Avis juridique important

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31977H0534

77/534/EEC: Commission Recommendation of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities

Official Journal L 212 , 20/08/1977 P. 0037 - 0043 Spanish special edition: Chapter 06 Volume 2 P. 0015  Portuguese special edition Chapter 06 Volume 2 P. 0015

COMMISSION RECOMMENDATION of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities (77/534/EEC) EXPLANATORY MEMORANDUM    1. The objectives set out in Article 2 of the Treaty of Rome, particularly the harmonious development of economic activities in the Community, can only be achieved if sufficient capital is available, and the sources of capital are sufficiently diversified to enable investments in the common market to be financed as rationally as possible.  The role of the securities markets is to permit a very free interplay at all times between supply and demand for capital. Consequently, the proper working and the interpenetration of these markets must be regarded as an essential aspect of the establishment of a "common market" in capital.       2. Although the existing differences between the various financial markets in the nine Member States have not so far constituted an insuperable barrier to a number of international transactions, the lack of full information on the securities themselves and ignorance or misunderstanding of the rules governing the various markets have certainly helped to confine the investments of the great majority of savers to the markets of the countries in which they live or to a few well-known major international securities.  A reduction in these disparities would therefore tend to encourage the interpenetration of the member countries' markets, particularly if this is accompanied by improving the safeguards available to savers.   I. The European code of conduct in the context of approximating the laws of the Member States    3. On the basis of a Decision adopted in 1968 on the provision of information to the public on securities and conditions governing transactions in them, the Commission has already carried out a certain amount of harmonization work in this sector, covering various specific aspects such as "the content, checking and distribution of the prospectus to be published when securities issued by companies ... are admitted to official stock exchange quotation" (1) and coordination of "the conditions for the admission of securities to official stock exchange quotation" (2).       4. In parallel with the work of harmonization by Directives, and without prejudice to this method which is the only one capable of attaining the objective of true European integration, the Commission is of the opinion that it could recommend to the Member States - in a document covering a range of problems connected with dealing in securities - that they should ensure the observation of certain basic principles. These principles are already widely recognized in all the countries of Europe, but restating and applying them will help to create a common set of professional ethics in an ever-changing field ; this, in its turn, will considerably facilitate the process of harmonization through Directives by making clear in advance the approach the Commission will be adopting.  (1)OJ No C 131, 13.12.1972. (2)OJ No C 56, 10.3.1976.        5. This code of conduct, to be issued in the form of a Commission recommendation, must be seen separately from the Commission's other harmonization work in this sector:      - because the ethical approach has been given priority over the legislative approach;           - because the Commission is anxious to take full account of the dynamics of the financial market and of business life, and consciously to adopt a positive attitude which seeks to improve the machinery of the market and the effectiveness of those operating on it;           - because some of the topics dealt with in a very general way in the code may be, and in some cases already are, the subject of proposals for Directives where a strict legal framework will be appropriate.             II. Juridicial scope of the Commission's recommendation   6. The purpose of the present recommendation to the Member States is that they should ensure that those who are in a position to influence the workings of securities markets comply with the principles of the code of conduct ; the Commission has consulted those involved and has ascertained that there is already broad support for the principles of the code.       7. Although most States are now conscious of the need to supervise financial markets, it is only too obvious that methods of supervision still differ widely.  The recommendation allows for these differences ; it does not require the Member States to create special supervisory authorities, but merely to coordinate at national level the action of the various associations and bodies concerned.       8. It must, however, be stressed that the introduction of a code of conduct for securities transactions by means of a recommendation can in no way be an obstacle to the subsequent adoption of Directives or Regulations in one or other of the fields covered by it. A number of such instruments are in fact already under preparation.       9. In the same light, it is not impossible that certain States may feel legislation on some or all of the subjects covered by the code is necessary in order to comply with the recommendation.   III. The content of the code     10. The code sets out a fundamental objective, certain general principles and a number of supplementary principles.       11. The general principles are the key provisions of the code and are of overriding importance.  They take priority over and go well beyond the detailed principles which follow them, and which are merely illustrations of them.  It is the general principles which will enable the fundamental objective of the code to be complied with ; the content of the code must be understood and interpreted in the light of the general principles and not only by reference to the letter of the various supplementary principles.      A. The first general principle emphasizes the importance of this aspect of the interpretation of the code. It recalls that any transaction on the securities market must be carried out in compliance with the rules and practices in each State designed to ensure the proper working of the markets, the principles of the present code supplementing or strengthening such rules and practices.           B. The second general principle is that information provided to savers must be complete and accurate, since lack of knowledge is a source of imperfection in any market.  If the information is not provided, or if it is incomprehensible or wrongly interpreted by those for whom it is intended, or if it is deliberately slanted or distorted, the prices quoted may well become completely artificial and the market may cease to fulfil its role. Consequently, a large number of principles, in the second part, have been worked out to cover this problem (supplementary principles 7 to 15).  The need for properly distributed information covers a wide range of situations, as different as the issue or the negotiation of securities. Proposals for Directives have also been made in this connection (including a proposal concerning rules for admission to quotation).       C. The third general principle relates to equality of treatment for shareholders. Despite some criticism, the Commission has taken the view that the principle of equality of treatment should be retained, illustrating its application by two supplementary principles, with the accent mainly on a specific obligation to disclose information.  Supplementary principle 17 mentions equality of treatment for other shareholders where a controlling holding is transferred, but accepts that the protection of such shareholders could be achieved by other means ; this takes account of the  existence in Germany of a law limiting the powers of the dominant shareholder. It is important to realize that the fundamental principle of the equality of shareholders goes well beyond the scope of the code. It is not confined, even in the code, to the transfer of blocks of shares or to the few supplementary principles in the second part which may refer to this principle, such as the use of undisclosed information to the detriment of those not having access to it or the compartmentation of markets making it possible to give advantages to certain purchasers or sellers of securities over others.  Obviously, only a few of the situations in which such a principle might be relevant can be mentioned ; any attempt to give a more detailed list of the cases in which the principle would involve the risk of leaving loopholes which would probably soon be exploited. This principle lays down an approach and a spirit in which certain transactions must be carried out.       D. The fourth, fifth and sixth general principles are more particularly concerned with certain categories of persons the importance of whose role in the realization of the code's objectives is beyond doubt, namely the members of companies' supervisory boards, company directors and company managers (principle 4), financial intermediaries and persons concerned professionally in transactions in securities (principles 5 and 6).  The fourth general principle recalls first that the code applies in particular to the members of companies' supervisory boards, company directors and company managers and then mentions more particularly their duty to refrain from any action liable to hamper the proper working of the market in their security or to harm the other shareholders.  Objectionable action on the market in the securities of a company by directors or managers is a term to be interpreted in the broad sense, since there may well be instances of failure to act which are just as reprehensible, or more reprehensible, than positive action.  The fifth general principle recommends that persons professionally engaged in stock exchange transactions, or at least all "persons dealing regularly on the securities markets", avoid jeopardizing, by seeking immediate and unfair profit, the credibility and the effectiveness of the market which it is in their own interest to foster.  Conflicts of interest liable to arise, e.g. in the various departments of a bank, because of the diversity of the roles which a banker has to play for his various customers, led to the enunciation of the sixth general principle.  While conceding that it is very difficult to lay down precise limits as far as discretion is concerned, it should be emphasized that ways and means must be sought of avoiding conflicts of this nature. An example will illustrate how difficult it is to define the scope of this rule : should confidential information be kept so secret in a financial establishment that it would be wrong to advise against an investment (through without saying why the investment would be a bad one) when the aim would be not to achieve a gain but to avoid a loss ? In such a case, the banker should be free to give such informed advice to the customer, and this does indeed seem to be a reasonable solution ; however, only practice will show whether this interpretation of supplementary principle 8 can become the source of impropriety, and whether the Commission's recommendation will have to be strengthened on this specific point.      12. The supplementary principles  As their name suggests, their purpose is to supplement the general principles by making them clearer and illustrating them. They are not exhaustive ; they can be supplemented through the meetings of the liaison committee responsible for applying the code, in the light of actual situations encountered on the various European markets. The supplementary principles can be divided into two parts.      A. The first supplementary principles indicate a number of aspects of what the expression "fair behaviour" by financial intermediaries is to be taken to mean.  In addition to compliance with laws, regulations and current practice, supplementary principles 1 to 6 describe a number of rules of conduct specific to intermediaries.  The main rule concerns, of course, the recommendation to carry out orders on an organized market and the limits set to acting as counterparty and to offsetting orders. The Commission's recommendation does not advise formally against these operations, but it is felt that they should be brought under the supervision of the supervisory authorities where these authorities can in fact assume responsibility for them.        B. The following supplementary principles from rule 7 onwards until the end refer to the need for information.  It is clear that many improprieties would be avoided if accurate information were disclosed very quickly and the time during which important information was kept secret were thus cut to a minimum.  The principles relating to information can themselves be divided into several parts depending on whether they refer:      (a) to the creation of an artificial market (principle 7);           (b) to the improper use of price sensitive information (principles 8 to 10);           (c) to information to be provided to the public by the market authorities and companies (principles 11 to 14);           (d) to equality of information to which all investors must be entitled (principles 15 and 16) ; and lastly,           (e) to information to be provided where there is acquisition or, where appropriate, sale of a holding conferring de jure or de facto control of a company (principles 17 and 18).              IV. Implementation of the European code of conduct    13. In recommending the European code of conduct to the Member States, the Commission is of course well aware that a recommendation does not bind the States as to the results to be achieved ; the successful implementation of the code will therefore depend to a great extent on the active cooperation of those affected by it, in particular on the authority of the body or bodies which are to supervise implementation.       