title: Commission Recommendation of 24 July 2018 on Guidelines on equal treatment and transparency criteria to be applied by ENTSO-E and ENTSOG when developing their TYNDPs as set out in Annex III 2(5) of Regulation (EU) No 347/2013 of the European Parliament and of the Council

text:
               27.7.2018

               EN

               Official Journal of the European Union

               C 265/1

      COMMISSION RECOMMENDATION
      of 24 July 2018
      on Guidelines on equal treatment and transparency criteria to be applied by ENTSO-E and ENTSOG when developing their TYNDPs as set out in Annex III 2(5) of Regulation (EU) No 347/2013 of the European Parliament and of the Council
      (2018/C 265/01)
      THE EUROPEAN COMMISSION,
      Having regard to the Treaty on the Functioning of the European Union, and in particular Article 172 thereof,
      Having regard to Annex III 2(5) to Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (1) (‘TEN-E Regulation’)
      Whereas:

                  (1)

                  The 10-year network development plan (‘TYNDP’) for electricity and the TYNDP for gas are non-binding, Union-wide documents developed and published every two years by the European Network of Transmission System Operators for electricity (‘ENTSO-E’) and the European Network of Transmission System Operators for gas (‘ENTSOG’) respectively with the aim to assess, in accordance with all legal requirements, how all relevant European projects contribute to the improvement of the European electricity and gas systems,

                  (2)

                  The TEN-E Regulation, requires the inclusion of candidate electricity and gas projects in the relevant TYNDP as a pre-condition for their submission as a candidate for inclusion in the Union-wide lists of Projects of Common Interest.

                  (3)

                  The TEN-E Regulation requires the European Commission to issue guidelines on criteria to be applied by ENTSO-E and ENTSOG when developing their respective TYNDPs, in order to ensure equal treatment and transparency of the process.

                  (4)

                  The Commission has prepared this non-binding guidance on the key principles that should be respected and aspects that should be addressed in the practical implementation documents that are adopted and used by ENTSO-E and ENTSOG when preparing their respective TYNDPs

            HAS ADOPTED THIS RECOMMENDATION:

                  1.

                  The European Networks of Transmission System Operators for Electricity (ENTSO-E) and Gas (ENTSOG) should follow the legally non-binding guidelines in the Annex to this Recommendation. These guidelines should help ensure equal treatment and transparency of the process for the the development of the Ten Year Network Development Plans, as required by Annex III 2(5) to the TEN-E Regulation (Regulation (EU) No 347/2013).

                  2.

                  This Recommendation shall be published in the Official Journal of the European Union.

         Done at Brussels, 24 July 2018.

               For the Commission

            Miguel ARIAS CAÑETE

               Member of the Commission

         (1)  OJ L 115, 25.4.2013, p. 39.

         ANNEX
         1.   INTRODUCTION

         1.1.   Objective of the Guidelines

         The Commission Recommendation, ‘Guidelines on equal treatment and transparency criteria to be applied by the European Network of Transmission System Operators for Electricity (ENTSO-E) and Gas (ENTSOG) when developing their Ten-Year Network Development Plans (“TYNDPs”)’ (‘the Guidelines’), responds to the provisions of Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (‘TEN-E Regulation’) (1).
         The TYNDPs for electricity and for gas are comprehensive and up-to-date European reference documents for the electricity and gas transmission networks. The TYNDPs are biennial documents which present an overview of the transmission expansion plans that are identified as necessary to ensure that the transmission grid facilitates EU energy policy goals. The TYNDPs act as a basis to derive the list of Projects of Common Interest (PCIs) in the electricity and gas sectors. Only gas and electricity projects that are in the TYNDPs can apply to become PCIs, and their assessment is based to a significant extent on the project specific cost benefit analyses provided by the TYNDPs.
         The Guidelines explain the legal framework applying to the elaboration and adoption process of the TYNDPs. They aim at ensuring a fair, equal and transparent process for the inclusion of projects in the TYNDP by establishing a structure, content and principles that will ensure consistency between the two TYNDP processes and a uniform interpretation of the applicable principles and rules by the two ENTSOs. They provide a general framework for the adoption, revision and application of the practical implementation documents to be adopted and used by ENTSO-E and ENTSOG, respectively, to ensure equal treatment and transparency within these exercises.
         The development of these guidelines is required by Annex III 2(5) to the TEN-E Regulation concerning the process for establishing regional lists within the process of identification of Projects of Common Interest (‘PCIs’): ‘… the Commission should issue Guidelines on criteria to be applied by the ENTSO for electricity and the ENTSO for gas when developing their respective 10-year network development plans referred to in points (3) and (4), in order to ensure equal treatment and transparency of the process.’ The provisions regarding the TYNDP processes established under the Guidelines will be applicable to every project considered for inclusion in the respective TYNDP, regardless of the promoter's plans of having it submitted, or not, as candidate within the subsequent PCIs selection process.
         These guidelines are not legally binding. All future methods, tools and timelines to be used by ENTSO-E and ENTSOG within the processes of elaborating their TYNDPs should fully comply with the requirements of Regulations (EC) No 714/2009 (2) and (EC) No 715/2009 (3) of the European Parliament and of the Council, the TEN-E Regulation and the Guidelines.
         1.2.   Addressees

         The Guidelines are addressed to the ENTSO for electricity and the ENTSO for gas. The criteria applied by the ENTSOs in accordance with this document will have an impact on:

                     —

                     all project promoters which are planning to develop an electricity transmission infrastructure project that is entirely or in part situated in at least one country represented within ENTSO-E and is considered as of European relevance (4) and to the storage promoters planning to develop electricity storage projects within the European Union and respect the technical limitations set in Annex II of the TEN-E Regulation or any equipment or installation essential for the system to operate safely, securely and efficiently.

                     —

                     all project promoters which are planning to develop a gas infrastructure project of European relevance: gas transmission pipeline, underground storage facilities, reception and storage and regasification or decompression facilities for liquefied natural gas (LNG) or compressed natural gas (CNG) or any equipment or installation essential for the system to operate safely, securely and efficiently or to enable bidirectional capacity.

               2.   THE TEN-YEAR NETWORK DEVELOPMENT PLANS (TYNDPS)

         2.1.   Legal requirements

         The TYNDP for electricity and the TYNDP for gas are prepared by ENTSO-E and ENTSOG respectively in accordance with the respective articles 8 of the Regulations (EC) No 714/2009 and (EC) No 715/2009. The non-binding Union-wide TYNDPs are adopted and published every two years and include the modelling of the integrated network, scenario development, a European generation adequacy outlook or a European supply adequacy outlook – according to the case, and an assessment of the resilience of the system.
         The TYNDPs build on national investment plans, taking into account regional investment plans and, if appropriate, Union-aspects of network planning and are subject to a cost-benefit analysis using the methodology established, in accordance with the TEN-E Regulation. Regarding cross-border interconnections, the TYNDPs also build on the reasonable needs of different system users and integrate long-term commitments from investors and identify investment gaps, notably with respect to cross-border capacities.
         Pursuant to Article 9(2) of Regulations (EC) No 714/2009 and (EC) No 715/2009 and Article 6(3)(b) of Regulation (EC) No 713/2009 of the European Parliament and of the Council (5), the Agency for the Cooperation of Energy Regulators (‘the Agency’) provides duly reasoned opinions on the draft TYNDPs, as well as recommendations to the ENTSOs, where it considers that the respective draft TYNDP does not contribute to non-discrimination, effective competition, the efficient and secure functioning of the internal markets or a sufficient level of cross-border interconnection open to third-party access.
         The ENTSOs are legally required (6) to conduct extensive consultation processes during the preparation of the TYNDPs. They must be conducted at an early stage and in an open and transparent manner, involving all relevant market participants, national regulatory authorities and other national authorities, supply and generation or production undertakings. They must identify the views and proposals of all relevant parties during the decision-making process. All documents and minutes of meetings related to the consultations are to be made public.
         The TEN-E Regulation, under which the process of identification of PCIs is established, requires the inclusion of candidate electricity and gas projects into the TYNDP as a pre-condition in view of their inclusion in the Union-wide PCI lists (7).
         Finally, ENTSOG is legally required to ensure that there will be consistency and an alignment between the long-term gas quality monitoring outlooks published every two years and the TYNDP for gas under preparation at the same time. The stakeholders' consultation process used for the TYNDP has to be expanded to include gas quality as an item.
         2.2.   Principles to be respected by ENTSOs in the TYNDP process

         In order to ensure equal treatment and transparency of the TYNDP processes and under the monitoring of the Agency as set in Article 9 of Regulations (EC) No 714/2009 and (EC) No 715/2009, ENTSO-E and ENTSOG should:

                     —

                     organise for their electricity and gas TYNDPs transparent and non-discriminatory processes to identify and include all relevant European electricity infrastructure projects and gas infrastructure projects, respectively, indifferent of their promoter status (ENTSO or non-ENTSO Members).

