Important legal notice

|

52007PC0217

Recommendation for a Council Decision concerning the accession of Bulgaria and Romania to the Convention on the Law applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980  /* COM/2007/0217 final - CNS 2007/0077 */

	[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |Brussels, 25.4.2007COM(2007) 217 final2007/0077 (CNS)Recommendation for aCOUNCIL DECISIONconcerning the accession of Bulgaria and Romania to the Convention on the Law applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980(presented by the Commission)EXPLANATORY MEMORANDUMThe 2005 Act of accession of Bulgaria and Romania[1] has introduced a simplified system for the accession of Bulgaria and Romania to the conventions (and protocols) concluded by the Member States on the basis of Art. 34 TEU (previously Art. K.3 TEU) or Art. 293 EC. It is indeed not anymore necessary, as in the past, to negotiate and conclude specific accession protocols to these conventions (which would have implied ratification by 27 States): Article 3(3) of the Act provides simply that Bulgaria and Romania accede to these conventions and protocols by virtue of the Act of Accession.Article 3(3) and 3(4) of the Act of Accession provide that, to that effect, the Council shall adopt a decision in order to determine the date on which these conventions shall enter into force for Bulgaria and Romania and to make all the necessary adjustments to these conventions required by reason of the accession of the two new Member States (which would include, in any event, the adoption of the conventions in the Bulgarian and Romanian languages, so that these versions can be "equally authentic"). The Council shall act on a recommendation of the Commission, after consulting the European Parliament.Annex I to the Act of Accession gives the list of the seven conventions and protocols concerned in the Justice and Home Affairs area.The list includes the Convention of 19 June 1980 on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980, the Convention of 10 April 1984 on the accession of the Hellenic Republic to the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, the first Protocol of 19 December 1988 on the interpretation by the Court of Justice of the European Communities of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, the second Protocol of 19 December 1988 conferring on the Court of Justice of the European Communities certain powers to interpret the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, the Convention of 18 May 1992 on the accession of the Kingdom of Spain and the Portuguese Republic to the Convention on the Law applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980, the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Convention on the Law applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980, and to the First and Second Protocols on its interpretation by the Court of Justice.In line with Article 3(6) the Commission has prepared a proposal to add to the list the Convention on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980, and to the First and Second Protocols on its interpretation by the Court of Justice of the European Communities.This Commission Recommendation for a Council Decision is intended to make the adjustments required by reason of the accession of Bulgaria and Romania to the aforementioned Conventions and Protocols, in accordance with Article 3(4) of the Act of Accession.2007/0077 (CNS)Recommendation for aCOUNCIL DECISIONconcerning the accession of Bulgaria and Romania to the Convention on the Law applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community,Having regard to the Treaty of Accession of Bulgaria and Romania,Having regard to the Act of Accession of Bulgaria and Romania (hereinafter referred to as the "Act of Accession"), and in particular Article 3 (4) thereof,Having regard to the recommendation from the Commission[2],Having regard to the opinion of the European Parliament[3],Whereas:1.  The Convention on the Law applicable to Contractual Obligations (hereinafter referred to as the “Convention of 1980”) was opened for signature in Rome on 19 June 1980 and entered into force on 1 April 1991.2.  The Convention of 1980 was complemented by the First and Second Protocols of 19 December 1988 on its interpretation by the Court of Justice[4].3.  The Hellenic Republic acceded to the Convention of 1980 by the Convention of 10 April 1984[5], which entered into force on 1 April 1991.4.  The Kingdom of Spain and the Portuguese Republic acceded to the Convention of 1980 by the Convention of 18 May 1992[6], which entered into force on 1 September 1993.5.  The Republic of Austria, the Republic of Finland and the Kingdom of Sweden acceded to the Convention of 1980 by the Convention of 29 November 1996[7], which entered into force on 1 October 1998.6.  Following the accession to the European Union of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, a Convention was signed on 14 April 2005 on the accession of these new Member States to the Convention of 1980[8], which has not yet entered into force.7.  Article 3 (3) of the Act of Accession provides that Bulgaria and Romania accede to the conventions and protocols concluded between the Member States, listed in Annex I to the Act of Accession, which comprises, inter alia , the Convention of 1980 and the First and Second Protocols of 1988 together with the Conventions on accession of 10 April 1984, 18 May 1992, 29 November 1996 and 14 April 2005. They are to enter into force in relation to Bulgaria and Romania on the date determined by the Council.8.  In accordance with Article 3 (4) of the Act of Accession the Council is to make all adjustments required by reason of accession to those conventions and protocols,HAS DECIDED AS FOLLOWS:Article 1The First Protocol of 1988 on the interpretation by the Court of Justice of the European Communities of the Convention of 1980 is amended as follows:The following indents shall be inserted in Article 2(a):-  In Bulgaria:Върховен касационен съд-  In Romania:Înalta Curte de Casaţie şi JustiţieArticle 2The Convention of 1980 and the First and Second Protocols of 1988, together with the Conventions on accession of 10 April 1984, 18 May 1992, 29 November 1996 as amended by this Decision, shall enter into force between Bulgaria, Romania and the other Member States on the first day of the first month following the date of adoption of this decision. The Convention on accession of 14 April 2005 shall enter into force between Bulgaria, Romania and the other Member States on the date of its entry into force.Article 3The texts of the Convention of 1980 and the First and Second Protocols of 1988, together with the Conventions on accession of 10 April 1984, 18 May 1992, 29 November 1996 and 14 April 2005, drawn up in the Bulgarian and Romanian languages and annexed to this Decision, shall be authentic under the same conditions as the other texts of these Conventions and Protocols.Article 4This Decision shall take effect on the day following that of its publication in the Official Journal of the European Union .Done at Brussels, […]For the CouncilThe PresidentANNEX Text of the Convention of 1980, the Convention of 1984, the First Protocol of 1988, the Second Protocol of 1988, the Convention of 1992, the Convention of 1996 and the Convention of 2005 in the Bulgarian and Romanian languages.[1] OJ L 157, 21.6.2005, p. 203.[2] OJ C […], […], p. […].[3] OJ C […], […], p. […].[4] OJ L 48, 20.2.1989, p. 1 and OJ L 48, 20.12.1989, p. 17.[5] OJ L 146, 31.5.1984, p. 1.[6] OJ L 333, 18.11, 1992, p. 1.[7] OJ C 15, 15.1.1997, p. 10.[8] OJ C 169, 8.7.2005, p. 1.


title: EFTA Surveillance Authority Recommendation of 5 November 2008 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with the Act referred to at point 5cl of Annex XI to the EEA Agreement (Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services), as adapted by Protocol 1 thereto and by the sectoral adaptations contained in Annex XI to that Agreement

text:
               9.7.2009

               EN

               Official Journal of the European Union

               C 156/18

         EFTA SURVEILLANCE AUTHORITY RECOMMENDATION

   of 5 November 2008
   on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with the Act referred to at point 5cl of Annex XI to the EEA Agreement (Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services), as adapted by Protocol 1 thereto and by the sectoral adaptations contained in Annex XI to that Agreement
   2009/C 156/12
   THE EFTA SURVEILLANCE AUTHORITY,
   HAVING REGARD to the Agreement on the European Economic Area (1),
   HAVING REGARD to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice, and in particular Article 5(2)(b) thereof,
   HAVING REGARD to the Act referred to at point 5cl of Annex XI to the EEA Agreement (Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communication networks and services) (2), as adapted by Protocol 1 thereto and by the sectoral adaptations contained in Annex XI to that Agreement, and in particular Article 15 thereof,
   HAVING REGARD to the Authority’s Decision No 194/04/COL of 14 July 2004 adopting a Recommendation on relevant markets within the electronic communications sector susceptible to ex ante regulation and Guidelines on market analysis and assessment of significant market power,
   Whereas:

               (1)

               The Framework Directive establishes a legislative framework for the electronic communications sector that seeks to respond to convergence trends by covering all electronic communications networks and services within its scope. The aim of the regulatory framework is to reduce ex ante sector-specific rules progressively as competition in the market develops.

               (2)

               Article 15 of the Framework Directive provides that the EFTA Surveillance Authority (hereinafter the Authority) shall, after public consultation and consultation with national regulatory authorities (NRAs) in the EFTA States adopt a recommendation on relevant product and service markets.

               (3)

               The purpose of this Recommendation is to identify those product and service markets in which ex ante regulation may be warranted in accordance with Article 15(1) of the Framework Directive. The objective of any ex ante regulatory intervention is ultimately to produce benefits for end-users by making retail markets competitive on a sustainable basis. The definition of relevant markets may and does change over time as the characteristics of products and services evolve and the possibilities for demand and supply substitution change. As the Recommendation of 14 July 2004 (3) has been in force for more than four years, it is now appropriate to revise it on the basis of market developments in the EEA. Hence, this Recommendation replaces the Recommendation of 14 July 2004, as adopted by Decision No 194/04/COL.

