title: Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals

text:
               30.6.2009

               EN

               Official Journal of the European Union

               L 168/24

      DIRECTIVE 2009/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 18 June 2009
   providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Having regard to the opinion of the Committee of the Regions (2),
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),
   Whereas:

               (1)

               The European Council meeting of 14 and 15 December 2006 agreed that cooperation among Member States should be strengthened in the fight against illegal immigration and in particular that measures against illegal employment should be intensified at Member State and EU level.

               (2)

               A key pull factor for illegal immigration into the EU is the possibility of obtaining work in the EU without the required legal status. Action against illegal immigration and illegal stay should therefore include measures to counter that pull factor.

               (3)

               The centrepiece of such measures should be a general prohibition on the employment of third-country nationals who do not have the right to be resident in the EU, accompanied by sanctions against employers who infringe that prohibition.

               (4)

               As this Directive provides for minimum standards, Member States should remain free to adopt or maintain stricter sanctions and measures and impose stricter obligations on employers.

               (5)

               This Directive should not apply to third-country nationals staying legally in a Member State regardless of whether they are allowed to work in its territory. Furthermore, it should not apply to persons enjoying the Community right of free movement, as defined in Article 2(5) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (4). Moreover it should not apply to third-country nationals who are in a situation covered by Community law, such as those who are lawfully employed in a Member State and who are posted by a service provider to another Member State in the context of the provision of services. This Directive should apply without prejudice to national law prohibiting the employment of legally staying third-country nationals who work in breach of their residence status.

               (6)

               For the specific purposes of this Directive, certain terms should be defined and such definitions should be used only for the purposes of this Directive.

               (7)

               The definition of employment should encompass its constituent elements, namely activities that are or ought to be remunerated, undertaken for or under the direction and/or supervision of an employer, irrespective of the legal relationship.

               (8)

               The definition of employer may include an association of persons recognised as having the capacity to perform legal acts without having legal personality.

               (9)

               To prevent the employment of illegally staying third-country nationals, employers should be required, before recruiting a third-country national, including in cases where the third-country national is being recruited for the purpose of posting to another Member State in the context of the provision of services, to check that the third-country national has a valid residence permit or another authorisation for stay showing that he or she is legally staying on the territory of the Member State of recruitment.

               (10)

               To enable Member States in particular to check for forged documents, employers should also be required to notify the competent authorities of the employment of a third-country national. In order to minimise the administrative burden, Member States should be free to provide for such notifications to be undertaken within the framework of other notification schemes. Member States should be free to decide a simplified procedure for notification by employers who are natural persons where the employment is for their private purposes.

               (11)

               Employers that have fulfilled the obligations set out in this Directive should not be held liable for having employed illegally staying third-country nationals, in particular if the competent authority later finds that the document presented by an employee had in fact been forged or misused, unless the employer knew that the document was a forgery.

               (12)

               To facilitate the fulfilment by employers of their obligations, Member States should use their best endeavours to handle requests for renewal of residence permits in a timely manner.

               (13)

               To enforce the general prohibition and to deter infringements, Member States should provide for appropriate sanctions. These should include financial sanctions and contributions to the costs of returning illegally staying third-country nationals, together with the possibility of reduced financial sanctions on employers who are natural persons where the employment is for their private purposes.

               (14)

               The employer should in any event be required to pay to the third-country nationals any outstanding remuneration for the work which they have undertaken and any outstanding taxes and social security contributions. If the level of remuneration cannot be determined, it should be presumed to be at least as high as the wage provided for by the applicable laws on minimum wages, by collective agreements or in accordance with established practice in the relevant occupational branches. The employer should also be required to pay, where appropriate, any costs arising from the sending of outstanding remuneration to the country to which the illegally employed third-country national has, or has been, returned. In those cases where back payments are not made by the employer, Member States should not be obliged to fulfil that obligation in place of the employer.

               (15)

               An illegally employed third-country national should not derive a right to entry, stay and access to the labour market from the illegal employment relationship or from the payment or back payment of remuneration, social security contributions or taxes by the employer or by a legal entity which has to pay instead of the employer.

               (16)

               Member States should ensure that claims are or may be lodged and that mechanisms are in place to ensure that recovered amounts of outstanding remuneration are able to be received by the third-country nationals to whom they are due. Member States should not be obliged to involve their missions or representations in third countries in those mechanisms. Member States should, in the context of establishing effective mechanisms to facilitate complaints and if not already provided for by national legislation, consider the possibility and added value of enabling a competent authority to bring proceedings against an employer for the purpose of recovering outstanding remuneration.

               (17)

               Member States should further provide for a presumption of an employment relationship of at least three months’ duration so that the burden of proof is on the employer in respect of at least a certain period. Among others, the employee should also have the opportunity of proving the existence and duration of an employment relationship.

               (18)

               Member States should provide for the possibility of further sanctions against employers, inter alia, exclusions from entitlement to some or all public benefits, aids or subsidies, including agricultural subsidies, exclusions from public procurement procedures and recovery of some or all public benefits, aids or subsidies, including EU funding managed by Member States, that have already been granted. Member States should be free to decide not to apply those further sanctions against employers who are natural persons where the employment is for their private purposes.

               (19)

               This Directive, and in particular its Articles 7, 10 and 12, should be without prejudice to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (5).

               (20)

               In view of the prevalence of subcontracting in certain affected sectors, it is necessary to ensure that at least the contractor of which the employer is a direct subcontractor may be liable to pay financial sanctions in addition to or in place of the employer. In specific cases, other contractors may be liable to pay financial sanctions in addition to or in place of an employer of illegally staying third-country nationals. Back payments which are to be covered by the liability provisions of this Directive should also include contributions to national holiday pay funds and social funds regulated by law or collective agreements.

               (21)

               Experience has shown that the existing systems of sanctions have not been sufficient to achieve complete compliance with prohibitions against the employment of illegally staying third-country nationals. One of the reasons is that administrative sanctions alone are likely not to be enough to deter certain unscrupulous employers. Compliance can and should be strengthened by the application of criminal penalties.

               (22)

               To guarantee the full effectiveness of the general prohibition, there is therefore a particular need for more dissuasive sanctions in serious cases, such as persistently repeated infringements, the illegal employment of a significant number of third-country nationals, particularly exploitative working conditions, the employer knowing that the worker is a victim of trafficking in human beings and the illegal employment of a minor. This Directive obliges Member States to provide for criminal penalties in their national legislation in respect of those serious infringements. It creates no obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases.

               (23)

               In all cases deemed to be serious according to this Directive the infringement should be considered a criminal offence throughout the Community when committed intentionally. The provisions of this Directive regarding criminal offences should be without prejudice to the application of Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings (6).

               (24)

               The criminal offence should be punishable by effective, proportionate and dissuasive criminal penalties. The obligation to ensure effective, proportionate and dissuasive criminal penalties under this Directive is without prejudice to the internal organisation of criminal law and criminal justice in the Member States.

               (25)

               Legal persons may also be held liable for the criminal offences referred to in this Directive, because many employers are legal persons. The provisions of this Directive do not entail an obligation for Member States to introduce criminal liability of legal persons.

               (26)

               To facilitate the enforcement of this Directive, there should be effective complaint mechanisms by which relevant third-country nationals may lodge complaints directly or through designated third parties such as trade unions or other associations. The designated third parties should be protected, when providing assistance to lodge complaints, against possible sanctions under rules prohibiting the facilitation of unauthorised residence.

