title: Council Directive (EU) 2015/2376 of 8 December 2015 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation

text:
               18.12.2015

               EN

               Official Journal of the European Union

               L 332/1

         COUNCIL DIRECTIVE (EU) 2015/2376
   of 8 December 2015
   amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 115 thereof,
   Having regard to the proposal from the European Commission,
   After transmission of the draft legislative act to the national parliaments,
   Having regard to the opinion of the European Parliament (1),
   Having regard to the opinion of the European Economic and Social Committee (2),
   Having regard to the opinion of the Committee of the Regions (3),
   Acting in accordance with a special legislative procedure,
   Whereas:

               (1)

               The challenge posed by cross-border tax avoidance, aggressive tax planning and harmful tax competition has increased considerably and has become a major focus of concern within the Union and at global level. Tax base erosion is considerably reducing national tax revenues, which hinders Member States in applying growth-friendly tax policies. The issuance of advance tax rulings, which facilitate the consistent and transparent application of the law, is common practice, including in the Union. By providing certainty for business, clarification of tax law for taxpayers can encourage investment and compliance with the law and can therefore be conducive to the objective of further developing the single market in the Union on the basis of the principles and freedoms underlying the Treaties. However, rulings concerning tax-driven structures have, in certain cases, led to a low level of taxation of artificially high amounts of income in the country issuing, amending or renewing the advance ruling and left artificially low amounts of income to be taxed in any other countries involved. An increase in transparency is therefore urgently required. The tools and mechanisms established by Council Directive 2011/16/EU (4) need to be enhanced in order to achieve this.

               (2)

               The European Council, in its conclusions of 18 December 2014, underlined the urgent need to advance efforts in the fight against tax avoidance and aggressive tax planning, both at global and Union levels. Stressing the importance of transparency, the European Council welcomed the Commission's intention to submit a proposal on the automatic exchange of information on tax rulings in the Union.

               (3)

               Directive 2011/16/EU provides for the mandatory spontaneous exchange of information between Member States in five specific cases and within certain deadlines. The spontaneous exchange of information in cases where the competent authority of one Member State has grounds for supposing that there may be a loss of tax in another Member State already applies to tax rulings that a Member State issues, amends or renews to a specific taxpayer regarding the interpretation or application of tax provisions in the future and that have a cross-border dimension.

               (4)

               However, the efficient spontaneous exchange of information in respect of advance cross-border rulings and advance pricing arrangements is hindered by several important practical difficulties such as the discretion permitted to the issuing Member State to decide which other Member States should be informed. Therefore the information exchanged should, where appropriate, be accessible to all other Member States.

               (5)

               The scope of the automatic exchange of advance cross-border rulings and advance pricing arrangements, issued, amended or renewed to a particular person or group of persons upon which that person or group of persons is entitled to rely, should cover any material form (irrespective of their binding or non-binding character and the way they are issued).

               (6)

               For the purposes of legal certainty, Directive 2011/16/EU should be amended by including an appropriate definition of an advance cross-border ruling and advance pricing arrangement. The scope of these definitions should be sufficiently broad to cover a wide range of situations, including but not limited to the following types of advance cross-border rulings and advance pricing arrangements:

                           —

                           unilateral advance pricing arrangements and/or decisions;

                           —

                           bilateral or multilateral advance pricing arrangements and decisions;

                           —

                           arrangements or decisions determining existence or absence of a permanent establishment;

                           —

                           arrangements or decisions determining existence or absence of facts with a potential impact on the tax base of a permanent establishment;

                           —

                           arrangements or decisions determining tax status of a hybrid entity in one Member State which relates to a resident of another jurisdiction;

                           —

                           as well as arrangements or decisions on assessment basis for depreciation of an asset in one Member State that is acquired from a group company in another jurisdiction.

               (7)

               Taxpayers are entitled to rely on advance cross-border rulings or advance pricing arrangements during, for example, taxation processes or tax audits under the condition that the facts on which the advance cross-border rulings or advance pricing arrangements are based have been accurately presented and that the taxpayers abide by the terms of the advance cross-border rulings or advance pricing arrangements.

               (8)

               Member States will exchange information irrespective of whether the taxpayer abides by the terms of the advance cross-border ruling or advance pricing arrangement.

               (9)

               The provision of information should not lead to the disclosure of a commercial, industrial or professional secret or of a commercial process, or disclosure of information which would be contrary to public policy.

               (10)

               In order to reap the benefits of the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements, the information should be communicated promptly after they are issued, amended or renewed, and regular intervals for the communication of the information should therefore be established. For the same reasons, it is also appropriate to provide for the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements that were issued, amended or renewed within a period beginning five years before the date of application of this Directive and which are still valid on 1 January 2014. However, particular persons or groups of persons with a group wide annual net turnover of less than EUR 40 000 000 could be excluded, under certain conditions, from such mandatory automatic exchange.

               (11)

               For reasons of legal certainty, it is appropriate, under a set of very strict conditions, to exclude from the mandatory automatic exchange bilateral or multilateral advance pricing arrangements with third countries following the framework of existing international treaties with those countries, where the provisions of those treaties do not permit disclosure of the information received under that treaty to a third party country. In these cases however, the information identified in paragraph 6 of Article 8a relating to the requests that lead to issuance of such bilateral or multilateral advance pricing arrangements should be exchanged instead. Therefore, in such cases, the information to be communicated should include the indicator that it is provided on the basis of such a request.

               (12)

               The mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements should in each case include the communication of a defined set of basic information that would be accessible to all Member States. The Commission should be empowered to adopt practical arrangements necessary to standardise the communication of such information under the procedure laid down in Directive 2011/16/EU (which involves the Committee on Administrative Cooperation for Taxation) for establishing a standard form to be used for the exchange of information. That procedure should also be used in the adoption of further practical arrangements for the implementation of the information exchange, such as the specification of linguistic requirements that would be applicable to the exchange of information using that standard form.

               (13)

               In developing such a standard form for the mandatory automatic exchange of information, it is appropriate to take account of work performed at the OECD's Forum on Harmful Tax Practices, where a standard form for information exchange is being developed, in the context of the Action Plan on Base Erosion and Profit Shifting. It is also appropriate to work closely with the OECD, in a coordinated manner and not only in the area of the development of such a standard form for mandatory automatic exchange of information. The ultimate aim should be a global level playing field, where the Union should take a leading role by promoting that the scope of information on advance cross-border rulings and advance pricing arrangements to be exchanged automatically should be rather broad.

               (14)

               Member States should exchange basic information, and a limited set of basic information should also be communicated to the Commission. This should enable the Commission to monitor and evaluate the effective application of the mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements at any time. The information received by the Commission should not, however, be used for any other purposes. Such communication would moreover not discharge a Member State from its obligations to notify any State aid to the Commission.

               (15)

               Feedback by the receiving Member State to the Member State sending the information is a necessary element of the operation of an effective system of automatic information exchange. It is therefore appropriate to underline that Member States' competent authorities should send, once a year, feedback on the automatic exchange of information to the other Member States concerned. In practice, this mandatory feedback should be done by arrangements agreed upon bilaterally.

               (16)

               Where necessary, following the stage of mandatory automatic exchange of information under this Directive, a Member State should be able to rely on Article 5 of Directive 2011/16/EU as regards the exchange of information on request to obtain additional information, including the full text of advance cross-border rulings or advance pricing arrangements, from the Member State having issued such rulings or arrangements.

