title: RECOMMANDATION DE LA COMMISSION AU CONSEIL concernant l'approbation d'un accord de coopération dans le domaine des utilisations pacifiques de l'énergie nucléaire entre la Communauté européenne de l'énergie atomique (Euratom) et le gouvernement de l'Australie

text:
   EN
EN    EN
 ---pagebreak---                    EUROPEAN COMMISSION
                                                  Brussels, 2.3.2011
                                                  SEC(2011) 243 final
         RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL
   on the approval of an Agreement for cooperation in the peaceful uses of nuclear energy
    between the European Atomic Energy Community (Euratom) and the Government of
                                        Australia
EN                                                                                EN
 ---pagebreak---            RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL
    on the approval of an Agreement for cooperation in the peaceful uses of nuclear energy
     between the European Atomic Energy Community (Euratom) and the Government of
                                               Australia
   A.        EXPLANATORY MEMORANDUM
   1.        INTRODUCTION
   There is an existing Euratom-Australia Agreement which will expire in early 2012. Since
   Australia is one of the main uranium suppliers to the EU nuclear power plant operators, there
   is a need to maintain the agreement in order to provide a stable legal framework for relations
   in this domain.
   The scope of the current agreement is limited to transfers of nuclear material from Australia to
   the European Atomic Energy Community. Therefore, in accordance with the directives
   negotiated with the Council, the Commission has enlarged the scope of the Agreement to
   include transfers of materials, equipment and technology.
   While certain EU Member States have bilateral agreements with Australia, this Euratom
   Agreement ensures equal treatment for all Member States and their operators, and reduces the
   need to have numerous bilateral agreements between Australia and individual EU Member
   States.
   The Agreement will provide for a broad cooperation in the area of peaceful uses of nuclear
   energy setting up the overall framework for political, technical and industrial cooperation. It
   will create a legal framework both for the governments and the industrial operators of the
   Parties – the Government of Australia and the Community - which will facilitate the
   cooperation in this field.
   2.        IMPORTANCE OF THE AGREEMENT
   For Euratom, the interest in signing this Agreement is based on the fact that Australia is one
   of its main suppliers of natural uranium. Facilitating trade in the nuclear domain contributes to
   the Community's policy of security of energy supply and diversification of energy sources.
   The importance of the conclusion of this Agreement is mainly based on commercial needs.
   Australia is the world’s third largest producer of uranium with a production capacity of about
   8 000 t U/year (19% of global uranium production). Australia's uranium reserves are the
   world's largest, with 23% of the total. Production and exports average about 10,000 tonnes of
   uranium oxide (8500 tU) per year.
   Australia's uranium is sold strictly for electrical power generation only, and safeguards are in
   place to ensure this. Australia is a party to the Nuclear Non-Proliferation Treaty (NPT) as a
   non-nuclear weapons state. Its safeguards agreement under the NPT came into force in 1974
   and it was the first country in the world to bring into force the Additional Protocol in relation
EN                                                  2                                                EN
 ---pagebreak---    to this - in 1998. In addition to these international arrangements Australia requires customer
   countries to have entered into a nuclear cooperation agreement with Australia.
   Furthermore, the conclusion of the present Agreement reaffirms the commitments of
   Australia, the Community and the Governments of the Member States of the European Union,
   to the strengthening and strict application of safeguards, export controls, and physical
   protection.
   3.        GENERAL SCHEME OF THE AGREEMENT
   The objective of the Agreement is cooperation in the peaceful uses of nuclear energy between
   Euratom and Australia. The scope of cooperation (Article III) mainly comprises nuclear
   safety, the supply of nuclear material, technology transfer, transfer of equipment and radiation
   protection, safeguards, use of radioisotopes. The present Agreement builds on the Agreement
   from 1981, which only covered transfers of nuclear material from Australia to Euratom. The
   revised Agreement is bi-directional in nature.
   With the aim of updating, it revises outdated provisions and, as far as possible, consolidates
   the main text with its annexes and the attached exchange of notes. The current provisions on
   non-proliferation, safeguards, physical protection, transfer and retransfer, as well as on
   consultation and administrative arrangements, confidentiality and dispute resolution as set out
   in the existing Agreement and in the exchange of notes between the Government of Australia
   and the European Atomic Energy Community were kept.
   In order to respond to the wish of both Parties for extension of its scope and in line with the
   most recent developments, like the enlargements of the Community, the new Agreement also
   includes additional provisions, considered as of importance by the concerned Euratom
   Member States and the Government of Australia.
   In terms of structure, the Agreement further defines the items subject to this Agreement
   (Article IV) – different forms of nuclear and non-nuclear material and describes in detail
   modalities for trade in nuclear material, non-nuclear material and equipment (Article VI). The
   Agreement contains a series of provisions determining criteria for the transfer of nuclear
   material as well as the way of resolving conflicting situations. It is underlined that nuclear
   material shall be used for peaceful purposes and in compliance with the relevant safeguards
   agreements (in the Community, Euratom safeguards pursuant to the Euratom Treaty as well as
   the IAEA Safeguards Agreements and their Additional Protocols1). Transports of nuclear
   materials should be in conformity with the provisions of the International Convention on the
   Physical Protection of Nuclear Material2.
   In addition, the Agreement restates the principles of free movement of nuclear materials
   within the Community. Intellectual property issues (Article IX) are dealt with in detail, as
   well as the modalities of Exchange of Information (Article X). In order to guarantee the
   smooth implementation of the Agreement, a specific article on Consultation and Arbitration
   (Article XV) is being introduced, if questions on the correct application of the Agreement
   should arise. The initial duration of the Agreement will be 30 years, i.e. mirroring the 1981
   Agreement (Article XVIII).
   1
           INFCIRC/540
   2
           INFCIRC/274/Rev.l
EN                                                 3                                                EN
 ---pagebreak---    B.       RECOMMENDATION
   The Commission considers that the Agreement for cooperation in the peaceful uses of nuclear
   energy between the European Atomic Energy Community and the Government of Australia,
   whose adoption is proposed:
   – is in conformity with the negotiating directives issued by the Council on 9 June 2010;
   – fulfils the goals of simplifying, updating and extending the current agreement;
   – confirms the clear commitment of the two Parties in favour of non-proliferation and a high
      level of nuclear safety in order to guarantee the peaceful and safe use of nuclear energy;
   – is in line with the Community's policy on energy security of supply;
   – will further strengthen the very good relations between the EU and Australia in the field of
      energy policy cooperation.