               (27)

               To supplement the complaint mechanisms, Member States should be free to grant residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who have been subjected to particularly exploitative working conditions or who were illegally employed minors and who cooperate in criminal proceedings against the employer. Such permits should be granted under arrangements comparable to those applicable to third-country nationals who fall within the scope of Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (7).

               (28)

               To ensure a satisfactory level of enforcement of this Directive and to reduce, as far as possible, differences in the level of enforcement in the Member States, Member States should ensure that effective and adequate inspections are carried out on their territory and should communicate data on the inspections they carry out to the Commission.

               (29)

               Member States should be encouraged to determine every year a national target for the number of inspections in respect of the sectors of activity in which the employment of illegally staying third-country nationals is concentrated on their territory.

               (30)

               With a view to increasing the effectiveness of inspections for the purposes of applying this Directive, Member States should ensure that national legislation gives adequate powers to competent authorities to carry out inspections; that information about illegal employment, including the results of previous inspections, is collected and processed for the effective implementation of this Directive; and that sufficient staff are available with the skills and qualifications needed to carry out inspections effectively.

               (31)

               Member States should ensure that inspections for the purposes of applying this Directive do not affect, from a quantitative or qualitative point of view, inspections carried out to assess employment and working conditions.

               (32)

               In the case of posted workers who are third-country nationals, Member States’ inspection authorities may avail themselves of the cooperation and exchange of information provided for in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (8), in order to verify that the third-country nationals concerned are lawfully employed in the Member State of origin.

               (33)

               This Directive should be seen as complementary to measures to counter undeclared work and exploitation.

               (34)

               In accordance with point 34 of the Interinstitutional Agreement on better law-making (9), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public.

               (35)

               Any processing of personal data undertaken in the implementation of this Directive should be in compliance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (10).

               (36)

               Since the objective of this Directive, namely to counteract illegal immigration by acting against the employment pull factor, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

               (37)

               This Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. Specifically, it should be applied with due respect for the freedom to conduct a business, equality before the law and the principle of non-discrimination, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties, in accordance with Articles 16, 20, 21, 47 and 49 of the Charter.

               (38)

               In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are therefore not bound by it or subject to its application.

               (39)

               In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is therefore not bound by it or subject to its application,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject matter and scope
   This Directive prohibits the employment of illegally staying third-country nationals in order to fight illegal immigration. To this end, it lays down minimum common standards on sanctions and measures to be applied in the Member States against employers who infringe that prohibition.
   Article 2
   Definitions
   For the specific purposes of this Directive, the following definitions shall apply:

               (a)

               ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code;

               (b)

               ‘illegally staying third-country national’ means a third-country national present on the territory of a Member State, who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State;

               (c)

               ‘employment’ means the exercise of activities covering whatever form of labour or work regulated under national law or in accordance with established practice for or under the direction and/or supervision of an employer;

               (d)

               ‘illegal employment’ means the employment of an illegally staying third-country national;

               (e)

               ‘employer’ means any natural person or any legal entity, including temporary work agencies, for or under the direction and/or supervision of whom the employment is undertaken;

               (f)

               ‘subcontractor’ means any natural person or any legal entity, to whom the execution of all or part of the obligations of a prior contract is assigned;

               (g)

               ‘legal person’ means any legal entity having such status under applicable national law, except for States or public bodies exercising State authority and for public international organisations;

               (h)

               ‘temporary work agency’ means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction;

               (i)

               ‘particularly exploitative working conditions’ means working conditions, including those resulting from gender based or other discrimination, where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, and which offends against human dignity;

               (j)

               ‘remuneration of illegally staying third-country national’ means the wage or salary and any other consideration, whether in cash or in kind, which a worker receives directly or indirectly in respect of his employment from his employer and which is equivalent to that which would have been enjoyed by comparable workers in a legal employment relationship.

         Article 3
   Prohibition of illegal employment
   1.   Member States shall prohibit the employment of illegally staying third-country nationals.
   2.   Infringements of this prohibition shall be subject to the sanctions and measures laid down in this Directive.
   3.   A Member State may decide not to apply the prohibition referred to in paragraph 1 to illegally staying third-country nationals whose removal has been postponed and who are allowed to work in accordance with national law.
   Article 4
   Obligations on employers
   1.   Member States shall oblige employers to:

               (a)

               require that a third-country national before taking up the employment holds and presents to the employer a valid residence permit or other authorisation for his or her stay;

               (b)

               keep for at least the duration of the employment a copy or record of the residence permit or other authorisation for stay available for possible inspection by the competent authorities of the Member States;

               (c)

               notify the competent authorities designated by Member States of the start of employment of third-country nationals within a period laid down by each Member State.

         2.   Member States may provide for a simplified procedure for notification under paragraph 1(c) where the employers are natural persons and the employment is for their private purposes.
   Member States may provide that notification under paragraph 1(c) is not required where the employee has been granted long-term residence status under Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (11).
   3.   Member States shall ensure that employers who have fulfilled their obligations set out in paragraph 1 shall not be held liable for an infringement of the prohibition referred to in Article 3 unless the employers knew that the document presented as a valid residence permit or another authorisation for stay was a forgery.
   Article 5
   Financial sanctions
   1.   Member States shall take the necessary measures to ensure that infringements of the prohibition referred to in Article 3 are subject to effective, proportionate and dissuasive sanctions against the employer.
   2.   Sanctions in respect of infringements of the prohibition referred to in Article 3 shall include:

               (a)

               financial sanctions which shall increase in amount according to the number of illegally employed third-country nationals; and

               (b)

               payments of the costs of return of illegally employed third-country nationals in those cases where return procedures are carried out. Member States may instead decide to reflect at least the average costs of return in the financial sanctions under point (a).

         3.   Member States may provide for reduced financial sanctions where the employer is a natural person who employs an illegally staying third-country national for his or her private purposes and where no particularly exploitative working conditions are involved.
   Article 6
   Back payments to be made by employers
   1.   In respect of each infringement of the prohibition referred to in Article 3, Member States shall ensure that the employer shall be liable to pay:

               (a)

               any outstanding remuneration to the illegally employed third-country national. The agreed level of remuneration shall be presumed to have been at least as high as the wage provided for by the applicable laws on minimum wages, by collective agreements or in accordance with established practice in the relevant occupational branches, unless either the employer or the employee can prove otherwise, while respecting, where appropriate, the mandatory national provisions on wages;

               (b)

               an amount equal to any taxes and social security contributions that the employer would have paid had the third-country national been legally employed, including penalty payments for delays and relevant administrative fines;

               (c)

               where appropriate, any cost arising from sending back payments to the country to which the third-country national has returned or has been returned.

         2.   In order to ensure the availability of effective procedures to apply paragraph 1(a) and (c), and having due regard to Article 13, Member States shall enact mechanisms to ensure that illegally employed third-country nationals:

               (a)

               may introduce a claim, subject to a limitation period defined in national law, against their employer and eventually enforce a judgment against the employer for any outstanding remuneration, including in cases in which they have, or have been, returned; or

               (b)

               when provided for by national legislation, may call on the competent authority of the Member State to start procedures to recover outstanding remuneration without the need for them to introduce a claim in that case.