14. An essential feature is that, on the basis of existing structures, there should be in each Member State at least one body (supervisory authority, professional association, etc.) responsible for supervising the implementation of the code at national level.  However, the choice of the appropriate body is a matter for the Member State concerned.  The code does not require that these supervisory bodies should have the power normally vested in public authorities, since the code will not carry penal sanctions.       15. However, since the code should be complied with throughout the Community, it will be desirable that representatives of each of the supervisory bodies should come together in a liaison committee.  The committee could advise the Commission on the development of the code, in the light of the problems and practices encountered in its application.  For these reasons, under the provisions of the Treaty establishing the European Economic Community, and in particular Article 155 thereof, the Commission recommends the Member States, without prejudice to the Regulations or administrative provisions already in existence:    1. to ensure that those who operate on securities markets, or who are in a position to influence the working of these markets, respect the fundamental objective, the general principles and the supplementary provisions of the European code of conduct annexed hereto;       2. to this end, to coordinate the action of the professional associations and the national authorities charged, in each State, with the supervision of the proper functioning of the market and the conduct of those who operate on it;       3. to appoint one or more representatives from these associations or authorities who shall be responsible for informing the Commission each year, beginning one year after the transmission of this recommendation, of any measures adopted to implement it and of the experience in applying them, of any difficulties encountered and of any suggestions for additions or amendments to the European code of conduct;       4. to take any other measures they may consider necessary to promote the principles of the code and to supervise their application.          Done at Brussels, 25 July 1977.  For the Commission  Christopher TUGENDHAT  Member of the Commission   ANNEX EUROPEAN CODE OF CONDUCT RELATING TO TRANSACTIONS IN TRANSFERABLE SECURITIES  Fundamental objective  This code of conduct is to be seen in the general context of the development and integration of securities markets within the European Community, and seeks to establish certain general principles, supported by supplementary guidelines.  The code's objective is to establish standards of ethical behaviour on a Community-wide basis, so as to promote the effective functioning of securities markets (i.e. by creating the best possible conditions for matching supply and demand for capital), and to safeguard the public interest.  Definitions  In the code, the following expressions shall have the meanings ascribed to them below:    - "transferable securities" shall mean all securities which are or may be the subject of dealings on an organized market;       - "financial intermediaries" shall mean all persons professionally concerned in transactions in transferable securities;       - "principals" shall mean all persons occupying a strategic position with regard to a security and the market in it (e.g. company directors or managers, holders or acquirers of major shareholdings) and all those who are in a position to influence public opinion (e.g. financial analysts and journalists);       - "securities markets" shall mean the official stock exchange and all the markets organized by or under the supervision of the competent authorities and also all transactions in transferable securities as defined above including privately negotiated dealings between individuals in transferable securities - the word "market" (in the singular) being used only for the official stock exchange and the organized markets;       - "competent authorities" are those who have the tasks of ensuring the proper working of the market and the proper flow of information for the market at national level - principally the stock exchange authorities and supervisory agencies.         General principles    1. The objective of this code and the general principles should be observed even in cases not expressly covered by supplementary principles. Every transaction carried out on the securities markets should be in conformity with not only the letter but also the spirit of the laws and regulations in force in each Member State, and also the principles of good conduct already applying to these markets, or recommended by this code.       2. Information should be available to the public which is fair, accurate, clear, adequate and which is given in good time.  The information should be provided in such a way that its significance and intent can be easily understood. Any person, who by virtue of his profession or duties has the duty or the means of informing the public, is under a special obligation to ensure that it is kept properly informed, and that no particular class of persons attains a privileged position.       3. Equality of treatment should be guaranteed to all holders of securities of the same type issued by the same company ; in particular, any act resulting directly or indirectly in the transfer of a holding conferring de jure or de facto control of a company whose securities are dealt in on the market, should have regard to the right of all shareholders to be treated in the same fashion.       4. When the securities of a company are dealt in on the market, the members of its supervisory board, its directors, managers, and persons exercising de jure or de facto control, should act in such manner as to ensure that the fundamental objective of this code of conduct is realized. They have a particular duty to avoid any action which would operate to the detriment of fair dealings in the securities concerned, or prejudice the rights of other shareholders.       5. Persons dealing regularly on the securities markets should act fairly in accordance with the code's objective, even if this could in certain cases result in their having to forgo short-term gains.       6. Financial intermediaries should endeavour to avoid all conflicts of interest, whether as between themselves and their clients or other persons with whom they have a fiduciary relationship, or as between these two last-mentioned categories of persons. If, however, such a conflict arises, they should not seek to gain a direct or indirect personal advantage from the situation, and should avoid any prejudice to their clients or other persons with whom they have a fiduciary relationship.        Supplementary principles    1. All persons dealing regularly on the securities markets have a duty to promote investors' confidence in the fairness of the market by observance of the best standards of commercial probity and professional conduct.       2. Financial intermediaries have a special responsibility to observe the fundamental objective and the general principles of this code of conduct.   In particular, they should not connive at any breach by other persons of the provisions and principles referred to in the second paragraph of general principle 1, and they should not engage in manipulation which could distort the normal operation of the market.       3. No person should incite another person, whether or not an intermediary, to contravene the provisions and principles referred to in the second paragraph of general principle 1, nor exert pressure to obtain:      (1) information which is not public and which cannot be divulged without contravening rules relating to such information, or           (2) the carrying out of an irregular or dishonest transaction.                  4. Financial intermediaries should seek out and recommend the best conditions for their clients for the execution of orders which are given to them, while observing the fundamental objective and general principles of the code.  They should execute the orders which they are given on an organized market, unless the principal has given express instructions to the contrary. However, if the circumstances of the transaction or the nature of the securities makes it difficult even impossible to execute orders on an organized market, financial intermediaries may act as counterparties to their clients or offset orders outside the market, provided that they ensure that this does not prejudice their clients' interests, and provided that they are in a position to reply to any request on the part of the competent authorities as regards the justification for, the number of, and the conditions applying to, transactions carried out in this manner.       5. Financial intermediaries should refrain from encouraging sales or purchases with the sole object of generating commission.       6. Financial intermediaries should not disclose the identity of their principals except in cases when this is required by national regulations or the control authorities (and also in the investigation of crimes or other serious misdeeds).       7. Any attempt or manipulation by persons acting separately or in concert with others, which aims at or results in the rise or fall in the price of securities by fraudulent means, is contrary to the fundamental objective of this code.  Fraudulent means are considered in particular to be the publication or diffusion of information which is false, exaggerated or tendentious, and also the use of other devices aimed at disrupting the markets' normal operation.  Financial intermediaries and members of the supervisory board, the directors and managers of companies whose securities are dealt in on the securities markets, who become aware of any such attempt or manipulation should endeavour to take the necessary steps to thwart it. They should inform the competent authorities and the companies concerned without delay.       8. Financial intermediaries should endeavour to keep secret, even as between different departments or services of the same organization, information which they acquire in the course of carrying out their duties which is not yet public and which is price-sensitive.  In particular, financial intermediaries should not use such information in transactions which they carry out for their own account on the securities markets, nor in transactions upon which they advise their clients or carry out for their account.       9. Any person who comes into possession of information, in exercising his profession or carrying out his duties, which is not public and which relates to a company or to the market in its securities or to any event of general interest to the market, which is price-sensitive, should refrain from carrying out, directly or indirectly, any transaction in which such information is used, and should refrain from giving the information to another person so that he may profit from it before the information becomes public.       10. Securities markets should be sufficiently open to prevent their being fragmented, whereby the same security can be dealt in at the same time on different markets at different prices.       11. When a security is dealt in on the market the public should be informed not only of the different prices at which transactions take place, but also of the volume of dealings, unless the organization of the market makes it possible for the public to assess the liquidity of its investment by some other means.       12. Every company whose securities are dealt in on the market should publish periodically, and at least every six months, information which is clear, precise, complete and up-to-date concerning its business operations, results, and financial position. Any fact or important decision capable of having an appreciable effect on the price of securities should also be made public without delay.       13. When a fact or important decision, referred to in the preceding provision, cannot be made public without delay, for example because certain formalities have not yet been completed or because the company would be seriously prejudiced as a result, but the company nevertheless considers that there is a risk of leaks, the company should inform the competent authorities of the position. The latter should take the necessary steps to safeguard the market's proper operation until the relevant fact or decision can be made public. In particular they may, if this step appears unavoidable, suspend transactions for the necessary period.       14. It is desirable that a public issue of securities should be preceded by the publication of a prospectus. The existence of the prospectus and the place or places where it may be obtained should be indicated in any publicity concerning such issue.       15. No investor or group of investors should be given more favourable treatment as regards information than other investors or the public. All investors should have free access to information.        16. On the occasion of each issue of securities of the same type which are or may be dealt in on several markets at the same time, the issuer should endeavour not to give more favourable treatment to one market than to another.       17. Any transaction resulting in the transfer of a holding conferring control in the sense referred to in general principle 3 should not be carried out in a surreptitious fashion without informing the other shareholders and the market control authorities.  It is desirable that all the shareholders of the company whose control has changed hands should be offered the opportunity of disposing of their securities on identical conditions, unless they have the benefit of alternative safeguards which can be regarded as equivalent.       18. Any acquisition, or attempted acquisition on the market, separately or by concerted action, of a holding conferring control in the sense referred to in general principle 3, without informing the public, is against the objective of this code.