               (17)

               It is appropriate to recall that Article 21(4) of Directive 2011/16/EU regulates the language and translation requirements applicable to requests for cooperation, including requests for notification, and attached documents. That rule should also be applicable in cases where Member States request additional information, following the stage of mandatory automatic exchange of basic information on advance cross-border rulings and advance pricing arrangements.

               (18)

               Member States should take all reasonable measures necessary to remove any obstacle that might hinder the effective and widest possible mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements.

               (19)

               In order to enhance the efficient use of resources, facilitate the exchange of information and avoid the need for Member States each to make similar developments to their systems to store information, specific provision should be made for the establishment of a central directory, accessible to all Member States and the Commission, to which Member States would upload and store information, instead of exchanging that information by secured email. The practical arrangements necessary for the establishment of such a directory should be adopted by the Commission in accordance with the procedure referred to in Article 26(2) of Directive 2011/16/EU.

               (20)

               Having regard to the nature and extent of the changes introduced by Council Directive 2014/107/EU (5) and this Directive, the timeframe for the submission of information, statistics and reports provided for under Directive 2011/16/EU should be extended. Such an extension should ensure that the information to be provided can reflect the experience resulting from those changes. The extension should apply both to the statistics and other information to be submitted by Member States before 1 January 2018 and to the report and, if appropriate, the proposal to be submitted by the Commission before 1 January 2019.

               (21)

               The existing provisions regarding confidentiality should be amended to reflect the extension of mandatory automatic exchange of information to advance cross-border rulings and advance pricing arrangements.

               (22)

               This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for the right to the protection of personal data and the freedom to conduct a business.

               (23)

               Since the objective of this Directive, namely the efficient administrative cooperation between Member States under conditions compatible with the proper functioning of the internal market, cannot be sufficiently achieved by the Member States but can rather, by reason of the uniformity and effectiveness required, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

               (24)

               Directive 2011/16/EU should therefore be amended accordingly,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Directive 2011/16/EU is amended as follows:

               (1)

               Article 3 is amended as follows:

                           (a)

                           Point 9 is replaced by the following:

                                       ‘9.

                                       “automatic exchange” means,

                                                   (a)

                                                   for the purposes of Article 8(1) and Article 8a, the systematic communication of predefined information to another Member State, without prior request, at pre-established regular intervals. For the purposes of Article 8(1), reference to available information relates to information in the tax files of the Member State communicating the information, which is retrievable in accordance with the procedures for gathering and processing information in that Member State;

                                                   (b)

                                                   for the purposes of Article 8(3a), the systematic communication of predefined information on residents in other Member States to the relevant Member State of residence, without prior request, at pre-established regular intervals. In the context of Article 8(3a), Article 8(7a), Article 21(2) and Article 25(2) and (3) any capitalised term shall have the meaning that it has under the corresponding definitions set out in Annex I;

                                                   (c)

                                                   for the purposes of all provisions of this Directive other than Articles 8(1), 8(3a) and 8a, the systematic communication of predefined information provided in accordance with points (a) and (b) of this point;’.

                           (b)

                           The following points are added:

                                       ‘14.

                                       “advance cross-border ruling” means any agreement, communication, or any other instrument or action with similar effects, including one issued, amended or renewed in the context of a tax audit, and which meets the following conditions:

                                                   (a)

                                                   is issued, amended or renewed by, or on behalf of, the government or the tax authority of a Member State, or the Member State's territorial or administrative subdivisions, including local authorities, irrespective of whether it is effectively used;

                                                   (b)

                                                   is issued, amended or renewed, to a particular person or a group of persons, and upon which that person or a group of persons is entitled to rely;

                                                   (c)

                                                   concerns the interpretation or application of a legal or administrative provision concerning the administration or enforcement of national laws relating to taxes of the Member State, or the Member State's territorial or administrative subdivisions, including local authorities;

                                                   (d)

                                                   relates to a cross-border transaction or to the question of whether or not activities carried on by a person in another jurisdiction create a permanent establishment; and

                                                   (e)

                                                   is made in advance of the transactions or of the activities in another jurisdiction potentially creating a permanent establishment or in advance of the filing of a tax return covering the period in which the transaction or series of transactions or activities took place.
                                                   The cross-border transaction may involve, but is not restricted to, the making of investments, the provision of goods, services, finance or the use of tangible or intangible assets and does not have to directly involve the person receiving the advance cross-border ruling;

                                       15.

                                       “advance pricing arrangement” means any agreement, communication or any other instrument or action with similar effects, including one issued, amended or renewed in the context of a tax audit, and which meets the following conditions:

                                                   (a)

                                                   is issued, amended or renewed by, or on behalf of, the government or the tax authority of one or more Member States, including any territorial or administrative subdivision thereof, including local authorities, irrespective of whether it is effectively used;

                                                   (b)

                                                   is issued, amended or renewed, to a particular person or a group of persons and upon which that person or a group of persons is entitled to rely; and

                                                   (c)

                                                   determines in advance of cross-border transactions between associated enterprises, an appropriate set of criteria for the determination of the transfer pricing for those transactions or determines the attribution of profits to a permanent establishment.
                                                   Enterprises are associated enterprises where one enterprise participates directly or indirectly in the management, control or capital of another enterprise or the same persons participate directly or indirectly in the management, control or capital of the enterprises.
                                                   Transfer prices are the prices at which an enterprise transfers physical goods and intangible property or provides services to associated enterprises, and “transfer pricing” is to be construed accordingly.

                                       16.

                                       For the purpose of point 14 “cross-border transaction” means a transaction or series of transactions where:

                                                   (a)

                                                   not all of the parties to the transaction or series of transactions are resident for tax purposes in the Member State issuing, amending or renewing the advance cross-border ruling;

                                                   (b)

                                                   any of the parties to the transaction or series of transactions is simultaneously resident for tax purposes in more than one jurisdiction;

                                                   (c)

                                                   one of the parties to the transaction or series of transactions carries on business in another jurisdiction through a permanent establishment and the transaction or series of transactions forms part or the whole of the business of the permanent establishment. A cross-border transaction or series of transactions shall also include arrangements made by a person in respect of business activities in another jurisdiction which that person carries on through a permanent establishment; or

                                                   (d)

                                                   such transactions or series of transactions have a cross border impact.

                                             For the purpose of point 15, “cross-border transaction” means a transaction or series of transactions involving associated enterprises which are not all resident for tax purposes in the territory of a single jurisdiction or a transaction or series of transactions which have a cross border impact.

                                       17.

                                       For the purpose of point 15 and 16, “enterprise” means any form of conducting business.’;

               (2)

               in Article 8, paragraphs 4 and 5 are deleted.