         Illegally employed third-country nationals shall be systematically and objectively informed about their rights under this paragraph and under Article 13 before the enforcement of any return decision.
   3.   In order to apply paragraph 1(a) and (b), Member States shall provide that an employment relationship of at least three months duration be presumed unless, among others, the employer or the employee can prove otherwise.
   4.   Member States shall ensure that the necessary mechanisms are in place to ensure that illegally employed third-country nationals are able to receive any back payment of remuneration referred to in paragraph 1(a) which is recovered as part of the claims referred to in paragraph 2, including in cases in which they have, or have been, returned.
   5.   In respect of cases where residence permits of limited duration have been granted under Article 13(4), Member States shall define under national law the conditions under which the duration of these permits may be extended until the third-country national has received any back payment of his or her remuneration recovered under paragraph 1 of this Article.
   Article 7
   Other measures
   1.   Member States shall take the necessary measures to ensure that employers shall also, if appropriate, be subject to the following measures:

               (a)

               exclusion from entitlement to some or all public benefits, aid or subsidies, including EU funding managed by Member States, for up to five years;

               (b)

               exclusion from participation in a public contract as defined in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (12) for up to five years;

               (c)

               recovery of some or all public benefits, aid, or subsidies, including EU funding managed by Member States, granted to the employer for up to 12 months preceding the detection of illegal employment;

               (d)

               temporary or permanent closure of the establishments that have been used to commit the infringement, or temporary or permanent withdrawal of a licence to conduct the business activity in question, if justified by the gravity of the infringement.

         2.   Member States may decide not to apply paragraph 1 where the employers are natural persons and the employment is for their private purposes.
   Article 8
   Subcontracting
   1.   Where the employer is a subcontractor and without prejudice to the provisions of national law concerning the rights of contribution or recourse or to the provisions of national law in the field of social security, Member States shall ensure that the contractor of which the employer is a direct subcontractor may, in addition to or in place of the employer, be liable to pay:

               (a)

               any financial sanction imposed under Article 5; and

               (b)

               any back payments due under Article 6(1)(a) and (c) and Article 6(2) and(3).

         2.   Where the employer is a subcontractor, Member States shall ensure that the main contractor and any intermediate subcontractor, where they knew that the employing subcontractor employed illegally staying third-country nationals, may be liable to make the payments referred to in paragraph 1 in addition to or in place of the employing subcontractor or the contractor of which the employer is a direct subcontractor.
   3.   A contractor that has undertaken due diligence obligations as defined by national law shall not be liable under paragraphs 1 and 2.
   4.   Member States may provide for more stringent liability rules under national law.
   Article 9
   Criminal offence
   1.   Member States shall ensure that the infringement of the prohibition referred to in Article 3 constitutes a criminal offence when committed intentionally, in each of the following circumstances as defined by national law:

               (a)

               the infringement continues or is persistently repeated;

               (b)

               the infringement is in respect of the simultaneous employment of a significant number of illegally staying third-country nationals;

               (c)

               the infringement is accompanied by particularly exploitative working conditions;

               (d)

               the infringement is committed by an employer who, while not having been charged with or convicted of an offence established pursuant to Framework Decision 2002/629/JHA, uses work or services exacted from an illegally staying third-country national with the knowledge that he or she is a victim of trafficking in human beings;

               (e)

               the infringement relates to the illegal employment of a minor.

         2.   Member States shall ensure that inciting, aiding and abetting the intentional conduct referred to in paragraph 1 is punishable as a criminal offence.
   Article 10
   Criminal penalties
   1.   Member States shall take the necessary measures to ensure that natural persons who commit the criminal offence referred to in Article 9 are punishable by effective, proportionate and dissuasive criminal penalties.
   2.   Unless prohibited by general principles of law, the criminal penalties provided for in this Article may be applied under national law without prejudice to other sanctions or measures of a non-criminal nature, and they may be accompanied by the publication of the judicial decision relevant to the case.
   Article 11
   Liability of legal persons
   1.   Member States shall ensure that legal persons may be held liable for the offence referred to in Article 9 where such an offence has been committed for their benefit by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person, on the basis of:

               (a)

               a power of representation of the legal person;

               (b)

               an authority to take decisions on behalf of the legal person; or

               (c)

               an authority to exercise control within the legal person.

         2.   Member States shall also ensure that a legal person may be held liable where the lack of supervision or control, by a person referred to in paragraph 1, has made possible the commission of the criminal offence referred to in Article 9 for the benefit of that legal person by a person under its authority.
   3.   Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offence referred to in Article 9.
   Article 12
   Penalties for legal persons
   Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 11 is punishable by effective, proportionate and dissuasive penalties, which may include measures such as those referred to in Article 7.
   Member States may decide that a list of employers who are legal persons and who have been held liable for the criminal offence referred to in Article 9 is made public.
   Article 13
   Facilitation of complaints
   1.   Member States shall ensure that there are effective mechanisms through which third-country nationals in illegal employment may lodge complaints against their employers, directly or through third parties designated by Member States such as trade unions or other associations or a competent authority of the Member State when provided for by national legislation.
   2.   Member States shall ensure that third parties which have, in accordance with the criteria laid down in their national law, a legitimate interest in ensuring compliance with this Directive, may engage either on behalf of or in support of an illegally employed third-country national, with his or her approval, in any administrative or civil proceedings provided for with the objective of implementing this Directive.
   3.   Providing assistance to third-country nationals to lodge complaints shall not be considered as facilitation of unauthorised residence under Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (13).
   4.   In respect of criminal offences covered by Article 9(1)(c) or (e), Member States shall define in national law the conditions under which they may grant, on a case-by-case basis, permits of limited duration, linked to the length of the relevant national proceedings, to the third-country nationals involved, under arrangements comparable to those applicable to third-country nationals who fall within the scope of Directive 2004/81/EC.
   Article 14
   Inspections
   1.   Member States shall ensure that effective and adequate inspections are carried out on their territory to control employment of illegally staying third-country nationals. Such inspections shall be based primarily on a risk assessment to be drawn up by the competent authorities in the Member States.
   2.   With a view to increasing the effectiveness of inspections, Member States shall, on the basis of a risk assessment, regularly identify the sectors of activity in which the employment of illegally staying third-country nationals is concentrated on their territory.
   In respect of each of those sectors, Member States shall, before 1 July of each year, communicate to the Commission the inspections, both in absolute numbers and as a percentage of the employers for each sector, carried out in the previous year as well as their results.
   Article 15
   More favourable provisions
   This Directive shall be without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to third-country nationals to whom it applies in relation with Articles 6 and 13, provided that such provisions are compatible with this Directive.
   Article 16
   Reporting
   1.   By 20 July 2014, and every three years thereafter, the Commission shall submit a report to the European Parliament and the Council including, where appropriate, proposals for amending Articles 6, 7, 8, 13 and 14. The Commission shall in particular examine in its report the implementation by Member States of Article 6(2) and (5).
   2.   Member States shall send the Commission all the information that is appropriate for drawing up the report referred to in paragraph 1. The information shall include the number and results of inspections carried out pursuant to Article 14(1), measures applied under Article 13 and, as far as possible, measures applied under Articles 6 and 7.
   Article 17
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20 July 2011. They shall forthwith inform the Commission thereof.
   When they are adopted by Member States, those measures shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 18
   Entry into force
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 19
   Addressees
   This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.

      Done at Brussels, 18 June 2009.