title: 2012/798/EU: Commission Recommendation of 12 December 2012 on the notification procedure provided for in Article 22(3) of Directive 2002/22/EC of the European Parliament and of the Council on universal service and users’ rights relating to electronic communications networks and services  Text with EEA relevance

text:
               19.12.2012

               EN

               Official Journal of the European Union

               L 349/72

         COMMISSION RECOMMENDATION
   of 12 December 2012
   on the notification procedure provided for in Article 22(3) of Directive 2002/22/EC of the European Parliament and of the Council on universal service and users’ rights relating to electronic communications networks and services
   (Text with EEA relevance)
   (2012/798/EU)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof,
   Having regard to Directive 2002/22/EC 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) (1), and in particular Article 22(3) thereof,
   Whereas:

               (1)

               A competitive market should help to provide end-users with a wide choice of content, applications and services and with the quality of service they require. National regulatory authorities should promote users’ ability to access and distribute information and to run applications and services. National regulatory authorities, entrusted with the implementation of Article 22(3) of Directive 2002/22/EC, may set minimum quality of service requirements to be imposed on an undertaking or undertakings providing public communications networks in order to prevent degradation of service and the hindering or slowing down of traffic over networks. Proposed measures should be suitably justified and proportionate in relation to the objectives and regulatory principles set out in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (2). When proposing such measures, the national regulatory authorities should take account of the guidelines issued by the Body of European Regulators for Electronic Communications (BEREC) (3).

               (2)

               The Commission should assess any proposed measures, thus ensuring that the functioning of the internal market is not adversely affected by the envisaged requirements. To that end, national regulatory authorities should provide the Commission with draft measures setting minimum quality of service requirements or amending previously imposed requirements under the procedure set forth in Article 22(3) of Directive 2002/22/EC. The notification mechanism should not involve any unnecessary administrative burden on the national regulatory authorities. Draft measures lifting any requirement previously imposed should at this stage only be notified for transparency purposes.

               (3)

               In order to enable the Commission to undertake its assessment, national regulatory authorities should provide it with their draft measures in good time before setting such requirements. This should be done by means of a notification summarising the grounds for action, the envisaged requirements and the proposed course of action. National regulatory authorities may discuss informally with the Commission their draft measures prior to notifying the Commission.

               (4)

               Certain minimum information concerning draft measures should be provided in order to allow the Commission to carry out an assessment. Account has to be taken of the need to ensure effective assessment, on the one hand, and to simplify administration as far as possible, on the other hand. To help simplify the assessment of notified draft measures and to make the process quicker, national regulatory authorities should use standard formats for notifications.

               (5)

               When the Commission makes comments or recommendations on proposed measures setting or amending minimum quality of service requirements, national regulatory authorities should take the utmost account of the Commission’s comments or recommendations when deciding on the requirements. National regulatory authorities should also contribute to ensuring transparency by way of communicating the adopted measures, including those lifting previously imposed requirements.

               (6)

               The Commission, for its part, should make publicly available the notification and all supporting information, as well as any comments or recommendations it has made or its notice on not having issued comments or recommendations. Where information is considered confidential by a national regulatory authority in accordance with EU and national rules on business confidentiality, the Commission and the national regulatory authority concerned should ensure such confidentiality in conformity with Article 5 of Directive 2002/21/EC,

         HAS ADOPTED THIS RECOMMENDATION:

      AIM AND SCOPE

               1.

               The aim of this Recommendation is to ensure a coherent approach, full transparency and a streamlined procedure when national regulatory authorities intend to take measures setting minimum quality of service requirements pursuant to Article 22(3) of Directive 2002/22/EC.

               2.

               To this end, national regulatory authorities should provide the Commission in good time with:

                           (a)

                           draft measures setting minimum quality of service requirements pursuant to Article 22(3) of Directive 2002/22/EC;

                           (b)

                           draft measures amending such previously imposed requirements;

                           (c)

                           draft measures lifting any such requirement previously imposed.

      DEFINITIONS

               3.

               Terms defined in Directive 2002/21/EC, in Directive 2002/22/EC and in other specific directives have the same meaning when used in this Recommendation. In addition:

                           ‘notification’ means the notification to the Commission by a national regulatory authority of a draft measure pursuant to Article 22(3) of Directive 2002/22/EC, accompanied by the notification form as provided in this Recommendation;

                           ‘draft measures’ are any measures concerning quality of service requirements intended to prevent degradation of service and the hindering or slowing down of traffic over networks that a national regulatory authority proposes to impose on an undertaking or undertakings providing public communications networks.

      NOTIFICATION PROCEDURE

               4.

               Draft measures as referred to in point 2 should be made available to the Commission by means of the notification form set out in the Annex. The draft measures thus notified should include the following information, where applicable:

                           (a)

                           a summary notification including:

                                       (i)

                                       the identity of the undertaking or undertakings providing public communications networks to which the draft measure applies;

                                       (ii)

                                       a summary of the grounds for action;

                                       (iii)

                                       the envisaged requirements to be imposed by the national regulatory authority;

                                       (iv)

                                       the proposed course of action;

                           (b)

                           the national regulatory authority’s draft measure and all supporting documents, including:

                                       (i)

                                       the relevant facts and circumstances of the case at issue that give rise to the envisaged imposition of minimum quality of service requirements on an undertaking or undertakings providing public communications networks;

                                       (ii)

                                       an assessment of the proposed measure, in particular in view of the policy objectives and regulatory principles pursuant to Article 8 of Directive 2002/21/EC;

                                       (iii)

                                       the provisional time frame for implementing the minimum quality of service requirements;

                                       (iv)

                                       the specific methods that will be used to monitor the application of such requirements;

                                       (v)

                                       the results of any public consultation carried out by the national regulatory authority on the proposed measure; and

                                       (vi)

                                       the opinion issued by the national competition authority, where provided.

               5.

               Notifications should be made by electronic means with a request for acknowledgement of receipt. Documents sent by electronic means will be presumed to have been received by the addressee on the day on which they were sent. Notifications will be registered in the order in which they are received.

               6.

               Notifications will become effective on the date on which the Commission registers them (date of registration). Notice will be given on the Commission’s website and by electronic means to all national regulatory authorities and BEREC of the date of registration of a notification, the subject matter of the notification and any supporting documentation received, while ensuring confidentiality in conformity with Article 5 of Directive 2002/21/EC.

               7.