                     —

                     advertise the TYNDP processes, consult stakeholders at critical decision making milestones and about the drafts of the TYNDPs and make possible their engagement in the process. If the necessity arises and upon the ENTSOs' request, the relevant associations of stakeholders may be brought on an ad-hoc basis with an advisory role in the processes. The relevant associations of stakeholders may also be informed on a regular basis about the ongoing TYNDP processes;

                     —

                     ensure transparency about the input and output data of the TYNDP processes in accordance with the CBA methodology, allowing, for instance any interested party to understand the assessment performed by the ENTSOs.

                     —

                     ensure, from the project application to finalisation of the TYNDP, a fair and non-discriminatory access of project promoters to information regarding their project assessment, conducted in accordance with the CBA methodology.

               In order to ensure consistency between the TYNDPs and the PCI selection process the ENTSOs should consult and inform regularly the Commission and the Agency on the TYNDPs processes, especially on the inclusion and project assessment. This will allow the ENTSOs to accommodate the Commission and the Agency's recommendations in due time for the respective final TYNDPs.
         3.   SUBMISSION OF PROJECTS FOR INCLUSION IN THE TYNDP

         The TYNDPs for electricity and gas shall incorporate all European relevant electricity and gas infrastructure projects as set in the Regulation (EU) No 347/2013.
         In order to ensure (1) a fair and non-discriminatory process for project inclusion in the TYNDPs, (2) the transparency of the process and (3) overall consistency of approaches, ENTSO-E and ENTSOG should collect and validate all project applications in a timely manner, including:

                     —

                     an application window of an adequate period of time to allow project promoters to submit the projects and the required information covering also all the relevant practical details for inclusion in the TYNDP; the start and end date of the application window will be advertised on the ENTSOs' websites; the same deadlines should be applied to all project promoters throughout the process. All project promoters should have access to the same information throughout the process and, if clarifications or additional information related to the overall process are requested by a certain promoter, the ENTSOs should also communicate it to all other project promoters for which this may be relevant.

                     —

                     a verification period that should allow for sufficient time to ensure all applications contain reliable data considering comparable infrastructure projects (e.g. development stage and commissioning date) and that there is a mutual understanding about the project data between ENTSO-E or ENTSOG and every project promoter;

                     —

                     the publication on the respective ENTSO's website of the list of projects considered for inclusion in the TYNDP should be done within a reasonable period of time in order to ensure the transparency and early availability of the basic information identifying the projects;

                     —

                     a public consultation of an adequate period of time to allow anyone interested to provide feedback on each draft TYNDP.

               4.   ENTSOS' PRACTICAL IMPLEMENTATION DOCUMENTS

         In order to ensure the implementation of the Guidelines and for the principles listed above to be complied with, specific practical implementation documents are to be developed by ENTSO-E and ENTSOG, aiming at providing project promoters with guidance on the procedural steps and necessary information to be submitted for inclusion of their project in the respective TYNDP.
         These documents should be developed and adopted by the respective ENTSO after consulting the relevant stakeholders and taking in due account the Commission and Agency's recommendations.
         In the following TYNDP processes, the revision and updates of the practical implementation documents may be initiated by the respective ENTSO after consulting with the Commission and the Agency or at the request of Commission.
         As the inclusion of inappropriate project applications would affect the modelling of the electricity and gas networks, potentially putting at risk the timely adoption of the TYNDPs and the objective of transparency regarding the development of electricity and gas networks in the Union, foreseen by Recital 9 of Regulation (EC) No 714/2009 and by Recital 18 of Regulation (EC) No 715/2009, ENTSO-E and ENTSOG should define in their practical implementation documents criteria for the inclusion or exclusion of submitted projects. All the projects to be accepted for inclusion in the TYNDP should meet these administrative and technical requirements described in the respective ENTSOs' practical implementation documents.
         The practical implementation documents should briefly explain the TYNDP processes including the deadlines applying to each of the TYNDP steps, their link to the process of selection of PCIs and list the administrative and technical criteria to be fulfilled in order to allow a project to become part of the respective TYNDP. These criteria may be grouped in different categories and applied accordingly, depending on the type of project promoter, the type of infrastructure the respective project would implement, as well as on the status of advancement of the project, while ensuring the transparency of the process and equal treatment for all project promoters concerned. Promoters of projects already included in the previous TYNDPs must officially make a new re-submission for inclusion in the TYNDP under preparation. However, the inclusion of a particular project in the previous TYNDPs may allow for a simplified application process for the current TYNDPs, which is to be described in the ENTSOs' practical implementation documents.
         The final decision on the inclusion of a project in the TYNDP Project List belongs to the competent ENTSO and any decision related to a rejection of a project's inclusion into the TYNDP should be duly substantiated.
         4.1.   Administrative and technical criteria regarding project promoters and projects considered for inclusion in the TYNDP

         The administrative and technical criteria should be developed while taking into consideration the following aspects:

                     —

                     Project promoters which are planning to develop an infrastructure project and have it included in the respective TYNDP should prove their credibility in terms of financial capability and technical expertise to implement the respective project by their own or by using subcontractors. Regardless of the different categories under which the promoters of the energy infrastructure projects fall, the TYNDP inclusion processes should be built upon administrative criteria which will ensure a fair and non-discriminatory treatment of any project promoter, while also ensuring that the soundness of the considered projects is proved.

                     —

                     Depending on the advancement status of the project, project promoters should prove the soundness of the project considered for inclusion in the respective TYNDP and should bring evidence to allow for the assessment of its European relevance by the ENTSOs. Regardless of the different categories under which the promoters of the energy infrastructure projects fall, projects considered for inclusion in the TYNDPs should fulfil certain minimum technical criteria to be detailed in the respective ENTSOs practical implementation document. These technical requirements and corresponding minimum thresholds – if applicable – should be intended to ensure that the projects have a European relevance from a commercial or security of supply point of view.

                     —

                     In terms of proving the soundness of the projects considered for inclusion in the TYNDP, the project promoters should be required to bring evidence with regards to the actions already taken in order to initiate and/or start the implementation of the respective project (e.g.: PCI status or inclusion in the last available National Development Plan or signed agreements between the ministries or regulators of the impacted countries or performance of pre-feasibility/feasibility studies etc.). The ENTSOs should ensure that, when requiring project promoters to prove their financial capability and technical expertise to implement a project or to prove the soundness of the respective project, the requirements would not be disproportionate for the different categories of project promoters. If applying different requirements is justified, the ENTSOs should ensure that a similar or correspondent level of detail and evidence is requested to all project promoters.