            For the European Parliament

            The President

         H.-G. PÖTTERING

            For the Council

            The President

         Š. FÜLE

      (1)  OJ C 204, 9.8.2008, p. 70.

      (2)  OJ C 257, 9.10.2008, p. 20.

      (3)  Opinion of the European Parliament of 4 February 2009 (not yet published in the Official Journal) and Council Decision of 25 May 2009.

      (4)  OJ L 105, 13.4.2006, p. 1.

      (5)  OJ L 248, 16.9.2002, p. 1.

      (6)  OJ L 203, 1.8.2002, p. 1.

      (7)  OJ L 261, 6.8.2004, p. 19.

      (8)  OJ L 18, 21.1.1997, p. 1.

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

      (10)  OJ L 281, 23.11.1995, p. 31.

      (11)  OJ L 16, 23.1.2004, p. 44.

      (12)  OJ L 134, 30.4.2004, p. 114.

      (13)  OJ L 328, 5.12.2002, p. 17.


Avis juridique important

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Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment

Official Journal L 073 , 14/03/1997 P. 0005 - 0015

COUNCIL DIRECTIVE 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environmentTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 130s (1) thereof,Having regard to the proposal from the Commission (1),Having regard to the opinion of the Economic and Social Committee (2),Having regard to the opinion of the Committee of the Regions (3),Acting in accordance with the procedure laid down in Article 189c of the Treaty (4),(1) Whereas Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (5) aims at providing the competent authorities with relevant information to enable them to take a decision on a specific project in full knowledge of the project's likely significant impact on the environment; whereas the assessment procedure is a fundamental instrument of environmental policy as defined in Article 130r of the Treaty and of the Fifth Community Programme of policy and action in relation to the environment and sustainable development;(2) Whereas, pursuant to Article 130r (2) of the Treaty, Community policy on the environment is based on the precautionary principle and on the principle that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay;(3) Whereas the main principles of the assessment of environmental effects should be harmonized and whereas the Member States may lay down stricter rules to protect the environment;(4) Whereas experience acquired in environmental impact assessment, as recorded in the report on the implementation of Directive 85/337/EEC, adopted by the Commission on 2 April 1993, shows that it is necessary to introduce provisions designed to clarify, supplement and improve the rules on the assessment procedure, in order to ensure that the Directive is applied in an increasingly harmonized and efficient manner;(5) Whereas projects for which an assessment is required should be subject to a requirement for development consent; whereas the assessment should be carried out before such consent is granted;(6) Whereas it is appropriate to make additions to the list of projects which have significant effects on the environment and which must on that account as a rule be made subject to systematic assessment;(7) Whereas projects of other types may not have significant effects on the environment in every case; whereas these projects should be assessed where Member States consider they are likely to have significant effects on the environment;(8) Whereas Member States may set thresholds or criteria for the purpose of determining which such projects should be subject to assessment on the basis of the significance of their environmental effects; whereas Member States should not be required to examine projects below those thresholds or outside those criteria on a case-by-case basis;(9) Whereas when setting such thresholds or criteria or examining projects on a case-by-case basis for the purpose of determining which projects should be subject to assessment on the basis of their significant environmental effects, Member States should take account of the relevant selection criteria set out in this Directive; whereas, in accordance with the subsidiarity principle, the Member States are in the best position to apply these criteria in specific instances;(10) Whereas the existence of a location criterion referring to special protection areas designated by Member States pursuant to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (6) and 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (7) does not imply necessarily that projects in those areas are to be automatically subject to an assessment under this Directive;(11) Whereas it is appropriate to introduce a procedure in order to enable the developer to obtain an opinion from the competent authorities on the content and extent of the information to be elaborated and supplied for the assessment; whereas Member States, in the framework of this procedure, may require the developer to provide, inter alia, alternatives for the projects for which it intends to submit an application;(12) Whereas it is desirable to strengthen the provisions concerning environmental impact assessment in a transboundary context to take account of developments at international level;(13) Whereas the Community signed the Convention on Environmental Impact Assessment in a Transboundary Context on 25 February 1991,HAS ADOPTED THIS DIRECTIVE:Article 1 Directive 85/337/EEC is hereby amended as follows:1. Article 2 (1) shall be replaced by the following:'1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.`;2. The following paragraph shall be inserted in Article 2:'2a. Member States may provide for a single procedure in order to fulfil the requirements of this Directive and the requirements of Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control (1).(1) OJ No L 257, 10. 10. 1996, p. 26.`;3. The first subparagraph of Article 2 (3) shall read as follows:'3. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.`;4. In Article 2 (3) (c) the words 'where appropriate` shall be replaced by the words 'where applicable`;5. Article 3 shall be replaced by the following:'Article 3The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:- human beings, fauna and flora;- soil, water, air, climate and the landscape;- material assets and the cultural heritage;- the interaction between the factors mentioned in the first, second and third indents.`;6. Article 4 shall be replaced by the following:'Article 41. Subject to Article 2 (3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.2. Subject to Article 2 (3), for projects listed in Annex II, the Member States shall determine through:(a) a case-by-case examination,or(b) thresholds or criteria set by the Member Statewhether the project shall be made subject to an assessment in accordance with Articles 5 to 10.Member States may decide to apply both procedures referred to in (a) and (b).3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.`;7. Article 5 shall be replaced by the following:'Article 51. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex IV inasmuch as:(a) the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected;(b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.2. Member States shall take the necessary measures to ensure that, if the developer so requests before submitting an application for development consent, the competent authority shall give an opinion on the information to be supplied by the developer in accordance with paragraph 1. The competent authority shall consult the developer and authorities referred to in Article 6 (1) before it gives its opinion. The fact that the authority has given an opinion under this paragraph shall not preclude it from subsequently requiring the developer to submit further information.Member States may require the competent authorities to give such an opinion, irrespective of whether the developer so requests.3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:- a description of the project comprising information on the site, design and size of the project,- a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,- the data required to identify and assess the main effects which the project is likely to have on the environment,- an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects,- a non-technical summary of the information mentioned in the previous indents.4. Member States shall, if necessary, ensure that any authorities holding relevant information, with particular reference to Article 3, shall make this information available to the developer.`;8. Article 6 (1) shall be replaced by the following:'1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent. To this end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.`;Article 6 (2) shall be replaced by the following:'2. Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent is granted.`;9. Article 7 shall be replaced by the following:'Article 71. Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:(a) a description of the project, together with any available information on its possible transboundary impact;(b) information on the nature of the decision which may be taken,and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the Environmental Impact Assessment procedure, and may include the information referred to in paragraph 2.2. If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the Environmental Impact Assessment procedure, the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information gathered pursuant to Article 5 and relevant information regarding the said procedure, including the request for development consent.3. The Member States concerned, each insofar as it is concerned, shall also:(a) arrange for the information referred to in paragraphs 1 and 2 to be made available, within a reasonable time, to the authorities referred to in Article 6 (1) and the public concerned in the territory of the Member State likely to be significantly affected; and(b) ensure that those authorities and the public concerned are given an opportunity, before development consent for the project is granted, to forward their opinion within a reasonable time on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out.4. The Member States concerned shall enter into consultations regarding, inter alia, the potential transboundary effects of the project and the measures envisaged to reduce or eliminate such effects and shall agree on a reasonable time frame for the duration of the consultation period.5. The detailed arrangements for implementing the provisions of this Article may be determined by the Member States concerned.