               Notifications should be in an official language of the European Union. The notification form may be completed in an official language other than that of the draft measure. Any comments or recommendations adopted by the Commission pursuant to Article 22(3) of Directive 2002/22/EC will be in the language of the notified draft measure, translated where possible into the language used for the notification form.

               8.

               Where requested by a national regulatory authority, the Commission will informally discuss a draft measure prior to notification.

               9.

               A national regulatory authority may decide at any time to withdraw its notification, in which case the notified measure will be removed from the register and the national regulatory authority concerned, all other national regulatory authorities and BEREC will be informed. The Commission will publish a notice to that effect on its website.

      TIMING AND FOLLOW-UP

               10.

               In accordance with Article 22(3) of Directive 2002/22/EC, in particular when the Commission assesses a draft measure as referred to in point 2(a) or point 2(b), it may, having examined all the relevant information, make comments or recommendations on the draft measure, in particular when it considers that the proposed requirements would adversely affect the functioning of the internal market.
               The examination period should not exceed two months following the notification of the draft measure unless otherwise agreed between the Commission and the national regulatory authority.

               11.

               By way of derogation from point 10, within 15 days of notification of the draft measure:

                           (i)

                           the national regulatory authority or the Commission may seek to extend the examination period for a reasonable period of time, in particular because of the complexity of the assessment; or

                           (ii)

                           the national regulatory authority may seek to shorten the examination period where, in exceptional circumstances, it considers there is an urgent need to act, in order to safeguard competition and protect the interests of end-users.

                     When the national regulatory authority or the Commission seeks to extend or shorten the two-month examination period under (i) or (ii) above, it should state the reasons for doing so.

               12.

               The length of potential derogations from the two-month examination period referred to in points 11(i) and 11(ii) should be subject to a prior agreement by the Commission and the national regulatory authority having regard, in particular, to the complexity of the assessment and the interest of the end-users and other stakeholders in having in place clear and predictable rules on quality of service. Where an extension is sought in accordance with point 11(i), the total examination period agreed should not exceed three months following notification of the draft measure.
               By way of derogation from point 11, the Commission, following an initial review of a notified draft measure, may inform the national regulatory authority of a shortened examination period of one month.

               13.

               Once a derogation from the two-month examination period as referred to in points 11 and 12 is agreed upon, the Commission will inform the national regulatory authority concerned, all other national regulatory authorities and BEREC, and it will publish a notice to that effect on its website specifying the length of the examination period agreed.

               14.

               Without prejudice to points 11 and 12 above, following registration of a notification, the Commission, acting in accordance with Article 5(2) of Directive 2002/21/EC, may seek further information or clarification from the national regulatory authority concerned, specifying a deadline for the reply. The time frame of the notification procedure will be extended by the number of days passed until the reply to the request for information is received. National regulatory authorities should endeavour to provide in good time the information requested, where it is available.

               15.

               Where the Commission makes comments or recommendations on proposed measures setting or amending minimum quality of service requirements in accordance with Article 22(3) of Directive 2002/22/EC, it will notify the national regulatory authority concerned by electronic means and publish such comments or recommendations on its website.

               16.

               When the Commission has not issued comments or recommendations, it will inform the national regulatory authority concerned, all other national regulatory authorities and BEREC, and it will publish a notice to that effect on its website.

               17.

               A national regulatory authority should not adopt any draft measure under point 2(a) or point 2(b) before the end of the examination period, established in accordance with points 10 to 12. Should the Commission not issue any comments or recommendations within the given notification time frame, the national regulatory authority may adopt the notified draft measure. Draft measures under point 2(c) may be adopted by the national regulatory authorities at any time after the notification.

               18.

               Where a national regulatory authority adopts a measure pursuant to Article 22(3) of Directive 2002/22/EC, it should communicate the adopted measure to the Commission. The Commission will publish each adopted measure on its website, subject to rules on confidentiality in conformity with Article 5 of Directive 2002/21/EC.

      ADDITIONAL PROVISIONS

               19.

               In accordance with Regulation (EEC, Euratom) No 1182/71 of the Council (4), any period of time referred to in this Recommendation will be calculated as follows:

                           (a)

                           where a period expressed in days, weeks or months is to be calculated from the moment at which an event occurs, the day during which that event occurs is not counted as falling within the period in question;

                           (b)

                           a period expressed in weeks or months ends with the expiry of whichever day in the last week or month is the same day of the week or falls on the same date as the day during which the event from which the period is to be calculated occurred. Where, in a period expressed in months the day on which it should expire does not occur in the last month, the period ends with the expiry of the last day of that month;

                           (c)

                           time periods include official holidays, Saturdays and Sundays;

                           (d)

                           working days mean all days other than official and/or public holidays, Saturdays and Sundays. Should a time period end on a Saturday, Sunday or an official holiday, it will be extended until the end of the first following working day. The list of official holidays as determined by the Commission is published in the Official Journal of the European Union before the beginning of each year.

               20.

               The Commission, together with the national regulatory authorities and BEREC, will monitor the application of the notification procedure. The Commission will evaluate the necessity of reviewing this Recommendation as appropriate two years after the date of its publication in the Official Journal of the European Union.

               21.

               This Recommendation is addressed to the Member States.

      Done at Brussels, 12 December 2012.

            For the Commission

         Neelie KROES

            Vice-President

      (1)  OJ L 108, 24.4.2002, p. 51.

      (2)  OJ L 108, 24.4.2002, p. 33.

      (3)  See BEREC, Guidelines for Quality of Service in the scope of Net Neutrality, BoR (12) 32.

      (4)  OJ L 124, 8.6.1971, p. 1.

      ANNEX

         Notification form in respect of draft measures pursuant to Article 22(3) of Directive 2002/22/EC

      INTRODUCTION
      The notification form specifies the summary information to be provided by national regulatory authorities to the Commission when notifying draft measures in accordance with Article 22(3) of Directive 2002/22/EC.
      The Commission intends to discuss issues relating to the implementation of Article 22(3) with national regulatory authorities, especially during pre-notification meetings. Accordingly, national regulatory authorities are encouraged to consult the Commission on any aspect of the notification form and in particular on the kind of information they are requested to supply or, conversely, the possibility of dispensing with the obligation to provide certain information in relation to measures imposing minimum quality of service requirements pursuant to Article 22(3) of Directive 2002/22/EC.
      It is important to provide the Commission with a summary information including: (i) the identity of the undertaking or undertakings providing public communications networks subject to the draft measure; (ii) a summary of the grounds for action; (iii) the envisaged requirements to be imposed by the national regulatory authority; and (iv) the proposed course of action.
      The national regulatory authority’s draft measure, including adequate reasoning referring to the justification for and the proportionality of adopting the proposed measures in accordance with point 1 and point 2 of this Recommendation, should be attached to the notification form. The draft measure should include: (i) the relevant facts and circumstances of the particular case giving rise to the envisaged imposition of minimum quality of service requirements on an undertaking or undertakings providing public communications networks; (ii) an assessment of the proposed measure in view especially of the policy objectives and regulatory principles set out in Article 8 of Directive 2002/21/EC; (iii) the provisional time frame for implementing the minimum quality of service requirements and the specific methods that will be used to monitor the application of such requirements; (iv) the results of any prior public consultation carried out by the national regulatory authority; and (v) the opinion issued by the national competition authority, where provided.
      SUMMARY INFORMATION

                  Describe briefly the content of the notified draft measure:

                  Indicate the Article 22(3) notification reference of previously notified draft measures (if any):

                  Identify the undertaking or undertakings on which this draft measure imposes obligations:

                  Describe briefly the grounds for action:

                  Describe briefly the envisaged requirements:

                  Describe briefly the proposed course of action:

                  Reference of the notified draft measure (with internet link if available):


title: Commission Recommendation of 13 July 2010 on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops

text:
               22.7.2010

               EN

               Official Journal of the European Union

               C 200/1

         COMMISSION RECOMMENDATION
   of 13 July 2010
   on guidelines for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops
   2010/C 200/01
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union (EU), and in particular Article 292 thereof,
   Having regard to Article 26a, second paragraph, of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms (GMOs) and repealing Council Directive 90/220/EC (1),
   Whereas:

               (1)

               Article 26a of Directive 2001/18/EC provides that Member States may take appropriate measures to avoid the unintended presence of genetically modified organisms (GMOs) in other products. This applies in particular to avoiding the presence of GMOs in other crops, such as conventional or organic.