               4.2.   Data handling

         4.2.1.   Data usage and public access to data

         The administrative documents provided by the project promoters during the submission phase and referring to their legal status, financial capability and technical expertise referred to in section 4.1.) should be solely used by the ENTSOs to ensure compliance with the administrative criteria defined in their practical implementation documents and should be treated as confidential by the ENTSOs, in line with their internal rules, unless already public.
         The technical input provided by the project promoters and the assessed benefits of the projects assessed in accordance with the CBA methodology should be made public by the ENTSOs within the TYNDP processes.
         The cost data submitted by the project promoters for the projects to be included in the TYNDPs will be made public by the ENTSOs. Derogations may apply if the data are declared confidential by the respective project promoters. Where applicable, these will be outlined in the ENTSOs practical implementation documents.
         However, in the context of the PCI selection exercise, the Regional Groups established under the TEN-E Regulation should have access to all cost data submitted by the project promoters within the TYNDP processes.
         Aggregated or general results of the assessment can be published by ENTSO-E and ENTSOG or used during public events, in accordance with the practical implementation documents and their internal rules.
         4.2.2.   Correction of input data

         In case the information and technical data submitted for a project are incorrect with respect to the Guidelines and the ENTSOs' practical implementation documents, the project promoter should be given the opportunity to report the corrected information to the respective ENTSO within the consistency check period by the deadline set in the ENTSOs' practical implementation documents and not later than the end of the TYNDP public consultation.
         This window should envisage a clearly pre-stablished timeframe which should ensure sufficient time for the proper submission of the corrected information, as well as for any necessary exchange of information or clarifications between the competent ENTSO and the respective project promoter.
         Should there be any inconsistencies in the information corrections, ENTSO-E and ENTSOG respectively, should — as the case may be — debate and conclude with the project promoters, on the inclusion of the respective project in the TYNDP Project List. All ENTSO-E and ENTSOG decisions about project information corrections should be motivated, at least with the reason for accepting or not accepting the requested changes, and shared with the concerned project promoters, the Commission and the Agency. If the inconsistencies may impact on the possible inclusion of a project in the TYNDP, the ENTSOs may consult the Commission and the Agency on the case before taking the decision.
         Since projects continuously evolve in between the submission for inclusion in the TYNDP and the publication of the TYNDP, for sake of clarity, the TYNDPs should clearly define the date of validity of the TYNDP project data.
         The manageable deadlines established with regards to the phase of correction of input data are not to jeopardize the timeline of the overall TYNDP process and should be clearly set in the ENTSOs' practical implementation documents.
         4.2.3.   Promoters' access to assessment results and to TYNDP data

         Where relevant and in accordance with the CBA methodology, the ENTSOs should deliver to the project promoters in due advance of the draft TYNDP consultations the assessment results of their project. If it is requested, the project promoters should be given the opportunity to participate in a bilateral meeting with representatives of the respective ENTSO, in order for the promoter to better understand their project assessment results.
         Beyond the results published in the TYNDP report, every project promoter is entitled to access more detailed information about its project, as far as it is available to ENTSO-E and ENTSOG in the framework of the assessment process.
         Furthermore, for equal treatment reasons, if requested, the competent ENTSO should make available as soon as technically possible and in due advance of the adoption of the TYNDP, the input data and output data, if requested by the project promoter, to explain in detail the assessment (including the market and network modelling assumptions).
         4.2.4.   Promoters' right to request a review of the project assessment

         In case of disagreement with the competent ENTSO on the assessment conducted in line with the CBA methodology, the project promoter, should have the right to request a review of their project assessment. Such a request should be duly motivated and substantiated by the promoter.
         Within this review phase, the ENTSOs should consult the Commission and the Agency and if deemed necessary, they may also consult on an ad-hoc basis the relevant stakeholders when considering the project promoters' justifications. When taking its final decision, the competent ENTSO should duly take into account the expressed views.
         The following elements — considered as having been already consulted with stakeholders earlier in the process, agreed upon and finalised – are not to be open for discussion within this review phase: scenario assumptions and data, CBA methodologies and project data submitted within the process.

            (1)  OJ L 115, 25.4.2013, p. 39.

            (2)  OJ L 211, 14.8.2009, p. 15.

            (3)  OJ L 211, 14.8.2009, p. 36.

            (4)  As set under Regulations (EC) No 714/2009 and (EC) No 715/2009: ‘Viable electricity and gas transmission networks and necessary regional interconnections, relevant from a commercial or security of supply point of view, should be included in the network development plans.’

            (5)  OJ L 211, 14.8.2009, p. 1.

            (6)  Article 10 of Regulations (EC) No 714/2009 and (EC) No 715/2009.

            (7)  Recital 21 and Annex III 2(3) and 2(4) of the TEN-E Regulation


title: Council Recommendation of 13 July 2018 on the 2018 National Reform Programme of Estonia and delivering a Council opinion on the 2018 Stability Programme of Estonia

text:
               10.9.2018

               EN

               Official Journal of the European Union

               C 320/24

      COUNCIL RECOMMENDATION
      of 13 July 2018
      on the 2018 National Reform Programme of Estonia and delivering a Council opinion on the 2018 Stability Programme of Estonia
      (2018/C 320/06)
      THE COUNCIL OF THE EUROPEAN UNION,
      Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 121(2) and 148(4) thereof,
      Having regard to Council Regulation (EC) No 1466/97 of 7 July 1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies (1), and in particular Article 5(2) thereof,
      Having regard to the recommendation of the European Commission,
      Having regard to the resolutions of the European Parliament,
      Having regard to the conclusions of the European Council,
      Having regard to the opinion of the Employment Committee,
      Having regard to the opinion of the Economic and Financial Committee,
      Having regard to the opinion of the Social Protection Committee,
      Having regard to the opinion of the Economic Policy Committee,
      Whereas:

                  (1)

                  On 22 November 2017, the Commission adopted the Annual Growth Survey, marking the start of the 2018 European Semester for economic policy coordination. It took due account of the European Pillar of Social Rights, proclaimed by the European Parliament, the Council and the Commission on 17 November 2017. The priorities of the Annual Growth Survey were endorsed by the European Council on 22 March 2018. On 22 November 2017, on the basis of Regulation (EU) No 1176/2011 of the European Parliament and of the Council (2), the Commission also adopted the Alert Mechanism Report, in which it did not identify Estonia as one of the Member States for which an in-depth review would be carried out. On the same date, the Commission also adopted a recommendation for a Council recommendation on the economic policy of the euro area, which was endorsed by the European Council on 22 March 2018. On 14 May 2018, the Council adopted the Recommendation on the economic policy of the euro area (3) (‘Recommendation for the euro area’).

                  (2)

                  As a Member State whose currency is the euro and in view of the close interlinkages between the economies in the economic and monetary union, Estonia should ensure the full and timely implementation of the Recommendation for the euro area, as reflected in the recommendations below, in particular recommendation (1).

                  (3)

                  The 2018 country report for Estonia was published on 7 March 2018. It assessed Estonia's progress in addressing the country-specific recommendations adopted by the Council on 11 July 2017 (4), the follow-up given to the country-specific recommendations adopted in previous years and Estonia's progress towards its national Europe 2020 targets. The Commission's analysis led it to conclude that Estonia is not experiencing macroeconomic imbalances.

                  (4)

                  On 26 April 2018, Estonia submitted its 2018 National Reform Programme and its 2018 Stability Programme. In order to take account of their interlinkages, the two programmes have been assessed at the same time.

                  (5)

                  Relevant country-specific recommendations have been addressed in the programming of the European Structural and Investment Funds (‘ESI Funds’) for the 2014-2020 period. As provided for in Article 23 of Regulation (EU) No 1303/2013 of the European Parliament and of the Council (5), where it is necessary to support the implementation of relevant Council recommendations, the Commission may request a Member State to review and propose amendments to its Partnership Agreement and relevant programmes. The Commission has provided further details on how it would make use of that provision in guidelines on the application of the measures linking the effectiveness of the ESI Funds to sound economic governance.

                  (6)

                  Estonia is currently in the preventive arm of the Stability and Growth Pact. The Government plans to move from a general government deficit of 0,3 % of GDP in 2017 to a surplus of 0,2 % of GDP in 2018, 0,5 % of GDP in 2019 and move towards a balanced budget thereafter. Its medium-term budgetary objective is a structural deficit of 0,5 % of GDP. According to the 2018 Stability Programme, the recalculated (6) structural deficit is projected to amount to 0,8 % of GDP in 2018, 0,4 % of GDP in 2019 and remaining in a slight deficit thereafter. The general government debt-to-GDP ratio is projected to remain below 9 % of GDP in 2018 and 2019, declining to 5,3 % of GDP by 2022. The macroeconomic scenario underpinning those budgetary projections is favourable. Negative risks for the revenue yield assumptions primarily relate to some of the measures which are not well specified, affecting all years of the programme horizon.

