.6.1976, p. 18. (3)OJ No C 112, 20.12.1973, p. 3. (4)OJ No C 139, 13.6.1977, p. 3. (5)OJ No L 194, 25.7.1975, p. 39.    2. For the purpose of this Directive:    (a) "pollution" means the discharge by man, directly or indirectly, of any residue from the titanium dioxide manufacturing process into the environment, the results of which are such as to cause hazards to human health, harm to living resources and to ecosystems, damage to amenities or interference with other legitimate uses of the environment concerned;       (b) "waste" means:      - any residue from the titanium dioxide manufacturing process of which the holder disposes or is obliged to dispose under current national legislation;           - any residue from a treatment process of a residue referred to in the first indent;                  (c) "disposal" means:      - the collection, sorting, transport and treatment of waste as well as its storage and tipping above ground or underground and its injection into the ground;           - the discharge thereof into surface water, ground water and the sea, and dumping at sea;           - the transformation operations necessary for its re-use, recovery or recycling;                  (d) "existing industrial establishments" means those industrial establishments already set up on the date of notification of this Directive;       (e) "new industrial establishments" means those industrial establishments which are in the process of being set up on the date of entry into force of this Directive or which are set up after that date. Extensions to existing industrial establishments leading to an increase of 15 000 tonnes per year or more in the titanium dioxide on-site production capacity of the establishment concerned shall be treated as new industrial establishments.          Article 2 Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment, and in particular:    - without risk to water, air, soil and plants and animals;       - without deleteriously affecting beauty-spots or the countryside.          Article 3 Member States shall take appropriate measures to encourage the prevention, recycling and processing of waste, the extraction of raw materials and any other process for the re-use of waste.   Article 4 1. The discharge, dumping, storage, tipping and injection of waste are prohibited unless prior authorization is issued by the competent authority of the Member State in whose territory the waste is produced. Prior authorization must also be issued by the competent authority of the Member State    - in whose territory the waste is discharged, stored, tipped or injected;       - from whose territory it is discharged or dumped.         2. Authorization may be granted for a limited period only. It may be renewed.   Article 5 In the case of discharge or dumping, the competent authority may, in accordance with Article 2 and on the basis of the information supplied in accordance with Annex I, grant the authorization referred to in Article 4 provided that:    (a) the waste cannot be disposed of by more appropriate means;       (b) an assessment carried out in the light of available scientific and technical knowledge shows that there will be no deleterious effect, either immediate or delayed, on the aquatic environment;       (c) there is no deleterious effect on boating, fishing, leisure activities, the extraction of raw materials, desalination, fish and shellfish breeding, on regions of special scientific importance or on other legitimate uses of the waters in question.          Article 6 In the case of storage, tipping or injection, the competent authority may, in accordance with Article 2, and on the basis of the information supplied in accordance with Annex I, grant the authorization referred to in Article 4, provided that:    (a) the waste cannot be disposed of by more appropriate means;       (b) an assessment carried out in the light of available scientific and technical knowledge shows that there will be no detrimental effect, either immediate or delayed, on underground waters, the soil or the atmosphere;       (c) there is no deleterious effect on leisure activities, the extraction of raw materials, plants, animals, on regions of special scientific importance or on other legitimate uses of the environment in question.           Article 7 1. Irrespective of the method and extent of treatment of the waste in question, its discharge, dumping, storage, tipping and injection shall be accompanied by the monitoring referred to in Annex II of the waste and of the environment concerned having regard to its physical, chemical, biological and ecological aspects.  2. The monitoring operations shall be carried out periodically by one or more bodies appointed by the Member State the competent authority of which has issued the authorization provided for in Article 4. In the case of cross-frontier pollution between Member States, the body in question shall be appointed jointly by the parties concerned.  3. Within one year of notification of this Directive, the Commission shall submit to the Council a proposal on the procedures for the surveillance and monitoring of the environments concerned. The Council shall act on this proposal within six months of the publication of the opinion of the European Parliament and that of the Economic and Social Committee in the Official Journal of the European Communities.   