   The Commission therefore recommends to the Council to approve, pursuant to the second
   paragraph of Article 101 of the Treaty establishing the European Atomic Energy Community,
   the Agreement for cooperation in the peaceful uses of nuclear energy between the European
   Atomic Energy Community and the Government of Australia, in Annex.
EN                                                 4                                              EN
 ---pagebreak---                                               ANNEX
           AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND
        THE EUROPEAN ATOMIC ENERGY COMMUNITY (EURATOM) FOR CO-
              OPERATION IN THE PEACEFUL USES OF NUCLEAR ENERGY
   The Government of Australia and the European Atomic Energy Community (Euratom),
   hereinafter referred to as "the Community",
   DESIRING to promote their cooperation in the use of nuclear energy for peaceful purposes;
   CONSIDERING that the Agreement between the Government of Australia and the European
   Atomic Energy Community concerning transfers of nuclear material from Australia to the
   European Atomic Energy Community done at Brussels on 21 September 1981 is limited in
   scope and expires in 2012;
   REAFFIRMING the strong commitment of the Government of Australia, the Community and
   the Governments of its Member States to nuclear non-proliferation including the
   strengthening and efficient application of the related safeguards and export control regimes
   under which co-operation in the peaceful uses of nuclear energy between Australia and the
   Community is carried out;
   REAFFIRMING the support of the Government of Australia, the Community and the
   Governments of its Member States for the objectives of the International Atomic Energy
   Agency (hereinafter referred to as "IAEA") and its safeguards system;
   REAFFIRMING the strong commitment of the Government of Australia, the Community and
   its Member States to the Convention on the Physical Protection of Nuclear Material done at
   New York and Vienna on 3 March 1980 and entering into force generally on 8 February 1987
   and for Australia on 22 October 1987;
   WHEREAS Australia and all Member States of the Community are Parties to the Treaty on
   the Non-Proliferation of Nuclear Weapons done at Washington, London and Moscow on 1
   July 1968 and entering into force on 5 March 1970, hereinafter referred to as "NPT";
   NOTING that nuclear safeguards are applied in all Member States of the Community pursuant
   to both the Treaty establishing the European Atomic Energy Community (hereinafter referred
   to as "the Euratom Treaty") and the safeguards agreements concluded between the
   Community, its Member States and the IAEA;
   NOTING that the Governments of Australia and of all Member States of the Community
   participate in the Nuclear Suppliers Group;
   NOTING that account should be taken of the commitments made by the Government of
   Australia and the Government of each Member State of the Community in the framework of
   the Nuclear Suppliers Group;
EN                                               5                                              EN
 ---pagebreak---    RECOGNISING the principle of the free movement of nuclear material, equipment,
   non-nuclear material, and technology within the Community;
   AGREEING that the Agreement should be in compliance with international obligations of the
   European Union and the Government of Australia under the World Trade Organisation
   agreements;
   REITERATING commitments of the Government of Australia and the Governments of
   Member States of the Community to their bilateral agreements in the peaceful uses of nuclear
   energy;
   HAVE AGREED AS FOLLOWS:
                                               Article I
                                              Definitions
   For the purpose of this Agreement, except as otherwise specified:
   1.       "by-product" means special fissionable material derived by one or more processes,
            whether successive or not, from nuclear material transferred pursuant to this
            Agreement.
   2.       "competent authority" means:
            –      for the Government of Australia, the Australian Safeguards and Non-
                   Proliferation Office;
            –      for the Community, the European Commission
            or such other authority as the Party concerned may at any time notify in writing to
            the other Party.
   3.       "equipment" means those items listed in Sections 1, 3, 4, 5, 6 and 7 of Annex B of
            IAEA INFCIRC/254/Rev.9/Part 1.
   4.       "intellectual property" shall have the meaning set out in Article 2 of the Convention
            establishing the World Intellectual Property Organization, done at Stockholm on 14
            July 1967, as amended on 28 September 1979, and may include other subject matter
            as mutually determined by the Parties.
   5.       "military purpose" includes but it is not limited to direct military applications of
            nuclear energy such as nuclear weapons or other nuclear explosive devices
            (including research and development, or production of tritium for use in such nuclear
            weapons and other nuclear explosive devices), military nuclear propulsion,
            munitions, including depleted uranium munitions, military nuclear rocket engines or
            military nuclear reactors but does not include indirect uses such as power for a
            military base drawn from a civil power network, or production of radioisotopes to be
            used for diagnosis in a military hospital.
   6.       "non-nuclear material" means:
EN                                                 6                                              EN
 ---pagebreak---             –      Deuterium and heavy water (deuterium oxide) and any other deuterium
                   compound in which the ratio of deuterium to hydrogen exceeds 1:5000, for use
                   in a nuclear reactor, as defined in paragraph (1.1) of Annex B of IAEA
                   INFCIRC/254/Rev.9/Part 1 (Guidelines for Nuclear Transfers),
            –      Nuclear grade graphite: graphite, for use in a nuclear reactor, as defined in
                   paragraph (1.1) of Annex B of IAEA INFCIRC/254/Rev.9/Part 1 (Guidelines
                   for Nuclear Transfers), having a purity level better than 5 parts per million
                   boron equivalent and with a density greater than 1.50 grams per cubic
                   centimetre.
   7.       "nuclear material" means any source material or special fissionable material as those
            terms are defined in Article XX of the Statute of the IAEA done at the Headquarters
            of the United Nations on 23 October 1956, and which entered into force on 29 July
            1957 (hereinafter referred to as the IAEA's Statute). Any determination by the Board
            of Governors of the IAEA under Article XX of the IAEA's Statute that amends the
            list of material considered to be "source material" or "special fissionable material",
            shall only have effect under this Agreement when the Parties have informed each
            other in writing that they accept that determination.
   8.       "Parties" means the Government of Australia on the one hand and the Community on
            the other hand;
            "the Community" means both:
            –      the legal person created by the Euratom Treaty; and
            –      the territories to which the Euratom Treaty applies.
   9.       "persons" means any natural person, undertaking or other entity governed by the
            applicable laws and regulations in the respective territorial jurisdiction of the Parties,
            but does not include the Parties to this Agreement.
   10.      "technology" has the meaning as defined in Annex                         A    of   IAEA
            INFCIRC/254/Rev.9/Part 1 (Guidelines for Nuclear Transfers).