                  (7)

                  For 2018, Estonia was recommended to remain at the medium-term budgetary objective. This is consistent with a maximum nominal growth rate of net primary government expenditure (7) of 6,1 %, corresponding to an allowed deterioration in the structural balance by 0,2 % of GDP. Based on the Commission 2018 spring forecast, there is a risk of some deviation from that requirement in 2018. In 2019, in view of Estonia's projected output gap of 2,7 % of GDP and with projected GDP growth below to the estimated potential growth rate, the nominal growth rate of net primary government expenditure should not exceed 4,1 %, in line with the structural adjustment of 0,6 % of GDP stemming from the commonly agreed adjustment matrix of requirements under the Stability and Growth Pact. Based on the Commission 2018 spring forecast under unchanged policies, there is a risk of some deviation from that requirement in 2019 and over 2018 and 2019 taken together. Overall, the Council is of the opinion that Estonia needs to stand ready to take further measures to ensure compliance in 2018 and 2019.

                  (8)

                  Providing a more adequate social safety net supported by better service provision remains a major challenge for Estonia. Estonia spends less on social protection (around 16 % of GDP) than the Union average (around 28 % of GDP). The impact of social transfers on reducing poverty is improving but still weak and below the Union average. Estonia still has a high at-risk-of-poverty rate, particularly for people with disabilities, jobless households and older people, especially those living alone. Income inequality at 5,6 % in 2016 remains higher than the Union average (5,2 % in 2016) despite recent improvements. Some steps are being taken to provide adequate family benefits for larger families, which has further reduced relative poverty among children. The level of minimum income benefit was increased, accompanied by incentives to return to work. The payment of an allowance of EUR 115 to persons with low pensions and living alone was the first step in addressing the very high at-risk-of-poverty rate of this group. The at-risk-of-poverty-or-social-exclusion gap between people with disabilities and those without (20,9 % in 2016) was also higher than the Union average (10,1 %). Financing of long-term care services does not match the needs of the ageing population. The impact of ongoing administrative reform on the delivery of high-quality services remains to be seen.

                  (9)

                  The gender pay gap remains one of the highest in the Union at 25,3 % although it is reducing. Work-life balance is being promoted by the recent changes to the parental leave and benefit system. These changes are expected to give women an incentive to return to work earlier and thereby contribute to lowering Estonia's gender pay gap. The changes will be implemented between 2018 and 2020. The proposal on the second stage of parental leave reform is being discussed. Continued engagement with social partners and strengthening their capacity, in light of very low membership rates, remain important in this context and beyond. Amendments to the Gender Equality Act to improve wage transparency have yet to be adopted and, once adopted, will only apply to the public sector entities. A tool to analyse wage differences between genders is not expected to be developed before 2019.

                  (10)

                  Estonia's slow productivity growth is linked to its moderate performance on research, technology and innovation. With less than 0,5 % of Estonian companies reporting research activities in 2016, business R&D intensity is only 0,7 % of GDP — half the Union average of 1,3 %. In addition, several indicators measuring innovation — such as small and medium-sized companies creating new products and processes or innovating in-house — have declined significantly in recent years. While the economy has some high value added and knowledge-intensive activities, business R&D intensity, science-business links, and companies' innovation and technological capacity remain low. Public sector expenditure on research, technology and innovation has traditionally been above the Union average. However, insufficient priority-setting in public research poses challenges. Estonia has put in place several measures to boost the economy's research and innovation performance, but it is a challenge to maximise their impact.

                  (11)

                  In the context of the 2018 European Semester, the Commission has carried out a comprehensive analysis of Estonia's economic policy and published it in the 2018 country report. It has also assessed the 2018 Stability Programme, the 2018 National Reform Programme and the follow-up given to the recommendations addressed to Estonia in previous years. The Commission has taken into account not only their relevance for sustainable fiscal and socioeconomic policy in Estonia but also the extent to which they comply with Union rules and guidance, given the need to strengthen the Union's overall economic governance by providing Union-level input into future national decisions.

                  (12)

                  In the light of this assessment, the Council has examined the 2018 Stability Programme and its opinion (8) is reflected in particular in recommendation (1) below,

            HEREBY RECOMMENDS that Estonia take action in 2018 and 2019 to:

                  1.

                  Ensure that the nominal growth rate of net primary government expenditure does not exceed 4,1 % in 2019, corresponding to an annual structural adjustment of 0,6 % of GDP. Improve the adequacy of the social safety net, in particular for older people and people with disabilities. Take measures to reduce the gender pay gap, including by improving wage transparency in the private sector.

                  2.

                  Promote research and innovation, in particular by providing effective incentives for broadening the innovation base.

         Done at Brussels, 13 July 2018.

               For the Council

               The President

            H. LÖGER

         (1)  OJ L 209, 2.8.1997, p. 1.

         (2)  Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances (OJ L 306, 23.11.2011, p. 25).

         (3)  OJ C 179, 25.5.2018, p. 1.

         (4)  OJ C 261, 9.8.2017, p. 1.

         (5)  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ L 347, 20.12.2013, p. 320).

         (6)  Cyclically-adjusted balance net of one-off and temporary measures, recalculated by the Commission using the commonly agreed methodology.

         (7)  Net primary government expenditure comprises total government expenditure excluding interest expenditure, expenditure on Union programmes fully matched by Union funds revenue and non-discretionary changes in unemployment benefit expenditure. Nationally financed gross fixed capital formation is smoothed over a four-year period. Discretionary revenue measures or revenue increases mandated by law are factored in. One-off measures on both the revenue and expenditure sides are netted out.

         (8)  Under Article 5(2) of Regulation (EC) No 1466/97.


title: Commission Recommendation (EU) 2018/334 of 1 March 2018 on measures to effectively tackle illegal content online

text:
               6.3.2018

               EN

               Official Journal of the European Union

               L 63/50

         COMMISSION RECOMMENDATION (EU) 2018/334
   of 1 March 2018
   on measures to effectively tackle illegal content online
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof,
   Whereas:

               (1)

               Internet and service providers active on the internet contribute significantly to innovation, economic growth and job creation in the Union. Many of those service providers play an essential role in the digital economy by connecting business and citizens and by facilitating public debate and the distribution and reception of factual information, opinions and ideas. However, their services are in certain cases abused by third parties to carry out illegal activities online, for instance disseminating certain information relating to terrorism, child sexual abuse, illegal hate speech or infringements of consumer protection laws, which can undermine the trust of their users and damage their business models. In certain cases the service providers concerned might even gain some advantages from such activities, for instance as a consequence of the availability of copyright protected content without authorisation of the right holders.

               (2)

               The presence of illegal content online has serious negative consequences for users, for other affected citizens and companies and for society at large. In the light of their central role and the technological means and capabilities associated with the services that they provide, online service providers have particular societal responsibilities to help tackle illegal content disseminated through the use of their services.

               (3)

               Given that fast removal of or disabling of access to illegal content is often essential in order to limit wider dissemination and harm, those responsibilities imply inter alia that the service providers concerned should be able to take swift decisions as regards possible actions with respect to illegal content online. Those responsibilities also imply that they should put in place effective and appropriate safeguards, in particular with a view to ensuring that they act in a diligent and proportionate manner and to preventing the unintended removal of content which is not illegal.

               (4)

               Many online service providers have acknowledged and acted upon those responsibilities. At the collective level, important progress has been made through voluntary arrangements of various kinds, including the EU Internet Forum on terrorist content online, the Code of Conduct on Countering Illegal Hate Speech Online and the Memorandum of Understanding on the Sale of Counterfeit Goods. However, notwithstanding this commitment and progress, illegal content online remains a serious problem within the Union.

               (5)

               Concerned by a series of terrorist attacks in the EU and the proliferation of terrorist propaganda online, the European Council of 22-23 June 2017 stated that it ‘expects industry to … develop new technology and tools to improve the automatic detection and removal of content that incites to terrorist acts. …’ The European Parliament, in its resolution of 15 June 2017, urged those online platforms ‘to strengthen measures to tackle illegal and harmful content’. The call for the companies to take a more proactive approach in protecting their users from terrorist content has been reiterated by Ministers of the Member States within the EU Internet Forum. As for intellectual property rights, in its Conclusions of 4 December 2014 on the enforcement of such rights, the Council called on the Commission to consider the use of tools available to identify intellectual property rights infringers and the role of intermediaries in assisting the fight against intellectual property rights infringements.