               (3)

               The following Articles are inserted:
               ‘Article 8a
               Scope and conditions of mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements
               1.   The competent authority of a Member State, where an advance cross-border ruling or an advance pricing arrangement was issued, amended or renewed after 31 December 2016 shall, by automatic exchange, communicate information thereon to the competent authorities of all other Member States as well as to the European Commission, with the limitation of cases set out in paragraph 8 of this Article, in accordance with applicable practical arrangements adopted pursuant to Article 21.
               2.   The competent authority of a Member State shall, in accordance with applicable practical arrangements adopted pursuant to Article 21, also communicate information to the competent authorities of all other Member States as well as to the European Commission, with the limitation of cases set out in paragraph 8 of this Article, on advance cross-border rulings and advance pricing arrangements issued, amended or renewed within a period beginning five years before 1 January 2017.
               If advance cross-border rulings and advance pricing arrangements are issued, amended or renewed between 1 January 2012 and 31 December 2013, such communication shall take place under the condition that they were still valid on 1 January 2014.
               If advance cross-border rulings and advance pricing arrangements are issued, amended or renewed between 1 January 2014 and 31 December 2016, such communication shall take place irrespective of whether they are still valid.
               Member States may exclude from the communication referred to in this paragraph, information on advance cross-border rulings and advance pricing arrangements issued, amended or renewed before 1 April 2016 to a particular person or a group of persons, excluding those conducting mainly financial or investment activities, with a group-wide annual net turnover, as defined in point (5) of Article 2 of Directive 2013/34/EU of the European Parliament and of the Council (6), of less than EUR 40 000 000 (or the equivalent amount in any other currency) in the fiscal year preceding the date of issuance, amendment or renewal of those cross-border rulings and advance pricing arrangements.
               3.   Bilateral or multilateral advance pricing arrangements with third countries shall be excluded from the scope of automatic exchange of information under this Article where the international tax agreement under which the advance pricing arrangement was negotiated does not permit its disclosure to third parties. Such bilateral or multilateral advance pricing arrangements will be exchanged under Article 9, where the international tax agreement under which the advance pricing arrangement was negotiated permits its disclosure, and the competent authority of the third country gives permission for the information to be disclosed.
               However, where the bilateral or multilateral advance pricing arrangements would be excluded from the automatic exchange of information under the first sentence of the first subparagraph of this paragraph, the information identified in paragraph 6 of this Article referred to in the request that lead to issuance of such a bilateral or multilateral advance pricing arrangement shall instead be exchanged under paragraphs 1 and 2 of this Article.
               4.   Paragraphs 1 and 2 shall not apply in a case where an advance cross-border ruling exclusively concerns and involves the tax affairs of one or more natural persons.
               5.   The exchange of information shall take place as follows:

                           (a)

                           in respect of the information exchanged pursuant to paragraph 1 — within three months following the end of the half of the calendar year during which the advance cross-border rulings or advance pricing arrangements have been issued, amended or renewed;

                           (b)

                           in respect of the information exchanged pursuant to paragraph 2 — before 1 January 2018.

                     6.   The information to be communicated by a Member State pursuant to paragraphs 1 and 2 of this Article shall include the following:

                           (a)

                           the identification of the person, other than a natural person, and where appropriate the group of persons to which it belongs;

                           (b)

                           a summary of the content of the advance cross-border ruling or advance pricing arrangement, including a description of the relevant business activities or transactions or series of transactions provided in abstract terms, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information whose disclosure would be contrary to public policy;

                           (c)

                           the dates of issuance, amendment or renewal of the advance cross-border ruling or advance pricing arrangement;

                           (d)

                           the start date of the period of validity of the advance cross-border ruling or advance pricing arrangement, if specified;

                           (e)

                           the end date of the period of validity of the advance cross-border ruling or advance pricing arrangement, if specified;

                           (f)

                           the type of the advance cross-border ruling or advance pricing arrangement;

                           (g)

                           the amount of the transaction or series of transactions of the advance cross-border ruling or advance pricing arrangement if such amount is referred to in the advance cross-border ruling or advance pricing arrangement;

                           (h)

                           the description of the set of criteria used for the determination of the transfer pricing or the transfer price itself in the case of an advance pricing arrangement;

                           (i)

                           the identification of the method used for determination of the transfer pricing or the transfer price itself in the case of an advance pricing arrangement;

                           (j)

                           the identification of the other Member States, if any, likely to be concerned by the advance cross-border ruling or advance pricing arrangement;

                           (k)

                           the identification of any person, other than a natural person, in the other Member States, if any, likely to be affected by the advance cross-border ruling or advance pricing arrangement (indicating to which Member States the affected persons are linked); and

                           (l)

                           the indication whether the information communicated is based upon the advance cross-border ruling or advance pricing arrangement itself or upon the request referred to in the second subparagraph of paragraph 3 of this Article.

                     7.   To facilitate the exchange of information referred to in paragraph 6 of this Article, the Commission shall adopt the practical arrangements necessary for the implementation of this Article, including measures to standardise the communication of the information set out in paragraph 6 of this Article, as part of the procedure for establishing the standard form provided for in Article 20(5).
               8.   Information as defined under points (a), (b), (h) and (k) of paragraph 6 of this Article shall not be communicated to the European Commission.
               9.   The competent authority of the Member States concerned, identified under paragraph 6(j), shall confirm, if possible by electronic means, the receipt of the information to the competent authority which provided the information without delay and in any event no later than seven working days. This measure shall be applicable until the directory referred to in Article 21(5) becomes operational.
               10.   Member States may, in accordance with Article 5, and having regard to Article 21(4), request additional information, including the full text of an advance cross-border ruling or an advance pricing arrangement.
               Article 8b
               Statistics on automatic exchanges
               1.   Before 1 January 2018, Member States shall provide the Commission on an annual basis with statistics on the volume of automatic exchanges under Articles 8 and 8a and, to the extent possible, with information on the administrative and other relevant costs and benefits relating to exchanges that have taken place and any potential changes, for both tax administrations and third parties.
               2.   Before 1 January 2019, the Commission shall submit a report that provides an overview and an assessment of the statistics and information received under paragraph 1 of this Article, on issues such as the administrative and other relevant costs and benefits of the automatic exchange of information, as well as practical aspects linked thereto. If appropriate, the Commission shall present a proposal to the Council regarding the categories and the conditions laid down in Article 8(1), including the condition that information concerning residents in other Member States has to be available, or the items referred to in Article 8(3a), or both.
               When examining a proposal presented by the Commission, the Council shall assess further strengthening of the efficiency and functioning of the automatic exchange of information and raising the standard thereof, with the aim of providing that:

                           (a)

                           the competent authority of each Member State shall, by automatic exchange, communicate to the competent authority of any other Member State, information regarding taxable periods as from 1 January 2019 concerning residents in that other Member State, on all categories of income and capital listed in Article 8(1), as they are to be understood under the national legislation of the Member State communicating the information; and

                           (b)

                           the lists of categories and items laid down in Articles 8(1) and 8(3a) be extended to include other categories and items, including royalties.

                  (6)  Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).’."

               (4)

               In Article 20, the following paragraph is added:
               ‘5.   A standard form, including the linguistic arrangements, shall be adopted by the Commission in accordance with the procedure referred to in Article 26(2) before 1 January 2017. The automatic exchange of information on advance cross-border rulings and advance pricing arrangements pursuant to Article 8a shall be carried out using that standard form. This standard form shall not exceed the components for exchange of the information listed in Article 8a(6) and other relating fields linked to these components necessary to achieve the objectives of Article 8a.
               The linguistic arrangements referred to in the first subparagraph shall not preclude Member States from communicating the information referred to in Article 8a in any of the official and working languages of the Union. However, those linguistic arrangements may provide that the key elements of such information shall also be sent in another official and working language of the Union.’.