                                                Article II
                                                Objective
   The objective of this Agreement is to provide a framework for co-operation between the
   Parties in the peaceful uses of nuclear energy on the basis of mutual benefit and reciprocity
   and without prejudice to the respective competences of each Party.
                                                Article III
                                          Scope of co-operation
   1.       Nuclear material, equipment, non-nuclear material or nuclear material produced as a
            by-product shall be used only for peaceful purposes; and shall not be used for any
            military purpose.
EN                                                  7                                                  EN
 ---pagebreak---    2. The co-operation envisaged between the Parties under this Agreement may include,
      inter alia:
      a)     the supply of nuclear material, non-nuclear material, and equipment;
      b)     technology transfer, including supply of information relevant to this Article,
             providing that individual Member States of the Community had expressed their
             willingness to place such transfers in the framework of this Agreement;
      c)     transfer of equipment which has been designated by the Parties as equipment
             designed, constructed or operated on the basis of or by the use of information
             obtained from the other Party and which is within the jurisdiction of one of the
             Parties at the time of designation;
      d)     the procurement of equipment and devices;
      e)     access to and use of equipment and facilities;
      f)     management of spent fuel and radioactive waste;
      g)     nuclear safety and radiation protection;
      h)     safeguards, and physical protection of nuclear material and facilities;
      i)     use of radioisotopes and radiation in agriculture, industry and medicine;
      j)     geological and geophysical exploration, development, production, further
             processing and use of uranium resources;
      k)     nuclear forensics;
      l)     regulatory aspects of the peaceful uses of nuclear energy; and
      m)     other areas relevant to the subject of this Agreement, insofar as they are
             covered by the Parties’ respective programmes.
   3. Co-operation shall extend to nuclear research and development activities of mutual
      interest to the Parties according to complementary provisions to be agreed by the
      Parties.
   4. The co-operation referred to in paragraph 2 of this Article may be undertaken in the
      following forms:
      a)     organisation of symposia and seminars;
      b)     organisation of joint projects and establishment of joint ventures;
      c)     establishment of bilateral working groups for implementation of the joint
             projects;
      d)     supply of nuclear fuel cycle services including uranium conversion and
             isotopic enrichment;
EN                                            8                                               EN
 ---pagebreak---       e)    trade and commercial cooperation relating to the nuclear fuel cycle;
      f)    transfer of industrial equipment and industrial technology; and
      g)    other forms of cooperation as may be determined by the Parties in writing.
   5. The co-operation in specific areas outlined in paragraph 2 of this Article may be
      implemented as necessary through arrangements between a legal entity of Australia
      and a legal entity of the Community, which the respective competent authority
      notifies the other competent authority as being duly authorised to implement such co-
      operation. Any such arrangements shall include provisions dealing with intellectual
      property rights protection where such rights exist or arise.
                                         Article IV
                              Items subject to the Agreement
   1. This Agreement shall apply to:
      a)    Nuclear material, non-nuclear material, or equipment, transferred between the
            Parties or their respective persons, whether directly or through a third country.
            Such nuclear material, non-nuclear material, or equipment shall become
            subject to this Agreement upon its entry into the territorial jurisdiction of the
            receiving Party. The supplying Party shall notify the receiving Party in writing
            of the intended transfer, and the receiving Party shall confirm in writing that
            such item will be held subject to this Agreement. The proposed recipient, if
            other than the receiving Party, will be an authorised person under the territorial
            jurisdiction of the receiving Party.
      b)    All forms of nuclear material prepared by chemical or physical processes or
            isotopic separation provided that the quantity of nuclear material so prepared
            shall only be regarded as falling within the scope of this Agreement in the same
            proportion as the quantity of nuclear material used in its preparation, and which
            is subject to this Agreement, bears to the total quantity of nuclear material so
            used;
      c)    All generations of nuclear material produced by neutron irradiation provided
            that the quantity of nuclear material so produced shall only be regarded as
            falling within the scope of the Agreement in the same proportion as the
            quantity of nuclear material which is subject to this Agreement and which,
            used in its production, contributes to this production;
      d)    Nuclear material produced, processed or used in equipment where:
            (i) non-nuclear material subject to this Agreement was principally or wholly
            responsible for the production, processing or use of that nuclear material and;
EN                                           9                                                 EN
 ---pagebreak---                (ii) equipment3 subject to this Agreement was wholly responsible for the
               production, processing or use of that nuclear material and;
               (iii) equipment3 has been designated by the supplying Party after consultation
               with the recipient Party as being designed, constructed, manufactured or
               operated on the basis of, or by the use of technology transferred subject to this
               Agreement.
        e)     Nuclear material which was subject to the Agreement concerning transfers of
               nuclear material from Australia to the European Atomic Energy Community,
               done at Brussels on 21 September 1981;
        f)     Nuclear material which was transferred from Member States of the Community
               to Australia pursuant to bilateral agreements, and which is notified to the
               Community at the time this Agreement comes into force;
        g)     Nuclear material recovered for nuclear purposes from ores or concentrates,
               other than uranium ore concentrates, which are transferred between the Parties
               directly or through a third country, and which recovery has been notified by the
               transferring Party as being of relevance to the Agreement4.
   2.   Nuclear material, non-nuclear material, or equipment, referred to in paragraph 1 of
        this Article shall remain subject to the provisions of this Agreement until it has been
        determined, in accordance with the procedures set out in the Administrative
        Arrangement:
        a)     that such item has been re-transferred beyond the jurisdiction of the receiving
               Party in accordance with paragraphs 5 and 6 of Article VII of this Agreement;
        b)     that nuclear material is no longer usable for any nuclear activity relevant from
               the point of view of safeguards referred to in paragraph 1 of Article VII or has
               become practically irrecoverable. For the purpose of determining when nuclear
               material subject to this Agreement is no longer usable or is no longer
               practicably recoverable for processing into a form in which it is usable for any
               nuclear activity relevant from the point of view of safeguards, both Parties
               shall accept a determination made by the IAEA in accordance with the
               provisions for the termination of safeguards of the relevant safeguards
               agreement to which the IAEA is a party;
        c)     that non-nuclear material and equipment are no longer usable for nuclear
               purposes; or
        d)     that the Parties mutually determine that it should no longer be subject to this
               Agreement.
   3
      For the purpose of this article, equipment is restricted to items 1.1, 3, 4, 5, 6, 7 of Annex B of
      INFCIRC/254/Rev.9/Part 1, but does not include their sub-components.