`;10. Article 8 shall be replaced by the following:'Article 8The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure.`;11. Article 9 shall be replaced by the following:'Article 91. When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:- the content of the decision and any conditions attached thereto,- the main reasons and considerations on which the decision is based,- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects.2. The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding to it the information referred to in paragraph 1.`;12. Article 10 shall be replaced by the following:'Article 10The provisions of this Directive shall not affect the obligation on the competent authorities to respect the limitations imposed by national regulations and administrative provisions and accepted legal practices with regard to commercial and industrial confidentiality, including intellectual property, and the safeguarding of the public interest.Where Article 7 applies, the transmission of information to another Member State and the receipt of information by another Member State shall be subject to the limitations in force in the Member State in which the project is proposed.`;13. Article 11 (2) shall be replaced by the following:'2. In particular, Member States shall inform the Commission of any criteria and/or thresholds adopted for the selection of the projects in question, in accordance with Article 4 (2).`;14. Article 13 shall be deleted;15. Annexes I, II and III shall be replaced by Annexes I, II, III and IV as they appear in the Annex.Article 2 Five years after the entry into force of this Directive, the Commission shall send the European Parliament and the Council a report on the application and effectiveness of Directive 85/337/EEC as amended by this Directive. The report shall be based on the exchange of information provided for by Article 11 (1) and (2).On the basis of this report, the Commission shall, where appropriate, submit to the Council additional proposals with a view to ensuring further coordination in the application of this Directive.Article 3 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 14 March 1999 at the latest. They shall forthwith inform the Commission thereof.When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.2. If a request for development consent is submitted to a competent authority before the end of the time limit laid down in paragraph 1, the provisions of Directive 85/337/EEC prior to these amendments shall continue to apply.Article 4 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.Article 5 This Directive is addressed to the Member States.Done at Brussels, 3 March 1997.For the CouncilThe PresidentM. DE BOER(1) OJ No C 130, 12. 5. 1994, p. 8 andOJ No C 81, 19. 3. 1996, p. 14.(2) OJ No C 393, 31. 12. 1994, p. 1.(3) OJ No C 210, 14. 8. 1995, p. 78.(4) European Parliament Opinion of 11 October 1995 (OJ No C 287, 30. 10. 1995, p. 101), Council common position of 25 June 1996 (OJ No C 248, 26. 8. 1996, p. 75) and European Parliament Decision of 13 November 1996 (OJ No C 362, 2. 12. 1996, p. 103).(5) OJ No L 175, 5. 7. 1985, p. 40. Directive as last amended by the 1994 Act of Accession.(6) OJ No L 103, 25. 4. 1979, p. 1. Directive as last amended by the 1994 Act of Accession.(7) OJ No L 206, 22. 7. 1992, p. 7.ANNEX 'ANNEX IPROJECTS SUBJECT TO ARTICLE 4 (1)1. Crude-oil refineries (excluding undertakings manufacturing only lubricants from crude oil) and installations for the gasification and liquefaction of 500 tonnes or more of coal or bituminous shale per day.2. - Thermal power stations and other combustion installations with a heat output of 300 megawatts or more, and- nuclear power stations and other nuclear reactors including the dismantling or decommissioning of such power stations or reactors (*) (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load).3. (a) Installations for the reprocessing of irradiated nuclear fuel.(b) Installations designed:- for the production or enrichment of nuclear fuel,- for the processing of irradiated nuclear fuel or high-level radioactive waste,- for the final disposal of irradiated nuclear fuel,- solely for the final disposal of radioactive waste,- solely for the storage (planned for more than 10 years) of irradiated nuclear fuels or radioactive waste in a different site than the production site.4. - Integrated works for the initial smelting of cast-iron and steel;- Installations for the production of non-ferrous crude metals from ore, concentrates or secondary raw materials by metallurgical, chemical or electrolytic processes.5. Installations for the extraction of asbestos and for the processing and transformation of asbestos and products containing asbestos: for asbestos-cement products, with an annual production of more than 20 000 tonnes of finished products, for friction material, with an annual production of more than 50 tonnes of finished products, and for other uses of asbestos, utilization of more than 200 tonnes per year.6. Integrated chemical installations, i.e. those installations for the manufacture on an industrial scale of substances using chemical conversion processes, in which several units are juxtaposed and are functionally linked to one another and which are:(i) for the production of basic organic chemicals;(ii) for the production of basic inorganic chemicals;(iii) for the production of phosphorous-, nitrogen- or potassium-based fertilizers (simple or compound fertilizers);(iv) for the production of basic plant health products and of biocides;(v) for the production of basic pharmaceutical products using a chemical or biological process;(vi) for the production of explosives.7. (a) Construction of lines for long-distance railway traffic and of airports (1) with a basic runway length of 2 100 m or more;(b) Construction of motorways and express roads (2);(c) Construction of a new road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road, or realigned and/or widened section of road would be 10 km or more in a continuous length.8. (a) Inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1 350 tonnes;(b) Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry piers) which can take vessels of over 1 350 tonnes.(*) Nuclear power stations and other nuclear reactors cease to be such an installation when all nuclear fuel and other radioactively contaminated elements have been removed permanently from the installation site.(1) For the purposes of this Directive, 'airport` means airports which comply with the definition in the 1944 Chicago Convention setting up the International Civil Aviation Organization (Annex 14).(2) For the purposes of the Directive, 'express road` means a road which complies with the definition in the European Agreement on Main International Traffic Arteries of 15 November 1975.9. Waste disposal installations for the incineration, chemical treatment as defined in Annex IIA to Directive 75/442/EEC (1) under heading D9, or landfill of hazardous waste (i.e. waste to which Directive 91/689/EEC (2) applies).10. Waste disposal installations for the incineration or chemical treatment as defined in Annex IIA to Directive 75/442/EEC under heading D9 of non-hazardous waste with a capacity exceeding 100 tonnes per day.11. Groundwater abstraction or artificial groundwater recharge schemes where the annual volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic metres.12. (a) Works for the transfer of water resources between river basins where this transfer aims at preventing possible shortages of water and where the amount of water transferred exceeds 100 million cubic metres/year;(b) In all other cases, works for the transfer of water resources between river basins where the multi-annual average flow of the basin of abstraction exceeds 2 000 million cubic metres/year and where the amount of water transferred exceeds 5 % of this flow.In both cases transfers of piped drinking water are excluded.13. Waste water treatment plants with a capacity exceeding 150 000 population equivalent as defined in Article 2 point (6) of Directive 91/271/EEC (3).14. Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 m³/day in the case of gas.15. Dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres.16. Pipelines for the transport of gas, oil or chemicals with a diameter of more than 800 mm and a length of more than 40 km.17. Installations for the intensive rearing of poultry or pigs with more than:(a) 85 000 places for broilers, 60 000 places for hens;(b) 3 000 places for production pigs (over 30 kg); or(c) 900 places for sows.18. Industrial plants for the(a) production of pulp from timber or similar fibrous materials;(b) production of paper and board with a production capacity exceeding 200 tonnes per day.19. Quarries and open-cast mining where the surface of the site exceeds 25 hectares, or peat extraction, where the surface of the site exceeds 150 hectares.20. Construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km.21. Installations for storage of petroleum, petrochemical, or chemical products with a capacity of 200 000 tonnes or more.