               (6)

               On 28 September 2017, the Commission adopted a Communication with guidance on the responsibilities of online service providers in respect of illegal content online (1). In that Communication the Commission explained that it would assess whether additional measures were needed, inter alia by monitoring progress on the basis of voluntary arrangements. This Recommendation follows-up on that Communication, reflecting the level of ambition set out therein and giving effect thereto, while taking due account of and building on the important progress made through those voluntary arrangements.

               (7)

               This Recommendation acknowledges that due account should be taken of the particularities of tackling different types of illegal content online and the specific responses that might be required, including through dedicated legislative measures. For instance, acknowledging the need for such specific legislative measures, on 25 May 2016 the Commission adopted a proposal for the amendment of Directive 2010/13/EU of the European Parliament and of the Council (2) in view of changing market realities. On 14 September 2016, it also adopted a proposal for a Directive on copyright in the Digital Single Market (3), which provides for an obligation for certain service providers to take, in cooperation with right holders, measures to ensure the functioning of agreements with right holders for the use of their works or other subject matter or to prevent the availability on their services of works or other subject matter identified by the rights holders through the cooperation with the service providers. This Recommendation leaves such legislative measures and proposals unaffected.

               (8)

               Directive 2000/31/EC of the European Parliament and of the Council (4) contains liability exemptions which are, subject to certain conditions, available to certain online service providers, including providers of ‘hosting’ services within the meaning of its Article 14. In order to benefit from that liability exemption, hosting service providers are to act expeditiously to remove or disable access to illegal information that they store upon obtaining actual knowledge thereof and, as regards claims for damages, awareness of facts or circumstances from which the illegal activity or information is apparent. They can obtain such knowledge and awareness, inter alia, through notices submitted to them. As such, Directive 2000/31/EC constitutes the basis for the development of procedures for removing and disabling access to illegal information. That Directive also allows for the possibility for Member States of requiring the service providers concerned to apply a duty of care in respect of illegal content which they might store.

               (9)

               When taking measures in respect of illegal content online, Member States are to respect the country of origin principle laid down in Directive 2000/31/EC. Accordingly, they may not, for reasons falling within the coordinated field as specified in that Directive, restrict the freedom to provide information society services by providers established in another Member State, subject however to the possibility of derogations under certain conditions set out in that Directive.

               (10)

               In addition, several other acts of Union law provide for a legal framework in respect of certain particular types of illegal content that are available and disseminated online. In particular, Directive 2011/93/EU of the European Parliament and of the Council (5) requires Member States to take measures to remove web pages containing or disseminating child pornography and allows them to block access to such web pages, subject to certain safeguards. Directive (EU) 2017/541 of the European Parliament and of the Council (6), which is to be transposed into national law by 8 September 2018, contains similar provisions in respect of online content constituting public provocation to commit a terrorist offence. Directive (EU) 2017/541 also establishes minimum rules on the definition of criminal offences in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities. Pursuant to Directive 2004/48/EC of the European Parliament and of the Council (7), it is possible for competent judicial authorities to issue injunctions against intermediaries whose services are being used by a third party to infringe an intellectual property right.

               (11)

               In particular against this background, in addition to the voluntary measures taken by certain online services providers, some Member States have adopted rules on ‘notice-and-action’ mechanisms since the adoption of Directive 2000/31/EC. Other Member States are considering adopting such rules. Those mechanisms generally seek to facilitate the notification of content which the notifying party considers to be illegal to the hosting service provider concerned (‘notice’), pursuant to which that provider can decide whether or not it agrees with that assessment and wishes to remove or disable access to that content (‘action’). There are increasing differences between such national rules. As a consequence, the service providers concerned can be subject to a range of legal requirements which are diverging as to their content and scope.

               (12)

               In the interest of the internal market and the effectiveness of tackling illegal content online, and in order to safeguard the balanced approach that Directive 2000/31/EC seeks to ensure, it is necessary to set out certain main principles that should guide the activities of the Member States and of the service providers concerned in this regard.

               (13)

               Those principles should be set out and applied in full respect for the fundamental rights protected in the Union's legal order and notably those guaranteed in the Charter of Fundamental Rights of the European Union (‘the Charter’). Illegal content online should be tackled with proper and robust safeguards to ensure protection of the different fundamental rights at stake of all parties concerned. Those rights include, as the case may be, the freedom of expression, including the freedom to receive and impart information, the rights to respect for a person's private life and to the protection of personal data as well as the right to effective judicial protection of the users of the services concerned. They may also include the freedom to conduct a business, including the freedom of contract, of hosting service providers, as well as the rights of the child and the rights to protection of property, including intellectual property, to human dignity and to non-discrimination of certain other affected parties. In particular, decisions taken by hosting service providers to remove or disable access to content which they store should take due account of the fundamental rights and the legitimate interests of their users as well as of the central role which those providers tend to play in facilitating public debate and the distribution and reception of facts, opinions and ideas in accordance with the law.

               (14)

               In accordance with the horizontal approach underlying the liability exemption laid down in Article 14 of Directive 2000/31/EC, this Recommendation should be applied to any type of content which is not in compliance with Union law or with the law of Member States, irrespective of the precise subject matter or nature of those laws. It is sufficient to take account of laws of Member States which are concerned by the service provision at issue, notably those of Member States the territory of which is that in which the hosting service provider is established or that in which the services are provided. In addition, when giving effect to this Recommendation, due account should be taken of the seriousness of, and any type of potential harm caused by, the illegal content, which can be closely related to the swiftness of any action taken, and of what can be reasonably expected from hosting services providers, considering where relevant the state of development and possible use of technologies. Due account should also be taken of the relevant differences that might exist between various types of illegal content and the actions to be taken to tackle them.

               (15)

               Providers of hosting services play a particularly important role in tackling illegal content online, as they store information provided by and at the request of their users and give other users access thereto, often on a large scale. This Recommendation therefore primarily relates to the activities and responsibilities of those providers. However, where appropriate, the recommendations made can also be applied, mutatis mutandis, in relation to other affected online services providers. As the purpose of this Recommendation is to address risks related to illegal content online affecting consumers in the Union, it relates to the activities of all hosting service providers, irrespective of whether they are established in the Union or in a third country, provided that they direct their activities to consumers residing in the Union.

               (16)

               Mechanisms for submitting notices to hosting service providers regarding content which is considered to be illegal content are an important means to tackle illegal content online. Such mechanisms should facilitate the notification by all individuals or entities which wish to do so. Therefore, those mechanisms should be easy to access and use for all users. However, hosting service providers should remain flexible, for instance as regards the reporting format or technology to be used, so as to allow for efficient solutions and to avoid disproportionate burdens on those providers.

               (17)

               In accordance with the case law of the Court of Justice relating to Article 14 of Directive 2000/31/EC, notices should be sufficiently precise and adequately substantiated so as to allow the hosting service provider receiving them to take an informed and diligent decision as regards the effect to be given to the notice. It should therefore be ensured, as much as possible, that that standard is met. However, whether or not a given notice leads to knowledge or awareness within the meaning of Article 14 of that Directive is to be to be assessed in light of the specificities of the individual case at hand, bearing in mind that such knowledge or awareness can also be obtained in other manners than through notices.

               (18)

               Possessing the contact details of the notice provider is generally not necessary for the hosting service provider to be able to take an informed and diligent decision on the follow-up to be given to the notice received. Making the provision of contact details a prerequisite for the submission of a notice would entail an obstacle to notification. However, the inclusion of the contact details is necessary for the hosting service provider to be able to provide feedback. Including his or her contact details should therefore be a possibility for the notice provider, without this being required.

               (19)

               In order to enhance transparency and the accuracy of notice-and-action mechanisms and to allow for redress where needed, hosting service providers should, where they possess the contact details of notice providers and/or content providers, timely and adequately inform those persons of the steps taken in the context of the said mechanisms, in particular as regards their decisions on the requested removal or disabling of access to the content concerned. The information to be provided should be proportionate, in that it should correspond to the submissions made by the persons concerned in their notices or counter-notices, while allowing for appropriate and differentiated solutions and without leading to an excessive burden on the providers.

               (20)

               In order to ensure transparency and fairness and to avoid the unintended removal of content which is not illegal content, content providers should, as a matter of principle, be informed of the decision to remove or disable access to the content stored at their request and be given the possibility to contest the decision through a counter-notice, with a view to having that decision reversed where appropriate, regardless of whether that decision was taken on the basis of a notice or a referral or pursuant to proactive measures by the hosting service provider.