               (5)

               Article 21 is amended as follows:

                           (a)

                           paragraph 3 is replaced by the following:
                           ‘3.   Persons duly accredited by the Security Accreditation Authority of the Commission may have access to that information only in so far as it is necessary for the care, maintenance and development of the directory referred to in paragraph 5 and of the CCN network.’;

                           (b)

                           the following paragraph is added:
                           ‘5.   The Commission shall by 31 December 2017 develop and provide with technical and logistical support a secure Member State central directory on administrative cooperation in the field of taxation where information to be communicated in the framework of paragraphs 1 and 2 of Article 8a shall be recorded in order to satisfy the automatic exchange provided for in those paragraphs. The competent authorities of all Member States shall have access to the information recorded in that directory. The Commission shall also have access to the information recorded to that directory, however within the limitations set out in Article 8a(8). The necessary practical arrangements shall be adopted by the Commission in accordance with the procedure referred to in Article 26(2).
                           Until that secure central directory is operational, the automatic exchange provided for in paragraphs 1 and 2 of Article 8a shall be carried out in accordance with paragraph 1 of this Article and the applicable practical arrangements.’.

               (6)

               Article 23 is amended as follows:

                           (a)

                           Paragraph 3 is replaced by the following:
                           ‘3.   Member States shall communicate to the Commission a yearly assessment of the effectiveness of the automatic exchange of information referred to in Article 8 and Article 8a as well as the practical results achieved. The form and the conditions of communication of that yearly assessment shall be adopted by the Commission in accordance with the procedure referred to in Article 26(2).’.

                           (b)

                           Paragraphs 5 and 6 are deleted.

               (7)

               The following Article is inserted:
               ‘Article 23a
               Confidentiality of information
               1.   Information communicated to the Commission pursuant to this Directive shall be kept confidential by the Commission in accordance with the provisions applicable to Union authorities and may not be used for any purposes other than those required to determine whether and to what extent Member States comply with this Directive.
               2.   Information communicated to the Commission by a Member State under Article 23, as well as any report or document produced by the Commission using such information, may be transmitted to other Member States. Such transmitted information shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under the national law of the Member State which received it.
               Reports and documents produced by the Commission, referred to in the first subparagraph, may be used by the Member States only for analytical purposes, and shall not be published or made available to any other person or body without the express agreement of the Commission.’.

               (8)

               In Article 25, the following paragraph is inserted:
               ‘1a.   Regulation (EC) No 45/2001 applies to any processing of personal data under this Directive by the Union institutions and bodies. However, for the purpose of the correct application of this Directive, the scope of the obligations and rights provided for in Article 11, Article 12(1), Articles 13 to 17 of Regulation (EC) No 45/2001 is restricted to the extent required in order to safeguard the interests referred to in point (b) of Article 20(1) of that Regulation.’.

         Article 2
   1.   Member States shall adopt and publish, by 31 December 2016, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those measures.
   They shall apply those measures from 1 January 2017.
   When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 3
   This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 8 December 2015.

            For the Council

            The President

         P. GRAMEGNA

      (1)  Opinion of 27 October 2015 (not yet published in the Official Journal).

      (2)  OJ C 332, 8.10.2015, p. 64.

      (3)  Opinion of 14 October 2015 (not yet published in the Official Journal).

      (4)  Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC (OJ L 64, 11.3.2011, p. 1).

      (5)  Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation (OJ L 359, 16.12.2014, p. 1).


title: Commission Directive (EU) 2016/774 of 18 May 2016 amending Annex II to Directive 2000/53/EC of the European Parliament and of the Council on end-of-life vehicles (Text with EEA relevance)

text:
                  19.5.2016

                  EN

                  Official Journal of the European Union

                  L 128/4

            COMMISSION DIRECTIVE (EU) 2016/774
      of 18 May 2016
      amending Annex II to Directive 2000/53/EC of the European Parliament and of the Council on end-of-life vehicles
      (Text with EEA relevance)
      THE EUROPEAN COMMISSION,
      Having regard to the Treaty on the Functioning of the European Union,
      Having regard to Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles (1), and in particular Article 4(2)(b),
      Whereas:

                  (1)

                  Article 4(2)(a) of Directive 2000/53/EC prohibits the use of lead, mercury, cadmium or hexavalent chromium in materials and components of vehicles put on the market after 1 July 2003.

                  (2)

                  Annex II to Directive 2000/53/EC lists vehicle materials and components exempted from the prohibition set out in Article 4(2)(a) thereof. Exemptions 8(e), 8(f), 8(g), 8(h), 8(j) and 10 (d) of Annex II shall be reviewed in 2014.

                  (3)

                  An assessment of technical and scientific progress has demonstrated that the use of lead in the applications covered by exemptions 8(h), 8(j) and 10(d) should not be prolonged because the use of lead in these applications has become avoidable.

                  (4)

                  The assessment of technical and scientific progress has also demonstrated that the use of lead in the applications covered by exemptions 8(e), 8(f) and 8(g) remains unavoidable as substitutes have not become available yet. However, since information exists on possible future lead substitutes in these applications, it is appropriate to introduce a review date allowing to establish if the use of lead in these applications can be discontinued.

                  (5)

                  The measures provided for in this Directive are in accordance with the opinion of the Committee established by Article 39 of Directive 2008/98/EC of the European Parliament and of the Council (2).

            HAS ADOPTED THIS DIRECTIVE:
      Article 1
      Annex II to Directive 2000/53/EC is replaced by the text set out in the Annex to this Directive.
      Article 2
      1.   Member States shall adopt and publish, within six months of its publication in the Official Journal of the European Union at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
      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.
      2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
      Article 3
      This Directive shall enter into force on the twentieth 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 Brussels, 18 May 2016.

               For the Commission

               The President

            Jean-Claude JUNCKER

         (1)  OJ L 269, 21.10.2000, p. 34

         (2)  OJ L 312, 22.11.2008, p. 3.

         ANNEX

               ‘ANNEX II

                  Materials and components exempt from Article 4(2)(a)

                           Materials and components

                           Scope and expiry date of the exemption

                           To be labelled or made identifiable in accordance with Article 4(2)(b)(iv)

                              Lead as an alloying element

                                       1(a).

                                       Steel for machining purposes and batch hot dip galvanised steel components containing up to 0,35 % lead by weight

                                       1(b).

                                       Continuously galvanised steel sheet containing up to 0,35 % lead by weight

                           Vehicles type-approved before 1 January 2016 and spare parts for these vehicles

                                       2(a).

                                       Aluminium for machining purposes with a lead content up to 2 % by weight

                           As spare parts for vehicles put on the market before 1 July 2005

                                       2(b).

                                       Aluminium with a lead content up to 1,5 % by weight

                           As spare parts for vehicles put on the market before 1 July 2008

                                       2(c).

                                       Aluminium with a lead content up to 0,4 % by weight

                               (1)

                                       3.

                                       Copper alloy containing up to 4 % lead by weight

                               (1)

                                       4(a).

                                       Bearing shells and bushes

                           As spare parts for vehicles put on the market before 1 July 2008

                                       4(b).

                                       Bearing shells and bushes in engines, transmissions and air conditioning compressors

                           As spare parts for vehicles put on the market before 1 July 2011

                              Lead and lead compounds in components

                                       5.

                                       Batteries

                               (1)

                           X

                                       6.

                                       Vibration dampers

                           Vehicles type-approved before 1 January 2016 and spare parts for these vehicles

                           X

                                       7(a).