   4
      If such nuclear material cannot be subject to the all of the conditions set out in Article VII, then such
      nuclear material shall not be used until the Parties have consulted and decided on safeguards and
      physical protection measures to apply.
EN                                                  10                                                          EN
 ---pagebreak---    3.       Technology transfer shall be subject to this Agreement for the Member States of the
            Community that have expressed their willingness to place such transfers in the
            framework of this Agreement through a written notification from the Member State
            concerned to the European Commission. A prior notification between the Member
            State(s) concerned and the European Commission, on one side, and the Government
            of Australia, on the other, should be given before each transfer.
                                               Article V
                                             Enrichment
   Prior to the enrichment of any nuclear material subject to this Agreement to twenty (20)
   percent or more in the isotope U 235, the written consent of both Parties shall be obtained and
   the IAEA shall be notified. Such consent shall describe the conditions under which the
   uranium enriched to twenty (20) percent or more may be used. An arrangement to facilitate
   the implementation of this provision may be established by the Parties.
                                              Article VI
                  Trade in nuclear material, non-nuclear material or equipment
   1.       Any transfer of nuclear material, non-nuclear material or equipment carried out
            pursuant to the co-operation activities shall be made in accordance with the relevant
            international commitments of the Community, the Member States of the Community,
            and Australia in relation to peaceful uses of nuclear energy as listed in Article VII.
   2.       The Parties shall, to such extent as is practicable, assist each other in the
            procurement, by either Party or by persons within the Community or under the
            jurisdiction of the Government of Australia, of nuclear material, non-nuclear material
            or equipment.
   3.       The continuation of the co-operation envisaged in the present Agreement shall be
            contingent upon the mutually satisfactory application of the system for safeguards
            and control established by the Community in accordance with the Euratom Treaty
            and of the system for safeguards and control of nuclear material, non-nuclear
            material or equipment established by the Government of Australia.
   4.       The provisions of this Agreement shall not be used to impede the free movement of
            nuclear material, non-nuclear material, equipment, and technology within the
            territory of the Community.
   5.       Transfers of nuclear material and appropriate services shall be carried out under fair
            commercial conditions. The implementation of this paragraph shall be without
            prejudice to the Euratom Treaty and its derived legislation, and to Australian laws
            and regulations.
   6.       Further to paragraphs 5 and 6 of Article VII any retransfers of any items or
            technology subject to this Agreement outside the jurisdiction of the Parties shall only
            be made in the framework of the commitments undertaken by the Governments of
            individual Member States of the Community and the Government of Australia within
            the group of nuclear supplier countries known as the Nuclear Suppliers Group. In
            particular, the Guidelines for Nuclear Transfers, as set out in IAEA
EN                                                11                                                EN
 ---pagebreak---       INFCIRC/254/Rev. 9/Part 1, shall apply to retransfers of any items subject to this
      Agreement.
                                        Article VII
                      Nuclear Material Subject to the Agreement
   1. Nuclear material subject to this agreement shall be subject to the following
      conditions:
      a)    In the Community, to the Euratom safeguards pursuant to the Euratom Treaty
            and to the IAEA safeguards pursuant to the following safeguards agreements,
            as they may be revised and replaced, and in accordance with the Non-
            Proliferation Treaty:
            i)    The Agreement between the Community's non-nuclear weapon Member
                  States, the European Atomic Energy Community and the International
                  Atomic Energy Agency, done at Brussels on 5 April 1973 and which
                  entered into force on 21 February 1977 (published as IAEA
                  INFCIRC/193);
            ii)   The Agreement between France, the European Atomic Energy
                  Community and the International Atomic Energy Agency, done in July
                  1978 and which entered into force on 12 September 1981 (published as
                  IAEA INFCIRC/290);
            iii)  The Agreement between the United Kingdom of Great Britain and
                  Northern Ireland, the European Atomic Energy Community and the
                  International Atomic Energy Agency for the application of safeguards in
                  the United Kingdom of Great Britain and Northern Ireland in connection
                  with the Treaty on the Non-Proliferation of Nuclear Weapons, done at
                  Vienna on 6 September 1976 and which entered into force on 14 August
                  1978 (published as IAEA INFCIRC/263);
            iv)   The Additional Protocols concluded on 22 September 1998 which
                  entered into force on 30 April 2004 on the basis of the IAEA
                  INFCIRC/540 (corrected) (Strengthened Safeguards System, Part II);
      b)    In Australia, to the IAEA safeguards pursuant to the Agreement between
            Australia and the International Atomic Energy Agency for the Application of
            Safeguards in connection with the Treaty on the Non-Proliferation of Nuclear
            Weapons, which entered into force on 10 July 1974 (IAEA INFCIRC/217);
            supplemented by a Protocol Additional to the Agreement between Australia
            and the International Atomic Energy Agency for the application of safeguards
            in connection with the Treaty on the Non-Proliferation of Nuclear Weapons,
            done at Vienna on 23 September 1997 and which entered into force on 12
            December 1998 (published as IAEA INFCIRC/217/Add.1).
   2. In the event of the application of any of the Agreements with the IAEA referred to in
      paragraph 1 of this Article being suspended or terminated for any reason within the
      Community or Australia, the relevant Party shall enter into an agreement with the
      IAEA which provides for effectiveness and coverage equivalent to that provided by
EN                                          12                                              EN
 ---pagebreak---       the safeguards agreements referred to in provisions a) or b) of paragraph 1 of this
      Article, or, if that is not possible,
      a)     the Community, as far as it is concerned, shall apply safeguards based on the
             Euratom safeguards system, which provides for effectiveness and coverage
             equivalent to that provided by the safeguards agreements referred to in
             provision a) of paragraph 1 of this article or, if that is not possible;
      b)     the Parties shall enter into arrangements for the application of safeguards,
             which provide for effectiveness and coverage equivalent to that provided by
             the safeguards agreements referred to in provisions a) or b) of paragraph 1 of
             this Article.
   3. Application of physical protection measures shall be at all times at levels which
      satisfy as a minimum the criteria set out in Annex C of IAEA
      INFCIRC/254/Rev.9/Part 1 (Guidelines for Nuclear Transfers); supplementary to this
      document, the Member States of the Community, the European Commission, as
      appropriate, and Australia will refer when applying physical protection measures to
      their obligations under the Convention on the Physical Protection of Nuclear
      Material done on 3 March 1980, including any amendments that are in force for each
      Party and the recommendations in IAEA INFCIRC/225/Rev.4 corrected (Physical
      Protection of Nuclear Material). Transport shall be subject to the provisions of the
      International Convention on the Physical Protection of Nuclear Material done on 3
      March 1980, including any amendments that are in force for each Party, and to the
      IAEA Regulations for the Safe Transport of Radioactive Material (IAEA Safety
      Standards Series No. TS-R-1).