               (2)

               Farm structures and farming systems, and the economic and natural conditions under which farmers in the European Union operate, are extremely diverse. The diversity of farming systems and natural and economic conditions in the EU needs to be taken into consideration when designing measures to avoid the unintended presence of GM crops in other crops.

               (3)

               It may be necessary for Member States’ public authorities to define, in the areas where GMOs are cultivated, appropriate measures to allow consumers and producers a choice between conventional, organic and GM production (hereinafter referred to as ‘co-existence measures’).

               (4)

               The objective of co-existence measures in areas where GMOs are cultivated is to avoid unintended presence of GMOs in other products, preventing the potential economic loss and impact of the admixture of GM and non-GM crops (including organic crops).

               (5)

               In some cases, depending on economic and natural conditions, it may be necessary to exclude GMO cultivation from large areas. This possibility should rest on the demonstration by the Member States that, for those areas, other measures are not sufficient to prevent the unintended presence of GMOs in conventional or organic crops. Moreover the restriction measures needs to be proportionate to the objective (i.e. protection of particular needs of conventional or organic farmers).

               (6)

               In the context of combining the European Union authorisation system, based on science, with freedom for Member States to decide whether or not they wish to cultivate GM crops on their territory, the Commission considers that measures to avoid the unintended presence of GMOs in conventional and organic crops should be established at Member State level.

               (7)

               It is necessary to replace Recommendation 2003/556/EC (2) to better reflect the possibility provided by Article 26a for Member States to establish measures to avoid the unintended presence of GMOs in conventional and organic crops. Accordingly, the current guidelines limit their content to the main general principles for the development of co-existence measures, recognising that Member States need sufficient flexibility to take into account their regional and national specificities and the particular local needs of conventional, organic and other types of crops and products.

               (8)

               The European Coexistence Bureau (ECoB) will continue to develop together with Member States best practices for co-existence as well as technical guidelines on related issues,

         HAS ADOPTED THIS RECOMMENDATION:

               1.

               In developing national measures to avoid the unintended presence of GMOs in conventional and organic crops Member States should follow the guidelines provided in the Annex to this Recommendation.

               2.

               Recommendation 2003/556/EC is repealed.

               3.

               This Recommendation is addressed to the Member States.

      Done at Brussels, 13 July 2010.

            For the Commission

         John DALLI

            Member of the Commission

      (1)  OJ L 106, 17.4.2001, p. 1.

      (2)  Commission Recommendation on guidelines for the development of national strategies and best practices to ensure the co-existence of genetically modified crops with conventional and organic farming (OJ L 189, 29.7.2003, p. 36).

      ANNEX
      1.   Introduction

      1.1.   National co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops

      The cultivation of GMOs in the EU has implications for the organisation of agricultural production. On the one hand, the possibility of the unintended presence of genetically modified (GM) crops in non-GM crops (conventional and organic), raises the question as to how producer choice for the different production types can be ensured. In principle, farmers should be able to cultivate the types of agricultural crops they choose — be it GM crops, conventional or organic crops. This possibility should be combined with the wish of some farmers and operators to ensure that their crops have the lowest possible presence of GMOs.
      On the other hand, the issue is also linked to consumer choice. To provide European consumers with a choice between GM food and non-GM food , there should not only be a traceability and labelling system that functions properly, but also an agricultural sector that can provide the different types of products. The ability of the food industry to deliver a high degree of consumer choice goes hand in hand with the ability of the agricultural sector to maintain different production systems.
      The adventitious presence of GMOs above the tolerance threshold set out in EU legislation triggers the need for a crop that was intended to be a non-GMO crop, to be labelled as containing GMOs (1). This could cause a loss of income, due to a lower market price of the GM crop or difficulties in selling it. Moreover, additional costs might incur to farmers if they have to adopt monitoring systems and measures to minimise the admixture of GM and non-GM crops.
      However, the potential loss of income for producers of particular agriculture products such as organic products is not necessarily limited to exceeding the labelling threshold set out in EU legislation at 0,9 %. In certain cases, and depending on market demand and on the respective provisions of national legislations (e.g. some Member States have developed national standards for different types of ‘GM-free’ labelling), the presence of traces of GMOs in particular food crops — even at a level below 0,9 % — may cause economic damages to operators who would wish to market them as non-containing GMOs.
      Moreover, the admixture of GMOs has specific implications for producers of particular products such as organic farmers (2), impacting also the final consumer (3). Since such production is often more costly, stricter segregation efforts to avoid GMO presence may be necessary to guarantee the associated price premium. In addition, local constraints and characteristics may render these particular segregation needs very difficult and costly to be met efficiently in some geographical areas.
      It is therefore necessary to recognise that Member States need sufficient flexibility to take into consideration their particular regional and local needs with regard to GMO cultivation in order to achieve the lowest possible presence of GMOs in organic and other crops, when sufficient levels of purity cannot be achieved by other means.
      1.2.   Distinction between economic aspects of GMO cultivation and scientific aspects covered by the environmental risk assessment

      It is important to make a clear distinction between the economic aspects of GMO cultivation and the environmental risk assessment aspects dealt with under the authorisation procedures of Directive 2001/18/EC and of Regulation (EC) No 1829/2003 on GM food and feed.
      According to the procedure laid down in Directive 2001/18/EC and in Regulation (EC) No 1829/2003, the authorisation to release GMOs into the environment is subject to a comprehensive health and environmental risk assessment. The outcome of the risk assessment can be one of the following:

                  —

                  a risk of an adverse effect to the environment or health that cannot be managed is identified, in which case authorisation is refused,

                  —

                  no risk of adverse effects on the environment or health is identified, in which case authorisation is granted without requiring any additional management measures other than those specifically prescribed in the legislation,

                  —

                  risks are identified, but they can be managed with appropriate measures (e.g. physical separation and/or monitoring); in this case the authorisation will carry the obligation to implement environmental risk management measures.

            If a risk to the environment or health is identified after the authorisation has been granted, a procedure for the termination or modification of the EU consent or authorisation is provided respectively by Directive 2001/18/EC (Article 20.3) and Regulation (EC) No 1829/2003 (Articles 10 and 22). Moreover, Member States may invoke the special safeguard clause of Directive 2001/18/EC (Article 23) or the emergency measure of Regulation (EC) No 1829/2003 (Article 34) to provisionally restrict or prohibit the cultivation of GMOs on the basis of new or additional information concerning risks for health or the environment.
      Since only authorised GMOs can be cultivated in the EU (4) and the environmental and health aspects are already covered by the environmental risk assessment of the EU authorisation process, the pending issues still to be addressed in the context of co-existence concern the economic aspects associated with the admixture of GM and non-GM crops.
      1.3.   Recognition of diverse farming conditions in the EU

      European farmers work under extremely diverse conditions. Farm and field sizes, production systems, crop rotations and cropping patterns, as well as natural conditions, vary across Europe. This variability needs to be taken into account when devising, implementing, and monitoring national measures to avoid the unintended presence of GMOs in conventional and organic crops. The measures that are applied must be specific to the farm structures, farming systems, cropping patterns and natural conditions in a region.
      Strategies and best practices for GMO cultivation may need to be developed and implemented at national or regional level, with the participation of farmers and other stakeholders and taking account of national, regional and local factors.
      Therefore it is appropriate that measures to avoid the unintended presence of GMOs in conventional and organic crops should be developed at national and sometimes regional or local level.
      1.4.   Purpose and scope of the guidelines

      The present guidelines take the form of non-binding recommendations addressed to the Member States. They are intended to provide general principles for the development of national measures to avoid the unintended presence of GMOs in conventional and organic crops. It is recognised that many of the factors that are important in this context are specific to national, regional and local conditions.
      2.   General principles for the development of national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops

      2.1.   Transparency, cross-border co-operation and stakeholder involvement

      National measures to avoid the unintended presence of GMOs in conventional and organic crops should be developed in cooperation with all relevant stakeholders and in a transparent manner. Member States should ensure cross-border co-operation with neighbouring countries to guarantee the effective functioning of co-existence measures in border areas. In this respect they should provide and ensure adequate and timely information about the measures that they decide to put in place.
      2.2.   Proportionality

      Measures to avoid unintended presence of GMOs in other crops should be proportionate to the objective which is pursued (protection of the particular needs of conventional or organic farmers). Co-existence measures should avoid any unnecessary burden for farmers, seed producers, cooperatives and other operators associated with any production type. The choice of measures should take into account the regional and local constraints and characteristics, such as the shape and size of the fields in a region, the fragmentation and geographical dispersion of fields belonging to individual farms and regional farm management practices.
      2.3.   Levels of admixture to be attained through national co-existence measures to avoid the unintended presence of GMOs in conventional and organic crops

      National measures to avoid the unintended presence of GMOs in conventional and organic crops should take into account available knowledge on the probability and sources of admixture between GM and non-GM crops. These measures should be proportionate to the level of admixture to be pursued, which will depend on regional and national specificities and the particular local needs of conventional, organic and other types of crops and production.