                                       Vulcanising agents and stabilisers for elastomers in brake hoses, fuel hoses, air ventilation hoses, elastomer/metal parts in the chassis applications, and engine mountings

                           As spare parts for vehicles put on the market before 1 July 2005

                                       7(b).

                                       Vulcanising agents and stabilisers for elastomers in brake hoses, fuel hoses, air ventilation hoses, elastomer/metal parts in the chassis applications, and engine mountings containing up to 0,5 % lead by weight

                           As spare parts for vehicles put on the market before 1 July 2006

                                       7(c).

                                       Bonding agents for elastomers in powertrain applications containing up to 0,5 % lead by weight

                           As spare parts for vehicles put on the market before 1 July 2009

                                       8(a).

                                       Lead in solders to attach electrical and electronic components to electronic circuit boards and lead in finishes on terminations of components other than electrolyte aluminium capacitors, on component pins and on electronic circuit boards

                           Vehicles type-approved before 1 January 2016 and spare parts for these vehicles

                           X (3)

                                       8(b).

                                       Lead in solders in electrical applications other than soldering on electronic circuit boards or on glass

                           Vehicles type-approved before 1 January 2011 and spare parts for these vehicles

                           X (3)

                                       8(c).

                                       Lead in finishes on terminals of electrolyte aluminium capacitors

                           Vehicles type-approved before 1 January 2013 and spare parts for these vehicles

                           X (3)

                                       8(d).

                                       Lead used in soldering on glass in mass airflow sensors

                           Vehicles type-approved before 1 January 2015 and spare parts of such vehicles

                           X (3)

                                       8(e).

                                       Lead in high melting temperature type solders (i.e. lead-based alloys containing 85 % by weight or more lead)

                               (2)

                           X (3)

                                       8(f)(a).

                                       Lead in compliant pin connector systems

                           Vehicles type-approved before 1 January 2017 and spare parts for these vehicles

                           X (3)

                                       8(f)(b).

                                       Lead in compliant pin connector systems other than the mating area of vehicle harness connectors

                               (2)

                           X (3)

                                       8(g).

                                       Lead in solders to complete a viable electrical connection between semiconductor die and carrier within integrated circuit flip chip packages

                               (2)

                           X (3)

                                       8(h).

                                       Lead in solder to attach heat spreaders to the heat sink in power semiconductor assemblies with a chip size of at least 1 cm2 of projection area and a nominal current density of at least 1 A/mm2 of silicon chip area

                           Vehicles type-approved before 1 January 2016 and spare parts for these vehicles

                           X (3)

                                       8(i).

                                       Lead in solders in electrical glazing applications on glass except for soldering in laminated glazing

                           Vehicles type-approved before 1 January 2016 and spare parts for these vehicles

                           X (3)

                                       8(j).

                                       Lead in solders for soldering of laminated glazing

                           Vehicles type-approved before 1 January 2020 and spare parts for these vehicles

                           X (3)

                                       9.

                                       Valve seats

                           As spare parts for engine types developed before 1 July 2003

                                       10(a).

                                       Electrical and electronic components which contain lead in a glass or ceramic, in a glass or ceramic matrix compound, in a glass-ceramic material, or in a glass-ceramic matrix compound.
                                       This exemption does not cover the use of lead in:

                                                   —

                                                   glass in bulbs and glaze of spark plugs,

                                                   —

                                                   dielectric ceramic materials of components listed under 10(b), 10(c) and 10(d).

                           X (4) (for components other than piezo in engines)

                                       10(b).

                                       Lead in PZT-based dielectric ceramic materials of capacitors being part of integrated circuits or discrete semiconductors

                                       10(c).

                                       Lead in dielectric ceramic materials of capacitors with a rated voltage of less than 125 V AC or 250 V DC

                           Vehicles type-approved before 1 January 2016 and spare parts for these vehicles

                                       10(d).

                                       Lead in the dielectric ceramic materials of capacitors compensating the temperature-related deviations of sensors in ultrasonic sonar systems

                           Vehicles type-approved before 1 January 2017 and spare parts for these vehicles

                                       11.

                                       Pyrotechnic initiators

                           Vehicles type-approved before 1 July 2006 and spare parts for these vehicles

                                       12.

                                       Lead-containing thermoelectric materials in automotive electrical applications to reduce CO2 emissions by recuperation of exhaust heat

                           Vehicles type-approved before 1 January 2019 and spare parts for these vehicles

                           X

                              Hexavalent chromium

                                       13(a).

                                       Corrosion preventive coatings

                           As spare parts for vehicles put on the market before 1 July 2007

                                       13(b).

                                       Corrosion preventive coatings related to bolt and nut assemblies for chassis applications

                           As spare parts for vehicles put on the market before 1 July 2008

                                       14.

                                       As an anti-corrosion agent of the carbon steel cooling system in absorption refrigerators in motor caravans up to 0,75 weight -% in the cooling solution except where the use of other cooling technologies is practicable (i.e. available on the market for the application in motor caravans) and does not lead to negative environmental, health and/or consumer safety impacts

                           X

                              Mercury

                                       15(a).

                                       Discharge lamps for headlight application

                           Vehicles type-approved before 1 July 2012 and spare parts for these vehicles

                           X

                                       15(b).

                                       Fluorescent tubes used in instrument panel displays

                           Vehicles type-approved before 1 July 2012 and spare parts for these vehicles

                           X

                              Cadmium

                                       16.

                                       Batteries for electrical vehicles

                           As spare parts for vehicles put on the market before 31 December 2008

                  Notes:

               A maximum concentration value up to 0,1 % by weight and in homogeneous material, for lead, hexavalent chromium and mercury and up to 0,01 % by weight in homogeneous material for cadmium shall be tolerated.
               The reuse of parts of vehicles which were already on the market at the date of expiry of an exemption shall be allowed without limitation since it is not covered by Article 4(2)(a).
               Spare parts put on the market after 1 July 2003 which are used for vehicles put on the market before 1 July 2003 shall be exempted from the provisions of Article 4(2)(a) (*).

            (1)  This exemption shall be reviewed in 2015.

            (2)  This exemption shall be reviewed in 2019.

            (3)  Dismantling if, in correlation with entry 10(a), an average threshold of 60 grams per vehicle is exceeded. For the application of this clause electronic devices not installed by the manufacturer on the production line shall not be taken into account.

            (4)  Dismantling if, in correlation with entries 8(a) to 8(j), an average threshold of 60 grams per vehicle is exceeded. For the application of this clause electronic devices not installed by the manufacturer on the production line shall not be taken into account.

            (*)  This clause shall not apply to wheel balance weights, carbon brushes for electric motors and brake linings.’


title: Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works  Text with EEA relevance

text:
               27.10.2012

               EN

               Official Journal of the European Union

               L 299/5

         DIRECTIVE 2012/28/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
   of 25 October 2012
   on certain permitted uses of orphan works
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1), 62 and 114 thereof,
   Having regard to the proposal from the European Commission,
   After transmission of the draft legislative act to the national parliaments,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Acting in accordance with the ordinary legislative procedure (2),
   Whereas:

               (1)

               Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, are engaged in large-scale digitisation of their collections or archives in order to create European Digital Libraries. They contribute to the preservation and dissemination of European cultural heritage, which is also important for the creation of European Digital Libraries, such as Europeana. Technologies for mass digitisation of print materials and for search and indexing enhance the research value of the libraries' collections. Creating large online libraries facilitates electronic search and discovery tools which open up new sources of discovery for researchers and academics who would otherwise have to content themselves with more traditional and analogue search methods.