   4. Nuclear safety and waste management shall be subject to the Convention on Nuclear
      Safety, done at Vienna on 17 June 1994 and which entered into force on 24 October
      1996 (IAEA INFCIRC/449), the Joint Convention on the Safety of Spent Fuel
      Management and on the Safety of Radioactive Waste Management, done at Vienna
      on 5 September 1997 and which entered into force on 18 June 2001 (IAEA
      INFCIRC/546), the Convention on Assistance in the Case of a Nuclear Accident or
      Radiological Emergency, done at Vienna on 26 September 1986 and which entered
      into force on 26 February 1987 (IAEA INFCIRC/336), the Convention on Early
      Notification of a Nuclear Accident, done at Vienna on 26 September 1986 and which
      entered into force on 27 October 1986 (IAEA INFCIRC/335).
   5. Nuclear material subject to this Agreement shall not be transferred beyond the
      territorial jurisdiction of the receiving Party without the prior written consent of the
      supplier Party, except in accordance with paragraph 6 of this Article.
   6. Upon entry into force of this agreement, the Parties shall exchange lists of third
      countries to which retransfers by the other Party pursuant to paragraph 5 of this
      Article are authorised. Each Party shall notify the other Party of changes to its list of
      third countries.
EN                                            13                                                EN
 ---pagebreak---                                               Article VIII
                                             Reprocessing
   The Parties grant their consent to the reprocessing of nuclear fuel containing nuclear material
   subject to this Agreement provided that such reprocessing takes place in accordance with the
   conditions set out in Annex A.
                                               Article IX
                                         Intellectual Property
   The Parties shall ensure the adequate and effective protection of intellectual property created
   and technology transferred pursuant to the co-operation under this Agreement in accordance
   with documented arrangements between the Parties and with the relevant international
   agreements and the laws and regulations in force in Australia and in the European Union, the
   Community or their Member States.
                                               Article X
                                      Exchange of information
   1.       (a) The Parties may make available to each other and to persons within the
            Community or under the jurisdiction of the Government of Australia, information at
            their disposal on matters within the scope of this Agreement.
            (b)    The supply of information received from any third party under terms
                   preventing such supply shall be excluded from the scope of this Agreement.
            (c)    Information regarded by the supplying Party as being of commercial value
                   shall be supplied only under terms and conditions specified by the Parties.
   2.       (a) The Parties shall encourage and facilitate the exchange of information between
            persons under the jurisdiction of the Government of Australia on the one hand and
            persons within the Community on the other hand on matters within the scope of this
            Agreement.
            (b)    Information owned by such persons shall be supplied only with the consent of
                   and under terms and conditions to be specified by those persons.
   3.       The Parties shall take all appropriate precautions to preserve the confidentiality of
            information received as a result of the operation of this Agreement.
                                               Article XI
                                  Implementation of the Agreement
   1.       The provisions of this Agreement shall be implemented in good faith in such a
            manner as to avoid hampering, delay or undue interference in the nuclear activities in
            Australia and in the Community and so as to be consistent with the prudent
            management practices required for the economic and safe conduct of nuclear
            activities.
EN                                                 14                                              EN
 ---pagebreak---    2. The provisions of this Agreement shall not be used for the purpose of seeking
      commercial or industrial advantages, nor of interfering with the commercial or
      industrial interests, whether domestic or international, of either Party or authorised
      persons, nor of interfering with the nuclear policy of either Party or of the
      Governments of the Member States of the Community, nor of hindering the
      promotion of the peaceful and non-explosive uses of nuclear energy, nor of hindering
      the movement of items subject to or notified to be made subject to this Agreement
      either within the respective territorial jurisdiction of the Parties or between the
      Government of Australia and the Community.
   3. The accounting of nuclear material subject to this Agreement will be based on the
      fungibility of the nuclear material and the principles of proportionality and
      equivalence of nuclear materials as set out in the Administrative Arrangements
      pursuant to Article XII of this Agreement.
   4. Any amendment to IAEA Information Circulars mentioned in Articles I, IV, VI and
      VII of this Agreement shall have effect under this Agreement only when the Parties
      have informed each other in writing through diplomatic channels that they accept
      such amendment.
                                       Article XII
                              Administrative arrangements
   1. The competent authorities of both Parties shall establish administrative arrangements
      to ensure the effective implementation of the provisions of this Agreement.
   2. An administrative arrangement established pursuant to paragraph 1 of this Article
      may be amended as mutually determined in writing by the competent authorities.
                                       Article XIII
                                      Applicable law
   1. The co-operation provided for in this Agreement shall be in accordance with the
      laws, regulations in force in Australia and within the European Union as well as with
      the international agreements entered into by the Parties. In the case of the
      Community the applicable law includes the Euratom Treaty and its derived
      legislation.
   2. Each Party shall be responsible toward the other for ensuring that the provisions of
      this Agreement are accepted and complied with as to Australia by all of its
      governmental enterprises and by all persons under its jurisdiction, and as to the
      Community by all persons within the Community to whom authorisation has been
      granted pursuant to this Agreement.
EN                                          15                                               EN
 ---pagebreak---                                         Article XIV
                                     Non-Compliance
   1. If either Party or any Member State of the Community violates any of the material
      provisions of the Agreement, the other Party may, on giving written notice to that
      effect, suspend or terminate in whole or in part co-operation under this Agreement.
   2. Before either Party takes action to that effect, the Parties shall consult with a view to
      reaching a decision on whether corrective measures are needed, and if so, the
      corrective measures to be taken and the time-scale within which such measures shall
      be taken.
   3. Action pursuant to paragraph 1 of this Article shall be taken only if there has been
      failure to implement the decided measures within the time determined by the Parties
      or, in the event of failure to find a solution, after the lapse of a reasonable period of
      time. In these cases, the supplier Party shall have the right to require the return of
      nuclear material subject to this Agreement.