               (4)

               Article 15(1) of the Framework Directive requires the Authority to define markets in accordance with the principles of competition law. Competition law principles are therefore used in this Recommendation to set product market boundaries within the electronic communications sector, while the identification or selection of defined markets for ex ante regulation depends on those markets having characteristics which may be such as to justify the imposition of ex ante regulatory obligations. The terminology used in this Recommendation is based on terminology used in the Framework Directive and Directive 2002/22/EC (4). In accordance with the Framework Directive, it is for national regulatory authorities to define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory.

               (5)

               The starting point for the identification of markets in the Recommendation is the definition of retail markets from a forward-looking perspective, taking into account demand-side and supply-side substitutability. Having defined retail markets, it is then appropriate to identify relevant wholesale markets. If the downstream market is to a large extent supplied by a vertically-integrated undertaking or undertakings, it might be difficult for potential non-integrated undertakings to obtain the necessary input. Consequently, in order to determine whether the market is susceptible to ex ante regulation, it may be necessary to construct a theoretical upstream wholesale market. Markets in the electronic communications sector are often of a two-sided nature, in that they comprise services provided over networks or platforms that bring together users on either side of the market; for example end-users that exchange communications, or senders and receivers of information or content. These aspects need to be taken into account when considering the identification and definition of markets, as they can affect both the way markets are defined and whether they have the characteristics which may justify the imposition of ex ante regulatory obligations.

               (6)

               In order to identify markets that are susceptible to ex ante regulation, it is appropriate to apply the following cumulative criteria. The first criterion is the presence of high and non-transitory barriers to entry. These may be of a structural, legal or regulatory nature. However, given the dynamic character and functioning of electronic communications markets, possibilities to overcome barriers to entry within the relevant time horizon should also be taken into consideration when carrying out a prospective analysis to identify the relevant markets for possible ex ante regulation. Therefore the second criterion admits only those markets whose structure does not tend towards effective competition within the relevant time horizon. The application of this criterion involves examining the state of competition behind the barriers to entry. The third criterion is that application of competition law alone would not adequately address the market failure(s) concerned.

               (7)

               The main indicators to be considered when assessing the first and second criteria are similar to those examined as part of a forward-looking market analysis, in particular, indicators of barriers to entry in the absence of regulation, (including the extent of sunk costs), market structure, market performance and market dynamics, including indicators such as market shares and trends, market prices and trends, and the extent and coverage of competing networks or infrastructures. Any market which satisfies the three criteria in the absence of ex ante regulation is susceptible to ex ante regulation.

               (8)

               From a competition point of view, newly emerging markets should not be subject to inappropriate obligations, even if there is a first mover advantage, in accordance with the Framework Directive. Newly emerging markets are considered to comprise products or services, where, due to their novelty, it is very difficult to predict demand conditions or market entry and supply conditions, and consequently difficult to apply the three criteria. The purpose of not subjecting newly emerging markets to regulatory measures in the name of competition is to promote innovation as required by Article 8 of the Framework Directive; at the same time, foreclosure of such markets by a leading undertaking should be prevented, as also indicated in the Authority’s guidelines on market analysis and the assessment of significant market power under the regulatory framework for electronic communications and services (5). Incremental upgrades to existing network infrastructure rarely lead to a new or emerging market. The lack of substitutability of a product has to be established from both demand and supply-side perspectives before it can be concluded that it is not part of an already existing market. The emergence of new retail services may give rise to a new derived wholesale market to the extent that such retail services cannot be provided using existing wholesale products.

               (9)

               As far as barriers to entry are concerned, two types are relevant for the purpose of this Recommendation: structural barriers and legal or regulatory barriers.

               (10)

               Structural barriers to entry result from original cost or demand conditions that create asymmetric conditions between incumbents and new entrants impeding or preventing market entry of the latter. For instance, high structural barriers may be found to exist when the market is characterised by absolute cost advantages, substantial economies of scale and/or economies of scope, capacity constraints and high sunk costs. To date, such barriers can still be identified with respect to the widespread deployment and/or provision of local access networks to fixed locations. A related structural barrier can also exist where the provision of service requires a network component that cannot be technically duplicated or only duplicated at a cost that makes it uneconomic for competitors.

               (11)

               Legal or regulatory barriers are not based on economic conditions, but result from legislative, administrative or other state measures that have a direct effect on the conditions of entry and/or the positioning of operators on the relevant market. An example of a legal or regulatory barrier preventing entry into a market is a limit on the number of undertakings that have access to spectrum for the provision of underlying services. Other examples of legal or regulatory barriers are price controls or other price-related measures imposed on undertakings, which affect not only entry but also the positioning of undertakings on the market. Legal or regulatory barriers, which can be removed within the relevant time horizon, should not normally be deemed to constitute an economic barrier to entry, such as to fulfil the first criterion.

               (12)

               Barriers to entry may also become less relevant with regard to innovation-driven markets characterised by ongoing technological progress. In such markets, competitive constraints often come from innovative threats from potential competitors that are not currently in the market. In innovation-driven markets, dynamic or longer-term competition can take place among firms that are not necessarily competitors in an existing ‘static’ market. This Recommendation does not identify markets where barriers to entry are not expected to persist over a foreseeable period. In assessing whether barriers to entry are likely to persist in the absence of regulation, it is necessary to examine whether the industry has experienced frequent and successful entry and whether entry has been or is likely in the future to be sufficiently immediate and persistent to limit market power. The relevance of barriers to entry will depend inter alia on the minimum efficient scale of output and the costs which are sunk.

               (13)

               Even when a market is characterised by high barriers to entry, other structural factors in that market may mean that the market tends towards an effectively competitive outcome within the relevant time horizon. Market dynamics may for instance be caused by technological developments, or by the convergence of products and markets which may give rise to competitive constraints being exercised between operators active in distinct product markets. This may also be the case in markets with a limited — but sufficient — number of undertakings having diverging cost structures and facing price-elastic market demand. There may also be excess capacity in a market that would normally allow rival firms to expand output very rapidly in response to any price increase. In such markets, market shares may change over time and/or falling prices may be observed. Where market dynamics are changing rapidly, care should be taken in choosing the relevant time horizon so as to reflect the pertinent market developments.

               (14)

               The decision to identify a market as susceptible to ex ante regulation should also depend on an assessment of the sufficiency of competition law to address the market failures that result from the first two criteria being met. Competition law interventions are unlikely to be sufficient where the compliance requirements of an intervention to redress a market failure are extensive or where frequent and/or timely intervention is indispensable.

               (15)

               The application of the three criteria should limit the number of markets within the electronic communications sector where ex ante regulatory obligations are imposed and thereby contribute to the aim of the regulatory framework to reduce ex ante sector-specific rules progressively as competition in the markets develops. These criteria should be applied cumulatively, so that failure to meet any one of them would indicate that a market should not be identified as susceptible to ex ante regulation.

               (16)

               Regulatory controls on retail services should only be imposed where national regulatory authorities consider that relevant wholesale measures or measures regarding carrier selection or pre-selection would fail to achieve the objective of ensuring effective competition and the fulfilment of public interest objectives. By intervening at the wholesale level, including with remedies which may affect retail markets, EEA States can ensure that as much of the value chain is open to the normal competitive process as possible, thereby delivering the best outcomes for end-users. This Recommendation therefore mainly identifies wholesale markets, the appropriate regulation of which is intended to address a lack of effective competition that is manifest on end-user markets. Should a national regulatory authority demonstrate that wholesale interventions have been unsuccessful, the relevant retail market may be susceptible to ex ante regulation provided that the three criteria set out above are met.

               (17)

               On 17 December 2007, the European Commission issued a new Recommendation 2007/879/EC (6) on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with the Framework Directive.

               (18)

               The starting point for the revision of the Authority’s Recommendation on relevant markets is the Commission’s new Recommendation and the considerations of the Commission in the Explanatory Note to its Recommendation. In its revision process, the Authority has taken the approach that the comparison of market developments should be carried out against an EEA benchmark and not just taking into account the market situation within the individual EFTA States.

               (19)

               On the basis of market developments in the EFTA States as well as comments submitted in the public consultation and other information available to the Authority, it seems that the functioning of the three EFTA States electronic communication markets in general is not likely to deviate to a larger extent from the average functioning of the markets in the European Union or the whole of the EEA than the functioning of respective markets in individual EU Member States does in comparison with that average.

               (20)

               The objective of the EEA Agreement is to establish ‘a dynamic and homogenous European Economic Area, based on common rules and equal conditions of competition’ (7). In light of this objective and the considerations above, the Authority adopts a Recommendation aligned to the Commission’s Recommendation in order to ensure uniform application of the common regulatory framework and legal certainty for stakeholders within the electronic communications markets in the EEA. Therefore the number of markets susceptible to ex ante regulation is reduced in this Recommendation from 18 to 7 markets.