(1) OJNo L 194, 25. 7. 1975, p. 39. Directive as last amended by Commission Decision 94/3/EC (OJ No L 5, 7. 1. 1994, p. 15).(2) OJ No L 377, 31. 12. 1991, p. 20. Directive as last amended by Directive 94/31/EC (OJ No L 168, 2. 7. 1994, p. 28).(3) OJ No L 135, 30. 5. 1991, p. 40. Directive as last amended by the 1994 Act of Accession.ANNEX IIPROJECTS SUBJECT TO ARTICLE 4 (2)1. Agriculture, silviculture and aquaculture(a) Projects for the restructuring of rural land holdings;(b) Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes;(c) Water management projects for agriculture, including irrigation and land drainage projects;(d) Initial afforestation and deforestation for the purposes of conversion to another type of land use;(e) Intensive livestock installations (projects not included in Annex I);(f) Intensive fish farming;(g) Reclamation of land from the sea.2. Extractive industry(a) Quarries, open-cast mining and peat extraction (projects not included in Annex I);(b) Underground mining;(c) Extraction of minerals by marine or fluvial dredging;(d) Deep drillings, in particular:- geothermal drilling,- drilling for the storage of nuclear waste material,- drilling for water supplies,with the exception of drillings for investigating the stability of the soil;(e) Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale.3. Energy industry(a) Industrial installations for the production of electricity, steam and hot water (projects not included in Annex I);(b) Industrial installations for carrying gas, steam and hot water; transmission of electrical energy by overhead cables (projects not included in Annex I);(c) Surface storage of natural gas;(d) Underground storage of combustible gases;(e) Surface storage of fossil fuels;(f) Industrial briquetting of coal and lignite;(g) Installations for the processing and storage of radioactive waste (unless included in Annex I);(h) Installations for hydroelectric energy production;(i) Installations for the harnessing of wind power for energy production (wind farms).4. Production and processing of metals(a) Installations for the production of pig iron or steel (primary or secondary fusion) including continuous casting;(b) Installations for the processing of ferrous metals:(i) hot-rolling mills;(ii) smitheries with hammers;(iii) application of protective fused metal coats;(c) Ferrous metal foundries;(d) Installations for the smelting, including the alloyage, of non-ferrous metals, excluding precious metals, including recovered products (refining, foundry casting, etc.);(e) Installations for surface treatment of metals and plastic materials using an electrolytic or chemical process;(f) Manufacture and assembly of motor vehicles and manufacture of motor-vehicle engines;(g) Shipyards;(h) Installations for the construction and repair of aircraft;(i) Manufacture of railway equipment;(j) Swaging by explosives;(k) Installations for the roasting and sintering of metallic ores.5. Mineral industry(a) Coke ovens (dry coal distillation);(b) Installations for the manufacture of cement;(c) Installations for the production of asbestos and the manufacture of asbestos-products (projects not included in Annex I);(d) Installations for the manufacture of glass including glass fibre;(e) Installations for smelting mineral substances including the production of mineral fibres;(f) Manufacture of ceramic products by burning, in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain.6. Chemical industry (Projects not included in Annex I)(a) Treatment of intermediate products and production of chemicals;(b) Production of pesticides and pharmaceutical products, paint and varnishes, elastomers and peroxides;(c) Storage facilities for petroleum, petrochemical and chemical products.7. Food industry(a) Manufacture of vegetable and animal oils and fats;(b) Packing and canning of animal and vegetable products;(c) Manufacture of dairy products;(d) Brewing and malting;(e) Confectionery and syrup manufacture;(f) Installations for the slaughter of animals;(g) Industrial starch manufacturing installations;(h) Fish-meal and fish-oil factories;(i) Sugar factories.8. Textile, leather, wood and paper industries(a) Industrial plants for the production of paper and board (projects not included in Annex I);(b) Plants for the pretreatment (operations such as washing, bleaching, mercerization) or dyeing of fibres or textiles;(c) Plants for the tanning of hides and skins;(d) Cellulose-processing and production installations.9. Rubber industryManufacture and treatment of elastomer-based products.10. Infrastructure projects(a) Industrial estate development projects;(b) Urban development projects, including the construction of shopping centres and car parks;(c) Construction of railways and intermodal transshipment facilities, and of intermodal terminals (projects not included in Annex I);(d) Construction of airfields (projects not included in Annex I);(e) Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I);(f) Inland-waterway construction not included in Annex I, canalization and flood-relief works;(g) Dams and other installations designed to hold water or store it on a long-term basis (projects not included in Annex I);(h) Tramways, elevated and underground railways, suspended lines or similar lines of a particular type, used exclusively or mainly for passenger transport;(i) Oil and gas pipeline installations (projects not included in Annex I);(j) Installations of long-distance aqueducts;(k) Coastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defence works, excluding the maintenance and reconstruction of such works;(l) Groundwater abstraction and artificial groundwater recharge schemes not included in Annex I;(m) Works for the transfer of water resources between river basins not included in Annex I.11. Other projects(a) Permanent racing and test tracks for motorized vehicles;(b) Installations for the disposal of waste (projects not included in Annex I);(c) Waste-water treatment plants (projects not included in Annex I);(d) Sludge-deposition sites;(e) Storage of scrap iron, including scrap vehicles;(f) Test benches for engines, turbines or reactors;(g) Installations for the manufacture of artificial mineral fibres;(h) Installations for the recovery or destruction of explosive substances;(i) Knackers' yards.12. Tourism and leisure(a) Ski-runs, ski-lifts and cable-cars and associated developments;(b) Marinas;(c) Holiday villages and hotel complexes outside urban areas and associated developments;(d) Permanent camp sites and caravan sites;(e) Theme parks.13. - Any change or extension of projects listed in Annex I or Annex II, already authorized, executed or in the process of being executed, which may have significant adverse effects on the environment;- Projects in Annex I, undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years.ANNEX IIISELECTION CRITERIA REFERRED TO IN ARTICLE 4 (3)1. Characteristics of projectsThe characteristics of projects must be considered having regard, in particular, to:- the size of the project,- the cumulation with other projects,- the use of natural resources,- the production of waste,- pollution and nuisances,- the risk of accidents, having regard in particular to substances or technologies used.2. Location of projectsThe environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to:- the existing land use,- the relative abundance, quality and regenerative capacity of natural resources in the area,- the absorption capacity of the natural environment, paying particular attention to the following areas:(a) wetlands;(b) coastal zones;(c) mountain and forest areas;(d) nature reserves and parks;(e) areas classified or protected under Member States' legislation; special protection areas designated by Member States pursuant to Directive 79/409/EEC and 92/43/EEC;(f) areas in which the environmental quality standards laid down in Community legislation have already been exceeded;(g) densely populated areas;(h) landscapes of historical, cultural or archaeological significance.3. Characteristics of the potential impactThe potential significant effects of projects must be considered in relation to criteria set out under 1 and 2 above, and having regard in particular to:- the extent of the impact (geographical area and size of the affected population),- the transfrontier nature of the impact,- the magnitude and complexity of the impact,- the probability of the impact,- the duration, frequency and reversibility of the impact.ANNEX IVINFORMATION REFERRED TO IN ARTICLE 5 (1)1. Description of the project, including in particular:- a description of the physical characteristics of the whole project and the land-use requirements during the construction and operational phases,- a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used,- an estimate, by type and quantity, of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat, radiation, etc.) resulting from the operation of the proposed project.2. An outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects.3. A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.4. A description (1) of the likely significant effects of the proposed project on the environment resulting from:- the existence of the project,- the use of natural resources,- the emission of pollutants, the creation of nuisances and the elimination of waste,and the description by the developer of the forecasting methods used to assess the effects on the environment.5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.6. A non-technical summary of the information provided under the above headings.7. An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the developer in compiling the required information.(1) This description should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project.`