   4. In the event of detonation of a nuclear explosive device by a non-nuclear weapon
      Member State of the Community or by Australia, the aforementioned provisions
      would apply
                                         Article XV
                              Consultation and arbitration
   1. At the request of either Party, representatives of the Parties shall meet when
      necessary to consult with each other on matters arising out of the application of this
      Agreement, to supervise its operation and to discuss arrangements for co-operation
      additional to those provided in this Agreement. Such consultations may also take the
      form of an exchange of correspondence. Specifically, the Parties shall consult before
      the commencement of new enrichment or reprocessing projects relevant to nuclear
      material subject to this Agreement.
   2. Any dispute arising out of the interpretation or application of this Agreement which
      is not settled by negotiation or as may otherwise be resolved between the Parties
      shall, on the request of either Party, be submitted to an arbitral tribunal which shall
      be composed of three arbitrators. Each Party shall designate one arbitrator and the
      two arbitrators so designated shall elect a third, not a national of either Party, who
      shall be the Chairman. If within thirty days of the request for arbitration either Party
      has not designated an arbitrator, the other Party to the dispute may request the
      President of the International Court of Justice to appoint an arbitrator to the Party
      which has not designated an arbitrator. If within thirty days of the designation or
      appointment of arbitrators for both the Parties the third arbitrator has not been
      elected, either Party may request the President of the International Court of Justice to
      appoint the third arbitrator. A majority of the members of the arbitral tribunal shall
      constitute a quorum, and all decisions shall be made by majority vote of all the
      members of the arbitral tribunal. The arbitral procedure shall be fixed by the tribunal.
      The decisions of the tribunal shall be binding on both Parties and implemented by
EN                                           16                                                 EN
 ---pagebreak---             them. The remuneration of the arbitrators shall be determined on the same basis as
            that for ad hoc judges of the International Court of Justice.
   3.       For dispute resolution purposes, the English version of this Agreement shall be used.
                                               Article XVI
                                     Complementary Provisions
   The provisions of any bilateral nuclear co-operation agreements in force between Australia
   and Member States of the Community shall be regarded as complementary to this Agreement
   and shall, where appropriate, be superseded by the provisions of this Agreement.
                                               Article XVII
                                              Amendments
   1.       The Parties may consult, at the request of either Party, on possible amendments to
            this Agreement, particularly to take account of international developments in the
            field of nuclear safeguards.
   2.       This Agreement may be amended if the Parties so agree.
   3.       Any amendment shall enter into force on the date specified by the Parties, by an
            exchange of diplomatic notes between the Parties.
   4.       The Annex to this Agreement forms an integral part of this Agreement and may be
            amended in accordance with this Article.
                                              Article XVIII
                                    Entry into force and duration
   1.       This Agreement shall enter into force on the date of the latter written notification that
            internal procedures necessary for its entry into force have been completed by the
            Parties.
   2.       This Agreement shall remain in force for an initial period of thirty years. Thereafter
            this Agreement shall be automatically renewed for additional periods of ten years,
            unless, at least six months before the expiration of any such additional period, a Party
            notifies the other Party of its intention to terminate the Agreement.
   3.       Notwithstanding the suspension, termination or expiration of this Agreement or any
            co-operation hereunder for any reason, the obligations in Articles III, IV, V, VI, VII,
            VIII, IX, X, XI, XII and XIII shall continue in effect so long as any nuclear material,
            non-nuclear material or equipment subject to these Articles remains in the territory of
            the other Party or under its jurisdiction or control anywhere or until it is mutually
            determined by the Parties in accordance with the provisions of Article IV that such
            nuclear material is no longer usable, or is practicably irrecoverable for processing
            into a form in which it is usable, for any nuclear activity relevant from the point of
            view of safeguards.
   4.       This Agreement replaces:
EN                                                  17                                                EN
 ---pagebreak---             a)    Agreement between the Government of Australia and the European Atomic
                  Energy Community concerning Transfers of Nuclear Material from Australia
                  to the European Atomic Energy Community, done at Brussels on 21 September
                  1981;
            b)    Exchange of Notes constituting an Implementing Arrangement, concerning
                  International Obligation Exchanges, to the Agreement between the
                  Government of Australia and the European Atomic Energy Community
                  (EURATOM) concerning Transfers of Nuclear Material of 21 September 1981,
                  done at Brussels on 8 September 1993;
            c)    Exchange of Notes constituting an Implementing Arrangement, concerning
                  Plutonium Transfers, to the Agreement between the Government of Australia
                  and the European Atomic Energy Community (EURATOM) concerning
                  Transfers of Nuclear Material of 21 September 1981, done at Brussels on 8
                  September 1993; and
            d)    Exchange of Notes constituting an Implementing Arrangement between the
                  Government of Australia and the European Atomic Energy Community
                  (EURATOM) concerning Plutonium Transfers under the Agreement between
                  the Government of Australia and EURATOM concerning Transfers of Nuclear
                  Material from Australia to EURATOM, and accompanying Side Letter No. 2,
                  of 21 September 1981, and the Implementing Arrangement concerning
                  Plutonium Transfers of 8 September 1993.
   Done in duplicate at …………………., in the Bulgarian, Czech, Danish, Dutch, English,
   Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese,
   Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each text
   being equally authentic.
   IN WITNESS WHEREOF, the undersigned, being duly authorised thereto have signed the
   present Agreement.
   For the European Atomic Energy Community          For the Government of Australia
   [signature]                                       [signature]
EN                                              18                                             EN
 ---pagebreak---                                               ANNEX A
                                         REPROCESSING
   Whereas Article VIII of the Agreement provides that nuclear material subject to this
   Agreement (hereinafter referred to as NMSA) shall be reprocessed only according to
   conditions set out in this Annex.
   The Parties to this Agreement,
   Acknowledging that the separation, storage, transportation and use of plutonium require
   particular measures to reduce the risk of nuclear proliferation;
   Recognizing the role of reprocessing in connection with efficient energy use, management of
   materials contained in spent fuel or other peaceful non-explosive uses including research;
   Desiring predictable and practical implementation of the agreed conditions set out in this
   Annex, taking into account both their determination to ensure the furtherance of the objective
   of non-proliferation and the long-term needs of the nuclear fuel cycle programmes of the
   Parties;
   Determined to continue to support the development of international safeguards and other
   measures relevant to reprocessing and plutonium, including measures to promote proliferation
   resistance and effective physical protection;
   Have agreed as follows:
                                               Article 1
   NMSA may be reprocessed subject to the following conditions:
            a)    reprocessing shall take place for the purpose of energy use or management of
                  materials contained in spent fuel, in accordance with the nuclear fuel cycle
                  programme mutually determined through consultation between the competent
                  authorities;
            b)    a description of any proposed nuclear fuel cycle programme, including details
                  on the policy, legal and regulatory framework relevant to reprocessing and
                  plutonium storage, use and transportation shall be provided by the Party
                  envisaging such activities;
            c)    the recovered plutonium shall be stored and used in accordance with the
                  nuclear fuel cycle programme referred to in paragraph (a) above; and
            d)    reprocessing and use of the recovered plutonium for other peaceful non-
                  explosive purposes including research shall take place only under conditions
                  mutually determined in writing between the Parties following consultations
                  pursuant to Article 2 of this Annex.