               (21)

               The reduction of the number of markets susceptible to ex ante regulation does not necessarily indicate that the removed markets are effectively competitive in each of the EFTA States and that ex ante regulation is no longer warranted for these markets. Contributions submitted to the Authority during the revision process claim that continued regulation might be justified in certain markets.

               (22)

               The markets listed in the Annex have been identified on the basis of the three cumulative criteria. For markets not listed in this Recommendation national regulatory authorities should apply the three-criteria test to the market concerned. For the markets in the Annex to Recommendation No 194/04/COL of 14 July 2004, which are not listed in the Annex to this Recommendation, national regulatory authorities should have the power to apply the three-criteria test in order to assess whether, on the basis of national circumstances, a market is still susceptible to ex ante regulation. For markets listed in this Recommendation a national regulatory authority may choose not to carry out a market analysis procedure if it determines that the three criteria are not satisfied for the particular market. National regulatory authorities may identify markets that differ from those listed in this Recommendation, provided that they act in accordance with Article 7 of the Framework Directive. Failure to notify a draft measure which affects trade between EFTA States as described in Recital 38 of the Framework Directive may result in infringement proceedings being taken against the State in question. Markets other than those listed in this Recommendation should be defined on the basis of competition principles laid down in the Authority’s Notice on the definition of relevant market for the purposes of EEA competition law (8) and be consistent with the Authority’s Guidelines on market analysis and the assessment of significant market power whilst satisfying the three criteria set out above.

               (23)

               The fact that this Recommendation identifies those product and service markets in which ex ante regulation may be warranted does not mean that regulation is always warranted or that these markets will be subject to the imposition of regulatory obligations set out in the specific Directives. In particular, regulation cannot be imposed or must be withdrawn if there is effective competition on these markets in the absence of regulation, that is to say, if no operator has significant market power within the meaning of Article 14 of the Framework Directive. Regulatory obligations must be appropriate and be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in the Framework Directive, in particular maximising benefits for users, ensuring no distortion or restriction of competition, encouraging efficient investment in infrastructure and promoting innovation, and encouraging efficient use and management of radio frequencies and numbering resources.

               (24)

               The identification of markets in this Recommendation is without prejudice to market definitions in individual cases under competition law. Moreover, the scope of ex ante regulation is without prejudice to the scope of activities that may be analysed under competition law.

               (25)

               This Recommendation has been subject to a public consultation and to consultation with national regulatory authorities and other national authorities in the EFTA States.

               (26)

               This Recommendation should be interpreted in light of the Explanatory Note of the Commission’s Recommendation 2007/879/EC on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with the Framework Directive. The Explanatory Note includes, inter alia, the description of evolving technologies in relation to the markets defined in the Recommendation,

         HAS ADOPTED THIS RECOMMENDATION:

               1.

               In defining relevant markets appropriate to national circumstances in accordance with Article 15(3) of the Act referred to at point 5cl of Annex XI to the EEA Agreement, Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services, as adapted to the Agreement by Protocol 1 thereto and by the sectoral adaptations contained in Annex XI to that Agreement, national regulatory authorities should analyse the product and service markets identified in the Annex to this Recommendation.

               2.

               When identifying markets other than those set out in the Annex, national regulatory authorities should ensure that the following three criteria are cumulatively met:

                           (a)

                           the presence of high and non-transitory barriers to entry. These may be of a structural, legal or regulatory nature;

                           (b)

                           a market structure which does not tend towards effective competition within the relevant time horizon. The application of this criterion involves examining the state of competition behind the barriers to entry;

                           (c)

                           the insufficiency of competition law alone to adequately address the market failure(s) concerned.

               3.

               This Recommendation is without prejudice to market definitions, results of market analyses and regulatory obligations adopted by national regulatory authorities in accordance with Articles 15(3) and 16 of the Act referred to at point 5cl of Annex XI to the EEA Agreement and as adapted to the Agreement by Protocol 1 thereto and by the sectoral adaptations contained in Annex XI to that Agreement (Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services), prior to the date of adoption of this Recommendation.

               4.

               This Recommendation is addressed to the EFTA States.

      Done at Brussels, 5 November 2008.

            For the EFTA Surveillance Authority

         Per SANDERUD

            President

         Kurt JAEGER

            College Member

      (1)  Hereinafter referred to as the ‘EEA Agreement’.

      (2)  OJ L 108, 24.4.2002, p. 33. Directive as amended by Regulation (EC) No 717/2007 (OJ L 171, 29.6.2007, p. 32). Hereinafter referred to as the ‘Framework Directive’.

      (3)  EFTA Surveillance Authority Recommendation of 14 July 2004 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services, as incorporated into the Agreement on the European Economic Area (OJ L 113, 27.4.2006, p. 18 and EEA Supplement No 21, 27.4.2006, p. 33). Adopted by Decision No 194/04/COL.

      (4)  Directive of the European Parliament and of the Council of 7 March 2002 on universal service and users rights relating to electronic communications networks and services (Universal Service Directive), (OJ L 108, 24.4.2002, p. 51, as inserted to point 5 cm of Annex XI to the EEA Agreement by Joint Committee Decision No 11/2004 (OJ L 116, 22.4.2004, p. 60 and EEA Supplement No 20, 22.4.2004, p. 14).

      (5)  EFTA Surveillance Authority Guidelines of 14 July 2004 on market analysis and the assessment of significant market power under the regulatory framework for electronic communications networks and services referred to in Annex XI of the Agreement on the European Economic Area (OJ C 101, 27.4.2006, p. 1 and EEA Supplement No 21, 27.4.2006, p. 1).

      (6)  OJ L 344, 28.12.2007, p. 65.

      (7)  4th consideration in the Preamble to the EEA Agreement.

      (8)  Decision of the EFTA Surveillance Authority No 46/98/COL of 4 March 1998 on the issuing of two notices in the field of competition on the definition of the relevant market for the purpose of competition law within the European Economic Area (EEA), and on agreements of minor importance which do not fall under Article 53(1) of the EEA Agreement (OJ L 200, 16.7.1998, p. 46 and EEA Supplement No 28, 16.7.1998, p. 1).

      ANNEX

         Retail level

                  1.

                  Access to the public telephone network at a fixed location for residential and non-residential customers.

         Wholesale level

                  2.

                  Call origination on the public telephone network provided at a fixed location.
                  For the purposes of this Recommendation, call origination is taken to include call conveyance, delineated in such a way as to be consistent, in a national context, with the delineated boundaries for the market for call transit and for call termination on the public telephone network provided at a fixed location.

                  3.

                  Call termination on individual public telephone networks provided at a fixed location.
                  For the purposes of this Recommendation, call termination is taken to include call conveyance, delineated in such a way as to be consistent, in a national context, with the delineated boundaries for the market for call origination and the market for call transit on the public telephone network provided at a fixed location.

                  4.

                  Wholesale (physical) network infrastructure access (including shared or fully unbundled access) at a fixed location.

                  5.

                  Wholesale broadband access.
                  This market comprises non-physical or virtual network access including ‘bit-stream’ access at a fixed location. This market is situated downstream from the physical access covered by market 4 listed above, in that wholesale broadband access can be constructed using this input combined with other elements.

                  6.

                  Wholesale terminating segments of leased lines, irrespective of the technology used to provide leased or dedicated capacity.

                  7.

                  Voice call termination on individual mobile networks.


Avis juridique important

|

31988H0090

88/90/EEC: Commission Recommendation of 22 December 1987 to the Portuguese Republic concerning the adjustment of the State monopoly of a commercial character in petroleum products vis-à-vis the other Member States (Only the Portuguese text is authentic)