               (21)

               However, given the nature of the content at issue, the aim of such a counter-notice procedure and the additional burden it entails for hosting service providers, there is no justification for recommending to provide such information about that decision and that possibility to contest the decision where it is manifest that the content in question is illegal content and relates to serious criminal offences involving a threat to the life or safety of persons, such as offences specified in Directive (EU) 2017/541 and Directive 2011/93/EU. In addition, in certain cases, reasons of public policy and public security, and in particular reasons related to the prevention, investigation, detection and prosecution of criminal offences, may justify not directly providing that information to the content provider concerned. Therefore, hosting service providers should not do so where a competent authority has made a request to that effect, based on reasons of public policy and public security, for as long as that authority requested in light of those reasons. Insofar as this entails a restriction of the right to be informed in respect of the processing of personal data, the relevant conditions set out in Regulation (EU) 2016/679 of the European Parliament and of the Council (8) should be complied with.

               (22)

               Notice-and-action mechanisms should in no way affect the rights of the parties involved to initiate legal proceedings, in accordance with the applicable law, in respect of any content which is considered to be illegal content or of any measures taken in this regard by hosting service providers. Mechanisms for the out-of-court settlement of disputes arising in this connection can be an important complement to judicial proceedings, especially where they allow for the effective, affordable and swift resolution of such disputes. Out-of-court settlements should therefore be encouraged, provided that the relevant mechanisms meet certain standards, notably in terms of procedural fairness, that the parties' access to court remains unaffected and that abuse is avoided.

               (23)

               In order to better assess the effectiveness of notice-and-action mechanisms and other activities of hosting service providers in respect of content considered to be illegal content and to ensure accountability, there should be transparency vis-à-vis the general public. Hosting service providers should therefore regularly publish reports about those mechanisms and other activities, which should be sufficiently complete and detailed to allow for an adequate insight. They should also provide for clarity ex ante, in their terms of service, on their policies on the removal or disabling of access to any content that they store, including illegal content.

               (24)

               In addition to notice-and-action mechanisms, proportionate and specific proactive measures taken voluntarily by hosting service providers, including by using automated means in certain cases, can also be an important element in tackling illegal content online, without prejudice to Article 15(1) of Directive 2000/31/EC. In connection to such proactive measures, account should be taken of the situation of hosting service providers which, because of their size or the scale on which they operate, have only limited resources and expertise and of the need for effective and appropriate safeguards accompanying such measures.

               (25)

               It can, in particular, be appropriate to take such proactive measures where the illegal character of the content has already been established or where the type of content is such that contextualisation is not essential. It can also depend on the nature, scale and purpose of the envisaged measures, the type of content at issue, on whether the content has been notified by law enforcement authorities or Europol and on whether action had already been taken in respect of the content because it is considered to be illegal content. With regard to child sexual abuse material in particular, hosting service providers should take proactive measures to detect and prevent the dissemination of such material, in line with the commitments undertaken in the context of the Global Alliance against Child Sexual Abuse Online.

               (26)

               In this context, in its Communication of 28 September 2017 on tackling illegal content online, the Commission has set out its view that taking such voluntary proactive measures does not automatically lead to the hosting service provider concerned losing the benefit of the liability exemption provided for in Article 14 of Directive 2000/31/EC.

               (27)

               It is essential that any measures to tackle illegal content online are subject to effective and appropriate safeguards aimed at ensuring that hosting service providers act in a diligent and proportionate manner when setting and enforcing their policies in respect of any content that they store, including illegal content, so as to ensure, in particular, that users can freely receive and impart information online in compliance with the applicable law. In addition to any safeguards laid down in the applicable law, for instance regarding the protection of personal data, particular safeguards, notably human oversight and verifications, should be provided for and applied where appropriate in relation to the use of automated means, so as to avoid any unintended and erroneous decisions.

               (28)

               Smooth, effective and appropriate cooperation between competent authorities and hosting service providers when tackling illegal content online should be ensured. Such cooperation could benefit from the assistance of Europol where appropriate, for instance when combating terrorism and sexual abuse and sexual exploitation of children, child pornography and solicitation of children. In order to facilitate such cooperation, Member States and hosting service providers should designate points of contacts, and procedures should be established for the processing of notices submitted by those authorities as a matter of priority and with an appropriate degree of confidence as regards their accuracy, taking account of the particular expertise and responsibilities of those authorities. In order to effectively tackle certain particularly serious criminal offences, such as offences specified in Directive (EU) 2017/541 and Directive 2011/93/EU, which might come to the attention of hosting service providers when carrying out their activities, Member States should be encouraged to make use of the possibility set out in Article 15(2) of Directive 2000/31/EC to establish in law reporting obligations, in compliance with the applicable law, in particular Regulation (EU) 2016/679.

               (29)

               In addition to competent authorities, certain individuals or entities, including non-governmental organisations and trade associations, might also have particular expertise and wish to take on, on a voluntary basis, certain responsibilities related to tackling illegal content online. In light of their added-value and the sometimes high numbers of notices involved, cooperation between such trusted flaggers and hosting service providers should be encouraged, in particular by treating the notices that they submit also as a matter of priority and with an appropriate degree of confidence as regards their accuracy. However, in accordance with their particular status, that cooperation should only be open to individuals and entities which respect the values on which the Union is founded as set out in Article 2 of the Treaty on European Union and meet certain appropriate conditions, which should moreover be clear and objective and be made publicly available.

               (30)

               Combating illegal content online requires a holistic approach, as such content often migrates easily from one hosting service provider to another and tends to exploit the weakest links in the chain. Cooperation, consisting in particular of the sharing on a voluntary basis of experiences, technological solutions and best practices, is therefore essential. Such cooperation is particularly important in respect of hosting service providers which, because of their size or the scale on which they operate, have only limited resources and expertise.

               (31)

               Terrorism involves the unlawful and indiscriminate use of violence and intimidation against citizens. Terrorists have become increasingly reliant on the internet to disseminate terrorist propaganda, often deploying sophisticated methods to ensure swift and broad dissemination. Whilst progress has been made, especially in the context of the EU Internet Forum, there remains an urgent need for a swifter and more effective response to terrorist content online, in addition to the need for hosting service providers participating in the EU Internet Forum to fully live up to their commitments concerning effective and comprehensive reporting.

               (32)

               In light of the particularities related to tackling terrorist content online, the recommendations relating to tackling illegal content generally should be complemented by certain recommendations which specifically relate to tackling terrorist content online, building on and consolidating efforts undertaken in the framework of the EU Internet Forum.

               (33)

               Considering the particularly grave risks associated with terrorist content and hosting service providers' central role in the dissemination of such content, hosting service providers should take all reasonable measures so that to they do not allow terrorist content and if possible prevent hosting it, subject to their possibility to set and enforce their terms of service and the need for effective and appropriate safeguards and without prejudice to Article 14 of Directive 2000/31/EC.

               (34)

               Those measures should, in particular, consist of cooperating with competent authorities and Europol in relation to referrals, which are a specific means for notifying hosting services providers which is adapted to the particularities of tackling terrorist content. Competent authorities and Europol, when submitting referrals, should be able to request the removal or disabling of access to content which they consider to be terrorist content either with reference to the relevant applicable laws or to the terms of service of the hosting service provider concerned. Those referral mechanisms should exist in addition to the mechanisms for submitting notices, including by trusted flaggers, which may also be used for notifying content considered to be terrorist content.

               (35)

               Given that terrorist content is typically most harmful in the first hour of its appearance online and given the specific expertise and responsibilities of competent authorities and Europol, referrals should be assessed and, where appropriate, acted upon within one hour, as a general rule.

               (36)

               Those measures to tackle terrorist content should also consist of proportionate and specific proactive measures, including by using automated means, in order to detect, identify and expeditiously remove or disable access to terrorist content and to ensure that terrorist content does not reappear, without prejudice to Article 15(1) of Directive 2000/31/EC. In this regard account should be taken of the need for adequate and effective safeguards accompanying such measures, in particular those recommended in Chapter II of this Recommendation.