                  2.3.1.

                  In some cases, the presence of GMO traces in food and feed has an economic effect only when they exceed the 0,9 % labelling threshold. In these cases, Member States should consider that measures to ensure compliance with the 0,9 % labelling threshold would be sufficient.

                  2.3.2.

                  Member States should consider that there may be no need to pursue specific levels of admixture where labelling a crop as GM has no economic implications.

                  2.3.3.

                  In several other cases, the potential loss of income for organic and some conventional producers (e.g. certain food producers) may be due to the presence of GMO traces at levels lower than 0,9 %. In those cases, and in the interest of protecting particular types of production, concerned Member States may define measures that aim at reaching levels of presence of GMOs in other crops lower than 0,9 %.

            Regardless of the level of admixture to be pursued through co-existence measures, the thresholds established in the EU legislation (5) will continue to apply for the labelling of GMO presence in food, feed and products intended for direct processing.
      2.4.   Measures to exclude GMO cultivation from large areas (‘GM-free areas’)

      Differences in regional aspects, such as climatic conditions (that influence the activity of pollinators and the transport of airborne pollen), topography, cropping patterns and crop rotation systems or farm structures (including surrounding structures, such as hedges, forests, uncultivated areas and the spatial arrangement of fields) may influence the degree of admixture between GM and conventional and organic crops and the measures necessary to avoid unintended presence of GMOs in other crops.
      Under certain economic and natural conditions, Member States should consider the possibility to exclude GMO cultivation from large areas of their territory to avoid the unintended presence of GMOs in conventional and organic crops. Such exclusion should rest on the demonstration by Member States that, for those areas, other measures are not enough to achieve sufficient levels of purity. Moreover, the restriction measures should be proportionate to the objective pursued (i.e. protection of particular needs of conventional and/or organic farming).
      2.5.   Liability rules

      Matters concerning financial compensation or liability for economic damage are the exclusive competence of Member States.
      3.   Exchange of information at EU level

      The Commission will continue gathering and coordinating relevant information based on on-going studies at EU and national level and offering technical advice to assist interested Member States in establishing national approaches to co-existence.
      The ongoing coordination through COEX-NET (6) and technical advice by the European Coexistence Bureau (ECoB) (7) will continue. ECoB will keep up to date an indicative catalogue of measures as well as a list of agronomic, natural and crop-specific factors to be considered when developing national measures to avoid the unintended presence of GMOs in conventional and organic crops. Member States should continue to contribute to the technical work of ECoB.

         (1)  In accordance with Articles 12 and 24 of Regulation (EC) No 1829/2003, the labelling obligation does not apply to foods/feed containing material which contains, consists of or is produced from GMOs in a proportion no higher than 0,9 % of: (i) the food ingredients considered individually; or (ii) food consisting of a single ingredient; or (iii) the feed and of each feed of which it is composed, provided that this presence is adventitious or technically unavoidable.

         (2)  In accordance with Article Regulation (EC) No 834/2007 on organic production and labelling of organic products, GMOs shall not be used in organic production, including as seeds, food or feed (Article 9(1)). The aim is to have the lowest possible presence of GMOs in organic products (see recital 10).

         (3)  COM(2009) 153 — Report from the Commission to the Council and the European Parliament on the coexistence of genetically modified crops with conventional and organic farming.

         (4)  In order to be cultivated in the EU, the GMO must have been authorised for cultivation under the Directive 2001/18/EC or under Regulation (EC) No 1829/2003.

         (5)  Articles 12 and 24 of Regulation (EC) No 1829/2003 and 21.3 of Directive 2001/18/EC.

         (6)  The Network Group for the Exchange and Coordination of Information concerning Coexistence of Genetically Modified, Conventional and Organic Crops (COEX-NET) is aimed at facilitating the exchange of information among the Member States and the Commission.

         (7)  The ECoB develops crop-specific Best Practice Documents for technical coexistence measures. The ECoB consists of a Secretariat and crop-specific Technical Working Groups comprised of technical representatives of Member States.


Avis juridique important

|

31994H0181

COUNCIL RECOMMENDATION of 21 March 1994 concerning the discharge to be given to the Commission in respect of the implementation of the operations of the European Development Fund (1979) (Fifth EDF) for the financial year 1992

Official Journal L 084 , 29/03/1994 P. 0045 - 0045

COUNCIL RECOMMENDATION of 21 March 1994 concerning the discharge to be given to the Commission in respect of the implementation of the operations of the European Development Fund (1979) (Fifth EDF) for the financial year 1992 (94/181/EC)THE COUNCIL OF THE EUROPEAN UNION,  Having regard to the Treaty establishing the European Community, and in particular Article 206 thereof,  Having regard to the Second ACP-EEC Convention, signed at Lomé on 31 October 1979,  Having regard to Council Decision 80/1186/EEC of 16 December 1980 on the association of the overseas countries and territories with the European Economic Community (1),  Having regard to the 1979 Internal Agreement on the financing and administration of Community aid (2), signed on 20 November 1979, and in particular Article 29 (3) thereof,  Having regard to the Financial Regulation of 17 March 1981 applicable to the Fifth European Development Fund (3), and in particular Article 66 to 70 thereof,  Having examined the revenue and expenditure account and the balance sheet relating to the operations of the European Development Fund (1979) (Fifth EDF) as at 31 December 1992 and the Court of Auditors' report relating to the financial year 1992  together with the Commission's replies (4),  Whereas, pursuant to Article 29 (3) of the Internal Agreement, the discharge for the management of the European Development Fund (1979) (Fifth EDF) must be given to the Commission by the European Parliament on a recommendation from the Council;  Whereas the overall implementation by the Commission of the operations of the European Development Fund (1979) (Fifth EDF) during the financial year 1992 has been satisfactory,  HEREBY RECOMMENDSthat the European Parliament give the Commission a discharge in respect of the implementation of the operations of the European Development Fund (1979) (Fifth EDF) for the financial year 1992.  Done at Brussels, 21 March 1994.  For the Council The President Y. PAPANTONIOU  (1) OJ No L 361, 31. 12. 1980, p. 1.  (2) OJ No L 347, 22. 12. 1980, p. 210.  (3) OJ No L 101, 11. 4. 1981, p. 12.  (4) OJ No C 309, 16. 11. 1993, pp. 231-254 and 353-360.


Avis juridique important

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32003H0561

Commission Recommendation of 23 July 2003 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (Text with EEA relevance) (notified under document number C(2003) 2647)

