title: Commission Recommendation of 23 January 2009 on guidelines for best enforcement practice concerning checks of recording equipment to be carried out at roadside checks and by authorised workshops (notified under document number C(2009) 108) (Text with EEA relevance)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               L 21/87

      COMMISSION RECOMMENDATION

   of 23 January 2009
   on guidelines for best enforcement practice concerning checks of recording equipment to be carried out at roadside checks and by authorised workshops
   (notified under document number C(2009) 108)
   (Text with EEA relevance)
   (2009/60/EC)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulation (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (1), and in particular Article 11(1) thereof,
   Whereas:

               (1)

               Pursuant to Article 11(1) of Directive 2006/22/EC, the Commission is to establish guidelines on best enforcement practice concerning the checks of vehicles to be carried out by control officers either at the roadside, or at the premises of undertakings, or by authorised workshops and fitters.

               (2)

               Recording equipment in road transport is necessary to indicate the periods of time that drivers spend driving and resting, and also to ensure that effective checks of social legislation in road transport can be carried out by the competent national control bodies.

               (3)

               To ensure that such recording equipment functions correctly and reliably, and that the recording and storing of data can be guaranteed, periodic checks and inspections are necessary after the recording equipment has been installed.

               (4)

               However, periodic checks and inspections do not appear to occur with a frequency likely to effectively deter those drivers and operators who seek to abuse the system by using manipulation devices or other similar means.

               (5)

               Research and information from experts have established that attempts to defraud the tachograph system have been widespread in vehicles equipped with analogue tachographs; similar attacks and threats are now being made to the digital tachograph system.

               (6)

               The same research has shown that a number of manipulations are possible and known to exist in the road transport sector to attempt to defraud the tachograph, in particular the digital tachograph system.

               (7)

               Such attempts and threats pose a serious risk to road safety and also have unacceptable negative impacts on fair competition and on the social conditions of drivers in road transport.

               (8)

               As a result of the improved security of the digital tachograph as opposed to the analogue tachograph, threats and attempted attacks to the system can be more easily detected, so that the risk of unscrupulous drivers and operators being caught with such devices is accordingly increased and should act as a significant deterrent.

               (9)

               This Recommendation accordingly aims to encourage and support Member States in adopting procedures and methods that, based on research and technical expertise from the industry, will considerably improve the possibilities of preventing and detecting such attempted fraud.

               (10)

               In particular, this Recommendation sets out best enforcement practice, as identified in research carried out by the Joint Research Centre.

               (11)

               This Recommendation forms, together with a proposed Directive on additional checks to be carried out at the roadside, a package of enforcement measures that aim to considerably improve the detection and prevention of devices used to defraud the digital tachograph system.

               (12)

               The measures provided for in this Recommendation are in accordance with the opinion of the Committee set up by Article 18(1) of Council Regulation (EEC) No 3821/85 (2),

         HEREBY RECOMMENDS:

               1.

               Adopt and apply the best practice guidelines set out in the Annex to this Recommendation concerning the checks on vehicles to be carried out by control officers at the roadside or at the premises of undertakings, or by fitters and technicians at workshops approved by the competent authority of the Member State, in order to detect and prevent the use of manipulation devices in recording equipment used in road transport.

               2.

               Apply these guidelines, where appropriate, in the context of the national enforcement strategies referred to in Article 2 of Directive 2006/22/EC.

      Done at Brussels, 23 January 2009.

            For the Commission

         Antonio TAJANI

            Vice-President

      (1)  OJ L 102, 11.4.2006, p. 35.

      (2)  OJ L 370, 31.12.1985, p. 8.

      ANNEX
      RECOMMENDATIONS ON COUNTERMEASURES TO BE ADOPTED BY MEMBER STATES TO DETECT AND PREVENT THE USE OF MANIPULATION DEVICES
      TABLE OF CONTENT

                  CHAPTER 1:

               INTRODUCTION

                  CHAPTER 2:

               EFFECTIVE ROADSIDE CHECKS

                  A.

               Organisation and equipment

                  B.

               Double check points methods with analysis of real speed and distance of vehicles

                  C.

               Single check point methods based on detailed analysis of downloaded data

                  D.

               Single check point methods based on technical control of seals

                  E.

               Directing the vehicle to a workshop

                  F.

               Checking vehicles or data at company remise

                  CHAPTER 3:

               TRAINING AND BEST PRACTICE

                  CHAPTER 4:

               WORKSHOP INSPECTIONS

                  A.

               Legal Base

                  B.

               Broken or Absent Seals

                  C.

               Analysis of Data Records

                  D.

               Control of Pairing Between Motion Sensor and Vehicle Unit

                  E.

               Special Procedures as a Result of a Roadside Check

                  CHAPTER 5:

               REPORT AND AUDIT OF WORKSHOPS

                  CHAPTER 6:

               FINAL PROVISIONS
            Chapter 1:   Introduction
      1.1.   This Commission Recommendation describes what Member States could be encouraged to do in order to meet the threats posed by the use of manipulation devices in tachographs and at the same time to promote and support preventative countermeasures amongst Member States to deal with those threats.
      1.2.   The presence of manipulation devices in vehicles intended to interfere with the correct operation and functions of the digital tachograph system represents one of the most serious threats to the security of the system. The use, or intention to use, such devices will distort fair competition, by giving unscrupulous operators and drivers an unfair commercial advantage; and create unacceptable negative social impacts for drivers by allowing, or forcing, them to drive for much longer periods than is legally permissible. The potential consequence of these factors is to undermine road safety, for all road users, and which the Commission is committed to improving over the coming years.
      1.3.   Furthermore, law-abiding operators and drivers must be able to trust the digital tachograph, and national control bodies throughout the Community must be able to rely on the authenticity and integrity of the data recorded and stored by the equipment, regardless of whether it is downloaded and analysed from the vehicle unit or the driver card. In order to guarantee the reliability of the data, regular checks and inspections of the equipment must be carried out to ensure its correct functioning and operation.
      1.4.   In the long-term, the total security of the system and its components is essential if the integrity and authenticity of the data recorded is to be assured. To bring to an end the most common abuses and attempts to defraud the system, the Commission will as appropriate examine the possibility of introducing further more detailed legislative measures in the review of Regulation (EEC) 3821/85 and its Annexes.
      1.5.   Nevertheless, in the short-term, appropriate and effective measures could be developed by the competent authorities of Member States in order to make the detection of manipulation devices much more likely, thereby reducing the risks that such equipment will be used by operators and drivers.
      1.6.   Whilst Member States have a legal responsibility to require that checks and inspections are performed in such a way as to ensure the effective implementation of the Community social legislation in road transport, such periodic checks cannot guarantee that devices will not be installed and used later, after checks have been completed. Experience has shown that such devices are far more likely to be found during roadside checks when the vehicle can be inspected more closely. The frequency and nature of these checks by Member States ought to be encouraged so as to significantly increase the deterrent factor by increasing the risk of detection of such devices.
      1.7.   Appendix 10 (Generic Security Targets) of Annex 1B of Regulation (EEC) 3821/85 sets out the scope of security enforcing functions needed to ensure the integrity of the digital tachograph system. The security objectives of, and the threats to, the whole system have to be addressed by a combination of technical solutions, through ITSEC approval, as well as through physical, personnel and procedural means, which are the responsibility of Member States and tachograph manufacturers to implement. It is the intention then, of this Commission Recommendation, to suggest to Member States the most effective procedures, based on both research and known best practice, to support those procedural and personal means.
      1.8.   However, this Commission Recommendation should not be regarded as replacing those technical solutions provided for by ITSEC (1), and in fact, ideally, could easily be used in conjunction with, and support of, them.
      1.9.   The report provided by the Joint Research Centre (2) has set out the kinds of known and potential attacks to the security of the digital tachograph. Therefore, this report could be used by Member States as the basis of putting in place the necessary steps and actions to ensure that adequate information and guidance can be provided to the national control officers so that when they undertake checks and inspections of vehicles at the roadside, they can do so. Furthermore, similar information and guidance could be provided to fitters and workshops that carry out statutory installations, inspections, checks and repairs of recording equipment in road transport. The guidance could be of a sufficient scope to ensure that such persons can fully and competently carry out the checks described in this annex and that Member States are able to act in prosecuting those identified as abusing, or attempting to abuse, the system.
      1.10.   The following guidelines and recommendations are not exhaustive and there may be circumstances where the application of such recommendations cannot achieve the desired result (for example, in cases where the reference cable cannot be connected to the motion sensor). In such circumstances, Member States could be encouraged to develop alternative methods that can be verified as being as effective. Such alternative measures could be more widely shared amongst the enforcement community.
      1.11.   Furthermore, although this Commission Recommendation is intended to address both types of tachograph as defined by Regulation (EEC) 3821/85 and its Annexes, Member States may have methods, procedures and guidelines already established concerning checks of Analogue tachographs and the detection of manipulation devices. Therefore, this Commission Recommendation should not be seen to replace or detract from those measures already established, but to further support them, in particular with reference to the digital tachograph, where the methodology may differ, but the objective remains the same. It is recommended that where measures are already in place for checking analogue tachographs, they could, where appropriate, be extended to include digital ones also (for example, situations concerning the payment to workshops for carrying out specific tasks designated to them by control officers having directed a vehicle to an authorised workshop, as described in Section F).
      1.12.   Member States should be confident and supported in setting out in their national enforcement strategies their methods and processes in addressing the developing threats to the tachograph system. Such best practice could be shared with other Member States.
      Chapter 2:   Effective roadside checks
      A.   Organisation and equipment
      2.1.   In order to carry out full and effective checks, control officers should be fully equipped and properly trained. They should at least be in possession of control cards and have the relevant tools to download data files of the vehicle unit and the driver card and to be able to analysis such data files and print-outs from Annex IB type recording equipment in combination with sheets or charts from Annex 1 types. Control officers should also be equipped with software which has the capacity to analyse such data speedily and with the least inconvenience, since it is recognized that, for the purpose of detecting manipulation devices, print-outs cannot easily be analyzed at the roadside given the length and content of some of the files to be printed.
      2.2.   As far as possible, when control officers carry out checks, whether at the roadside or at the premises of undertaking, and whether dedicated to checking drivers hours' compliance, or roadworthiness tests or other kinds of checks, they could also take the opportunity that the time presents to test the correct functioning and use of the tachograph, and be able to detect the use of manipulation devices from such checks.
      2.3.   To this end, it is recommended that Member States attempt to organise checks of vehicles for manipulation devices, in conjunction with other checks (such as roadworthiness tests, conformity of Drivers' Hours Rules, etc) and that, indicatively, at least 10 % of the total number of vehicles checked are checked for the presence of manipulation devices. It remains for Member States to determine the appropriate methodology and circumstances for performing such additional checks, but the content could be reflected in their overall national enforcement strategy.
      2.4.   Effective checking could be undertaken using, for example, the following methods:

                  double check points with analysis of speed or distance (see B);

                  single check point with detailed analysis of data (see C);

                  single check point based on technical control (see D).

            2.5.   If a control officer believes that he has collected enough evidence, he could direct the vehicle to a workshop to perform further tests (see E).
      2.6.   Of course, additional, or alternative, methods of checking vehicles can always be deployed by Member States.
      B.   Double check points methods with analysis of real speed and distance of vehicles
      2.7.   Speed control at a specific time: to apply this method, control officers, using fixed or mobile cameras, or speed-guns, could measure real speed of the vehicle before stopping it at the roadside check at a specific time. They could then download from the Vehicle Unit (VU) the 24-Hour Detailed Speed File and compare the speed recorded at this specific time with the one measured few kilometers before. At the checkpoint, this method only requires to compare two figures after having downloaded the 24-Hour Detailed Speed File;
      2.8.   Fixed distance control at a specific time: to apply this method, the checkpoint could be chosen at a known distance from a specific location where control officers have facilities or means to note the time when an identified vehicle has stopped or crossed this specific point (toll tickets, camera records, reports of border controls, etc). At the checkpoint, the enforcers could then download from the vehicle unit the 24-Hour detailed Speed File and compare quickly the average speed recorded between the checkpoint and the specific location with the one calculated from the known distance out of the time needed to reach the checkpoint.
      2.9.   With both methods, enforcers at the checkpoint need only to compare two figures after having downloaded the 24-Hour Detailed Speed File and measured or calculated the real average speed. Any significant difference could give rise to a control officer having a suspicion that a device was used. The control officer could then direct the driver and vehicle to a workshop without necessarily having to perform further checks on the spot.
      2.10.   Concerning data from Annex IB type tachographs, all files that are downloaded from or through the recording equipment have to be accompanied by the appropriate digital signature that was originally generated by the vehicle unit or the driver card in order to verify the authenticity and integrity of the data and control officers could also check that this information is also downloaded.
      C.   Single check point methods based on detailed analysis of downloaded data
      2.11.   If a manipulation device is in use when a roadside check is carried out, or was in use until shortly before the check, indications of manipulation could be found through a number of simple procedures.
      2.12.   In order to establish the suspicion of the presence of a manipulation device, that would justify control officers taking whatever action they deem necessary to detect it, control officers could:

                  —

                  Compare the driver's activities downloaded from the card and the vehicle unit with any other paperwork in the vehicle and driver's statements. Inconsistency between these data could constitute the beginning of a suspicion. In that case, the enforcer could investigate further.

                  —

                  Examine the Events & Faults File stored on the vehicle unit, and especially for the last 10 days:

                              —

                              Security breach attempt;

                              —

                              Power supply interruption (the longest event);

                              —

                              And Motion data error (the longest event);

                              —

                              Sensor fault.

                        If the driver is not able to explain and justify the rational of each events or faults, the enforcer could investigate further.

                  —

                  Examine Technical Data Files stored on the vehicle unit, and especially:

                              —

                              Time adjustment data.

                              —

                              Calibration data (five most recent calibrations, name of workshop and their card number).

                  —

                  The later data are useful to detect too many calibration actions that may imply that they have been performed with a stolen workshop card (or of a workshops card reported as lost). It is recommended that control officers check with their Card Issuing Authority (3) the status of such workshop cards that have been identified, and whether they were valid at the time they were used to calibrate the vehicle unit.

            2.13.   If, after examining all the data mentioned in 2.14- 2.19, the control officer still considers that something is wrong, he could download the 24-Hour Detailed Speed File and check, still with the help of his software, if there are unrealistic increases or decreases in acceleration of the vehicle and, where appropriate, if the profile of the journey is consistent with other paperwork in the vehicle and driver's statements (number of stops, speed in mountain or urban region …). This evidence cumulated with the former ones could justify grounds to suspect that a manipulation device is present.
      2.14.   At the checkpoint, this method requires appropriate software, able to generate a readable display of the time profile of the speed in order to pin-point unusual variations in acceleration or decelerations of speed to highlight, and more generally to automatically signal:

                  —

                  the unrealistic increases or decreases in acceleration of the vehicle;

                  —

                  any suspicious calibrations of the vehicle unit;

                  —

                  power supply interruption.

            D.   Single check point methods based on technical control of seals
      2.15.   Where possible, and when it is safe to do so, the control officer could check the seals. If the seals are absent, broken or damaged, the driver should be asked to justify the situation.
      2.16.   If the driver is able to provide the written statement giving the reason for such action as foreseen in Chapter V section 4 of Annex 1, or requirement 253 of Annex IB to Regulation (EEC) 3821/85, then the control officer could require the driver to go to a workshop to reseal the system and recalibrate the equipment.
      2.17.   If not, this could constitute an infringement and it is recommended that the driver, with his vehicle, be directed immediately to an authorised workshop accompanied by the control officer for a check of the equipment as foreseen in the following chapter 3.
      E.   Directing the vehicle to a workshop
      2.18.   If after a roadside check using the previous methods, a reasonable suspicion still exists that a manipulation device is fitted, the control officer could direct the vehicle to an authorised workshop. Control officers, or the appropriate national authority, could be empowered to instruct authorised workshops to perform specific tests designed to test for the presence of manipulation devices.
      2.19.   These specific tests would allow, in most cases, the detection of the wrong pairing between the motion sensor and the vehicle unit, and which may indicate the presence of a manipulation device. Such tests could include (see description in Chapter 3):

                  —

                  an inspection of the seals and the installation plaques;

                  —

                  a reference cable test;

                  —

                  an analysis of the downloaded data files.