               (2)

               The need to promote free movement of knowledge and innovation in the internal market is an important component of the Europe 2020 Strategy, as set out in the Communication from the Commission entitled ‧Europe 2020: A strategy for smart, sustainable and inclusive growth‧, which includes as one of its flagship initiatives the development of a Digital Agenda for Europe.

               (3)

               Creating a legal framework to facilitate the digitisation and dissemination of works and other subject-matter which are protected by copyright or related rights and for which no rightholder is identified or for which the rightholder, even if identified, is not located — so-called orphan works — is a key action of the Digital Agenda for Europe, as set out in the Communication from the Commission entitled ‧A Digital Agenda for Europe‧. This Directive targets the specific problem of the legal determination of orphan work status and its consequences in terms of the permitted users and permitted uses of works or phonograms considered to be orphan works.

               (4)

               This Directive is without prejudice to specific solutions being developed in the Member States to address larger mass digitisation issues, such as in the case of so-called ‧out-of-commerce‧ works. Such solutions take into account the specificities of different types of content and different users and build upon the consensus of the relevant stakeholders. This approach has also been followed in the Memorandum of Understanding on key principles on the digitisation and making available of out-of-commerce works, signed on 20 September 2011 by representatives of European libraries, authors, publishers and collecting societies and witnessed by the Commission. This Directive is without prejudice to that Memorandum of Understanding, which calls on Member States and the Commission to ensure that voluntary agreements concluded between users, rightholders and collective rights management organisations to licence the use of out-of-commerce works on the basis of the principles contained therein benefit from the requisite legal certainty in a national and cross-border context.

               (5)

               Copyright is the economic foundation for the creative industry, since it stimulates innovation, creation, investment and production. Mass digitisation and dissemination of works is therefore a means of protecting Europe's cultural heritage. Copyright is an important tool for ensuring that the creative sector is rewarded for its work.

               (6)

               The rightholders' exclusive rights of reproduction of their works and other protected subject-matter and of making them available to the public, as harmonised under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (3), necessitate the prior consent of rightholders to the digitisation and the making available to the public of a work or other protected subject-matter.

               (7)

               In the case of orphan works, it is not possible to obtain such prior consent to the carrying-out of acts of reproduction or of making available to the public.

               (8)

               Different approaches in the Member States to the recognition of orphan work status can present obstacles to the functioning of the internal market and the use of, and cross-border access to, orphan works. Such different approaches can also result in restrictions on the free movement of goods and services which incorporate cultural content. Therefore, ensuring the mutual recognition of such status is appropriate, since it will allow access to orphan works in all Member States.

               (9)

               In particular, a common approach to determining the orphan work status and the permitted uses of orphan works is necessary in order to ensure legal certainty in the internal market with respect to the use of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations.

               (10)

               Cinematographic or audiovisual works and phonograms in the archives of public-service broadcasting organisations and produced by them include orphan works. Taking into account the special position of broadcasters as producers of phonograms and audiovisual material and the need to adopt measures to limit the phenomenon of orphan works in the future, it is appropriate to set a cut-off date for the application of this Directive to works and phonograms in the archives of broadcasting organisations.

               (11)

               Cinematographic and audiovisual works and phonograms contained in the archives of public-service broadcasting organisations and produced by them, should for the purposes of this Directive be regarded as including cinematographic and audiovisual works and phonograms which are commissioned by such organisations for the exclusive exploitation by them or other co-producing public-service broadcasting organisations. Cinematographic and audiovisual works and phonograms contained in the archives of public-service broadcasting organisations which have not been produced or commissioned by such organisations, but which those organisations have been authorised to use under a licensing agreement, should not fall within the scope of this Directive.

               (12)

               For reasons of international comity, this Directive should apply only to works and phonograms that are first published in the territory of a Member State or, in the absence of publication, first broadcast in the territory of a Member State or, in the absence of publication or broadcast, made publicly accessible by the beneficiaries of this Directive with the consent of the rightholders. In the latter case, this Directive should only apply provided that it is reasonable to assume that the rightholders would not oppose the use allowed by this Directive.

               (13)

               Before a work or phonogram can be considered an orphan work, a diligent search for the rightholders in the work or phonogram, including rightholders in works and other protected subject-matter that are embedded or incorporated in the work or phonogram, should be carried out in good faith. Member States should be permitted to provide that such diligent search may be carried out by the organisations referred to in this Directive or by other organisations. Such other organisations may charge for the service of carrying out a diligent search.

               (14)

               It is appropriate to provide for a harmonised approach concerning such diligent search in order to ensure a high level of protection of copyright and related rights in the Union. A diligent search should involve the consultation of sources that supply information on the works and other protected subject-matter as determined, in accordance with this Directive, by the Member State where the diligent search has to be carried out. In so doing, Member States could refer to the diligent search guidelines agreed in the context of the High Level Working Group on Digital Libraries established as part of the i2010 digital library initiative.

               (15)

               In order to avoid duplication of search efforts, a diligent search should be carried out in the Member State where the work or phonogram was first published or, in cases where no publication has taken place, where it was first broadcast. The diligent search in respect of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State should be carried out in that Member State. In the case of cinematographic or audiovisual works which are co-produced by producers established in different Member States, the diligent search should be carried out in each of those Member States. With regard to works and phonograms which have neither been published nor broadcast but which have been made publicly accessible by the beneficiaries of this Directive with the consent of the rightholders, the diligent search should be carried out in the Member State where the organisation that made the work or phonogram publicly accessible with the consent of the rightholder is established. Diligent searches for the rightholders in works and other protected subject-matter that are embedded or incorporated in a work or phonogram should be carried out in the Member State where the diligent search for the work or phonogram containing the embedded or incorporated work or other protected subject-matter is carried out. Sources of information available in other countries should also be consulted if there is evidence to suggest that relevant information on rightholders is to be found in those other countries. The carrying-out of diligent searches may generate various kinds of information, such as a search record and the result of the search. The search record should be kept on file in order for the relevant organisation to be able to substantiate that the search was diligent.

               (16)

               Member States should ensure that the organisations concerned keep records of their diligent searches and that the results of such searches, consisting in particular of any finding that a work or phonogram is to be considered an orphan work within the meaning of this Directive, as well as information on the change of status and on the use which those organisations make of orphan works, are collected and made available to the public at large, in particular through the recording of the relevant information in an online database. Considering in particular the pan-European dimension, and in order to avoid duplication of efforts, it is appropriate to make provision for the creation of a single online database for the Union containing such information and for making it available to the public at large in a transparent manner. This can enable both the organisations which are carrying out diligent searches and the rightholders easily to access such information. The database could also play an important role in preventing and bringing to an end possible copyright infringements, particularly in the case of changes to the orphan work status of the works and phonograms. Under Regulation (EU) No 386/2012 (4), the Office for Harmonization in the Internal Market (‧the Office‧) is entrusted with certain tasks and activities, financed by making use of its own budgetary means, aimed at facilitating and supporting the activities of national authorities, the private sector and the Union institutions in the fight against, including the prevention of, infringement of intellectual property rights.
               In particular, pursuant to point (g) of Article 2(1) of that Regulation, those tasks include providing mechanisms which help to improve the online exchange of relevant information between the Member States' authorities concerned and fostering cooperation between those authorities. It is therefore appropriate to rely on the Office to establish and manage the European database containing information related to orphan works referred to in this Directive.