Official Journal L 190 , 30/07/2003 P. 0013 - 0018

Commission Recommendationof 23 July 2003on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services(notified under document number C(2003) 2647)(Text with EEA relevance)(2003/561/EC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)(1) and in particular Article 19(1) thereof,Whereas:(1) Under the new regulatory framework for electronic communications networks and services, national regulatory authorities have an obligation to contribute to the development of the internal market by, inter alia, cooperating with each other and with the Commission in a transparent manner to ensure the development of consistent regulatory practice and the consistent application of the Directives making up the new regulatory framework.(2) In order to ensure that decisions at national level do not have an adverse effect on the single market or the objectives pursued by the new regulatory framework, national regulatory authorities must notify to the Commission and other national regulatory authorities those draft measures identified in Article 7(3) of Directive 2002/21/EC (Framework Directive).(3) As an additional requirement, national regulatory authorities must obtain Commission authorisation for obligations covered by the second subparagraph of Article 8(3) of Directive 2002/19/EC of the European Parliament and of the Council (Access Directive)(2), which constitutes a separate process.(4) The Commission will give national regulatory authorities, if they so request, an opportunity to discuss any draft measure, before formal notification thereof under Article 7 of Directive 2002/21/EC (Framework Directive) and Article 8(3) of Directive 2002/19/EC (Access Directive). If, pursuant to Article 7(4) of Directive 2002/21/EC (Framework Directive), the Commission has indicated to the national regulatory authority that it considers that the draft measure would create a barrier to the single market or if it has serious doubts as to its compatibility with the Community law, the national regulatory authority concerned will be given an early opportunity to express its views in relation to the issues raised by the Commission.(5) Directive 2002/21/EC (Framework Directive) lays down certain binding time limits for the consideration of notifications under Article 7.(6) In order to facilitate and ensure the effectiveness of the cooperation and consultation mechanism set out in Article 7 of Directive 2002/21/EC (Framework Directive) and in the interests of legal certainty, clear rules are needed for the notification process and the examination by the Commission of a notification and for calculating the legal time limits referred to above.(7) It would likewise be beneficial to clarify procedural arrangements in the context of the second subparagraph of Article 8(3) of Directive 2002/19/EC (Access Directive).(8) In order to simplify and expedite the examination of a notified draft measure, it is desirable for national regulatory authorities to use a standard format for notifications (summary notification form).(9) The European Regulators Group established by Commission Decision 2002/627/EC(3) has recognised the need for these arrangements.(10) In order to comply with the objectives laid down in Article 8 of Directive 2002/21/EC (Framework Directive), and in particular with the need to ensure the development of consistent regulatory practices and the consistent application of that Directive, it is essential that the notification mechanism laid down in Article 7 thereof is fully respected and as effective as possible.(11) The Communications Committee has delivered its opinion in accordance with Article 22(2) of Directive 2002/21/EC (the Framework Directive),HEREBY RECOMMENDS THAT:1. Terms defined in Directive 2002/21/EC (Framework Directive) and the specific directives have the same meaning when used in this Recommendation. In addition:- "recommendation on relevant markets" means Commission Recommendation 2003/311/EC 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 communications networks and services(4);- "Notification" means the notification to the Commission by a national regulatory authority of a draft measure pursuant to Article 7(3) of Directive 2002/21/EC (Framework Directive) or a request pursuant to the second subparagraph of Article 8(3) of Directive 2002/19/EC (Access Directive), accompanied by the summary notification form as provided in this Recommendation (Annex I).2. Notifications should be effected, where possible, by electronic mail with a request for acknowledgement of receipt.Documents sent by electronic mail will be presumed to have been received by the addressee on the day on which they were sent.Subject to point 6 below, notifications and supporting documents will be registered in the order in which they have been received.3. Notifications will become effective on the date on which the Commission registers them ("date of registration"). The date of registration will be the date on which a complete notification is received by the Commission.Notice will be given on the Commission's website and by electronic means to all national regulatory authorities of the date of registration of the notification, the subject matter of the notification and of any supporting documentation received.4. Notifications should be in any of the official languages of the Community. The accompanying summary notification form (Annex) may be in a language other than that of the draft measure in order to facilitate the effective consultation of all other national regulatory authorities.Any comments made or decision adopted by the Commission pursuant to Article 7 of Directive 2002/21/EC (Framework Directive) will be in the language of the notified draft measure, translated where possible into the language used in the summary notification form.5. Draft measures notified by a national regulatory authority should be accompanied by the documentation necessary for the Commission to carry out its tasks. Draft measures should be sufficiently reasoned.6. Notifications should include each of the following where applicable:(a) the relevant product or service market;(b) the relevant geographic market;(c) the main undertaking(s) active on the relevant market;(d) the results of the analysis of the relevant market, in particular the findings as to the presence or absence of effective competition therein, together with the reasons therefore;(e) where appropriate, the undertaking(s) to be designated as having, individually or jointly with others, significant market power within the meaning of Article 14 of Directive 2002/21/EC (Framework Directive) and the reasoning, evidence and/or any other relevant factual information in support of such designation;(f) the results of prior public consultation carried out by the national regulatory authority;(g) the opinion issued by the national competition authority, where provided;(h) elements to show that at the time of notification to the Commission, appropriate steps have been taken to notify the draft measure to national regulatory authorities in all other Member States;(i) in the case of notification of draft measures which fall within the scope of Articles 5 or 8 of Directive 2002/19/EC (Access Directive) or Article 16 of Directive 2002/22/EC of the European Parliament and of the Council (Universal Service Directive)(5), the specific regulatory obligation(s) proposed to address the lack of effective competition in the relevant market concerned or, in the case where a relevant market is found to be effectively competitive and such obligations have already been imposed in relation to it, the measures proposed to withdraw those obligations.7. Where a draft measure defines, for the purposes of the market analysis, a relevant market which differs from those in the Recommendation on relevant markets, national regulatory authorities should provide sufficient reasoning as to the criteria relied upon for such a market definition.8. Notifications made in accordance with the second paragraph of Article 8(3) of Directive 2002/19/EC (Access Directive) should also contain adequate reasoning as to why obligations other than those listed in Articles 9 to 13 thereof should be imposed on operators with significant market power.9. Notifications falling within the scope of Article 8(5) of Directive 2002/19/EC (Access Directive) should also contain adequate reasoning as to why the intended measures are required in order to comply with international commitments.10. Notifications that include the applicable information within the meaning of point 6 will be presumed complete. Where the information, including documents, contained in the notification is incomplete in a material respect, the Commission will within five working days of receipt inform the national regulatory authority concerned and specify the extent to which it considers the notification to be incomplete. The notification will not be registered for so long as the national regulatory authority concerned has not provided the necessary information. In such cases for the purposes of Article 7 of Directive 2002/21/EC (Framework Directive) the notification will become effective on the date on which the Commission receives the complete information.11. Without prejudice to point 6 above, following registration of a notification, the Commission, in accordance with Article 5(2) of Directive 2002/21/EC (Framework Directive), may seek further information or clarification from the national regulatory authority concerned. National regulatory authorities should endeavour to provide the information requested within three working days, where this is readily available.12. Where the Commission makes comments in accordance with Article 7(3) of Directive 2002/21/EC (Framework Directive), it will notify the national regulatory authority concerned by electronic means and publish such comments on its website.13. Where a national regulatory authority makes comments in accordance with Article 7(3) of Directive 2002/21/EC (Framework Directive), it shall communicate those comments by electronic means to the Commission and the other national regulatory authorities.14. Where the Commission in applying Article 7(4) of Directive 2002/21/EC (Framework Directive) considers that a draft measure would create a barrier to the single market or it has serious doubts as to its compatibility with Community law, and in particular the objectives referred to in Article 8 of Directive 2002/21/EC (Framework Directive); or subsequently(a) withdraws the objections mentioned above, or(b) takes a decision requiring a national regulatory authority to withdraw the draft measure,it will notify the national regulatory authority concerned by electronic means and post a notice on its website.15. With regard to notifications made pursuant to the second paragraph of Article 8(3) of Directive 2002/19/EC (Access Directive), the Commission, acting in accordance with Article 14(2) thereof will normally take a decision authorising or preventing the national authority from adopting the proposed draft measure within a period not exceeding three months. The Commission may decide to extend this period for a further two months in view of the difficulties raised.16. A national regulatory authority may at any time decide to withdraw the notified draft measure, in which case the notified measure will be removed from the register. The Commission will publish an appropriate notice to that effect on its website.17. Where a national regulatory authority that has received comments from the Commission or another national regulatory authority made in accordance with Article 7(3) of Directive 2002/21/EC (Framework Directive), adopts the draft measure, on the Commission's request it shall provide information to the Commission and other national regulatory authorities of the manner in which it took the utmost account of the comments made.18. When requested by a national regulatory authority, the Commission will informally discuss a draft measure prior to notification.19. In accordance with Council Regulation (EEC, Euratom) No 1182/71(6), any period of time referred to in Directive 2002/21/EC (Framework Directive) or in this Recommendation will be calculated as follows:(a) where a period expressed in days, weeks or months is to be calculated from the moment at which an event occurs, the day during which that event occurs shall not be counted as falling within the period in question;(b) a period expressed in weeks or in months shall end with the expiry of whichever day in the last week or month is the same day of the week or falls on the same date as the day during which the event from which the period is to be calculated occurred. If in a period expressed in months the day on which it should expire does not occur in the last month, the period shall end with the expiry of the last day of that month;(c) time periods shall include official holidays, Saturdays and Sundays;(d) working days means all days other than official and/or public holidays, Saturdays and Sundays.Where the time period would end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day. The list of official holidays as determined by the Commission is published in the Official Journal of the European Union before the beginning of each year.20. The Commission, together with the national regulatory authorities, will evaluate the necessity of reviewing these rules, in principle no earlier than 25 July 2004.21. This Recommendation is addressed to the Member States.Done at Brussels, 23 July 2003.For the CommissionErkki LiikanenMember of the Commission(1) OJ L 108, 24.4.2002, p. 33.(2) OJ L 108, 24.4.2002, p. 7.(3) OJ L 200, 30.7.2002, p. 38.(4) OJ L 114, 8.5.2003, p. 45.(5) OJ L 108, 24.4.2002, p. 51.(6) OJ L 124, 8.6.1971, p. 1.ANNEXFORM RELATING TO NOTIFICATIONS OF DRAFT MEASURES PURSUANT TO ARTICLE 7 OF DIRECTIVE 2002/21/EC (FRAMEWORK DIRECTIVE)("Summary Notification Form")IntroductionThis form specifies the summary information to be provided by national regulatory authorities to the Commission when notifying draft measures in accordance with Article 7 of Directive 2002/21/EC (Framework Directive).The Commission intends to discuss with national regulatory authorities issues related to the implementation of Article 7, especially during pre-notification meetings. Accordingly, national regulatory authorities are encouraged to consult the Commission on any aspect of this form and in particular on which kind of information they are requested to supply or conversely the possibility to dispense with the obligation to provide certain information in relation to the market analysis carried out by national regulatory authorities pursuant to Articles 15 and 16 of Directive 2002/21/EC (Framework Directive).Correct and complete informationAll information submitted by national regulatory authorities should be correct and complete and reproduced in a summarised manner in the form prescribed below. The form does not intend to replace the notified draft measure but should enable the Commission and the national regulatory authorities of other Member States to verify that the notified draft measure does indeed contain, by reference to the information contained in the form, all information which is necessary in order for the Commission to carry out its tasks under Article 7 of Directive 2002/21/EC (Framework Directive) within the time period prescribed therein.The information required by this form should be set out in the sections and paragraph numbers of the form with cross-references to the body of the draft measure where this information is to be found.LanguageThe form should be completed in one of the official languages of the European Community and may be different from the language used in the notified draft measure. Any opinion issued or decision taken by the Commission in accordance with Article 7 of Directive 2002/21/EC (Framework Directive) will be in the language of the notified draft measure, translated where possible into the language used in the summary notification form.SUMMARY NOTIFICATION FORMSECTION 1 Market definitionPlease state where applicable:1.1. the affected relevant product/service market. Is this market mentioned in the recommendation on relevant markets?1.2. the affected relevant geographic market;1.3. a brief summary of the opinion of the national competition authority where provided;1.4. a brief overview of the results of the public consultation to date on the proposed market definition (for example, how many comments were received, which respondents agreed with the proposed market definition, which respondents disagreed with it);1.5. where the defined relevant market is different from those listed in the recommendation on relevant markets, a summary of the main reasons which justified the proposed market definition by reference to Section 2 of the Commission's Guidelines on the definition of the relevant market and the assessment of significant market power(1), and the three main criteria mentioned in recitals 9 to 16 of the recommendation on relevant markets and Section 3.2 of the accompanying Explanatory Memorandum.SECTION 2 Designation of undertakings with significant market powerPlease state where applicable:2.1. the name(s) of the undertaking(s) designated as having individually or jointly significant market power.Where applicable, the name(s) of the undertaking(s) which is (are) considered to no longer have significant market power;2.2. the criteria relied upon for deciding to designate or not an undertaking as having individually or jointly with others significant market power;2.3. the name of the main undertakings (competitors) present/active in the relevant market;2.4. the market shares of the undertakings mentioned above and the basis of their calculation (e.g., turnover, number of subscribers).Please provide a brief summary of:2.5. the opinion of the national competition authority, where provided;2.6. the results of the public consultation to date on the proposed designation(s) as undertaking(s) having significant market power (e.g., total number of comments received, numbers agreeing/disagreeing).SECTION 3 Regulatory obligationsPlease state where applicable:3.1. the legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 9 to 13 of Directive 2002/19/EC (Access Directive));3.2. the reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC (Framework Directive). Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found;3.3. if the remedies proposed are other than those set out in Articles 9 to 13 of Directive 2002/19/EC (Access Directive), please indicate which are the "exceptional circumstances" within the meaning of Article 8(3) thereof which justify the imposition of such remedies. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.SECTION 4 Compliance with international obligationsIn relation to the third indent of the first subparagraph of Article 8(3) of Directive 2002/19/EC (Access Directive), please state where applicable:4.1. whether the proposed draft measure intends to impose, amend or withdraw obligations on market players as provided for in Article 8(5) of Directive 2002/19/EC (Access Directive);4.2. the name(s) of the undertaking(s) concerned;4.3. which are the international commitments entered by the Community and its Member States that need to be respected.(1) Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications and services, OJ C 165, 11.7.2002, p. 6.