            2.20.   If manipulation devices are detected, whether or not they have been used by the driver, the equipment (and this may including the device itself, the vehicle unit or its components, and the driver card) could be removed from the vehicle and be used as evidence.
      2.21.   Furthermore, authorized workshops could also be required additionally to check that the recording equipment: (a) works properly; (b) records and stores data correctly and; (c) that the calibration parameters are correct.
      2.22.   It is recommended that, for vehicles equipped with Annex IB type recording equipment, and only after downloading all data files and analyzing them (with their digital signatures in tact), and after checking that there is no manipulation device, that the recording equipment is fully re-calibrated and a new installation plaque affixed. Furthermore, it is recommended that only under the direction of the control body should the authorized workshop reseal the system.
      2.23.   Concerning recording equipment conforming to Annex 1, the equipment could, after the removal of any manipulation device, be checked for its proper functioning and correct operation, and be fully re-calibrated and a new installation plaque affixed. It is recommended that only under the direction of the control body should the authorized workshop then reseal the system.
      F.   Checking vehicles or data at company premises
      2.24.   It is recommended that Member State Competent Authorities take advantage of the possibility to check vehicles (and vehicle units) and drivers (and driver cards) which may be on site during a check of the premises of the undertaking.
      2.25.   Data managed by the undertaking is required to be kept for at least one year and made available for inspection whenever a control officer requests it. Therefore, as part of their standard checking procedure, control officers could check any vehicle that they find at the premises of undertaking, and to carry out whatever tests or activities they deem appropriate, whilst, at the same time, keeping delays to drivers and vehicles to a minimum.
      2.26.   Such checks at company premises could also take into account the possibility that there may be a mix of vehicles and records relating to either Annex I or Annex 1B type recording equipment, and it would be appropriate that control officers be prepared and properly equipped for this eventuality.

         SUMMARY BOX

         PREVENTING ATTACKS AGAINST DIGITAL TACHOGRAPH CHECKS AT THE ROADSIDE OR AT THE PREMISES OF UNDERTAKING

         National enforcement strategies could be developed to promote effective enforcement checks and inspections of vehicles that maybe fitted with manipulation devices, either at the roadside or during checks of premises of undertakings.

         Properly trained and equipped control officers would be able to rapidly access, download and analyse data from vehicle units and to carry out checks promptly, and to be able to carry out similar analysis of data electronically stored, or in combination with sheets, charts and print-outs.

         Member States could develop strategies to ensure that, when vehicles are checked for the presence of manipulation devices, such vehicles could be checked with one of the following methods by 2010:

                  —

                     double check points with analysis of real speed and distance;

                  —

                     single check point with detailed analysis of data downloaded;

                  —

                     single check point based on technical control of seals.

         Indicatively, it could be that 10 % of vehicles controlled (whether through roadworthiness tests, Drivers' Hours compliance or other checks) could also be checked for the presence of manipulation devices, although it remains for Member States to develop the most effective means, to be defined in their strategies.

         If enough evidence leading to reasonable suspicion has been found, control officers could direct the vehicle to an authorised workshop to perform further tests.

         If manipulation devices are detected, whether or not they have been used by the driver, it is recommended that the equipment be removed from the vehicle and used as evidence, in compliance with national rules of procedure relating to the handling of such evidence. Control officers could apply the appropriate processes and penalties associated whenever the use of such equipment is established, since it constitutes a most serious infringement.

      Chapter 3:   Training, equipment and best practice
      3.1.   Whilst Member States should ensure that control officers are properly trained for the execution of their tasks, adequate training could also be undertaken for all other relevant parties; it would be advantageous and highly desirable if joint visits and co-ordination for control officers between Member States were organized to harmonize best practices and diffuse lessons learnt from experience amongst practitioners.
      3.2.   Control officers should be adequately equipped in order to carry out the range of checks related to the digital tachograph. This means that they should have that the appropriate tools available to them to read, print and download data from such recording equipment. Member States could make efforts to ensure that a sufficient number of their control officers are thus equipped.
      3.3.   Best practice for detection and prevention, both during roadside checks and at the premises of undertaking (such as the use of the reference cable, the fixed-distance technique, detection of abnormal speed traces or distance profiles, breaks in power-supply, broken seals) could be shared and promoted within the enforcement community.
      Chapter 4:   Workshop inspections
      Workshops and fitters provide a crucial link in the security of the tachograph system, irrespective of whether the equipment is an analogue or digital tachograph. Their approval and authorisation must be based on a clear set of national criteria which establishes their reliability and trustworthiness. To this end it is recommended that Member State ensure that workshops authorised to install, activate, calibrate, inspect and repair recording equipment are approved, regularly controlled, certified and provided with timely, relevant updates and information. It is also recommended that Competent Authorities provide fitters and workshops with clear instructions and guidance about their duties and responsibilities, in particular their understanding of their role within the context of the overall security of the system. It is also recommended that those authorities who approve workshops and fitters provide, through the Commission, to all other Member States, accurate and regularly updated information concerning the markings of seals and details and status of each workshop on their territory.
      A.   Legal basis
      4.1.   Vehicles will normally be required to go to a workshop for inspection whenever:

                  (a)

                  the tachograph requires its inspection in compliance with the Annexes of Regulation (EEC) 3821/85;

                  (b)

                  the vehicle undergoes its annual roadworthiness inspection under the provisions of Annex II of Directive 96/96/EC;

                  (c)

                  control officers direct the vehicle to a workshop in order to carry out a more detailed inspection of the recording equipment;

                  (d)

                  the recording equipment needs to be repaired or replaced.

            4.2.   On all these occasions, workshops or fitters could be instructed to visually and physically check that the recording equipment is sealed and that the recording equipment has both its manufacturer's descriptive plaque and the installation plaque.
      4.3.   Workshops could be regularly reminded by their Member State Competent Authority that whenever they inspect and reseal the tachograph system, and affix an installation plaque, then the workshop is, effectively, confirming that the system is secure, that it functions correctly, records properly and that there are no manipulation devices attached to the equipment.
      4.4.   Workshops could be reminded that they may be committing a serious infringement if they knowingly reseal the tachograph system without first removing any manipulation device that they themselves find, or requesting that the manipulation device is removed prior to resealing. If it is later established that a manipulation device is present, irrespective of whether it has been used or not, and that the workshop did reseal the system, and affix an installation plaque, then the workshop and individual fitters could be held liable of a serious infringement.
      4.5.   It is recommended that, given the important role that workshops and fitters have with regards to the security of the system, that Member State Competent Authorities consider appropriate sanctions which may even lead to the loss of approval or the authority to carry out work on tachographs, if workshops cannot be any longer relied upon.
      4.6.   Conversely, Member States could remind workshops that they have the right to refuse to carry out any further inspections or calibrations on any vehicle if they suspect, or know, that a manipulation device is present on that vehicle. Workshops could be supported by the Competent Authority if the workshop insists that, before continuing with an inspection, the manipulation device is first removed. The workshop can always refuse to either reseal the interface connections, or affix any installation plaque until the device is removed.
      4.7.   Those Member States which consider it appropriate could request that authorised workshops report such facts as described in 4.4 – 4.6.
      4.8.   Alternatively, Member States who do not consider such action by the workshop as appropriate could instead instruct workshops that such reports be kept for a specific period of time and made available to the Competent Authority when requested. This period of time could be a minimum of 24 months which would be in line with the minimum period between inspections of the equipment.
      4.9.   Workshops could also be reminded that simply removing a manipulation device from a vehicle does not necessarily exonerate the operator or driver from any infringements, since it is very likely that data previously recorded and stored on the vehicle unit and individual driver cards may have already been manipulated. By not reporting the matter, workshops could themselves be contributing to any offences committed by those operators or drivers and could expect to face the same punishments if caught.
      4.10.   Nevertheless, workshops and fitters could report the use or presence of manipulation devices to their Competent Authority who, in turn, could, for example, consider reward or incentive schemes to encourage workshops to provide information contributing to the detection and prevention of manipulation devices or any other types of attacks to the system.
      4.11.   The following guidelines and recommendations are not exhaustive and there could be circumstances where the application of such recommendations cannot achieve the desired result (for example, in cases where the reference cable (section 1.23) cannot be connected to the motion sensor). In such circumstances, Member States could develop alternative methods that are as effective. Such alternative measures could be shared amongst the wider enforcement community.
      4.12.   Furthermore, since these guidelines cover both types of tachograph as defined by Regulation (EEC) 3821/85 and its Annexes, Member States may have methods, procedures and guidelines already established concerning checks of analogue tachographs and the detection of manipulation devices. The guidelines in this Commission Recommendation should not, therefore, be seen to replace or detract from those measures already established, but to further support them, in particular with reference to the digital tachograph, where the methodology may differ, but the objective remains the same. It is recommended that where measures are already in place for checking analogue tachographs, they could, where appropriate, be extended to include digital ones also. For example, situations concerning the payment to workshops for carrying out specific tasks designated to them by control officers having directed a vehicle to an authorised workshop.
      B.   Broken or absence of seals
      4.13.   Workshops can always check if the seals are absent, broken or damaged.
      4.14.   Under no circumstances should the vehicle be resealed or issued with an installation plaque until the system has been restored to meet the requirements of the Regulation.
      4.15.   Workshops could record the fact that seals are missing on the inspection report or register and perform further checks (such as the reference cable check) and inspections to ensure that no manipulation device is present on the vehicle.
      4.16.   If, as foreseen in Chapter V(4) of Annex I, and Requirement 252 of Annex IB to Regulation (EEC) 3821/85, the seals have been removed in case of emergency or to install or repair a speed limitation device, then on each occasion seals being broken, a written statement giving the reason for such action has to be prepared and made available to the competent authority.
      4.17.   If not, the workshop could perform a complete check, with the following recommended methods and report to its Competent Authority precisely what has been done and detected.
      C.   Analysis of data records
      4.18.   Specifically to the digital tachograph, the data that could be downloaded, with its digital signature whenever possible, at the workshop and incorporated into the audit report should match the requirements contained in section 4.4 (Motion Sensor Security Targets) and section 4.4 (Vehicle Unit Security Targets) of Appendix 10 of Annex IB of Regulation (EEC) 3821/85. Appendix 1 provides the full list of the information in the audit report.
      4.19.   The workshop could also download and analyze the Events & Faults Data File, contained on the vehicle unit. These events and faults include for example (see also the full list in Appendix 2):