Official Journal L 056 , 02/03/1988 P. 0030 - 0032

*****COMMISSION  RECOMMENDATION  of 22 December 1987  to the Portuguese Republic concerning the adjustment of the State monopoly of a commercial character in petroleum products vis-à-vis the other Member States  (Only the Portuguese text is authentic)  (88/90/EEC)  I  1. Scope of Article 208 of the Accession Treaty  1.1. Article 208 of the Act of Accession of Spain and Portugal provides that, without prejudice to paragraph 2 of that Article, Portugal shall, from 1 January 1986, progressively adjust State monopolies of a commercial character within the meaning of Article 37 (1) of the EEC Treaty so as to ensure that by 1 January 1993 no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of the Member States.  1.2. With regard to motor spirit, kerosene, gas oils and fuel oils, it is stipulated that the adjustment of the exclusive marketing right shall begin from the date of accession and that the existing Portuguese marketing quotas allocated to current beneficiary companies other than Petrogal shall be abolished on 1 January 1986. The total liberalization of the markets for these products is to be completed on 31 December 1992.  1.3. Article 208 (2) provides that the Commission shall make its recommendations for adjustment concerning the execution of this liberalization by taking as the starting reference point the lowest annual market share per product held by the public undertaking Petrogal during the period 1 January 1981 to 31 December 1985.  Upon accession Portugal is required to open for each product concerned a quota equal to the total marketing quotas held before that date by undertakings other than Petrogal. This quota is to be progressively increased by the quantities liberalized following the Commission's recommendations.  2. Setting of the initial quotas  2.1. For each of the products specified in Article 208 of the Act of Accession, the lowest market share held by Petrogal from 1 January 1981 to 31 December 1985 was as follows:  - motor spirit: 59,18 %,  - kerosene: 51,64 %,  - gas oils: 68,14 %,  - fuel oils: 79,36 %.  2.2. Under paragraph 3 of Decree 969/85 of 31 December 1985, the Portuguese Government set the quotas for 1986 as follows, taking as its basis an estimate of anticipated consumption in 1986:  - motor spirit: 359 216 tonnes,  - kerosene: 14 993 tonnes,  - gas oils: 573 480 tonnes,  - fuel oils: 309 500 tonnes.  2.3. The Commission considers that, for the purposes of Article 208, the quota for 1986 should have been at least equal to the total volume of the marketing quotas allocated to companies other than Portugal in 1985, while at the same time taking account of any increase in national consumption.  In 1985, the total Portuguese market, the share reserved for Petrogal and that reserved for undertakings other than Petrogal, account being taken of an increase in motor spirit consumption in 1986 anticipated by the Portuguese authorities, were as follows: (tonnes)  1.2.3.4 //  //  //  //  //  // Total market   // Share reserved for Petrogal   // Share reserved for undertakings other than Petrogal   //    //   //   //   // Motor spirit  // 855 000   // 505 989   // 349 011   // (Forecast 1986)  // (880 000)   // (520 784)   // (359 216)   // Kerosene  // 32 000   // 16 525   // 15 475   // Gas oils   // 1 918 000   // 1 306 925   // 611 075   // Fuel oils   // 3 287 000  // 2 608 563   // 678 437   //    //   //   //  2.4. Under Article 5 (3) of Law 525/85 and paragraph 3 of Decree 969/85, the Portuguese Government by its own authority set the annual liberalized rate of increase in 1986 at 5 %.  In view of the shortness of the transitional period for adjusting Portugal's monopoly in petroleum products and the need to ensure that the opening-up of the market is sufficiently gradual and does not take place too suddenly at the end of the transitional period, the Commission considers that a 10 % rate of increase would be more equitable and more appropriate for ensuring the progressive adjustment called for by Article 208.  Accordingly, the quota to be opened in 1987 by the Portuguese authorities should be as follows:  - motor spirit: 395 138 tonnes,  - kerosene: 17 022 tonnes,  - gas oils: 672 182 tonnes,  - fuel oils: 746 280 tonnes.  3. Administration of the quota  By Decree 969/85, the Portuguese Government laid down criteria for allocating the quotas and the procedure for implementing such allocation.  By decision of the Portuguese Prime Minister, adopted on 23 December 1986, the Portuguese Government allocated the quotas for 1986, without having published in advance a notice to the undertakings concerned. The allocation does not in practice seem to have resulted in any substantial change in the shares of the Portuguese market held by the undertakings operating on it before accession.  In view of the actual situation on the Portuguese market and the presence of certain operators who already have extensive sales networks, the Commission considers that the criteria to be applied must not favour only the undertakings already established on the Portuguese market, to the detriment of those wishing to begin distributing products on it.  Consequently, so as to ensure not only the continuity of supplies by established operators, but also real and effective access for new operators not active on the Portuguese market in 1985, the allocation of quotas should be based on the following criteria:  - the size of sales networks and the volume of sales the previous year in the case of established operators,  - establishment plans and sales programmes in the case of new operators,  - the total quantity granted to new operators as a whole should, at all events, not be less than 15 % of the quota opened for the product concerned,  - at least half of the annual increase in the quota opened for each product concerned should go to new operators, so as to increase gradually their presence on the market.  The annual quota should be divided into two equal parts to be allocated on a six-monthly basis. If one or more operators have not actually used the quota allocated to them, the unused portion should be added to the relevant quota for the following six months.  4. Publication of the opening of the quota  No notice has yet been published for 1987, and the notice published in the daily press regarding allocation of the 1988 quotas does not mention either the quantities to be allocated or the criteria that will govern such allocation.  So as to ensure that the quota allocation procedure is sufficiently transparent, the Commission considers that a notice setting out the following particulars should be published in the Portuguese official gazette:  - the volume of the quotas for each product,  - the volume for submitting applications,  - the address to which applications should be submitted,  - the criteria governing the allocation of the quotas. The notice should be published at half-yearly intervals, three months before the deadline for submitting applications. The quotas should be opened for all operators without restrictions, and the products imported must be able to be distributed in a non-discriminatory manner.  5. Arrangements applicable regarding the selling prices of petroleum products  By Decree 99/87 of 12 February 1987, the Portuguese Government laid down a new formula for establishing the maximum prices or petroleum products marketed in Portugal. The Commission reserves its position with regard to the comparability of the price rules with Community law, and in particular with Articles 12, 30 and 95 of the EEC Treaty, taking into account the relevant judgments of the Court of Justice.  6. Criteria governing admission to the activity of petroleum-product import and distribution  The activity of petroleum-product distribution may be made subject in Portugal to objective and non-discriminatory commercial regulations. However, the conditions with which operators are required to comply under such regulations must take account of the different initial situations of undertakings already established on the Portuguese market and of those wishing to commence distribution in the country.  II  Substance of the Recommendation  For these reasons, and subject to the position the Community may subsequently adopt in the light of the results of applying this Recommendation, the Commission hereby recommends, pursuant to the third subparagraph of Article 208 (1) of the Act of Accession, that the Portuguese Republic should:  1. open for 1987 an annual quota equal to not less than the following volumes:  - motor spirit: 395 138 tonnes,  - kerosene: 17 022 tonnes,  - gas oils: 672 182 tonnes,  - fuel oils: 746 280 tonnes,  and increase the previous year's quotas by 10 % in the years thereafter;  2. allocate the quotas on a six-monthly basis, each allocation being for half of the total quota set for each product, ensuring that, if one or more operators has not used up the product volumes allowed them under the quotas for the first half-year, the unused quantities are redistributed and added to the second six-monhtly quota to be allocated;  3. publish at six-monhtly intervals in the Portuguese official gazette a notice to interested parties setting out the volume of the quotas, the deadline for submitting applications, the address to which applications should be submitted, and the critiera that will be applied in allocating the quotas;  4. apply quota allocation criteria which, while taking account of the size of existing operators' sales networks and the volumes sold through them, take into consideration the establishment plans and sales programmes of new operators not authorized on the Portuguese market in 1985;  5. ensure that the total quantity granted to new operators as a whole is not less than 15 % of the total quota opened for the product concerned, and that at least half of the planned annual increases go to them;  6. ensure that the arrangements governing prices applicable to petroleum products imported under the quotas comply with the requirements of Articles 12, 30 and 95 of the EEC Treaty, taking into account the relevant judgments of the Court of Justice;  7. introduce, in respect of the activity of petroleum product distribution in Portugal, commercial regulations which, while taking account of the need to ensure the security of supplies in Portugal, are at the same time objective and non-discriminatory.  Done at Brussels, 22 December 1987.  For the Commission  Peter SUTHERLAND  Member of the Commission


Avis juridique important

|

31990H0246

90/246/EEC: Council Recommendation of 28 May 1990 relating to the implementation of a policy of administrative simplification in favour of small and medium-sized enterprises in the Member States