title: Commission Directive 2007/76/EC of 20 December 2007 amending Council Directive 91/414/EEC to include fludioxonil, clomazone and prosulfocarb as active substances (Text with EEA relevance )

text:
               21.12.2007

               EN

               Official Journal of the European Union

               L 337/100

      COMMISSION DIRECTIVE 2007/76/EC
   of 20 December 2007
   amending Council Directive 91/414/EEC to include fludioxonil, clomazone and prosulfocarb as active substances
   (Text with EEA relevance)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community,
   Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular Article 6(1) thereof,
   Whereas:

               (1)

               Commission Regulations (EC) No 451/2000 (2) and (EC) No 1490/2002 (3) lay down the detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Directive 91/414/EEC and establish a list of active substances to be assessed, with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list includes fludioxonil, clomazone and prosulfocarb.

               (2)

               For those active substances the effects on human health and the environment have been assessed in accordance with the provisions laid down in Regulations (EC) No 451/2000 and (EC) No 1490/2002 for a range of uses proposed by the notifiers. Moreover, those Regulations designate the rapporteur Member States which have to submit the relevant assessment reports and recommendations to the European Food Safety Authority (EFSA) in accordance with Article 10(1) of Regulation (EC) No 1490/2002. For fludioxonil and clomazone the rapporteur Member State was Denmark and all relevant information was submitted on 5 April 2005 and 16 March 2005 respectively. For prosulfocarb the rapporteur Member State was Sweden and all relevant information was submitted on 20 April 2005.

               (3)

               The assessment reports have been peer reviewed by the Member States and the EFSA and presented to the Commission on 27 July 2007 for fludioxonil, clomazone and prosulfocarb, in the format of the EFSA Scientific Reports (4). These reports have been reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health and finalised on 9 October 2007 in the format of the Commission review reports for fludioxonil, clomazone and prosulfocarb.

               (4)

               It has appeared from the various examinations made that plant protection products containing fludioxonil, clomazone and prosulfocarb may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, in particular with regard to the uses which were examined and detailed in the Commission review reports. It is therefore appropriate to include these active substances in Annex I, in order to ensure that in all Member States the authorisations of plant protection products containing these active substances can be granted in accordance with the provisions of that Directive.

               (5)

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

               (6)

               Without prejudice to the obligations defined by Directive 91/414/EEC as a consequence of including an active substance in Annex I, Member States should be allowed a period of six months after inclusion to review existing authorisations of plant protection products containing fludioxonil, clomazone and prosulfocarb to ensure that the requirements laid down by Directive 91/414/EEC, in particular in its Article 13 and the relevant conditions set out in Annex I, are satisfied. Member States should vary, replace or withdraw, as appropriate, existing authorisations, in accordance with the provisions of Directive 91/414/EEC. By way of derogation from the above deadline, a longer period should be provided for the submission and assessment of the complete Annex III dossier of each plant protection product for each intended use in accordance with the uniform principles laid down in Directive 91/414/EEC.

               (7)

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

               (8)

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

               (9)

               The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive.
   Article 2
   Member States shall adopt and publish by 30 April 2009 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   They shall apply those provisions from 1 May 2009.
   When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
   Article 3
   1.   Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing fludioxonil, clomazone and prosulfocarb as active substances by 30 April 2009.
   By that date they shall in particular verify that the conditions in Annex I to that Directive relating to fludioxonil, clomazone and prosulfocarb are met, with the exception of those identified in part B of the entry concerning that active substance, and that the holder of the authorisation has, or has access to, a dossier satisfying the requirements of Annex II to that Directive in accordance with the conditions of Article 13 of that Directive.
   2.   By way of derogation from paragraph 1, for each authorised plant protection product containing fludioxonil, clomazone and prosulfocarb as either the only active substance or as one of several active substances all of which were listed in Annex I to Directive 91/414/EEC by 31 October 2008 at the latest, Member States shall re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive and taking into account part B of the entry in Annex I to that Directive concerning fludioxonil, clomazone and prosulfocarb respectively. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC.
   Following that determination Member States shall:

               (a)

               in the case of a product containing fludioxonil, clomazone or prosulfocarb as the only active substance, where necessary, amend or withdraw the authorisation by 31 October 2012 at the latest; or

               (b)

               in the case of a product containing fludioxonil, clomazone or prosulfocarb as one of several active substances, where necessary, amend or withdraw the authorisation by 31 October 2012 or by the date fixed for such an amendment or withdrawal in the respective Directive or Directives which added the relevant substance or substances to Annex I to Directive 91/414/EEC, whichever is the latest.

         Article 4
   This Directive shall enter into force on 1 November 2008.
   Article 5
   This Directive is addressed to the Member States.

      Done at Brussels, 20 December 2007.

            For the Commission

         Markos KYPRIANOU

            Member of the Commission

      (1)  OJ L 230, 19.8.1991, p. 1. Directive as last amended by Commission Directive 2007/52/EC (OJ L 214, 17.8.2007, p. 3).

      (2)  OJ L 55, 29.2.2000, p. 25. Regulation as last amended by Regulation (EC) No 1044/2003 (OJ L 151, 19.6.2003, p. 32).

      (3)  OJ L 224, 21.8.2002, p. 23. Regulation as last amended by Regulation (EC) No 1095/2007 (OJ L 246, 21.9.2007, p. 19).

      (4)  EFSA Scientific Report (2007) 110, 1-85, Conclusion regarding the peer review of the pesticide risk assessment of the active substance fludioxonil (finalised 27 July 2007).
   EFSA Scientific Report (2007) 109, 1-73, Conclusion regarding the peer review of the pesticide risk assessment of the active substance clomazone (finalised 27 July 2007), version of 3 August 2007.
   EFSA Scientific Report (2007) 111, 1-81, Conclusion regarding the peer review of the pesticide risk assessment of the active substance prosulfocarb (finalised 27 July 2007).

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

                     No

                     Common name, identification numbers

                     IUPAC name

                     Purity (1)

                     Entry into force

                     Expiration of inclusion

                     Specific provisions

                     ‘166

                     Prosulfocarb
                     CAS No 52888-80-9
                     CIPAC No 539

                     S-benzyl dipropyl(thiocarbamat)

                     970 g/kg

                     1 November 2008

                     31 October 2018

                     PART A
                     Only uses as herbicide may be authorised.
                     PART B
                     For the implementation of the uniform principles of Annex VI, the conclusions of the review report on prosulfocarb, and in particular Appendices I and II thereof, as finalised in the Standing Committee on the Food Chain and Animal Health on 9 October 2007 shall be taken into account.
                     In this overall assessment Member States must pay particular attention to:

                                 —

                                 the operator safety and ensure that conditions of use prescribe the application of adequate personal protective equipment,

                                 —

                                 the protection of aquatic organisms and must ensure that the conditions of authorisation include, where appropriate, risk mitigation measures such as buffer zone,

                                 —

                                 the protection of non-target plants and must ensure that the conditions of authorisation include, where appropriate, risk mitigation measures such as an in-field no spray buffer zone.