                  —

                  security breach attempt;

                  —

                  motion sensor authentication failure;

                  —

                  unauthorized change of motion sensor;

                  —

                  unauthorized case opening;

                  —

                  power supply interruption event;

                  —

                  or sensor fault.

            4.20.   Detecting the use of a manipulation device after it has been uninstalled is also difficult to establish. However, a check of the Events & Faults Data File could show occasions when there have been power supply interruptions, which cannot be explained. Additionally, a study of the detailed speed trace could indicate abnormalities of the speed signal. Unrealistic decelerations or accelerations could be symptomatic of switching on or off a manipulation device.
      4.21.   In all circumstances workshops could print and attach the print-out to the inspection report or register (see Chapter 4) and, where appropriate, refer to any data downloaded using the workshop card.
      4.22.   If data from the vehicle unit cannot be downloaded using the workshop card, the vehicle unit may be considered as malfunctioning or broken. In such cases workshops could attempt to repair the equipment. If such attempts at repair still do not make it possible to download data, an undownloadability certificate should be issued, and a copy retained with the inspection report.
      4.23.   It is also recommended that drivers keep with them any undownloadability certificate issued to them by a workshop, in the event that they are later controlled when using a vehicle with a malfunctioning digital tachograph. It is furthermore recommended that, if the driver changes vehicles, then such certificates remain with the vehicle until such time as the transport undertaking can take receipt of the certificate as part of his overall record-keeping obligations and can have the equipment repaired.
      D.   Control of the pairing between the motion sensor and the vehicle unit
      4.24.   If any of the data described in the previous section is found to have occurred since the last inspection, the workshop could make a comparison between the motion sensor identification data of the motion sensor plugged into the gearbox with that of the paired motion sensor registered in the vehicle unit.
      4.25.   The use of a reference cable is an effective means of testing whether certain types of manipulation device have been installed into the vehicle. The reference cable is plugged into the back of the vehicle unit, and the other end connected to the motion sensor. If the motion sensor in the gear-box has not been paired with the vehicle unit, a ‘motion data error event’ or sensor fault will be triggered. This message will indicate the presence of a manipulation device. Should this event appear, the vehicle could be checked for hidden devices.
      4.26.   Alternatively, in the course of a check, the motion sensor could be unplugged and removed. If the digital tachograph system has not been tampered with, an error message will appear (no motion sensor). If, however, there is not such an error message, this will indicate the presence of another, concealed motion sensor or some other electronic manipulation device.
      4.27.   It should be noted that prior to using the reference cable technique, workshop technicians (or control officers) must insert their workshop card (or control card) in order to provide an explanation as to why the ‘power supply interruption event’ has been triggered and recorded on the Events & Faults file of the vehicle unit. Not to do so may give a wrong indication in the course of a later inspection that either the driver or operator may have attempted an attack on the security of the motion sensor.
      4.28.   Alternatively, although not always possible, the markings on the motion sensor on the gearbox could be compared with the motion sensor identification data of the paired motion sensor registered in the vehicle unit. Workshops could therefore carry out the following actions:

                  —

                  A comparison of the information recorded on the installation plaque with the information contained within the vehicle unit record. Where it is found that information does not match, the Member State Enforcement Authorities could be informed and the incident recorded on the inspection report and the inspection register.

                  —

                  A comparison of the motion sensor identification number printed on the body of the motion sensor with the information contained within the vehicle unit record. If needs be an electronic test tool could be used to check the electronic identification of the motion sensor. Where there is any mismatch of the identification numbers it can be assumed that a manipulation device is fitted. The Member State Enforcement Authorities could be informed and the incident recorded on the inspection report and the inspection register.

            E.   Special procedures as a result of a roadside check
      4.29.   Control Officers could have directed a suspicious vehicle to a workshop. In such circumstances, the control officers could firstly instruct workshops and fitters to download all data files from the vehicle unit. These files include the Overview File, the Detailed Speed File, the Technical File and the Events & Faults File. The appropriate digital signature must accompany such files.
      4.30.   A full check could be performed on the recorded data as well as with technical means (reference cable, check of the seals …).
      4.31.   If serious inconsistencies are found but without the detection of a manipulation device, it could be concluded that a manipulation device has been used and removed. In such a case, the control officer ought to inform the body for the coordination of enforcement actions, according to Article 2 of Directive 2006/22/EC and/or the body for intra-community liaison, according to Art 7 of the same Directive, if the vehicle is registered in another Member State. This could lead to further investigation as far as the vehicle of the undertaking are concerned.
      Chapter 5:   Report and audit of workshops
      5.1.   Workshops could draw up an inspection report for each inspection of one vehicle where recording equipment is required to be inspected, whether the inspection is part of a periodic inspection, or at the specific request of the national competent authority. They could also record in a register the list of all the inspection reports.
      5.2.   The inspection report could be kept by the workshop for a minimum period of two years from the time the report was made and, whenever requested to do so by the national competent authority, make available all records of inspections and calibrations for that period.
      5.3.   Such findings made by authorised workshops, (records of broken, damaged or missing seals; missing plaques; incomplete or mismatched information between what was recorded on the vehicle unit and what was contained on the motion-sensor and; any detection of manipulation devices; copies of print-outs relating to the Events & Faults File and any other relevant print-outs), could, for example, form part of the regular reporting format and Member State Competent Authorities are encouraged to ensure that this is in fact the case.
      5.4.   Member States could consider that failure by workshops to provide duly completed inspection reports as a breach of the rules which may lead to the withdrawal of the workshop authorization.
      5.5.   Member States could perform audits of workshop inspection reports and registers at least once every two years. Such audits could include a random check of inspection reports related to the inspection and calibration of digital tachographs. Workshop cards could also be checked, and regularly downloaded to avoid data being lost or over-written.

         SUMMARY BOX

         PREVENTING ATTACKS AGAINST DIGITAL TACHOGRAPH DURING WORKSHOP INSPECTION

         When approving and regularly controlling workshops, Member States should ensure that their staff is properly trained and that they have access to all the necessary equipment to download data and carry out certain specific tests.

         Workshops could be instructed by their Competent Authority not reseal a digital tachograph where a manipulation device has been detected until the device has been removed, and the tachograph fully recalibrated so that it records correctly. Furthermore, workshops could also be instructed by their Competent Authority to remove the installation plaque.

         The inspections by workshops could include:

                  —

                     physical checks of the seals, installation and manufacturer's plaques

                  —

                     an analysis of downloaded data files, especially the Events & Faults File

                  —

                     where appropriate a test with a reference cable technique

         The workshops could record in an inspection report missing or damaged seals and attach to the report print-out of the downloaded files. The inspection reports could be made accessible to national authorities for two years.

         The regular controls of workshops by Member States could include an audit of the inspection procedures, including a random check of inspection reports.

         Member States could make sure that workshops inform the competent authority whenever they detect manipulation devices or find serious inconsistencies suggesting that a manipulation device have been used before to be uninstalled.

         In such a case and when the vehicle is registered in another Member State, Member States could inform the body for intra-community liaison, in order to proceed with further investigation as far as the vehicle of the undertaking are concerned.