Official Journal L 141 , 02/06/1990 P. 0055 - 0056

*****COUNCIL  RECOMMENDATION  of 28 May 1990  relating to the implementation of a policy of administrative simplification in favour of small and medium-sized enterprises in the Member States  (90/246/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 from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Having regard to the following resolutions adopted by the Council:  - resolution of 3 November 1986 concerning the action programme for small and medium-sized enterprises (SMEs) (4) and the declaration on administrative burdens on business,  - resolution of 22 December 1986 on an action programme on employment growth (5),  - resolution of 30 June 1988 on the improvement of the business environment and action to promote the development of enterprises, especially small and medium-sized enterprises in the Community (6),  Having regard to the following communications adopted by the Commission:  - communication on an enterprise policy for the Community,  - communication on administrative simplification in the Community,  - third report on the realization of the objectives of the Community action programme for small and medium-sized enterprises,  - communication on the administrative simplification measures taken by the Member States on behalf of enterprises in the Community,  Whereas measures are taken at Community level to assure a favourable environment for business and, notably, to simplify legislation and to lighten the administrative burden on business, in particular small and medium-sized enterprises;  Whereas such action must likewise be assured by national, regional and local administrations;  Whereas exchange of information and comparison of experience between the Member States, in particular as organized in the Community context, facilitate the establishment of a global view of the measures implemented in each Member State;  Whereas such an approach leads to a strengthening of this policy and, as a result, to the stimulation of the spirit of enterprise;  Whereas the objective of administrative simplification may not, however, adversely affect freedoms, jeopardize the existence of consultative bodies set up for the purpose of contributing to democracy within the economy or bring about a decrease in the legal security of users of the administration;  Whereas major efforts have already been made to simplify laws and regulations, modernize administrations, train staff and improve the quality of services, but this effort needs to be intensified,  HEREBY RECOMMENDS MEMBER STATES:  1. to implement programmes of administrative simplification in favour of businesses, involving all competent public bodies;  2. to ensure that the above arrangements relate to both new legislative proposals and existing legislation, the removal of redundant legislation and the adaptation of legislation which no longer reflects economic and social reality;  3. to strive to ensure that, for all draft laws and regulations, an examination is also made, at an initial stage, of their necessity, effectiveness and intelligibility where such drafts are likely to increase the administrative burden on enterprises; this should be similar to the examination undertaken by the Commission on the impact of Community legislation, in particular, on small to medium-sized enterprises (impact assessment);  4. to pay particular attention to the following points:  (a) modernization of the organization of administrative departments, in particular of services in contact with enterprises, with a view to improving the coordination of the various departments, their efficiency and speed of response;  (b) improvement of procedures by the standardization and reduction in numbers of forms and returns used in the fields of accountancy, taxation, social affairs and statistics;  (c) establishment, where appropriate, of one-stop shops providing guidance on the overall formalities to be observed on the creation of an enterprise;  (d) replacement of as many formal decisions as possible by procedures involving non-opposition, according to which, at the end of a certain time limit from the receipt of the application, the absence of a reaction on the part of the competent authorities is taken as a decision;  (e) improvement of the information to small and medium-sized enterprises, for example by the publication of vademecums, brochures and administrative organization charts;  (f) consolidation or compilation of national legislation, to make it more easily understandable for enterprises;  (g) where necessary, the development of special simplified administrative implementing measures for SMEs;  5. to create or maintain an appropriate body for consultation between the representatives of business, including small and medium-sized enterprises, and the administration, with a view to promoting the simplification of administrative procedures and of legislation;  6. in implementing the above, not to prejudice the legal rights of workers and third parties;  7. to inform the Commission of major achievements in the field of administrative simplification, problems encountered and initiatives proposed, so that the Commission can ensure that all Member States are fully aware of developments and possibilities in this matter,  HEREBY INVITES THE COMMISSION:  (a) to put into practice within its own institution the points contained in this recommendation and to inform the Member States of the main achievements;  (b) to bring forward a plan for examining the impact of existing Community legislation and to identify areas where this legislation is particularly burdensome;  (c) to simplify access for SMEs to the Structural Funds and to Community research and development programmes as well as to other Community programmes;  (d) to set up arrangements for consulting the representatives of businesses on the various aspects of the programme for administrative simplification;  (e) to continue improving the impact assessments in the Commission framework and to publish them;  (f) to examine the scope for reducing overlap between the administrative formalities to be completed by enterprises when they carry on their activities in another country;  (g) to submit a regular report on Community and national measures relating to administrative simplification.  Done at Brussels, 28 May 1990.  For the Council  The President  D. J. O'MALLEY  (1) OJ No C 189, 26. 7. 1989, p. 17 and  OJ No C 101, 21. 4. 1990, p. 8.  (2) OJ No C 15, 22. 1. 1990, p. 363.  (3) OJ No C 298, 27. 11. 1989, p. 53.  (4) OJ No C 287, 14. 11. 1986, p. 1.  (5) OJ No C 340, 31. 12. 1986, p. 2.  (6) OJ No C 197, 27. 7. 1988, p. 6.


				|

		52011SC0810

			Recommendation for a COUNCIL RECOMMENDATION on the National Reform Programme 2011 of Italyand delivering a Council opinionon the updated Stability Programme of Italy, 2011-2014 /* SEC/2011/0810 final  */