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		52013DC0248

			Recommendation for a COUNCIL DECISION designating the European Capital of Culture for the year 2017 in Denmark and in Cyprus and the European Capital of Culture for the year 2018 in Malta /* COM/2013/0248 final */

			   	EXPLANATORY MEMORANDUM
Decision No1622/2006/EC of the European
Parliament and the Council of 24 October 2006 establishing a Community action
for the European Capital of Culture event for the years 2007 to 2019,[1] lays down the procedure of
designation of the European Capitals of Culture. According to Article 2 of this
Decision, from 2009 onwards, two cities of two Member States will be designated
as European Capitals of Culture, in turn, according to the chronological order
set out in the Annex to the Decision. Denmark and Cyprus are entitled to host
the event in 2017. Malta is one of the two Member States entitled to host the
event in 2018, alongside the Netherlands, and decided to proceed with its selection
procedure one year ahead of the normal time schedule.
The nomination for European Capitals of
Culture concerning the years 2017 and 2018 is submitted to the following
process.
A call for submissions of applications is
published by each of the Member States concerned no later than six years before
the event. A selection panel composed of 13 independent experts in the cultural
sector is convened for a pre selection meeting no later than five years before
the event. It assesses the applications received against the criteria laid down
in article 4 of Decision No1622/2006/EC and agrees on a short list of candidate
cities which have to be considered further after completing their application.
Each of the Member States concerned
convenes the panel for final selection, 9 months after the pre-selection
meeting. After an extensive evaluation of the pre selected cities based on the
criteria laid down for the action, the panel recommends one city for the title
in each Member State concerned.
On the basis of these recommendations, each
Member State nominates one city to be European Capital of Culture and notifies the
European Parliament, the Council, the Commission and the Committee of the
Regions no later than four years before the event in question is due to begin.
The European Parliament may forward an
opinion to the Commission no later than 3 months after receipt of the
nominations.
The Council, acting on a recommendation
from the Commission, officially designates the cities in question for the year
for which they have been nominated.
After completion of the two-round
competition described above, the panel recommended that Aarhus (Denmark) and Paphos
(Cyprus) host the event in 2017 in its respective reports dated September 2012
and that Valletta (Malta) host the event in 2018 in its report dated November
2012. The three Member States notified these nominations to the European
Parliament, the Council, the Commission and the Committee of the Regions in the
Autumn 2012.
The European Parliament forwarded its
positive opinions to the Commission in February 2013.
Consequently, the Commission, in accordance
with Article 9.3 of Decision No1622/2006/EC submits to the Council the appended
recommendation for the official designation of Aarhus and Paphos for the 2017
European Capital of Culture event in Denmark and Cyprus respectively and for
the official designation of Valletta for the 2018 European Capital of Culture
event in Malta.
Recommendation for a
COUNCIL DECISION
designating the European Capital of
Culture for the year 2017 in Denmark and in Cyprus and the European Capital of
Culture for the year 2018 in Malta
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
functioning of the European Union,
Having regard to Decision No1622/2006/EC of
the European Parliament and of the Council of 24 October 2006 establishing a
Community action for the European Capital of Culture event for the years 2007
to 2019[2],
and in particular Article 9(3) thereof,
Having regard
to the recommendation from the European Commission,
Having regard
to the Selection Panel reports of September 2012 regarding the selection
process of the European Capitals of Culture in Denmark and Cyprus,
Having regard
to the Selection Panel report of November 2012 regarding the selection process
of the European Capital of Culture in Malta,
Whereas :
Considering
that the criteria referred to in Article 4 of Decision No1622/2006/EC are
entirely fulfilled,
HAS ADOPTED THIS DECISION:
Article 1
Aarhus and Paphos are designated as
“European Capital of Culture 2017” respectively in Denmark and Cyprus.
Valletta is designated as “European Capital
of Culture 2018” in Malta.
Article 2
This Decision shall enter into force on the
day following that of its publication in the Official Journal of the
European Union.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               OJ L 304 of 3.11.2006, p. 1.
[2]               OJ L 304 of 3.11.2006, p. 1.