Article 8 1. The competent authority in the Member State concerned shall take all appropriate steps to remedy one of the following situations and, if necessary, shall require the suspension of discharge, dumping, storage, tipping or injection operations:    (a) if the results of the monitoring provided for in Annex II (A) (1) show that the conditions for the prior authorization referred to in Articles 4, 5 and 6 have not been fulfilled, or       (b) if the results of the acute toxicity tests referred to in Annex II (A) (2) show that the limits laid down therein have been exceeded, or       (c) if the results of the monitoring provided for in Annex II (B) reveal a deterioration in the environment concerned in the area under consideration, or       (d) if discharge or dumping produces a deleterious effect on boating, fishing, leisure activities, the extraction of raw materials, desalination, fish and shellfish breeding, on regions of special scientific importance or on other legitimate uses of the waters in question, or       (e) if storage, tipping or injection produces a deleterious effect on leisure activities, the extraction of raw materials, plants, animals, on regions of special scientific importance or on other legitimate uses of the environments in question.         2. If several Member States are concerned, the measures shall be taken after consultation.   Article 9 1. Member States shall draw up programmes for the progressive reduction and eventual elimination of pollution caused by waste from existing industrial establishments.  2. The programmes mentioned in paragraph 1 shall set general targets for the reduction of pollution from liquid, solid and gaseous waste, to be achieved by 1 July 1987 at the latest. The programmes shall also contain intermediate objectives. They shall, moreover, contain information on the state of the environment concerned, on measures for reducing pollution and on methods for treating waste that is directly caused by the manufacturing processes.  3. The programmes referred to in paragraph 1 shall be sent to the Commission by 1 July 1980 at the latest so that it may, within a period of six months after receipt of all the national programmes, submit suitable proposals to the Council for the harmonization of these programmes in regard to the reduction and eventual elimination of pollution and the improvement of the conditions of competition in the titanium dioxide industry. The Council shall act on these proposals within six months of the publication of the opinion of the European Parliament and that of the Economic and Social Committee in the Official Journal of the European Communities.  4. Member States shall introduce a programme by 1 January 1982 at the latest.   Article 10 1. The programmes referred to in Article 9 (1) must cover all existing industrial establishments and must set out the measures to be taken in respect of each of them.  2. Where, in particular circumstances, a Member State considers that, in the case of an individual establishment, no additional measures are necessary to fulfil the requirements of this Directive, it shall, within six months of notification of this Directive, provide the Commission with the evidence which has led it to that conclusion.  3. After conducting any independent verification of the evidence that may be necessary, the Commission may agree with the Member State that it is not necessary to take additional measures in respect of the individual establishment concerned. The Commission must give its agreement, with reasons, within six months.   4. If the Commission does not agree with the Member State, additional measures in respect of that establishment shall be included in the programme of the Member State concerned.  5. If the Commission does agree, its agreement will be periodically reviewed in the light of the results of the monitoring carried out pursuant to this Directive and in the light of any significant change in the manufacturing processes or in environmental policy objectives.   Article 11 New industrial establishments shall be subject to applications for prior authorization made to the competent authorities of the Member State on whose territory it is proposed to build the establishments. Such authorizations must be preceded by environmental impact surveys. They may be granted only to firms which give an undertaking to use only such of the materials, processes and techniques available on the market as are least damaging to the environment.   Article 12 Without prejudice to this Directive, Member States may adopt more stringent regulations.   Article 13 1. For the purposes of this Directive, Member States shall supply the Commission with all the necessary information relating to:    - the authorizations issued pursuant to Articles 4, 5 and 6,       - the results of the monitoring of the environment concerned carried out pursuant to Article 7,       - the measures taken pursuant to Article 8.         They shall also supply the Commission with general information concerning the materials, processes and techniques notified to them pursuant to Article 11.  2. Information acquired as a result of the application of this Article may be used only for the purposes of this Directive.  3. The Commission and the competent authorities of the Member States, their officials and other servants shall not disclose information acquired by them pursuant to this Directive and of a kind covered by the obligation of professional secrecy.  4. Paragraphs 2 and 3 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.   Article 14 Every three years the Member States shall prepare a report on the prevention and progressive reduction of pollution caused by waste from the titanium dioxide industry and shall forward it to the Commission, which shall communicate it to the other Member States.  