               (37)

               Cooperation, both among hosting service providers and between them and competent authorities, is of the utmost importance when seeking to tackle terrorist content online. In particular, technological tools that allow for automated content detection, such as the Database of Hashes, can help achieve the objective of preventing the dissemination of terrorist content across different hosting services. Such cooperation and the development, operation and sharing of such technological tools should be encouraged, making use of Europol's expertise where appropriate. Those cooperative efforts are particularly important to help enabling hosting service providers which, because of their size or the scale on which they operate, have limited resources and expertise to respond effectively and urgently to referrals and to take proactive measures, as recommended.

               (38)

               As many relevant hosting service providers as possible should join those cooperative efforts and all participating hosting service providers should help optimise and maximise the use of those tools. The conclusion of working arrangements between all relevant parties, including where appropriate Europol, should also be encouraged, given that such arrangements can help ensuring a consistent and effective approach and allow for the exchange of relevant experiences and expertise.

               (39)

               In order to ensure respect for the fundamental right to the protection of natural persons in relation to the processing of personal data, as well as the free movement of personal data, the processing of personal data in the context of any measures taken to give effect to this Recommendation should be in full compliance with the rules on data protection, in particular with Regulation (EU) 2016/679 and Directive (EU) 2016/680 of the European Parliament and of the Council (9), and should be monitored by the competent supervisory authorities.

               (40)

               This Recommendation respects the fundamental rights and observes the principles recognised in particular by the Charter. In particular, this Recommendation seeks to ensure full respect for Articles 1, 7, 8, 10, 11, 16, 17, 21, 24 and 47 of the Charter.

               (41)

               The Commission intends to closely monitor any actions taken in response to this Recommendation. Member States and hosting service providers should therefore be prepared to submit to the Commission, upon its request, all relevant information which they can reasonably be expected to provide in order to allow such monitoring. On the basis of the information thus obtained and all other available information, including reporting on the basis of the various voluntary arrangements, the Commission will assess the effects given to this Recommendation and determine whether additional steps, including proposing binding acts of Union law, are required. Given the particularities and urgency of tackling terrorist content online, that monitoring and assessment should be carried out based on detailed information and particularly quickly, within three months from the date of publication of this Recommendation, whereas for other illegal content it is appropriate to do so six months after the publication,

         HAS ADOPTED THIS RECOMMENDATION:

      CHAPTER I

      Purpose and terminology

               1.

               Member States and hosting service providers, in respect of content provided by content providers which they store at the request of those content providers, are encouraged to take effective, appropriate and proportionate measures to tackle illegal content online, in accordance with the principles set out in this Recommendation and in full compliance with the Charter, in particular the right to freedom of expression and information, and other applicable provisions of Union law, in particular as regards the protection of personal data, competition and electronic commerce.

               2.

               This Recommendation builds on and consolidates the progress made in the framework of voluntary arrangements agreed between hosting service providers and other affected service providers regarding different types of illegal content. In the area of terrorism, it builds on and consolidates the progress made in the framework of the EU Internet Forum.

               3.

               This Recommendation is without prejudice to the rights and obligations of Member States to take measures in respect of illegal content online in accordance with Union law, including the possibility for courts or administrative authorities of Member States, in accordance with their legal systems, of requiring hosting service providers to remove or disable access to illegal content. This Recommendation is also without prejudice to the position of hosting service providers under Directive 2000/31/EC and their possibility to set and enforce their terms of service in accordance with Union law and the laws of the Member States.

               4.

               For the purpose of this Recommendation, the following terms are used:

                           (a)

                           ‘hosting service provider’ means a provider of information society services consisting of the storage of information provided by the recipient of the service at his or her request, within the meaning of Article 14 of Directive 2000/31/EC, irrespective of its place of establishment, which directs its activities to consumers residing in the Union;

                           (b)

                           ‘illegal content’ means any information which is not in compliance with Union law or the law of a Member State concerned;

                           (c)

                           ‘user’ means any natural or legal person who is the recipient of the services provided by a hosting service provider;

                           (d)

                           ‘content provider’ means a user who has submitted information that is, or that has been, stored at his or her request by a hosting service provider;

                           (e)

                           ‘notice’ means any communication addressed to a hosting service provider submitted by a notice provider in respect of content stored by that hosting service provider which the notice provider considers to be illegal content, requesting the removal of or the disabling of access to that content by that hosting service provider on a voluntary basis;

                           (f)

                           ‘notice provider’ means an individual or entity which has submitted a notice to a hosting service provider;

                           (g)

                           ‘trusted flagger’ means an individual or entity which is considered by a hosting service provider to have particular expertise and responsibilities for the purposes of tackling illegal content online;

                           (h)

                           ‘terrorist content’ means any information the dissemination of which amounts to offences specified in Directive (EU) 2017/541 or terrorist offences specified in the law of a Member State concerned, including the dissemination of relevant information produced by or attributable to terrorist groups or entities included in the relevant lists established by the Union or by the United Nations;

                           (i)

                           ‘law enforcement authorities’ means the competent authorities designated by the Member States in accordance with their national law to carry out law enforcement tasks for the purposes of the prevention, investigation, detection or prosecution of criminal offences in connection to illegal content online;

                           (j)

                           ‘competent authorities’ means the competent authorities designated by the Member States in accordance with their national law to carry out tasks which include tackling illegal content online, including law enforcement authorities and administrative authorities charged with enforcing law, irrespective of the nature or specific subject matter of that law, applicable in certain particular fields;

                           (k)

                           ‘referral’ means any communication addressed to a hosting service provider submitted by a competent authority or by Europol in respect of content stored by that hosting service provider which that authority or Europol considers to be terrorist content, requesting the removal of or the disabling of access to that content by that hosting service provider on a voluntary basis.

      CHAPTER II

      General recommendations relating to all types of illegal content

      Submitting and processing notices

               5.

               Provision should be made for mechanisms to submit notices. Those mechanisms should be easy to access, user-friendly and allow for the submission of notices by electronic means.

               6.

               Those mechanisms should allow for and encourage the submission of notices which are sufficiently precise and adequately substantiated to enable the hosting provider concerned to take an informed and diligent decision in respect of the content to which the notice relates, in particular whether or not that content is to be considered illegal content and is be removed or access thereto is be disabled. Those mechanisms should be such as to facilitate the provision of notices that contain an explanation of the reasons why the notice provider considers that content to be illegal content and a clear indication of the location of that content.

               7.

               Notice providers should have the possibility, but not be required, to include their contact details in a notice. Where they decide to do so, their anonymity should be ensured towards the content provider.

               8.

               Where the contact details of the notice provider are known to the hosting service provider, the hosting service provider should send a confirmation of receipt to the notice provider and should, without undue delay, inform the latter in a proportionate manner of its decision in respect of the content to which the notice relates.

      Informing content providers and counter-notices

               9.

               Where a hosting service provider decides to remove or disable access to any content that it stores because it considers the content to be illegal content, irrespective of the means used for detecting, identifying or removing or disabling of access to that content, and where the contact details of the content provider are known to the hosting service provider, the content provider should, without undue delay, be informed in a proportionate manner of that decision and of reasons for taking it, as well as of the possibility to contest that decision referred to in point 11.

               10.

               However, point 9 should not apply where it is manifest that the content concerned is illegal content and relates to serious criminal offences involving a threat to the life, or safety of persons. In addition, hosting service providers should not provide the information referred to in that point where, and for as long as, a competent authority so requests for reasons of public policy and public security and in particular the prevention, investigation, detection and prosecution of criminal offences.

               11.

               Content providers should be given the possibility to contest the decision by the hosting service provider referred to in point 9 within a reasonable time period, through the submission of a counter-notice to that hosting service provider. The mechanism to submit such counter-notices should be user-friendly and allow for submission by electronic means.

               12.

               It should be ensured that hosting service providers take due account of any counter-notice that they receive. Where the counter-notice contains grounds for the hosting service provider to consider that the content to which the counter-notice relates is not to be considered illegal content, it should reverse its decision to remove or disable access to that content without undue delay, without prejudice to its possibility to set and enforce its terms of service in accordance with Union law and the laws of the Member States.

               13.

               The content provider who submitted a counter-notice, as well as the notice provider concerned, should, where their contact details are known to the hosting service provider concerned, be informed, without undue delay, of the decision that the hosting service provider has taken in respect of the content concerned.