EN                                                19                                              EN
 ---pagebreak---                                               Article 2
   Consultations shall be held between the Parties within 40 days of the receipt of a request from
   either Party:
            a)   to review the operation of the provisions of this Annex;
            b)   to consider amendments to the nuclear fuel cycle programme referred to in
                 Article 1 of this Annex;
            c)   to consider improvements in international safeguards and other control
                 techniques including the establishment of new and generally accepted
                 international mechanisms relevant to reprocessing and plutonium; or
            d)   to consider proposals for reprocessing, use, storage and transportation of the
                 recovered plutonium for other peaceful non-explosive purposes including
                 research.
EN                                               20                                                EN


Avis juridique important

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32001H0310

Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (Text with EEA relevance) (notified under document number C(2001) 1016)

Official Journal L 109 , 19/04/2001 P. 0056 - 0061

Commission Recommendationof 4 April 2001on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes(notified under document number C(2001) 1016)(Text with EEA relevance)(2001/310/EC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community, and in particular Article 211 thereof,Whereas:(1) In order to ensure a high level of consumer protection and to promote consumer confidence, the Community should ensure that consumers have simple and effective access to justice and encourage and facilitate the settling of consumer disputes at an earlier stage.(2) The continuing development of new forms of commercial practices involving consumers such as electronic commerce, and the expected increase in cross-border transactions, require that particular attention be paid to generating the confidence of consumers, in particular by ensuring easy access to practical, effective and inexpensive means of redress, including access by electronic means. The e-Europe Action Plan, agreed by the Feira European Council on 19 and 20 June 2000, recognised that for e-commerce to reach its full potential consumer confidence must be enhanced, in partnership with consumer groups, industry and Member States, by promoting access to alternative dispute resolution systems.(3) On 30 March 1998 the Commission adopted Recommendation 98/257/EC on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes(1). However the scope of that Recommendation was limited to procedures which, no matter what they are called, lead to the settlement of a dispute through the active intervention of a third party, who proposes or imposes a solution. It did not concern procedures that merely involve an attempt to bring the parties together to convince them to find a solution by common consent.(4) The Council, in its Resolution of 25 May 2000 on a Community-wide network of national bodies for the extra-judicial settlement of consumer disputes(2), noted that those out-of-court bodies falling outside the scope of Recommendation 98/257/EC play a useful role for the consumer and invited the Commission to develop in close cooperation with Member States common criteria for the assessment of such bodies which should ensure, inter alia, their quality, fairness and effectiveness. In particular it indicated that Member States apply such criteria to include such bodies or schemes in the network referred to in Commission working document on the creation of a European extra-judicial network (EEJ-Net)(3).(5) Article 17 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce in the internet market(4) stipulates that Member States should ensure their legislation does not hamper the use of out-of-court schemes available under national law, for dispute settlement.(6) Electronic commerce facilitates cross-border transactions between business and consumers. Such transactions are frequently of low value and therefore the resolution of any dispute needs to be simple, quick and inexpensive. New technolgy can contribute to the development of electronic dispute settlement systems, providing a mechanism to effectively settle disputes across different jurisdictions without the need for face-to-face contact, and therefore should be encouraged through principles ensuring consistent and reliable standards to give all users confidence.(7) The Council, in conclusions adopted on 29 May 2000(5), invited the Commission to draw up a Green Paper on alternative methods of settling disputes under civil and commercial law to take stock of and review the existing situation and initiate wide-ranging consultation.(8) The European Parliament in its opinion on the proposal for a regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(6), called for the extensive use of extra-judicial dispute resolution for consumers transactions, in particular where the parties are domiciled in different Member States and in view of the cost and delay associated with going to court. The Council and Commission in their statement for the adoption of the above-mentioned Regulation stressed that in general it is in the interest of consumers and undertakings to try to settle their disputes amicably before resorting to the courts and reiterated the importance of continuing the work on alternative methods of dispute settlement at European Community level.(9) The principles set out in this Recommendation do not affect the principles laid down in Commission Recommendation 98/257/EC which should be respected by those out-of-court procedures which, no matter what they are called, lead to the settling of a dispute through the active intervention of a third party, who proposes or imposes a solution, usually by means of a binding or non-binding formal decision, upon the parties. The present principles should be respected by any other third party procedures, no matter what they are called, which facilitate the resolution of a consumer dispute by bringing the parties together and assisting them, for example by making informal suggestions on settlement options, in reaching a solution by common consent. The principles are limited to consumer dispute resolution procedures which are designed as an alternative to resolving the dispute in a court. Therefore customer complaint mechanisms operated by a business and conducted directly with the consumer, or where a third party carries out such services by or on behalf of a business, are excluded as they form part of the usual discussions between the parties prior to any dispute materialising that would be referred to a third party body responsible for dispute resolution or a court.(10) The impartiality of these dispute resolution procedures must be guaranteed to ensure that all parties have confidence in its fairness. Whether it is an individual or a group responsible for the dispute resolution procedure, appropriate measures should be taken to ensure impartiality and to ensure the disclosure of information to the parties demonstrating their impartiality and competence to allow the parties to make an informed choice as to whether to participate in the procedure.(11) In order to ensure that both parties have access to the information they need, the transparency of the procedure must be guaranteed. The agreed solution resolving the dispute should be recorded and made available to the parties by the body responsible for the procedure to avoid later uncertainty or misunderstanding.(12) In order to enhance the effectiveness of these procedures in resolving cross-border disputes, they need to be easily accessible and available to both parties wherever they are situated. In particular electronic measures to facilitate this should be encouraged.(13) If such procedures are to provide a realistic alternative to a dispute going through the courts, they should aim to overcome the associated problems of cost, delay, complexity and representation. Measures guaranteeing proportionate or no costs, easier access, efficiency, the monitoring of the progression of the dispute and keeping the parties informed are necessary to ensure its effectiveness.