			   	Recommendation for a
COUNCIL RECOMMENDATION
on the National Reform Programme 2011 of
Italy
and delivering a Council opinion
on the updated Stability Programme of Italy, 2011-2014
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning
of the European Union, and in particular Articles 121(2) and 148(4) thereof,
Having regard to Council Regulation (EC) No
1466/97 of 7 July 1997 on the strengthening of the surveillance of budgetary
positions and the surveillance and coordination of economic policies[1],
and in particular Article 5(3) thereof,
Having regard to the recommendation of the
European Commission[2],
Having regard to the conclusions of the
European Council,
Having regard to the opinion of the
Employment Committee,
After consulting the Economic and Financial
Committee,
Whereas:
(1)
On 26 March 2010, the European Council agreed to
the European Commission’s proposal to launch a new strategy for jobs and
growth, Europe 2020, based on enhanced coordination of economic policies, which
will focus on the key areas where action is needed to boost Europe’s potential
for sustainable growth and competitiveness.
(2)
On 13 July 2010, the Council adopted a
recommendation on the broad guidelines for the economic policies of the Member
States and the Union (2010 to 2014) and, on 21 October 2010, adopted a decision
on guidelines for the employment policies of the Member States[3],
which together form the ‘integrated guidelines’. Member States were invited to
take the integrated guidelines into account in their national economic and
employment policies.
(3)
On 12 January 2011, the Commission adopted the
first Annual Growth Survey, marking the start of a new cycle of economic
governance in the EU and the first European semester of ex-ante and integrated
policy coordination, which is anchored in the Europe 2020 strategy.
(4)
On 25 March 2011, the European Council endorsed
the priorities for fiscal consolidation and structural reform (in line with the
Council’s conclusions of 15 February and 7 March 2011 and further to the
Commission’s Annual Growth Survey). It underscored the need to give priority to
restoring sound budgets and fiscal sustainability, reducing unemployment
through labour market reforms and making new efforts to enhance growth. It
requested Member States to translate these priorities into concrete measures to
be included in their Stability or Convergence Programme and National Reform
Programmes.
(5)
On 25 March 2011, the European Council also
invited the Member States participating in the Euro Plus Pact to present their
commitments in time to be included in their Stability or Convergence Programmes
and their National Reform Programmes.
(6)
On 6 May 2011, Italy submitted its 2011
Stability Programme update covering the period 2011-2014 and its 2011 National
Reform Programme. In order to take account of the interlinkages, the two
programmes have been assessed at the same time.
(7)
The Italian economy had been affected by
structural weaknesses long before the current global economic and financial
crisis. Between 2001 and 2007, average real GDP growth was around 1%, i.e. only
half the euro-area average, due mainly to sluggish productivity growth. As
these developments affected the whole country, the large regional economic
disparities were not reduced. Although the economy was not marked by large
private sector internal imbalances, it was seriously affected by the global
crisis. A collapse in exports, and subsequently in investment, produced a sharp
contraction of around 7% in real GDP between the second quarter of 2008 and the
second quarter of 2009. After having steadily fallen in the previous decade,
government gross debt increased to 119% by end-2010, also reflecting the sharp
decline in GDP. Employment declined much less, supported by a
government-sponsored scheme to reduce hours worked, and therefore the
unemployment rate increased only moderately over 2008-09. Led by exports, the
economy started to recover in the second half of 2009, albeit at a slow pace.
The labour market situation remained fragile in 2010, with the unemployment
rate stabilising at around 8.5% by the end of the year. Given the very high
government debt ratio, Italy kept an appropriately prudent fiscal stance during
the crisis, refraining from undertaking a large fiscal stimulus, and thus
keeping the government deficit below the euro-area average in 2009-10.
(8)
Based on the assessment of the updated stability
programme pursuant to Council Regulation (EC) No 1466/97, the Council is of the
opinion that the macroeconomic scenario underlying the programme is plausible.
The programme plans to bring the general government deficit below 3% of the GDP
reference value by 2012, based on further expenditure restraint and additional
revenues from improved tax compliance. Following the correction of the
excessive deficit, the programme plans to achieve the medium-term objective
(MTO) of a balanced budgetary position in structural terms by the end of the
programme period (2014), backed by a commitment to further restrain primary
expenditure. The programme projects the government debt ratio to peak in 2011
and to decline at an increasing pace thereafter, as the primary surplus
increases. The planned average annual fiscal effort over the period 2010-2012
is above the 0.5% of GDP recommended by the Council under the EDP, and the
envisaged pace of adjustment after 2012 is well above the provisions in the
Stability and Growth Pact. Reaching the above deficit and debt outcomes will
require a strict budgetary implementation, while more information on the
planned consolidation measures is needed to increase the credibility of the
programme.
(9)
Given the very high government debt, which
stands at around 120% of GDP in 2011, the pursuit of a durable and credible
consolidation and the adoption of structural measures to enhance growth are key
priorities for Italy. For the period until 2012, the achievement of the targets
for the general government deficit set in the stability programme, and thus the
correction of the excessive deficit by 2012, relies on the full implementation
of the measures already adopted. Additional action would be required if, for
instance, revenues from improved tax compliance are lower than budgeted or if
difficulties arise in achieving the planned restraint in capital expenditure.
For 2013-14, the new three-year budgetary framework prescribes that the
concrete measures underpinning the consolidation effort be adopted by October
2011. Although the budgetary framework has been strengthened considerably in
recent years, the introduction of binding expenditure ceilings and further
improvements to budgetary monitoring across all government sub-sectors would
foster fiscal discipline and strengthen the credibility of the medium-term
budgetary strategy.
(10)
Despite relatively strong job creation in the
years preceding the crisis, Italy’s labour market exhibits some structural
weaknesses. Workers on open-ended contracts enjoy more protection than workers
with little work tenure or on temporary contracts, especially when they are
officially registered as self-employed, but are actually in a standard
subordinate working relationship. For the former, labour legislation allows
collective dismissals and dismissals for economic reasons in a very limited
number of cases. At the same time, not all workers who lose their job receive
adequate income support, as labour market segmentation is accompanied by a
fragmented system of unemployment benefits. The level of unemployment among workers below 25 years of age reached 27.8% in
2010, with an uneven distribution across the country, and youth unemployment in
southern regions was double that in northern regions. The role of
apprenticeships and vocational training is not sufficiently emphasised. Although
very useful and necessary, there is currently no single system of skill
certification and recognition of vocational and training standards that is
acknowledged across the country, thus hampering labour mobility and employment
opportunities throughout Italy. There is room to
strengthen the effectiveness of employment services, especially in regions with
high unemployment. Finally, undeclared work remains an important phenomenon in
Italy.
(11)
Aligning wage developments with productivity
growth is important in view of Italy’s constant loss of competitiveness since
the late 1990s; in this regard, bargaining at firm level can play a significant
role, which may also help to address regional labour market disparities. The
2009 reform of the bargaining framework introduced, among other things, the
possibility of opening clauses (i.e. derogations from the sectoral wage agreed
at national level), but they have not yet been widely used.
(12)
The employment rate of women lags behind that of
men by over 20 percentage points across the whole territory. Barely one third
of women between 20 and 64 were employed in the southern regions in 2009, due
to both relatively lower activity rates and higher unemployment. Italy’s
relatively high taxation of labour reduces incentives to labour supply,
especially for dependent spouses, and adversely affects labour demand by firms.
To help boost female employment, the National Reform Programme looks to the
plan adopted in 2010 to coordinate efforts across the layers of government to
promote the reconciliation of work and family life. The government recently
introduced a tax incentive for companies hiring disadvantaged workers,
including those who work in a sector or occupation where the gender imbalance
is particularly pronounced, in regions with high unemployment. The Programme
also announces a reform of the taxation system with a view to gradually
shifting the tax burden from labour to consumption, which might help increase
employment.
(13)
Compared to EU standards, the cost of doing
business in Italy remains high, in particular in southern regions, despite
recent measures to improve the business environment and to enhance the
performance-orientation and accountability of the public administration. There
is still ample scope for removing regulatory and administrative barriers in
product and services markets, particularly in professional services. An Annual
Law on Competition was introduced in 2009 as a legislative tool to enhance the
competitive environment and consumer protection, but it has not yet been
adopted. Lengthy contract enforcement procedures are a further weakness of
Italy’s business environment. Non-banking channels for financing the growth of
firms are still comparatively rare in Italy, especially for SMEs. Equity
financing and venture capital, in particular, continue to play only a limited
role, despite their potential for promoting growth in firm size, outreach to
new global markets and improved corporate governance.
(14)
R&D expenditure posted only a modest
increase over the past ten years. Consequently, R&D intensity remains low,
at around 1.27% of GDP, and well below the EU average (1.90%). This gap is
mainly due to a low level of industrial research, as business R&D intensity
stands at 0.64% of GDP compared to an EU-27 average of 1.23%. Venture capital
intensity also remains very low. A number of measures, including time-limited
tax breaks for companies investing in research projects carried out by
universities or public-sector entities, are presented in the NRP, but the
target of 1.53% of GDP set for R&D intensity is barely above current
levels.
(15)
Italy is the third-largest beneficiary of EU
cohesion policy funds, having received around 8% of the total EU cohesion
policy budget during the period 2007-2013. Halfway through the programming
period, the share of EU funds actually mobilised is only 16.8% and it is much
lower in the southern Convergence regions.
(16)
Italy has made a number of commitments under the
Euro Plus Pact[4]. The National Reform
Programme mentions some recently adopted measures and broadly outlines plans
for future reform to address public finance sustainability and financial
stability, foster competitiveness and increase employment, in line with the
principles of the Euro Plus Pact. A new major commitment specifically
undertaken to respond to the Pact is the government’s intention to amend the
Constitution in order to reinforce budgetary discipline. These elements have
been assessed and taken into account in the recommendations.
(17)
The Commission has assessed the Stability
Programme and National Reform Programme, including the Euro Plus Pact
commitments for Italy[5]. It has taken into
account not only their relevance for sustainable fiscal and socio-economic
policy in Italy, but also their conformity with EU rules and guidance, given
the need to reinforce the overall economic governance of the European Union by
providing EU level input into future national decisions. In this light, the
Commission considers that Italy’s consolidation plan for 2011-14 is credible
until 2012, whereas it should be underpinned by concrete measures for 2013-14,
so as to put the very high government debt on a steadily declining path. The
NRP outlines a comprehensive set of initiatives across all dimensions of the
Europe 2020 Strategy, but further measures are considered necessary in order to
address long-standing structural weaknesses exacerbated by the crisis. To
enhance Italy’s growth and job-creation potential, and promote the catching-up
of southern regions, further steps should be taken in 2011-2012 to improve the
functioning of the labour market, open up services and product markets to
greater competition, improve the business environment, strengthen research and
innovation policy and promote faster and better use of EU cohesion funds.
(18)
In light of this assessment, also taking into
account the Council Recommendation under Article 126(7) Treaty on the Functioning
of the European Union of 2 December 2009, the Council has examined the 2011
update of the Stability Programme of Italy and its opinion[6]
is reflected in particular in its recommendation under (1) set out below.
Taking into account the European Council conclusions of 25 March 2011, the
Council has examined the National Reform Programme of Italy,
HEREBY RECOMMENDS that Italy should
take action within the period 2011-2012 to:
(1)
Implement the planned fiscal consolidation in
2011 and 2012 to ensure correction of the excessive deficit. Fully exploit any
better-than-expected budgetary developments for faster deficit and debt
reduction and stand ready to prevent slippages in budgetary implementation.
Back up the targets for 2013-14 with concrete measures by October 2011 as
provided for in the new multi-annual budgetary framework. Strengthen the
framework by introducing binding ceilings on expenditure and improving
monitoring across all government sub-sectors.
(2)
Take measures to combat segmentation in the
labour market, by reviewing selected aspects of
employment protection legislation and reforming in a comprehensive manner the
currently fragmented unemployment benefit system. Step up efforts to fight
undeclared work. In addition, take steps to promote greater participation of
women in the labour market, by increasing the availability of care facilities
throughout the country and providing financial incentives to second earners to
take up work in a budgetary neutral way.
(3)
Take steps, based on the 2009 law reforming the
collective bargaining framework and in consultation with the social partners in
accordance with national practices, to ensure that wage growth better reflects
productivity developments as well as local and firm level conditions.
(4)
Introduce measures to open up the services
sector to further competition, in particular in the field of professional
services. Adopt in 2011 the Annual Law on Competition, taking into account the
recommendations presented by the Anti-trust Authority. Reduce the length of
contract law enforcement procedures. Take steps to
promote the access of SMEs to capital markets by removing regulatory obstacles
and reducing costs.
(5)
Improve the framework for private sector
investment in research and innovation by extending current fiscal incentives,
improving conditions for venture capital and supporting innovative procurement
schemes.
(6)
Take steps to accelerate growth-enhancing
expenditure co-financed by cohesion policy funds in order to reduce the
persistent disparities between regions, by improving administrative capacity
and political governance. Respect the commitments made in the national
Strategic Reference Framework in terms of the amount of resources and quality
of expenditure.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               OJ L 209, 2.8.1997, p. 1.
[2]               OJ C , , p. .
[3]               Maintained for 2011 by Council Decision 2011/308/EU
of 19 May 2011.
[4]               More details on the commitments made under the Euro
Plus Pact can be found in SEC(2011) 720.
[5]               SEC(2011) 720.
[6]               Foreseen in Article 5(3) of Council Regulation (EC)
No 1466/97.


title: 2004/787/EC: Commission Recommendation of 4 October 2004 on technical guidance for sampling and detection of genetically modified organisms and material produced from genetically modified organisms as or in products in the context of Regulation (EC) No 1830/2003Text with EEA relevance

text:
               24.11.2004

               EN

               Official Journal of the European Union

               L 348/18

      COMMISSION RECOMMENDATION

   of 4 October 2004
   on technical guidance for sampling and detection of genetically modified organisms and material produced from genetically modified organisms as or in products in the context of Regulation (EC) No 1830/2003
   (Text with EEA relevance)
   (2004/787/EC)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community, in particular the second indent of Article 211 thereof,
   Whereas:

               (1)

               Regulation (EC) No 1830/2003 of the European Parliament and of the Council, of 22 September 2003, concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC (1) sets up a system for the transmission and retention of information between operators at each stage of the placing on the market of products containing or consisting of genetically modified organisms, hereinafter ‘GMOs’, or food and feed products produced from GMOs, but does not require operators to sample and test products at each stage of the placing of the market for presence of GMOs or material produced from GMOs.