      Chapter 6:   Final provisions
      6.1.   Detecting and preventing the use of devices to defraud the tachograph system is on ongoing process and one that requires constant vigilance in addressing. As technology advances, so then do the methods and threats created to defeat the system. To this end all those involved in the security of the tachograph system, whether they are control officers, approved workshops and fitters, or legitimate and law-abiding operators and drivers, have a part to play.
      6.2.   At national level Member States should be encouraged to obtain as much information as they can, to develop their own strategies in dealing with such threats, and strongly supported in the sharing of such information. New, or different threats, or attempts to defraud the system should be brought to the Commission's attention.
      6.3.   At Community level, the Commission will continue to review the situation, and the application of the rules, and seek the support and co-operation of all Member States and industry stakeholders.

         (1)  ITSEC – Information Technology Security Evaluation Criteria, 1991 Version 1.2.

         (2)  JRC Technical Notes. ‘Report on the attacks to security of the digital tachograph and on the risk associated with the introduction of adaptors to be fitted into light vehicles’. Limited circulation to national risk managers (29 November 2007).

         (3)  TACHONET should be used to send request to other card issuing authorities.


				|

		52014PC0430

			Recommendation for a COUNCIL DECISION abrogating Decision 2010/290/EU on the existence of an excessive deficit in Slovakia /* COM/2014/0430 final */

			   	Recommendation for a
COUNCIL DECISION
abrogating Decision 2010/290/EU on the
existence of an excessive deficit in Slovakia
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 126(12) thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1)       By Council Decision 2010/290/EU
of 2 December 2009[1],
following a recommendation from the Commission, it was decided that an
excessive deficit existed in Slovakia. The Council noted that according to the
data notified by the Slovak authorities in October 2009, the general government
deficit was planned to reach 6.3% of GDP in 2009, above the 3% of GDP Treaty
reference value, while the general government gross debt was planned to stand at
around 36% of GDP in 2009, well below the 60% of GDP Treaty reference value.[2]
(2)       On 2 December 2009, in
accordance with Article 126(7) of the Treaty and Article 3(4) of Council
Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation
of the excessive deficit procedure[3],
the Council, based on a recommendation from the Commission, addressed a
recommendation to Slovakia with a view to bringing the excessive deficit
situation to an end by 2013 at the latest. The recommendation was made public.
(3)       In accordance with Article
4 of the Protocol on the excessive deficit procedure annexed to the Treaties,
the Commission provides the data for the implementation of the procedure. As
part of the application of this Protocol, Member States are to notify data on
government deficits and debt and other associated variables twice a year, namely
before 1 April and before 1 October, in accordance with Article 3 of Council Regulation
(EC) No 479/2009 of 25 May 2009 on the application of the Protocol on the
excessive deficit procedure annexed to the Treaty establishing the European
Community[4].
(4)       When considering whether a
decision on the existence of an excessive deficit should be abrogated, the
Council should take a decision on the basis of notified data. Moreover, a
decision on the existence of an excessive deficit should be abrogated only if
the Commission forecasts indicate that the deficit will not exceed the 3% of
GDP reference value over the forecast horizon.[5]
(5)       Based on data provided by
the Commission (Eurostat) in accordance with Article 14 of Regulation (EC) No
479/2009 following the notification by Slovakia before 1 April 2014 and on the
Commission 2014 spring forecast, the following conclusions are warranted:
–
Having peaked at 8% of GDP in 2009, the general
government deficit in Slovakia has been brought down to 2.8% of GDP in 2013 in
line with the Council recommendation of 2 December 2009. The deficit reduction
was driven by fiscal consolidation on both the revenue and the expenditure
side, including one-off measures.
–
The 2014 stability programme targets the
headline deficit of 2.6% of GDP in 2014 and a further reduction to 2.5% of GDP
in 2015, 1.6% of GDP in 2016 and 0.5% of GDP in 2017. The Commission 2014 spring
forecast projects the general government deficit to increase slightly to 2.9%
of GDP in 2014 and return to 2.8% of GDP in 2015. The deficit is thus set to
stay below the Treaty reference value of 3% of GDP over the forecast horizon.
–
The structural balance, i.e. the general
government balance adjusted for the economic cycle and net of one‑off and
other temporary measures, has improved on average by 1½% of GDP each year
between 2009 and 2013. While it is projected to deteriorate slightly in 2014,
it would improve in 2015, based on a no‑policy‑change assumption. In
this context, it appears that there is an emerging gap of 0.3% of GDP relative
to the required adjustment of the structural balance towards the medium-term
objective in 2014, suggesting that there is a need to reinforce the budgetary
measures in order to ensure full compliance with the preventive arm of the pact
in view of the emerging risk of a deviation from the required adjustment path.
–
The general government debt reached 55.4% of GDP
in 2013. The Commission 2014 spring forecast projects the general government
debt to increase further to 56.3% of GDP in 2014 and 57.8% of GDP in 2015.
(6)       The Council recalls that,
starting from 2014, which is the year following the correction of the excessive
deficit, Slovakia is subject to the preventive arm of the Stability and Growth Pact
and should progress towards its medium-term objective at an appropriate pace,
including respecting the expenditure benchmark.
(7)       In accordance with Article
126(12) of the Treaty, a Council Decision on the existence of an excessive
deficit is to be abrogated when the excessive deficit in the Member State concerned has, in the view of the Council, been corrected.
(8)       In the view of the
Council, the excessive deficit in Slovakia has been corrected and Decision 2010/290/EU
should therefore be abrogated,
HAS ADOPTED THIS DECISION:
Article 1
From an overall assessment it follows that
the excessive deficit situation in Slovakia has been corrected.
Article 2
Decision 2010/290/EU is hereby abrogated.
Article 3
This Decision is addressed to the Slovak Republic.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               OJ L 125, 21.5.2010, p. 48.
[2]               The general government deficit and debt for 2009
reached 8% of GDP and 35.6% of GDP respectively.
[3]               OJ L 209, 2.8.1997, p. 6.
[4]               OJ L 145, 10.6.2009, p. 1.
[5]               In line with the “Specifications on the
implementation of the Stability and Growth Pact and Guidelines on the format
and content of Stability and Convergence Programmes”, of 3 September 2012. See:
http://ec.europa.eu/economy_finance/economic_governance/sgp/pdf/coc/code_of_conduct_en.pdf


Avis juridique important

|

31990H0109

90/109/EEC: Commission Recommendation of 14 February 1990 on the transparency of banking conditions relating to cross-border financial transactions