                     167

                     Fludioxonil
                     CAS No 131341-86-1
                     CIPAC No 522

                     4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1H-pyrrole-3-carbonitrile

                     950 g/kg

                     1 November 2008

                     31 October 2018

                     PART A
                     Only uses as fungicide may be authorised.
                     PART B
                     In assessing applications to authorise plant protection products containing fludioxonil for uses other than seed treatment, Member States shall pay particular attention to the criteria in Article 4(1)(b), and shall ensure that any necessary data and information is provided before such an authorisation is granted and:

                                 —

                                 must pay particular attention to the potential for groundwater contamination, in particular from the soil photolysis metabolites CGA 339833 and CGA 192155, in vulnerable zones,

                                 —

                                 must pay particular attention to the protection of fish and aquatic invertebrates.

                           Conditions of authorisation should include risk mitigation measures, where appropriate.
                     For the implementation of the uniform principles of Annex VI, the conclusions of the review report on fludioxonil, and in particular Appendices I and II thereof, as finalised in the Standing Committee on the Food Chain and Animal Health on 9 October 2007 shall be taken into account.

                     168

                     Clomazone
                     CAS No 81777-89-1
                     CIPAC No 509

                     2-(2-chlorobenzyl)-4,4-dimethyl-1,2-oxazolidin-3-one

                     960 g/kg

                     1 November 2008

                     31 October 2018

                     PART A
                     Only uses as herbicide may be authorised.
                     PART B
                     For the implementation of the uniform principles of Annex VI, the conclusions of the review report on clomazone, and in particular Appendices I and II thereof, as finalised in the Standing Committee on the Food Chain and Animal Health on 9 October 2007 shall be taken into account.
                     In this overall assessment Member States must pay particular attention to:

                                 —

                                 the operator safety and ensure that conditions of use prescribe the application of adequate personal protective equipment,

                                 —

                                 the protection of non-target plants and must ensure that the conditions of authorisation include, where appropriate, risk mitigation measures such as buffer zones.’

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


title: Commission Directive 2014/101/EU of 30 October 2014 amending Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy  Text with EEA relevance

text:
               31.10.2014

               EN

               Official Journal of the European Union

               L 311/32

         COMMISSION DIRECTIVE 2014/101/EU
   of 30 October 2014
   amending Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy
   (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (1), and in particular the first subparagraph of Article 20(1) thereof,
   Whereas:

               (1)

               The quality and comparability of the methods used for the monitoring of type parameters generated under Member States responsibility to perform water ecological monitoring pursuant to Article 8 of Directive 2000/60/EC should be ensured.

               (2)

               Section 1.3.6 of Annex V to Directive 2000/60/EC requires that methods used for the monitoring of type parameters conform to the international standards listed therein or such other national or international standards which will ensure the provision of data of an equivalent scientific quality and comparability. The international standards listed in Annex V were those available at the time of adoption of that Directive.

               (3)

               Since the publication of Directive 2000/60/EC, a number of new standards have been published by the European Committee for Standardisation (CEN), some of them jointly with the International Standards Organisation, addressing biological sampling of phytoplankton, macrophytes and phytobenthos, benthic invertebrates, fish and hydromorphological characteristics. Those standards should be added to Section 1.3.6 of Annex V to Directive 2000/60/EC.

               (4)

               As a result of the continued process of development of new standards and update of existing ones, some of the standards listed in Section 1.3.6 of Annex V to Directive 2000/60/EC are no longer published by CEN Member Bodies and should therefore be removed.

               (5)

               Two standards (EN ISO 8689-1:1999 and EN ISO 8689-2:1999 9) listed in Section 1.3.6 of Annex V to Directive 2000/60/EC addressed biological classification and not monitoring; they have been taken into account subsequently when developing protocols for setting class boundaries under the Common Implementation Strategy related to the Directive and can now be removed.

               (6)

               Directive 2000/60/EC should therefore be amended accordingly.

               (7)

               The measures provided for in this Directive are in accordance with the opinion of the Committee established by Article 21(1) of Directive 2000/60/EC,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Annex V to Directive 2000/60/EC is amended in accordance with the Annex to this Directive.
   Article 2
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20 May 2016 at the latest. 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, 30 October 2014.

            For the Commission

            The President

         José Manuel BARROSO

      (1)  OJ L 327, 22.12.2000, p. 1.

      ANNEX
      In Annex V to Directive 2000/60/EC, Section 1.3.6 is replaced by the following:

         ‘1.3.6.   Standards for monitoring of quality elements

         Methods used for the monitoring of type parameters shall conform to the international standards listed below in so far as they cover monitoring, or to such other national or international standards which will ensure the provision of data of an equivalent scientific quality and comparability.

            Standards for sampling of biological quality elements

         Generic methods for use with the specific methods given in the standards relating to the following biological quality elements:

                     EN ISO 5667-3:2012

                     Water quality — Sampling — Part 3: Preservation and handling of samples

            Standards for phytoplankton

                     EN 15204:2006

                     Water quality — Guidance standard on the enumeration of phytoplankton using inverted microscopy (Utermöhl technique)

                     EN 15972:2011

                     Water quality — Guidance on quantitative and qualitative investigations of marine phytoplankton

                     ISO 10260:1992

                     Water quality — Measurement of biochemical parameters —Spectrometric determination of the chlorophyll-a concentration

            Standards for macrophyte and phytobenthos

                     EN 15460:2007

                     Water quality — Guidance standard for the surveying of macrophytes in lakes

                     EN 14184:2014

                     Water quality — Guidance for the surveying of aquatic macrophytes in running waters

                     EN 15708:2009

                     Water quality — Guidance standard for the surveying, sampling and laboratory analysis of phytobenthos in shallow running water

                     EN 13946:2014

                     Water quality — Guidance for the routine sampling and preparation of benthic diatoms from rivers and lakes

                     EN 14407:2014

                     Water quality — Guidance for the identification and enumeration of benthic diatom samples from rivers and lakes

            Standards for benthic invertebrate

                     EN ISO 10870:2012

                     Water quality — Guidelines for the selection of sampling methods and devices for benthic macroinvertebrates in fresh waters

                     EN 15196:2006

                     Water quality — Guidance on sampling and processing of the pupal exuviae of Chironomidae (order Diptera) for ecological assessment

                     EN 16150:2012

                     Water quality — Guidance on pro rata multi-habitat sampling of benthic macro-invertebrates from wadeable rivers

                     EN ISO 19493:2007

                     Water quality — Guidance on marine biological surveys of hard-substrate communities

                     EN ISO 16665:2013

                     Water quality — Guidelines for quantitative sampling and sample processing of marine soft-bottom macro-fauna

            Standards for fish

                     EN 14962:2006

                     Water quality — Guidance on the scope and selection of fish sampling methods

                     EN 14011:2003

                     Water quality — Sampling of fish with electricity

                     EN 15910:2014

                     Water quality — Guidance on the estimation of fish abundance with mobile hydroacoustic methods

                     EN 14757:2005

                     Water quality — Sampling of fish with multi-mesh gillnets

            Standards for hydromorphological parameters

                     EN 14614:2004

                     Water quality — Guidance standard for assessing the hydromorphological features of rivers

                     EN 16039:2011

                     Water quality — Guidance standard on assessing the hydromorphological features of lakes

            Standards for physico-chemical parameters

         Any relevant CEN/ISO standards’