The Commission shall report every three years to the Council and the European Parliament on the application of this Directive.   Article 15 1. Member States shall bring into force the measures needed to comply with this Directive within 12 months, of its notification and shall forthwith inform the Commission thereof.  2. Member States shall communicate to the Commission the texts of the national laws which they adopt in the field covered by this Directive.   Article 16 This Directive is addressed to the Member States.     Done at Brussels, 20 February 1978.  For the Council  The President  Per HÆKKERUP     ANNEX I PARTICULARS WHICH MUST BE SUPPLIED IN ORDER TO OBTAIN THE PRIOR AUTHORIZATION REFERRED TO IN ARTICLES 4, 5 AND 6    A. Characteristics and composition of the matter:      1. total amount and average compositions of matter dumped (e.g. per year);           2. form (e.g. solid, sludge, liquid or gaseous);           3. properties : physical (e.g. solubility and density), chemical and biochemical (e.g. oxygen demand) and biological;           4. toxicity;           5. persistence : physical, chemical and biological;           6. accumulation and biotransformation in biological materials or sediments;           7. susceptibility to physical, chemical and biochemical changes and interaction in the environment concerned with other organic and inorganic materials;           8. probability of production of taints or other changes reducing marketability of resources (fish, shellfish, etc.).                  B. Characteristics of dumping or discharge site and methods of disposal:      1. location (e.g. coordinates of the dumping or discharge area, depth and distance from the coast), location in relation to other areas (e.g. amenity areas, spawning, nursery and fishing areas and exploitable resources);           2. rate of disposal per specific period (e.g. quantity per day, per week, per month);           3. methods of packaging and containment, if any;           4. initial dilution achieved by proposed method of release, particularly the speed of the ship;           5. dispersal characteristics (e.g. effects of currents, tides, and wind on horizontal transport and vertical mixing);           6. water characteristics (e.g. temperature, pH, salinity, stratification, oxygen indices of pollution - dissolved oxygen (DO), chemical oxygen demand (COD), biochemical oxygen demand (BOD), nitrogen present in organic and inorganic form, including ammonia, suspended matter, other nutrients and productivity);           7. bottom characteristics (e.g. topography, geochemical and geological characteristics and biological productivity);           8. existence and effects of other dumpings or discharges which have been made in the area concerned (e.g. heavy metal background reading and organic carbon content).                  C. Characteristics of the tipping, storage or injection area and disposal methods:      1. geographical situation;           2. characteristics of adjacent areas;           3. methods of packaging and containment, if any;           4. characteristics of the methods of tipping, storage and injection, including an assessment of precautions taken to avoid the pollution of waters, the soil and the atmosphere.                     ANNEX II SURVEILLANCE AND MONITORING OF DISPOSAL     A. Monitoring of waste  Disposal operations shall be accompanied by:      1. checks on the quantity, composition and toxicity of the waste to ensure that the conditions for prior authorization referred to in Articles 4, 5 and 6 are fulfilled;           2. tests for acute toxicity on certain species of molluscs, crustaceans, fish and plankton, preferably species commonly found in the discharge areas. In addition, tests shall be carried out on samples of the brine shrimp species (Artemia salina).  Over a period of 36 hours and at an effluent dilution of 1/5 000, these tests must not reveal:        - more than 20 % mortality for adult forms of the species tested,               - and for larval forms, mortality exceeding that of a control group.                                 B. Surveillance and monitoring of the environment concerned    I. In The case of discharge into fresh water or into the sea or in the case of dumping, such checks shall relate to the three following items : water column, living matter and sediments. Periodic checks on the state of the area affected by the discharges will make it possible to follow the development of the environments concerned.  Monitoring shall include the determination of:      1. pH;           2. dissolved oxygen;           3. turbidity;           4. hydrated iron oxides and hydroxides in suspension;           5. toxic metals in water, suspended solids, sediments and in accumulation in selected benthic and pelagic organisms;           6. the diversity and the relative and absolute abundance of flora and fauna.               II.  In the case of storage, tipping or injection the monitoring shall include:     1. tests to ensure that surface waters and ground waters are not contaminated. These tests shall include the measurement of:      - acidity,           - iron content (soluble and particulate),           - calcium content,           - toxic metal content (soluble and particulate) if any;                  2. where necessary, tests to determine any adverse effects on the structure of the subsoils;       3. a general assessment of the ecology of the area in the vicinity of the tipping, storage or injection point.