Official Journal L 067 , 15/03/1990 P. 0039 - 0043

*****COMMISSION  RECOMMENDATION  of 14 February 1990  on the transparency of banking conditions relating to cross-border financial transactions  (90/109/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 155 thereof,  Whereas the removal of economic barriers within the Community and the progress achieved in the field of monetary and banking cooperation fostered by the directives adopted under the Single European Act should logically lead to an increase in purchases of goods and services in other Member States and to greater mobility for individuals, particularly workers, tourists and pensioners;  Whereas this free movement of individuals and products will increase the number of cross-border financial transactions and the number of operators carrying out such transactions;  Whereas the way in which international transfer systems operate is much more complex than the system of national transfers because one or more intermediary institutions are involved, because different clearing arrangements apply in countries not having the same currency and because an exchange transaction takes place;  Whereas, in view of this complexity, better-qualified staff and a wider range of checks are needed than in the case of national transfers; whereas this adds significantly to the cost of, and time needed for, cross-border financial transactions; whereas those undertaking such transactions should, therefore, be clearly informed in advance of the cost and time needed;  Whereas rules of conduct based on common principles of transparency and concerning the information to be supplied and the details to be indicated on the statement relating to the transfer of funds would be such as to encourage institutions undertaking cross-border financial transactions to estimate their costs more accurately and to rationalize as far as possible their methods of transfer;  Whereas, however, since customer information is linked, as regards the choice of means, to the commercial policy of banking institutions, it should not be subject to uniform and binding rules;  Whereas the introduction of reference periods is essential in order to make an assessment of the prices charged for cross-border transactions and to preserve the confidence of those effecting or receiving transfers;  Whereas certain national departments should specialize in dealing with complaints in connection with cross-border financial transactions which require special attention because institutions in more than one Member State are involved;  Whereas, although several Member States have binding legislation on the transparency of banking conditions, it does not appear expedient to ask those Member States to amend their legislation by inserting rules relating solely to cross-border transactions; whereas the same applies a fortiori to the Member States where legislation on transparency covers the entire services sector and not simply banking transactions;  Whereas there are also a number of Member States which wish to retain proven cooperation procedures in order to improve relations between financial institutions and users; Whereas a recommendation enabling the competent authorities to secure on a voluntary basis the cooperation of the institutions concerned is an appropriate instrument for bringing about a change of behaviour and devising new structures apt to reduce the cost of cross-border transfers under conditions of free competition,  HEREBY RECOMMENDS:  (i) that Member States ensure that institutions which undertake cross-border financial transactions within the meaning of this recommendation apply the principles set out in the Annex;  (ii) that Member States notify the Commission not later than 30 September 1990 of the names and addresses of the bodies referred to in paragraph 2 of the Sixth Principle set out in the Annex.  Done at Brussels, 14 February 1990.  For the Commission  Leon BRITTAN  Vice-President  ANNEX  PRINCIPLES GOVERNING THE TRANSPARENCY OF BANKING CONDITIONS RELATING TO CROSS-BORDER FINANCIAL TRANSACTIONS  GENERAL  The aim of the principles set out in this recommendation is to make more transparent the information supplied, and the invoicing rules to be observed by the institutions concerned in connection with cross-border financial transactions as defined below.  The principles apply to all categories of customer of the institutions concerned, without prejudice to the possibility of allowing certain customers to benefit from more favourable banking conditions by virtue, for example, of the size of the transaction or transactions involved.  'Institutions concerned', hereafter referred to as 'institutions', means all legal persons, and in particular credit institutions and postal services, providing facilities for effecting or facilitating cross-border transfers. For the purposes of this recommendation, branches of institutions are deemed to be 'institutions'.  'Cross-border financial transactions' means transfers as defined below where the institutions of the transferor and the transferee are situated in two different Member States.  'Transfer' means the complete movement of funds denominated in ecus or in a currency that is legal tender in a Member State from a transferor to a transferee, regardless of whether the latter holds an account with an institution situated in another Member State.  'Transfer order' means the written, oral or electronic instruction given to an institution to credit to an account or to keep available for a given person a sum of money or to arrange for that instruction to be executed by another institution.  'Transferor' means the person who issues the first transfer order.  'Transferee' means the final recipient who is to receive the funds in a Member State other than that in which the first transfer order was issued either by way of an operation crediting his account or by way of a notification enabling him to obtain payment of the funds.  FIRST PRINCIPLE  Each institution should bring to the attention of its customers easily understandable and readily available information concerniang cross-border financial transactions  This principle could be applied in one of the following ways:  - a notice or some other permanent form of information drawing attention to the cost of, and time needed for, all cross-border financial transactions and encouraging customers to seek further information,  - standardized information (in the form of a notice, booklet, brochure or some other appropriate means of providing information) specifying the amount or, where appropriate, percentage of commission fees and charges applied by the institution in respect of each transaction that may be invoiced either to the transferor or the transferee when a cross-border financial transaction is undertaken, as well as, if necessary, the provisions relating to the value dates,  - information of a more specific nature (in the form of a booklet, brochure or some other appropriate means of providing information) should also be given to the transferor, if he so requests, regarding the procedures applied by the institution in executing his orders, together with an estimate from intermediary banks of expected charges and time needed, having due regard to those various procedures.  SECOND PRINCIPLE  In the statement relating to a cross-border financial transaction, the institution should inform its customer in detail of the commission fees and charges it is invoicing and of the exchange rate it has applied  This principle could be applied in the following way:  The institution concerned could clearly specify in a statement or some other document sent or handed to its customer, regardless of whether he is the transferor or the transferee:  - the exchange rate applied in converting the amount of foreign currency,  - the amount of the commission fee or fees applied or invoiced by the institution,  - the list and amount of any taxes payable,  - the nature and amount of the charges payable by the customer,  - the nature and amount of any additional invoice. THIRD PRINCIPLE  1. Without prejudice to the possibility for the transferor to choose other ways of apportioning commission fees and charges, the transferor's institution should inform its customer when the latter gives his order:  - that the commission fees and charges it imposes for transmitting the order may either remain payable by the transferor or be invoiced to the transferee,  - that any commission fees and charges invoiced by the transferee's institution to its customer when it places the funds at his disposal may either remain payable by the latter or be invoiced to the transferor.  2. Where the transferor has specifically instructed his institution to ensure that the transferee is credited with the exact amount shown on the transfer order, it is recommended that the institution apply a method of transfer which will make it possible to achieve this result and that, before undertaking the transfer operation, it inform the transferor of the additional amount which will be invoiced to him. However, this amount will represent only a non-binding estimate for the institution except where it applies a flat-rate calculation.  This principle could be applied by making available to the transferor who wanted the transferee to be credited with an exact amount prior information based on a flat-rate calculation or an estimate that could take account of the average of the commission fees and charges applied by institutions in the country of the transferee where information permitting a more accurate calculation was not available. If the amount estimated were smaller than the amount of commission fees and charges actually payable, the difference could be invoiced only to be transferor.  FOURTH PRINCIPLE  1. In the absence of instructions to be contrary and except in cases of force majeure, each intermediary institution should deal with a transfer order within two working days of receipt of the funds specified in the order or should give notification of its refusal to execute the order or of any foreseeable delay to the institution issuing the order and, where different, to the transferor's institution.  2. The transferor should be able to obtain a refund of part of the costs of the transfer in the event of any delay in executing his order.  This principle could be applied in the following way:  On expiry of a period of two working days, the transferor's institution should pay the amount of the transfer order to the transferee's institution or to any intermediary institution unless the transferee's institution (or this intermediary institution) gives notification within two working days of receipt of the transfer order of its refusal to execute the order received.  Where it is not the transferee's institution and where it has not given notification of its refusal to execute an order, the recipient institution should, within that same period of two working days from receipt of the funds specified in the transfer order, issue to the transferee's institution or to another intermediary institution a new transfer order containing the instructions necessary for the transfer to proceed in the appropriate fashion.  FIFTH PRINCIPLE  1. The transferee's institution should fulfil its obligations arising from a transfer order not later than the working day following receipt of the funds specified in the order unless the said order stipulates a later date of execution.  2. If the transferee's institution is unable to execute the order within the time indicated in paragraph 1, it should, as soon as possible, inform the institution issuing the order and, where different, the transferor's institution of the reasons for its failure to execute the order or for the delay in execution.  SIXTH PRINCIPLE  1. Any institution participating in a cross-border financial transaction should be capable of dealing rapidly with complaints lodged by the transferor or the transferee in connection with the execution of the transaction or with the statement relating to it.  2. If no action is taken on a complaint or no answer received within three months, the complainants may refer the matter to one of the Member States' bodies competent to deal with complaints from users. The list and addresses of such national bodies should be available on request from any institution undertaking cross-border financial transactions. One way of applying this principle would be to entrust the task of dealing with complaints to bodies independent of the parties concerned and forming part of:  - the public sector (ministerial department),  - the central bank,  - a specialist body such as the ombudsman's office,  - a contact committee comprising bank representatives and users.


title: RECOMMENDATION FOR A REGULATION (EEC) OF THE COUNCIL concluding an Agreement between the European Economic Community and the Republic of Finland and adopting provisions for its implementation#PROPOSAL FOR A REGULATION (EEC) OF THE COUNCIL on the safeguard measures provided for in the Agreement between the European Economic Community and the Republic of Finland (submitted to the Council by the Commission)