               (2)

               According to Article 9(1) of Regulation (EC) No 1830/2003, Member States are, however, required to ensure that inspections and other control measures including sample checks and testing (qualitative and quantitative), as appropriate, are carried out to ensure compliance with that Regulation.

               (3)

               In order to facilitate a coordinated approach for those inspections and control measures, Article 9(2) of Regulation (EC) No 1830/2003 requires that technical guidance on sampling and testing for GMOs and food and feed material produced from GMOs in products should be established.

               (4)

               This guidance should cover products that have received authorisations for their placing on the market but is without prejudice to Article 4(5) of Directive 2001/18/EC of the European Parliament and of the Council (2) with regard to GMOs which are not authorised in the European Union.

               (5)

               The sampling and detection should be carried out using sound scientific and statistical protocols in order to achieve an appropriate level of confidence for detection of GMOs or material produced from GMOs.

               (6)

               In developing the guidance, the Committee set up by Article 30 of Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC has been consulted, and account has been taken of the work of the national competent authorities, the Standing Committee on the Food Chain and Animal Health and the Community Reference Laboratory.

               (7)

               Where lots of non-GM seed or other plant propagating material are required to comply with standards on adventitious or technically unavoidable presence of genetically modified seeds or other plant propagating material, a legally-binding protocol on sampling and testing for the presence of genetically modified seeds or other plant propagating material should be developed in the context of the specific legislation on seeds and other plant propagating material; whereby the elements provided in that protocol should also serve as a basis for sampling and testing of other GM crop species not covered by the abovementioned legislation, where appropriate,

         HEREBY RECOMMENDS:
   I.   GENERAL PRINCIPLES

               1.

               For the purpose of fulfilling the requirements set out in Article 9(1) of Regulation (EC) No 1830/2003, Member States should take account of:

                           (a)

                           the past record of operators with respect to compliance with relevant legislation;

                           (b)

                           the reliability of any controls that operators have already carried out;

                           (c)

                           situations where non-compliance is suspected;

                           (d)

                           using means proportionate to the desired specific objectives and particularly in the light of experience gained;

                           (e)

                           the degree of heterogeneity and the point in the supply chain at which testing is being undertaken.

               2.

               Official controls should be carried out without prior warning, except in cases where prior notification of an operator is necessary.

               3.

               Official controls should be carried out at any stage of the production, processing, and storage, distribution of products that contain or may contain GMOs or food and feed produced from GMOs, including at the point of import (3).

               4.

               Official controls should not differentiate between products intended for export outside the Community and products intended for placing on the market within the Community.

               5.

               Operators whose products are subject to sampling and analysis should be entitled to appeal for a second opinion. Official bodies should collect a sufficient number of counter samples for enforcement and referee purposes in order to guarantee operators appeal right and have a second opinion, as required by national legislation.

               6.

               Alternative sampling strategies to those recommended in this guidance may be applied.

               7.

               Alternative testing strategies to those recommended in this guidance may be applied provided such methods are approved by the Community Reference Laboratory established under Regulation (EC) 1829/2003.

               8.

               Without prejudice to specific requirements laid down in EU legislation concerning food, feed and other controls, and in particular Directive 95/53/EC fixing the principles governing the organisation of official inspections in the field of animal nutrition, Directive 70/373/EEC on the introduction of Community methods of sampling and analysis for the official control of feeding stuffs, Directive 89/397/EEC on the official controls of foodstuffs and Directive 93/99/EEC on the subject of additional measures concerning the official control on foodstuffs, Member States should ensure that official controls are carried out, so as to achieve the objectives of Regulation (EC) No 1830/2003.

         II.   DEFINITIONS

               (a)

                     Lot
                   is defined as a distinct and specified quantity of material.
               The following definitions take account of the type of material forming a lot and are in line with ISTA, ISO standards 6644 and 13690 and FAO (International Standards for Phytosanitary Measures):

                                 seed lot: a specified quantity of seed, physically identifiable and uniform
                              , not exceeding the maximum lot size as defined in the seeds Directives and forming the total or a part of a consignment;

                                 other plant propagating material lot
                              : a number of units of a single commodity identifiable by its homogeneity of composition, origin etc., not exceeding the maximum lot size as defined in the legislation on other plant propagating material, and forming the total or a part of a consignment;

                                 food and feed products lot
                              : quantity of product dispatched or received at one time and covered by a particular contract or shipping document.

               (b)

                     Increment sample
                  : small equal quantity of product taken from each individual sampling point in the lot through the full depth of the lot (static sampling), or taken from the product stream during a stated portion of time (flowing commodities sampling).

               (c)

                     File increment sample
                  : an increment sample that is retained for a specific period of time for further analysis.

               (d)

                     Bulk sample
                  : quantity of product obtained by combining and mixing the increments taken from a specific lot.

               (e)

                     Laboratory sample
                  : quantity of product taken from the bulk sample intended for laboratory inspection and testing.

               (f)

                     Analytical sample
                  : homogenised laboratory sample, consisting either of the whole laboratory sample or a representative portion thereof.

               (g)

                     Counter sample
                  : a sample retained for a specific period of time for enforcement or referee purposes.

               (h)

                     Percentage of GM DNA
                  : the percentage of GM-DNA copy numbers in relation to target taxon specific DNA copy numbers calculated in terms of haploid genomes.

         III.   PRINCIPLES FOR SAMPLING PROTOCOLS

               1.

               Member States should take account of the guidance on sampling protocols for products consisting of, containing or produced from GMOs when inspecting and controlling whether operators are complying with Articles 4 and 5 of Regulation (EC) No 1830/2003.

               2.

               The Community Reference Laboratory established under Regulation (EC) No 1829/2003, and the nationally designated laboratories to the European Network of GMO Laboratories, hereinafter ‘ENGL’, will provide further guidance and assistance on the methods of sampling falling within the scope of this Recommendation.

               3.

               Harmonised sampling procedures should be utilised for the purpose of estimating the presence of GMOs. These procedures should apply to seed and other plant propagating material, food, feed and agricultural commodity lots.

               4.

               The following sampling procedures are defined in order to ensure that the samples collected and analysed are representative of the different types of commodities under investigation. Whereas sampling protocols for the presence of GM seeds and other plant propagating material in seed lots should be developed according to the specific legislation on seeds or other propagating material, sampling strategies for bulk commodities and food and feed products are addressed in separate sections that take into account commodity-specific properties.

         IV.   SAMPLING PROTOCOLS
   1.   Sampling seed and other plant propagating material lots
   This section deals with the detection of genetically modified seeds or other plant propagating material in lots of seed or other plant propagating material of non-GM varieties or clones and the detection of GM seeds or other plant propagating material arising from a transformation event other than that designated for a lot of seed or other plant propagating material of a GM variety or clone.
   Samples should be drawn in accordance with current international methods and where appropriate from lot sizes as defined in Council Directives 66/401/EEC, 66/402/EEC, 68/193/EEC, 92/34/EEC, 98/56/EEC, 1999/105/EC, 2002/54/EC, 2002/55/EC, 2002/56/EC and 2002/57/EC. The general principles and methods of sampling of seeds and other plant propagating material should be in accordance with the International Seed Testing Association (ISTA) rules and the associated ISTA Handbook on Seed Sampling.
   The sampling and testing schemes to be used for seeds or other plant propagating material should meet the requirements indicated in the specific legislation on seeds and other propagating material as regards statistical risks. Seed or other plant propagating material lot quality level and its associated statistical uncertainty are defined in relation to thresholds for GMOs and relate to the percentage of GM-DNA copy numbers in relation to target taxon specific DNA copy numbers calculated in terms of haploid genomes.
   2.   Sampling bulk agricultural commodities
   The sampling protocol is based on a two-step procedure that allows, if necessary, to obtain estimates of GMO presence levels, together with their associated uncertainty expressed as Standard Deviation (SD), without imposing any assumption on the possible heterogeneity of the GMOs.
   In order to allow the estimation of SD, in the first instance, a bulk sample should be produced and the derived analytical sample analysed for the presence of GM materials. Where the obtained analytical result is close to the established threshold (± 50 % of its value), the analysis of the individual file increment samples is recommended to provide a measure of the associated uncertainty.
   The following documents should be taken into account:

               (a)

               ISO standard 6644 (2002);

               (b)

               ISO standard 13690 (1999);

               (c)

               ISO standard 5725 (1994);

               (d)

               ISO standard 2859 (1985);

               (e)

               ISO standard 542 (1990).