               (17)

               There can be several rightholders in respect of a particular work or phonogram, and works and phonograms can themselves include other works or protected subject-matter. This Directive should not affect the rights of identified and located rightholders. If at least one rightholder has been identified and located, a work or phonogram should not be considered an orphan work. The beneficiaries of this Directive should only be permitted to use a work or phonogram one or more of the rightholders in which are not identified or not located, if they are authorised to carry out the acts of reproduction and of making available to the public covered by Articles 2 and 3 respectively of Directive 2001/29/EC by those rightholders that have been identified and located, including the rightholders of works and other protected subject-matter which are embedded or incorporated in the works or phonograms. Rightholders that have been identified and located can give this authorisation only in relation to the rights that they themselves hold, either because the rights are their own rights or because the rights were transferred to them, and should not be able to authorise under this Directive any use on behalf of rightholders that have not been identified and located. Correspondingly, when previously non-identified or non-located rightholders come forward in order to claim their rights in the work or phonogram, the lawful use of the work or phonogram by the beneficiaries can continue only if those rightholders give their authorisation to do so under Directive 2001/29/EC in relation to the rights that they hold.

               (18)

               Rightholders should be entitled to put an end to the orphan work status in the event that they come forward to claim their rights in the work or other protected subject-matter. Rightholders that put an end to the orphan work status of a work or other protected subject-matter should receive fair compensation for the use that has been made of their works or other protected subject-matter under this Directive, to be determined by the Member State where the organisation that uses an orphan work is established. Member States should be free to determine the circumstances under which the payment of such compensation may be organised, including the point in time at which the payment is due. For the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States' cultural promotion objectives, of the non-commercial nature of the use made by the organisations in question in order to achieve aims related to their public-interest missions, such as promoting learning and disseminating culture, and of the possible harm to rightholders.

               (19)

               If a work or phonogram has been wrongly found to be an orphan work, following a search which was not diligent, the remedies for copyright infringement in Member States' legislation, provided for in accordance with the relevant national provisions and Union law, remain available.

               (20)

               In order to promote learning and the dissemination of culture, Member States should provide for an exception or limitation in addition to those provided for in Article 5 of Directive 2001/29/EC. That exception or limitation should permit certain organisations, as referred to in point (c) of Article 5(2) of Directive 2001/29/EC and film or audio heritage institutions which operate on a non-profit making basis, as well as public-service broadcasting organisations, to reproduce and make available to the public, within the meaning of that Directive, orphan works, provided that such use fulfils their public interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, their collections, including their digital collections. Film or audio heritage institutions should, for the purposes of this Directive, cover organisations designated by Member States to collect, catalogue, preserve and restore films and other audiovisual works or phonograms forming part of their cultural heritage. Public-service broadcasters should, for the purposes of this Directive, cover broadcasters with a public-service remit as conferred, defined and organised by each Member State. The exception or limitation established by this Directive to permit the use of orphan works is without prejudice to the exceptions and limitations provided for in Article 5 of Directive 2001/29/EC. It can be applied only in certain special cases which do not conflict with the normal exploitation of the work or other protected subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

               (21)

               In order to incentivise digitisation, the beneficiaries of this Directive should be allowed to generate revenues in relation to their use of orphan works under this Directive in order to achieve aims related to their public-interest missions, including in the context of public-private partnership agreements.

               (22)

               Contractual arrangements may play a role in fostering the digitisation of European cultural heritage, it being understood that publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, should be allowed, with a view to undertaking the uses permitted under this Directive, to conclude agreements with commercial partners for the digitisation and making available to the public of orphan works. Those agreements may include financial contributions by such partners. Such agreements should not impose any restrictions on the beneficiaries of this Directive as to their use of orphan works and should not grant the commercial partner any rights to use, or control the use of, the orphan works.

               (23)

               In order to foster access by the Union's citizens to Europe's cultural heritage, it is also necessary to ensure that orphan works which have been digitised and made available to the public in one Member State may also be made available to the public in other Member States. Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations that use an orphan work in order to achieve their public-interest missions should be able to make the orphan work available to the public in other Member States.

               (24)

               This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representation or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation.

               (25)

               Since the objective of this Directive, namely ensuring legal certainty with respect to the use of orphan works, cannot be sufficiently achieved by the Member States and can therefore, by reason of the need for uniformity of the rules governing the use of orphan works, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject-matter and scope
   1.   This Directive concerns certain uses made of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, in order to achieve aims related to their public-interest missions.
   2.   This Directive applies to:

               (a)

               works published in the form of books, journals, newspapers, magazines or other writings contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions;

               (b)

               cinematographic or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions; and

               (c)

               cinematographic or audiovisual works and phonograms produced by public-service broadcasting organisations up to and including 31 December 2002 and contained in their archives;

         which are protected by copyright or related rights and which are first published in a Member State or, in the absence of publication, first broadcast in a Member State.
   3.   This Directive also applies to works and phonograms referred to in paragraph 2 which have never been published or broadcast but which have been made publicly accessible by the organisations referred to in paragraph 1 with the consent of the rightholders, provided that it is reasonable to assume that the rightholders would not oppose the uses referred to in Article 6. Member States may limit the application of this paragraph to works and phonograms which have been deposited with those organisations before 29 October 2014.
   4.   This Directive shall also apply to works and other protected subject-matter that are embedded or incorporated in, or constitute an integral part of, the works or phonograms referred to in paragraphs 2 and 3.
   5.   This Directive does not interfere with any arrangements concerning the management of rights at national level.
   Article 2
   Orphan works
   1.   A work or a phonogram shall be considered an orphan work if none of the rightholders in that work or phonogram is identified or, even if one or more of them is identified, none is located despite a diligent search for the rightholders having been carried out and recorded in accordance with Article 3.
   2.   Where there is more than one rightholder in a work or phonogram, and not all of them have been identified or, even if identified, located after a diligent search has been carried out and recorded in accordance with Article 3, the work or phonogram may be used in accordance with this Directive provided that the rightholders that have been identified and located have, in relation to the rights they hold, authorised the organisations referred to in Article 1(1) to carry out the acts of reproduction and making available to the public covered respectively by Articles 2 and 3 of Directive 2001/29/EC.
   3.   Paragraph 2 shall be without prejudice to the rights in the work or phonogram of rightholders that have been identified and located.
   4.   Article 5 shall apply mutatis mutandis to the rightholders that have not been identified and located in the works referred to in paragraph 2.
   5.   This Directive shall be without prejudice to national provisions on anonymous or pseudonymous works.
   Article 3
   Diligent search
   1.   For the purposes of establishing whether a work or phonogram is an orphan work, the organisations referred to in Article 1(1) shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram.
   2.   The sources that are appropriate for each category of works or phonogram in question shall be determined by each Member State, in consultation with rightholders and users, and shall include at least the relevant sources listed in the Annex.
   3.   A diligent search shall be carried out in the Member State of first publication or, in the absence of publication, first broadcast, except in the case of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State, in which case the diligent search shall be carried out in the Member State of his headquarters or habitual residence.
   In the case referred to in Article 1(3), the diligent search shall be carried out in the Member State where the organisation that made the work or phonogram publicly accessible with the consent of the rightholder is established.
   4.   If there is evidence to suggest that relevant information on rightholders is to be found in other countries, sources of information available in those other countries shall also be consulted.
   5.   Member States shall ensure that the organisations referred to in Article 1(1) maintain records of their diligent searches and that those organisations provide the following information to the competent national authorities:

               (a)

               the results of the diligent searches that the organisations have carried out and which have led to the conclusion that a work or a phonogram is considered an orphan work;

               (b)

               the use that the organisations make of orphan works in accordance with this Directive;

               (c)

               any change, pursuant to Article 5, of the orphan work status of works and phonograms that the organisations use;

               (d)

               the relevant contact information of the organisation concerned.