text:
ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (73) 1844
Vol. 1973/0319
 ---pagebreak--- Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983
concernant l'ouverture au public des archives historiques de la Communauté économique
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983,
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003
(JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas échéant, les documents
classifiés présents dans ce dossier ont été déclassifiés conformément à l'article 5 dudit
règlement.
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
concerning the opening to the public of the historical archives of the European Economic
Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as
amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243,
27.9.2003, p. 1), this file is open to the public. Where necessary, classified documents in this
file have been declassified in conformity with Article 5 of the aforementioned regulation.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
Februar 1983 über die Freigabe der historischen Archive der Europäischen
Wirtschaftsgemeinschaft und der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983,
S. 1), geändert durch die Verordnung (EG, Euratom) Nr. 1700/2003 vom 22. September 2003
(ABI. L 243 vom 27.9.2003, S. 1), ist diese Datei der Öffentlichkeit zugänglich. Soweit
erforderlich, wurden die Verschlusssachen in dieser Datei in Übereinstimmung mit Artikel 5
der genannten Verordnung freigegeben.
 ---pagebreak--- COMMISSION OF TBS EUROPEAN COMMIJNITIBS
                                                              COM(73)1844 final
                                                              Brussels . 5 November 1973
                                RECOMMENDATION FOR A
                          REGULATION (EEC) OF THE COUNCIL
         concluding an Agreement "between the European Economic Community
   and the Republic of    Finland and adopting provisions for its implementation
                                  PROPOSAL FOR A
                                     ■« ; «
       I
                          REGULATION ( EEC ) OF TEE COUNCIL ,
                  on the safeguard measures provided for in the
                                             \                                    .
  Agremen+ "between +h « European Economic Community and the Republic of Finland
                   ( submitted to the Council by the Commission)
   COM(73 ) 1844 final
 ---pagebreak---        COi'dTISSIOI'T CCM>iUNI CATION TO THE COUNCIL CONCERNING THE
INTERNAL PROCEDURES TO BE COMPLETED FOR THE PURPOSE OF IMPLEMENTING THE
                     AGREEMENT BST'.TT^I TPS K^C AND FINLAND
1.   The Agreement "between the EEC and Finland is , in the normal course
     of events , to enter into force on 1 January 19T4»        To this end,
     a number of instruments will have to "be adopted in order to conclude
     tM <? Agreement or to define the internal procedure for implementing
     certain provisions .        The aim of this Communication is to draw up
     a list of the decisions that should "be taken between now and
     31 December 1973 .
2.   The measures that need to be taken concern a regulation concluding
     the Agreement and defining Community representation , and a
     regulation for implementing internally the procedures relating to
     safeguard clauses .
3.   Annex I contains the proposal for a regulation concluding the
     Agreement .
4.   Annex II contains the proposal for a regulation implementing the
     safeguard clauses in the Agreement .
     The texts of these two regulations are the same as the Regulations
     adopted concerning the EEC-Norway Agreement .
5.   Finally , the Commission shall send the Council a proposal for a
     regulation implementing the strict supervision arrangements .
     With this group of documents the Council x-rill have at its disposal
     all the information regarding the decisions to be taken in connection
     with the entry into force of the Agreement between the EEC and
     Finland .
 ---pagebreak---                    R^OníaT/llTICW POR A
            REGULATION ( ESC ) W TifE COOITOIL
  concluding an Agreement between the European Economic Community and
  the Republic of Finland and adopting provisions for its implementation
TIE COUNCIL OP THE EUROPEAN CCFMUNITIES ,
Having regard to the Treaty establishing the. European Economic Community,
and in particular Article 113 thereof ; ■
Having regard to the proposal from the Commission ;
Whereas the Agreement between the European Economic Community and the
Republic of Finland signed in Brussels on 5 October 1973 should be
concluded and the Declarations annexed to the Final Act , likewise
signed in Brussels on 5 October 1973 should be adopted ;
Whereas , since the Agreement establishes a Joint Committee , representatives
of the Community on this Committee should be appointed ;
HAS ADOPTGD THIS REGULATION :
                               Article 1
The Agreement between the European Economic Community and the Republic
of Finland , the Annexes and Protocols thereto , and the Declarations
annexed to the Final Act are hereby concluded , adopted and confirmed on
behalf of the Community.      The texts of the Agreement and of the Final
Act are annexed to this Regulation.
 ---pagebreak---                                  - 2 -
                               Article 2
Pursuant to Article 35 or the Agreement , the President of the Council
of the European Communities shall "give notification that the procedures
necessary for the entry into force of the Agreement have teen completed
on the part of the Community .
                               Article 3
Within the Joint Committee provided in Article 29 of the Agreement ,
the Community shall "be represented "by the Commission, assisted by the
representatives of the Member States .
                               Article 4
This Regulation shall enter into force on
This Regulation shall be binding in its entirety and direct] y applicable
in all Member States .
Done at                                            -
                                    For. the Council
                                       The President
 ---pagebreak---                       PROPOSAL FOR A •
               REGULATION (EEC ) OF1 ''PFtH! OOtH13IL "
      on the safeguard measures provided for in the Agreement between
    ' the European Economic Community and the Republic of Finland
THE COUNCIL OF THE EUROPEAN CCMYIUNITIES ,
Having regard to the Treaty establishing the European Economic Community,
and in particular Article 113 , thereof ;
Having regard to the proposal from the Commission ;
T-ihereas an Agreement between the European Economic Community and the
Republic of Finland was signed in Erussels on .5 October 1973 J
Wherear-, for the purposes of implementing the safeguard clauses provided
for in the Treaty establishing the European Economic Community, the
procedures to be followed are laid down by the Treaty itself ;
Whereas , on the other hand , the detailed, rules for implementing -the
safeguard clauses s.nd precautionary measures provided for in Articles
22 to 2? of the Agreement remain to be laid down ;             .< ...
HAS ADOPTED THIS REGULATION :
                               Article 1
The .Council may , in accordance with the procedure provided for in ,
Article 113 of the Treaty, decide to refer to the Joint Committee
established by the Agreement between the European Economic Community
and the Republic of Finland hereinafter referred to as the "Agreement"
- for the purpose of taking the measures provided for in Articles 22 , 24
and 26 of the Agreement .     Where necessary, the Council shall adopt
these measures in accordance with the same procedure . ...
 ---pagebreak---                                      - 2 -
The Commission may submit the necessary proposals to this? end on its
own initiative or at the request of a Member State .
                                   Article 2
1.     In the case cf a practice that may justify application "by the
Community of the measures provided for in Article 23 of the Agreement ,
the Commission, after examining the case on its own initiative or at
the request of a Member State , shall decide whether such practice is
compatible with the Agreement ,        Where necessary it shall propose the
adoption of safeguard measures to the Council , which shall act in.
accordance with the procedure laid down in Article 113 of the Treaty.
2.     In the case of a practice that may cause safeguard measures to
be applied to the Community on the basis of Article 23 of the Agreement ,
the Commission, after examining the case , shall decide whether the
practice id compatible with the principles sot out in the Agreement .
Where necessary, it shall formulate appropriate recommendations .
                                   Article 3
In the case of a practice that may justify application by the Community
of the measures provided for in Article 25 of the Agreement , the ,
procedures established by Regulation (EEC) Ho. 459/68^^ shall be
applicable .              ■     .•
                                   Article 4
1 . Where exceptional circumstances require immediate action m the
situations referred to in Articles 24 and 26 of the Agreement or in the
case of export aids that have a direct ejnd immediate effect on trade ,
the precautionary measures provided for in Articles 27 ( 3 ) ( d) of the
Agreement may be adopted as follows *               .   . . .       • ,
 (1 '0J ÏTo L 93,-17 April ,1968. p.'l.
 ---pagebreak---                                  - 3 -
2.   The Commission may, on its o\m initiative or at the request of
a Member State , submit the necessary proposals , upon which the Council
shall decide in accordance with the procedure laid down in Article 113
of the Treaty.
3.   The Member State concerned may. except in the case of export aids
having a direct and immediate effect on trade , introduce quantitative
restrictions on imports .   It shall immediately notify the other Member
States and the Commission of these measures .
The Commission shall decide , by an emergency procedure and within a
maximum period of three working days in the case of Article 24 , and
five working days in the case of Article 26 , of the notification
referred to in the first subparagraph , whether the measures are to be
retained , modified or abolished
All the Member States shall be' notified of the Commission 's Decision,
which shall be immediately enforceable .
Any Member State may refer the Commission * s Decision to the Council
within a maximum period of five working days in the case of Article 24 ,
and ten working days in the care of Article 26 , of notification of
the Decision .   The Council shall meet forthwith .    It may by a
qualified majority amend or rescind the Decision taken by the Commission.
If the Member State which took measures in pursuance of this paragraph
refers the matter to the Council , the Decision of the Commission shall
be suspended.    The suspension shall end , in the cr.se of Article 24,
fifteen days and, in the case of Article 26 , thirty days after the
matter has been referred to the Council if the latter has not yet amended
or rescinded the Decision of the Commission .
 ---pagebreak---  For the purpose of implementing this paragraph , priority must be given
 in the selection of measures to those which least disturb the functioning
 of the . common market .
Before taking its Decision concerning the measures taken in implementation
 of this paragraph by the Member State concerned., the Commission shall
hold consultations .
 These consultations shall take place within an advisory committee
 composed of representatives of each Member State and presided over by
 a representative of the Commission .
The Committee shall meet when convened by its Chairman .     The latter
 shall forward to the Member States , within the shortest possible time ,
any appropriate information.
                                Art ici 3 5
The provisions of this Regulation shall not affect implementation of
the safeguard clauses provided for in the Treaty , in particular in
.Articles 108 and 109 thereof , in accordance with the procedures therein
provided for . •
                              ■ Article 6 •
Notification to the Joint Committee by the Community as required by
Article 27 ( 2 ). of the Agreement shall be the responsibility of the
Commission .                                ( .
 ---pagebreak---                                Article 7
Before 31 December 1974 , the Council , acting by a qualified majority
on a proposal from the Commission, shall decide upon such amendments
to be made to this Regulation, in particular to Article 4 ( 3 ) thereof
rhich nay in the licht of experience prove necessary in order to avoid
the wish of compromising the unity of the common market .
This Regulation shall "be "binding in its entirety and directly
applicable in all Kember States .
Done at
                                     Por the Council
                                      The President