         2.1.   Protocol for sampling lots of bulk agricultural commodities
   It is recommended that sampling of bulk commodities (grains, oilseeds) takes place in accordance with the general principles and methods of sampling described in ISO standards 6644 and 13690. In case of flowing commodities, the sampling period should be defined, according to ISO standard 6644, as: total off-loading time/total number of increments. In case of static sampling, increments should be collected at specific sampling points. Such sampling points should be uniformly distributed throughout the lot volume, according to the principles described in ISO 13690. The number of increments or sampling points (where the increment samples for creating the bulk sample and the file increment samples are taken) is defined according to lot size, as follows:

               Lot size in tonnes

               Size of the bulk sample in kg

               Number of incremental samples

               ≤ 50

               5

               10

               100

               10

               20

               250

               25

               50

               ≥ 500

               50

               100

         In case of lots from 50 to 500 tonnes, the size of the bulk sample should be 0,01 % of the total lot size. In case of lots smaller than 50 tonnes, the size of the bulk sample should be 5 kg. In case of lots larger than 500 tonnes, the size of the bulk sample should be 50 kg. At each sampling interval (systematic sampling) or sampling point (static sampling) an increment of 1kg should be collected and split into two portions of 0,5 kg: one to be used as an increment for the production of the bulk sample, the other to be stored as a file increment sample.
   Sampling of materials larger than grains (e.g. fruits, rhizomes, potatoes) should be carried out according to ISO standard 2859. Sampling of oilseed should be carried out according to ISO standard 542.
   2.2.   Protocol for the preparation of the analytical samples
   A multiple-step protocol is recommended in order to minimise costs and maximise statistical power according to pre-defined acceptance levels.
   Initially, the increment samples collected according to sub-section 2.1 are combined and mixed thoroughly, according to the procedures described in ISO standards 13690 and 6644, to form a bulk sample.
   The bulk sample is used to create an analytical sample, according to the procedures described in ISO standards 13690 and 6644, and analysed for the presence of GMOs according to ‘analytical test protocols/testing methods’, as outlined in section V. If the result of the analysis is close to the established threshold (threshold ± 50 % of its value), an estimation of the associated uncertainty may be necessary (a protocol for estimating this uncertainty is foreseen in Article 2.3).
   2.3.   Protocol for estimating uncertainty
   If there are 20 or fewer file increment samples, as in the case of smaller lots, all samples should be analysed individually and a decision as to labelling should be taken.
   If there are more than 20 file increment samples, 20 samples should be randomly selected and individually analysed for the presence of GMOs. Analytical results from these 20 samples are used to estimate the GMO content of the lot and its associated uncertainty expressed as standard deviation (SD). If this uncertainty associated to the analysis of the 20 samples is acceptable, no additional analysis of the remaining file increment samples is necessary. If, instead, the level of associated uncertainty is not acceptable, additional analysis of the remaining file increment samples should be carried out.
   The number of additional samples to be analysed should be established on a case-by-case basis, depending upon the level of uncertainty estimated from the initial 20 samples.
   The sequential analytical process should stop when either or both of the following is the case:

               —

               the estimated lot GMO content (mean GMO content of the analysed file increment samples) is above or below the established threshold ± 50 % of its value,

               —

               the uncertainty associated to the measured lot GMO content reaches an acceptable level (± 50 % of the mean analytical result).

         Where all samples have been tested a decision as to labelling should be taken.
   2.4.   Protocol for sampling lots of food and feed products
   Sampling of pre-packaged food and feed products should be carried out according to the procedures described in ISO 2859.
   Sampling of non pre-packaged food and feed products should be carried out according to the protocol described in sub-section 2.1.
   V.   ANALYTICAL TEST PROTOCOLS/TESTING METHODS
   1.   The Community Reference Laboratory established under Regulation (EC) No 1829/2003, and the nationally designated laboratories to the ENGL, will provide further guidance and assistance on the methods of testing falling within the scope of this Recommendation.
   2.   Laboratory requirements
   Member States’ laboratories carrying out the analyses in accordance with this Recommendation should be accredited according to EN ISO/IEC 17025/1999 or certified according to an appropriate scheme, and should regularly participate in proficiency testing schemes organised or co-ordinated by nationally or internationally recognised laboratories and/or by national, international organisations.
   Foodstuffs submitted for analysis in accordance with this Recommendation should be submitted to laboratories complying with the provisions of Article 3 of Directive 93/99/EEC.
   The analytical investigation of the samples should be carried out in accordance with the general laboratory and procedural requirements from the draft European standard prEN ISO 24276:2002.
   3.   Analytical sample preparation
   When taking samples, the aim is to obtain a representative and homogeneous laboratory sample without introducing secondary contamination. Member States should use the draft European standard prEN ISO 24276:2002 and prEN ISO 21571:2002 that indicate strategies for the homogenisation of the laboratory sample, the reduction of the laboratory sample to the test sample, the preparation of the test sample and the extraction of target analyte.
   Obtaining samples of seeds should be done according to the ISTA International Rules for Seed Testing. Obtaining plant-propagating material samples should be done according to current international methods, in so far such methods exist.
   4.   Analytical testing
   The current scientific knowledge does not allow for the detection and quantification of all GMOs or food and feed material produced from GMOs that have been approved for the placing on the market by using a single method.
   Several testing approaches are likely to provide equally reliable results. These may include one or a combination of the following:

               (a)

               qualitative methods, that may be event-specific, construct-specific or genetic element-specific;

               (b)

               quantitative methods, that may be event-specific, construct-specific or genetic element-specific.

         It may be appropriate to start with a screening method to test whether GMOs are present or not. If a positive result is obtained, specific methods for a genetic construct and/or transformation event should be carried out. If different GMOs containing the same genetic construct are present on the market, an event specific method is strongly recommended. The results of quantitative analysis should be expressed as the percentage of GM-DNA copy numbers in relation to target taxon specific DNA copy numbers calculated in terms of haploid genomes. Whenever possible, laboratories should use a method validated according to internationally recognised criteria (e.g. ISO 5725/1994 or IUPAC harmonised protocol), and include the use of certified reference material.
   An up-dated list of validated methods, including validated methods reported to Codex Alimentarius, is available in (http://biotech.jrc.it).
   5.   Absence of validated methods
   If a situation arises where no validated method exists, for instance to test whether GMOs are present or not, Member States’ laboratories should carry out an in-house validation of the method according to internationally recognised criteria. If no validated method is available for the matrix under analysis, it is recommended to select from the database available on http://biotech.jrc.it a method that has been validated on a similar matrix or raw material. Before adoption, the performance of such method should be tested on the matrix of interest.
   6.   Expression and interpretation of the results of the analyses
   In case of qualitative methods, the limit of detection (LOD) is the lowest level of analyte that can be reliably detected, given a known number of target taxon genome copies.
   In case of quantitative methods, the limit of quantification (LOQ) is the lowest level of analyte that can be reliable quantified, given a known number of target taxon genome copies. Results of quantitative analysis should be expressed as GM-DNA copy numbers in relation to target taxon specific DNA copy numbers calculated in terms of haploid genomes. If the GM target sequence content is below the limit of quantification (LOQ), the results shall only be expressed qualitatively.
   It is recommended to interpret the results according to the instructions given in the draft European standard prEN ISO 24276:2002.
   VI.   FINAL PROVISIONS
   Sampling and detection methodology, including relevant protocols and documents, should continue to be developed and up-graded taking account of any change in thresholds and threshold values established under Articles 12, 24 and 47 of Regulation (EC) No 1829/2003, Article 21(2) and (3) of Directive 2001/18/EC and under other Community legislation, the report under Article 12 of Regulation (EC) No 1830/2003 concerning the implementation of that regulation, advances in technology and developments in international fora.

      Done at Brussels, 4 October 2004.

            For the Commission

         Margot WALLSTRÖM

            Member of the Commission

      (1)  OJ L 268, 18.10.2003, p. 24.

      (2)  OJ L 106, 17.4.2001, p. 1. Directive as last amended by Regulation (EC) No 1830/2003.

      (3)  In accordance with Article 9(3) of Regulation (EC) No 1830/2003 relevant information concerning GMOs which are not authorised in the EU should, where available, be placed on a central register.