         6.   Member States shall take the necessary measures to ensure that the information referred to in paragraph 5 is recorded in a single publicly accessible online database established and managed by the Office for Harmonization in the Internal Market (‧the Office‧) in accordance with Regulation (EU) No 386/2012. To that end, they shall forward that information to the Office without delay upon receiving it from the organisations referred to in Article 1(1).
   Article 4
   Mutual recognition of orphan work status
   A work or phonogram which is considered an orphan work according to Article 2 in a Member State shall be considered an orphan work in all Member States. That work or phonogram may be used and accessed in accordance with this Directive in all Member States. This also applies to works and phonograms referred to in Article 2(2) in so far as the rights of the non-identified or non-located rightholders are concerned.
   Article 5
   End of orphan work status
   Member States shall ensure that a rightholder in a work or phonogram considered to be an orphan work has, at any time, the possibility of putting an end to the orphan work status in so far as his rights are concerned.
   Article 6
   Permitted uses of orphan works
   1.   Member States shall provide for an exception or limitation to the right of reproduction and the right of making available to the public provided for respectively in Articles 2 and 3 of Directive 2001/29/EC to ensure that the organisations referred to in Article 1(1) are permitted to use orphan works contained in their collections in the following ways:

               (a)

               by making the orphan work available to the public, within the meaning of Article 3 of Directive 2001/29/EC;

               (b)

               by acts of reproduction, within the meaning of Article 2 of Directive 2001/29/EC, for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration.

         2.   The organisations referred to in Article 1(1) shall use an orphan work in accordance with paragraph 1 of this Article only in order to achieve aims related to their public-interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection. The organisations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitising orphan works and making them available to the public.
   3.   Member States shall ensure that the organisations referred to in Article 1(1) indicate the name of identified authors and other rightholders in any use of an orphan work.
   4.   This Directive is without prejudice to the freedom of contract of such organisations in the pursuit of their public-interest missions, particularly in respect of public-private partnership agreements.
   5.   Member States shall provide that a fair compensation is due to rightholders that put an end to the orphan work status of their works or other protected subject-matter for the use that has been made by the organisations referred to in Article 1(1) of such works and other protected subject-matter in accordance with paragraph 1 of this Article. Member States shall be free to determine the circumstances under which the payment of such compensation may be organised. The level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established.
   Article 7
   Continued application of other legal provisions
   This Directive shall be without prejudice to provisions concerning, in particular, patent rights, trade marks, design rights, utility models, the topographies of semi-conductor products, type faces, conditional access, access to cable of broadcasting services, the protection of national treasures, legal deposit requirements, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, the law of contract, and rules on the freedom of the press and freedom of expression in the media.
   Article 8
   Application in time
   1.   This Directive shall apply in respect of all works and phonograms referred to in Article 1 which are protected by the Member States' legislation in the field of copyright on or after 29 October 2014.
   2.   This Directive shall apply without prejudice to any acts concluded and rights acquired before 29 October 2014.
   Article 9
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 29 October 2014. They shall forthwith communicate to the Commission the text of those provisions.
   When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 10
   Review clause
   The Commission shall keep under constant review the development of rights information sources and shall by 29 October 2015, and at annual intervals thereafter, submit a report concerning the possible inclusion in the scope of application of this Directive of publishers and of works or other protected subject-matter not currently included in its scope, and in particular stand-alone photographs and other images.
   By 29 October 2015, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, in the light of the development of digital libraries.
   When necessary, in particular to ensure the functioning of the internal market, the Commission shall submit proposals for amendment of this Directive.
   A Member State that has valid reasons to consider that the implementation of this Directive hinders one of the national arrangements concerning the management of rights referred to in Article 1(5) may bring the matter to the attention of the Commission together with all relevant evidence. The Commission shall take such evidence into account when drawing up the report referred to in the second paragraph of this Article and when assessing whether it is necessary to submit proposals for amendment of this Directive.
   Article 11
   Entry into force
   This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.
   Article 12
   Addressees
   This Directive is addressed to the Member States.

      Done at Strasbourg, 25 October 2012.

            For the European Parliament

            The President

         M. SCHULZ

            For the Council

            The President

         A. D. MAVROYIANNIS

      (1)  OJ C 376, 22.12.2011, p. 66.

      (2)  Position of the European Parliament of 13 September 2012 (not yet published in the Official Journal) and decision of the Council of 4 October 2012.

      (3)  OJ L 167, 22.6.2001, p. 10.

      (4)  Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (OJ L 129, 16.5.2012, p. 1).

      ANNEX
      The sources referred to in Article 3(2) include the following:

                  (1)

                  for published books:

                              (a)

                              legal deposit, library catalogues and authority files maintained by libraries and other institutions;

                              (b)

                              the publishers' and authors' associations in the respective country;

                              (c)

                              existing databases and registries, WATCH (Writers, Artists and their Copyright Holders), the ISBN (International Standard Book Number) and databases listing books in print;

                              (d)

                              the databases of the relevant collecting societies, in particular reproduction rights organisations;

                              (e)

                              sources that integrate multiple databases and registries, including VIAF (Virtual International Authority Files) and ARROW (Accessible Registries of Rights Information and Orphan Works);

                  (2)

                  for newspapers, magazines, journals and periodicals:

                              (a)

                              the ISSN (International Standard Serial Number) for periodical publications;

                              (b)

                              indexes and catalogues from library holdings and collections;

                              (c)

                              legal deposit;

                              (d)

                              the publishers' associations and the authors' and journalists' associations in the respective country;

                              (e)

                              the databases of relevant collecting societies including reproduction rights organisations;

                  (3)

                  for visual works, including fine art, photography, illustration, design, architecture, sketches of the latter works and other such works that are contained in books, journals, newspapers and magazines or other works:

                              (a)

                              the sources referred to in points (1) and (2);

                              (b)

                              the databases of the relevant collecting societies, in particular for visual arts, and including reproduction rights organisations;

                              (c)

                              the databases of picture agencies, where applicable;

                  (4)

                  for audiovisual works and phonograms:

                              (a)

                              legal deposit;

                              (b)

                              the producers' associations in the respective country;

                              (c)

                              databases of film or audio heritage institutions and national libraries;

                              (d)

                              databases with relevant standards and identifiers such as ISAN (International Standard Audiovisual Number) for audiovisual material, ISWC (International Standard Music Work Code) for musical works and ISRC (International Standard Recording Code) for phonograms;

                              (e)

                              the databases of the relevant collecting societies, in particular for authors, performers, phonogram producers and audiovisual producers;

                              (f)

                              credits and other information appearing on the work's packaging;

                              (g)

                              databases of other relevant associations representing a specific category of rightholders.