Avis juridique important

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31983H0251

83/251/EEC: Council Recommendation of 24 May 1983 to the Member States concerning the encouragement of investment in the use of solid fuel in public buildings and in district heating systems

Official Journal L 140 , 31/05/1983 P. 0026 - 0026 Spanish special edition: Chapter 12 Volume 4 P. 0097  Portuguese special edition Chapter 12 Volume 4 P. 0097

*****COUNCIL  RECOMMENDATION  of 24 May 1983  to the Member States concerning the encouragement of investment in the use of solid fuel in public buildings and in district heating systems  (83/251/EEC)  THE COUNCIL OF THE EUROPEAN  COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 235 thereof,  Having regard to the proposal submitted by the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Having regard to the communication from the Commission on the role for coal in Community energy strategy,  Whereas the considerable extent to which the Community is dependent on oil imports, with the concomitant uncertainty regarding supplies and prices, imposes constraints on the Community economy;  Whereas even a slight economic upturn in the industrialized countries, in conjunction with an increase in oil demand in the rest of the world, could increase those constraints still further;  Whereas the policy of oil substitution ought therefore to facilitate the necessary process of structural adjustment; whereas this can only be accomplished by pursuing a policy of rational energy use which includes increasing the contribution made by substitute sources of energy, with special reference to solid fuel;  Whereas it would be desirable to use solid fuel in both new and established installations;  Whereas, even allowing for environmental considerations, public buildings and district heating systems offer considerable scope for substituting solid fuel for oil;  Whereas, despite the price advantage of solid fuel over fuel oil, the process of substitution has made only a slow start; whereas the factors involved are in particular:  - high investment and finance costs,  - numerous other obstacles to investment, including environment-protection requirements, site problems, lengthy approval procedures and uncertain economic prospects, particularly as regards the relative price of solid fuel and oil,  - lack of experience in the use of solid fuel,  - shortcomings in the infrastructure for supplying solid fuel to consumers,  - uncertainty about future developments in solid fuel technology;  Whereas the use of solid fuel, including transport and waste-processing, should take place in a way which takes the environment into account;  Whereas the Member States should adopt in a concerted manner a coherent set of measures to encourage investment in order to overcome these difficulties and obstacles,  HEREBY RECOMMENDS THAT THE MEMBER STATES:  1. Take all environmentally compatible measures, in public buildings (administrative buildings, barracks, schools, etc.) and in suitable district heating systems, which they consider appropriate, to encourage both the conversion or the reconversion to solid fuel of existing combustion installations fired by fuel oil and to encourage the building of new solid-fuel-fired installations;  2. Notify the Commission at the end of each year of the measures taken in the field covered by this recommendation, so that the Commission can make an annual report to the Council in the appropriate form.  Done at Brussels, 24 May 1983.  For the Council  The President  H.-W. LAUTENSCHLAGER  (1) OJ No C 105, 26. 4. 1982, p. 1.  (2) OJ No C 149, 14. 6. 1982, p. 134.  (3) OJ No C 205, 9. 8. 1982, p. 3.


title: Commission Recommendation of 5 June 2008 concerning the limitation of the civil liability of statutory auditors and audit firms (notified under document number C(2008) 2274) (Text with EEA relevance)

text:
               21.6.2008

               EN

               Official Journal of the European Union

               L 162/39

      COMMISSION RECOMMENDATION

   of 5 June 2008
   concerning the limitation of the civil liability of statutory auditors and audit firms
   (notified under document number C(2008) 2274)
   (Text with EEA relevance)
   (2008/473/EC)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community, and in particular Article 211, second indent, thereof,
   Whereas:

               (1)

               Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (1) establishes a minimum harmonisation of statutory audit requirements. Pursuant to Article 31 of that Directive, the Commission is to report on the impact of the national liability rules for the carrying out of statutory audits on European capital markets and on the insurance conditions for statutory auditors and audit firms and to make recommendations if it considers it appropriate.

               (2)

               Smooth functioning of capital markets requires sustainable audit capacity and a competitive market for audit services in which there is a sufficient choice of audit firms capable of conducting and willing to conduct statutory audits of companies the securities of which are admitted to trading on a regulated market of a Member State. However, increasing volatility in market capitalisation of companies has led to much higher liability risks, whilst access to insurance coverage against the risks associated with such audits has become increasingly limited.

               (3)

               Since unlimited joint and several liability may deter audit firms and networks from entering the international audit market for listed companies in the Community, there is little prospect of new audit networks emerging which are in a position to conduct statutory audits of such companies.

               (4)

               As a consequence, the liability of auditors and audit firms, including group auditors, carrying out statutory audits of listed companies should be limited. However, any limitation on liability is not justified in cases of intentional breach of professional duties on the part of an auditor and should not apply in such cases. Nor should such a limitation prejudice the right of any injured party to be fairly compensated.

               (5)

               In view of the considerable variations between civil liability systems in the Member States, it is appropriate at this stage that each Member State be able to choose the method of limitation which it considers to be the most suitable for its civil liability system.

               (6)

               Member States should accordingly be able to determine under national law a cap in respect of auditors’ liability. Alternatively Member States should be able to establish under national law a system of proportionate liability according to which statutory auditors and audit firms are liable only to the extent of their contribution to the damage caused, without being jointly and severally liable with other parties. In the Member States where any claims against statutory auditors might be brought only by the audited company and not by individual shareholders or any other third parties, Member State should also be able to allow the company, its shareholders and the auditor to determine the limitation of the auditor’s liability, subject to appropriate safeguards for investors in the company audited,

         HEREBY RECOMMENDS:
   Subject matter

               1.

               This Recommendation concerns the civil liability of auditors and audit firms carrying out a statutory audit of the consolidated or annual accounts of a company which is registered in a Member State and the securities of which are admitted to trading on a regulated market in a Member State.

         Limitation of liability

               2.

               The civil liability of statutory auditors and of audit firms arising from a breach of their professional duties should be limited except in cases of intentional breach of duties by the statutory auditor or the audit firm.

               3.

               The limitation of liability should apply against the company audited and any third party entitled under national law to bring a claim for compensation.

               4.

               Any limitation of civil liability should not prevent injured parties from being fairly compensated.

         Methods for limiting liability

               5.

               Member States should take measures to limit liability. For that purpose, it is recommended that any one or more of the following methods in particular be used:

                           (a)

                           establishment of a maximum financial amount or of a formula allowing for the calculation of such an amount;

                           (b)

                           establishment of a set of principles by virtue of which a statutory auditor or an audit firm is not liable beyond its actual contribution to the loss suffered by a claimant and is accordingly not jointly and severally liable with other wrongdoers;

                           (c)

                           provision allowing any company to be audited and the statutory auditor or audit firm to determine a limitation of liability in an agreement.

               6.

               Where liability is limited by agreement as referred to in point 5(c), Member States should ensure that all the following conditions are met:

                           (a)

                           the agreement is subject to judicial review;

                           (b)

                           with regard to the company to be audited, the limitation is decided collectively by the members of the administrative, management and supervisory bodies referred to in Article 50b of Council Directive 78/660/EEC (2), or, in the case of a group audit, in Article 36a of Council Directive 83/349/EEC (3), and such a decision is approved by the shareholders of the company to be audited;

                           (c)

                           the limitation and any modification thereof are published in the notes to the accounts of the audited company.

               7.

               Before adopting measures implementing any of the methods referred to in point 5(a), (b) or (c), or any other method limiting liability which complies with points 2, 3 and 4, a Member State should take into account the impact on financial markets and investors and on conditions for access to the market of statutory audit for listed companies, as well as the impact on audit quality, insurability of risks and the companies to be audited.

         Follow-up

               8.

               Member States are invited to inform the Commission of actions taken in light of this Recommendation by 5 June 2010.

         Addressees

               9.

               This Recommendation is addressed to the Member States

      Done at Brussels, 5 June 2008.

            For the Commission

         Charlie McCREEVY

            Member of the Commission

      (1)  OJ L 157, 9.6.2006, p. 87. Directive as amended by Directive 2008/30/EC (OJ L 81, 20.3.2008, p. 53).

      (2)  OJ L 222, 14.8.1978, p. 11. Directive as last amended by Directive 2006/46/EC of the European Parliament and of the Council (OJ L 224, 16.8.2006, p. 1).

      (3)  OJ L 193, 18.7.1983, p. 1. Directive as last amended by Directive 2006/99/EC (OJ L 363, 20.12.2006, p. 137).