      Out-of-court dispute settlement

               14.

               Member States are encouraged to facilitate, where appropriate, out-of-court settlements to resolve disputes related to the removal of or disabling of access to illegal content. Any mechanisms for such out-of-court dispute settlement should be easily accessible, effective, transparent and impartial and should ensure that the settlements are fair and in compliance with the applicable law. Attempts to settle such disputes out-of-court should not affect the access to court of the parties concerned.

               15.

               Where available in the Member State concerned, hosting service providers are encouraged to allow the use of out-of-court dispute settlement mechanisms.

      Transparency

               16.

               Hosting service providers should be encouraged to publish clear, easily understandable and sufficiently detailed explanations of their policy in respect of the removal or disabling of access to the content that they store, including content considered to be illegal content.

               17.

               Hosting service providers should be encouraged to publish at regular intervals, preferably at least annually, reports on their activities relating to the removal and the disabling of content considered to be illegal content. Those reports should include, in particular, information on the amount and type of content removed, on the number of notices and counter-notices received and the time needed for taking action.

      Proactive measures

               18.

               Hosting service providers should be encouraged to take, where appropriate, proportionate and specific proactive measures in respect of illegal content. Such proactive measures could involve the use of automated means for the detection of illegal content only where appropriate and proportionate and subject to effective and appropriate safeguards, in particular the safeguards referred to in points 19 and 20.

      Safeguards

               19.

               In order to avoid removal of content which is not illegal content, without prejudice to the possibility for hosting service providers to set and enforce their terms of service in accordance with Union law and the laws of the Member States, there should be effective and appropriate safeguards to ensure that hosting service providers act in a diligent and proportionate manner in respect of content that they store, in particular when processing notices and counter-notices and when deciding on the possible removal of or disabling of access to content considered to be illegal content.

               20.

               Where hosting service providers use automated means in respect of content that they store, effective and appropriate safeguards should be provided to ensure that decisions taken concerning that content, in particular decisions to remove or disable access to content considered to be illegal content, are accurate and well-founded. Such safeguards should consist, in particular, of human oversight and verifications, where appropriate and, in any event, where a detailed assessment of the relevant context is required in order to determine whether or not the content is to be considered illegal content.

      Protection against abusive behaviour

               21.

               Effective and appropriate measures should be taken to prevent the submission of, or the taking of action upon, notices or counter-notices that are submitted in bad faith and other forms of abusive behaviour related to the recommended measures to tackle illegal content online set out in this Recommendation.

      Cooperation between hosting services providers and Member States

               22.

               Member States and hosting service providers should designate points of contact for matters relating to illegal content online.

               23.

               Fast-track procedures should be provided to process notices submitted by competent authorities.

               24.

               Member States are encouraged to establish legal obligations for hosting service providers to promptly inform law enforcement authorities, for the purposes of the prevention, investigation, detection or prosecution of criminal offences, of any evidence of alleged serious criminal offences involving a threat to the life or safety of persons obtained in the context of their activities for the removal or disabling of access to illegal content, in compliance with the applicable legal requirements, in particular regarding the protection of personal data protection, including Regulation (EU) 2016/679.

      Cooperation between hosting services providers and trusted flaggers

               25.

               Cooperation between hosting service providers and trusted flaggers should be encouraged. In particular, fast-track procedures should be provided to process notices submitted by trusted flaggers.

               26.

               Hosting service providers should be encouraged to publish clear and objective conditions for determining which individuals or entities they consider as trusted flaggers.

               27.

               Those conditions should aim to ensure that the individuals or entities concerned have the necessary expertise and carry out their activities as trusted flaggers in a diligent and objective manner, based on respect for the values on which the Union is founded.

      Cooperation between hosting service providers

               28.

               Hosting service providers should, where appropriate, share experiences, technological solutions and best practices to tackle illegal content online among each other and in particular with hosting service providers which, because of their size or the scale on which they operate, have limited resources and expertise, including in the context of ongoing cooperation between hosting service providers through codes of conduct, memoranda of understanding and other voluntary arrangements.

      CHAPTER III

      Specific recommendations relating to terrorist content

      General

               29.

               The specific recommendations relating to terrorist content set out in this Chapter apply in addition to the general recommendations set out in Chapter II.

               30.

               Hosting service providers should expressly set out in their terms of service that they will not store terrorist content.

               31.

               Hosting service providers should take measures so that they do not store terrorist content, in particular as regards referrals, proactive measures and cooperation in accordance with points 32 to 40.

      Submitting and processing referrals

               32.

               Member States should ensure that their competent authorities have the capability and sufficient resources to effectively detect and identify terrorist content and to submit referrals to the hosting service providers concerned, in particular through national internet referral units and in cooperation with the EU Internet Referral Unit at Europol.

               33.

               Provision should be made for mechanisms allowing for the submission of referrals. Fast-track procedures should be provided to process referrals, in particular referrals submitted by national internet referral units and by the EU Internet Referral Unit at Europol.

               34.

               Hosting service providers should, without undue delay, send confirmations of receipt of referrals and inform the competent authority or Europol of their decisions in respect of the content to which the referrals relate, indicating, as the case may be, when the content was removed or access thereto was disabled or why they decided not to remove or to disable access to the content.

               35.

               Hosting service providers should assess and, where appropriate, remove or disable access to content identified in referrals, as a general rule, within one hour from the moment at which they received the referral.

      Proactive measures

               36.

               Hosting service providers should take proportionate and specific proactive measures, including by using automated means, in order to detect, identify and expeditiously remove or disable access to terrorist content.

               37.

               Hosting service providers should take proportionate and specific proactive measures, including by using automated means, in order to immediately prevent content providers from re-submitting content which has already been removed or to which access has already been disabled because it is considered to be terrorist content.

      Cooperation

               38.

               In order to prevent the dissemination of terrorist content across different hosting services, hosting service providers should be encouraged to cooperate through the sharing and optimisation of effective, appropriate and proportionate technological tools, including such tools that allow for automated content detection. Where technologically possible, all relevant formats through which terrorist content is disseminated should be captured. Such cooperation should include, in particular, hosting service providers which, because of their size or the scale on which they operate, have limited resources and expertise.

               39.

               Hosting service providers should be encouraged to take the necessary measures for the proper functioning and improvement of the tools referred to in point 38, in particular by providing identifiers relating to all content considered to be terrorist content and by fully exploiting the possibilities of those tools.

               40.

               Competent authorities and hosting service providers should conclude working arrangements, where appropriate also with Europol, on matters relating to terrorist content online, including for enhancing the understanding of terrorist activities online, improving referral mechanisms, preventing unnecessary duplication of efforts and facilitating requests by law enforcement authorities for the purposes of criminal investigations in relation to terrorism.

      CHAPTER IV

      Provision of information

               41.

               Member States should, at regular intervals and preferably every three months, report to the Commission on the referrals submitted by their competent authorities and the decisions taken by hosting service providers upon those referrals, as well as on their cooperation with hosting service providers relating to tackling terrorist content.

               42.

               In order to allow for the monitoring of the effects given to this Recommendation as regards terrorist content at the latest three months from the date of its publication, hosting service providers should submit to the Commission, upon its request, all relevant information to allow for such monitoring. That information may include in particular, information on the amount of content which has been removed or to which access has been disabled, either pursuant to referrals or notices or pursuant to the taking of proactive measures and the use of automated means. It may also include the number of referrals received and the time needed for taking action, as well as the amount of content prevented from being submitted or re-submitted through the use of automated content detection and other technological tools.

               43.

               In order to allow for the monitoring of the effects given to this Recommendation as regards illegal content, other than terrorist content, at the latest six months from the date of its publication Member States and hosting service providers should submit to the Commission, upon its request, all relevant information to allow for such monitoring.

      Done at Brussels, 1 March 2018.

            For the Commission

         Andrus ANSIP

            Vice-President

      (1)  COM(2017) 555 final of 28 September 2017.

      (2)  Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1). COM(2016) 287 final.

      (3)  COM(2016) 593 final of 14 September 2016.

      (4)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1).

      (5)  Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1).

      (6)  Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6).

      (7)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45).

      (8)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

      (9)  Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).