(14) In accordance with Article 6 of the European Human Rights Convention, access to the courts is a fundamental right. Since Community law guarantees free movement of goods and services in the common market, it is a corollary of those freedoms that operators, including consumers, must be able, in order to resolve any disputes arising from their economic activities, to bring actions in the courts of a Member State in the same way as nationals of that State. Consumer dispute resolution procedures cannot be designed to replace court procedures. Therefore use of such procedures may not deprive consumers of their right to bring the matter before the courts unless they expressly agree to do so, in full awareness of the facts and only after the dispute has materialised.(15) The fairness of the procedures should be safeguarded by allowing the parties to provide any necessary and relevant information. Depending on the organisation of the procedure, information provided by the parties should be treated as confidential unless they expressly agree otherwise, or, if an adversarial approach is used at any stage appropriate measures should ensure its fairness. Measures should be envisaged to encourage and monitor the parties' cooperation with the procedure, in particular by requiring information that may be necessary for the fair resolution of the dispute.(16) Before the parties agree to a suggested solution on how to settle the dispute they should be allowed a reasonable amount of time to consider the details and any possible conditions or terms.(17) In order to ensure that procedures are fair and flexible and that consumers have the opportunity to make a fully informed choice, they must be given clear and understandable information in order that they can reflect on whether to agree to a suggested solution, obtain advice if they wish or to consider other options.(18) The Commission will include in its database of the out-of-court bodies responsible for resolving consumer disputes information provided by Member States regarding the use of such principles by consumer dispute resolution bodies falling within the scope of this recommendation in order to participate in the European extra-judicial network (EEJ-Net).(19) Finally, the setting out of principles for bodies responsible for consumer dispute resolution procedures not covered by the principles in Recommendation 98/257/EC seems, in these circumstances, necessary at Community level to support and supplement, in an essential area, the initiatives taken by the Member States in order to realise, in accordance with Article 153 of the Treaty, a high level of consumer protection. It does not go beyond what is necessary to ensure the smooth operation of consumer dispute resolution procedures. It is therefore consistent with the principle of subsidiarity,HEREBY RECOMMENDS:That the principles set out in Part II are respected by all existing and future bodies providing out-of-court consumer dispute resolution procedures falling within the scope of this recommendation as defined in Part I:I. SCOPE1. This recommendation applies to third party bodies responsible for out-of-court consumer dispute resolution procedures that, no matter what they are called, attempt to resolve a dispute by bringing the parties together to convince them to find a solution by common consent.2. It does not apply to customer complaint mechanisms operated by a business and concluded directly with the consumer or to such mechanisms carrying out such services operated by or on behalf of a business.II. PRINCIPLESA. ImpartialityImpartiality should be guaranteed by ensuring that those responsible for the procedure:(a) are appointed for a fixed term and shall not be liable to be relieved from their duties without just cause;(b) have no perceived or actual conflict of interest with either party;(c) provide information about their impartiality and competence to both parties prior to the commencement of the procedure.B. Transparency1. The transparency of the procedure should be guaranteed.2. Information about the contact details, functioning and availability of the procedure should be readily available to the parties in simple terms so that they can access and retain it before submitting a dispute.3. In particular, information should be made available on:(a) how the procedure will operate, the types of disputes that can be dealt by it and any restrictions on its operation;(b) the rules governing any preliminary requirements that the parties may have to meet, and other procedural rules, notably those concerning the operation of the procedure and the languages in which the procedure will be conducted;(c) the cost, if any, to be borne by the parties;(d) the timetable applicable to the procedure, particularly with regard to the type of dispute in question;(e) any substantive rules that may be applicable (legal provisions, industry best practice, considerations of equity, codes of conduct);(f) the role of the procedure in bringing about the resolution of a dispute;(g) the status of any agreed solution for resolving the dispute.4. Any agreed solution for resolving the dispute by the parties should be recorded on a durable medium and should clearly state the terms and the grounds on which it is based. That record should be made available to both parties.5. Information on the performance of the procedure should be made publicly available, including:(a) the number and types of complaints it has received and their outcome;(b) the time taken to resolve complaints;(c) any systematic problems arising from complaints;(d) the compliance record, if known, of agreed solutions.C. Effectiveness1. The effectiveness of the procedure should be guaranteed.2. It should be easily accessible and available to both parties, for instance by electronic means, irrespective of where the parties are situated.3. The procedure should be either free of charge to consumers, or any necessary costs should be both proportionate to the amount in dispute and moderate.4. The parties should have access to the procedure without being obliged to use a legal representative. Nonetheless the parties should not be prevented from being represented or assisted by a third party at any or all stages of the procedure.5. Once a dispute has been submitted it should be dealt with in the shortest possible time commensurate with the nature of the dispute. The body responsible for the procedure should periodically review its progress to ensure the parties' dispute is being dealt with expeditiously and appropriately.6. The conduct of the parties should be reviewed by the body responsible for the procedure to ensure they are committed to seeking a proper, fair and timely resolution of the dispute. If one party's conduct is unsatisfactory, both parties should be informed in order to enable them to consider whether to continue the dispute resolution procedure.D. Fairness1. The fairness of the procedure should be guaranteed. In particular:(a) the parties should be informed of their right to refuse to participate or to withdraw from the procedure at any time and access the legal system or other out-of-court redress mechanisms at any stage if they are dissatisfied with the performance or operation of the procedure;(b) both parties should be able to freely and easily submit any arguments, information or evidence relevant to their case on a confidential basis to the procedure unless agreement has been given by the parties to pass such information to the other party. If at any stage, the third party suggests possible solutions for resolving the dispute, then each party should have the opportunity to present their viewpoint and comment on any argument, information or evidence presented by the other party;(c) both parties should be encouraged to fully cooperate with the procedure, in particular by providing any information necessary for a fair resolution of the dispute;(d) prior to the parties agreeing to a suggested solution for resolving the dispute, they should be allowed a reasonable period of time to consider this solution.2. The consumer should be informed in clear und understandable language, before agreeing to a suggested solution, of the following points:(a) he has the choice as to whether or not to agree to the suggested solution;(b) the suggested solution may be less favourable than an outcome determined by a court applying legal rules;(c) before agreeing to or rejecting the suggested solution he has the right to seek independent advice;(d) use of the procedure does not preclude the option of referring his dispute to another out-of-court dispute resolution mechanism, in particular within the scope of Recommendation 98/257/EC, or of seeking legal redress through his own judicial system;(e) the status of an agreed solution.THIS RECOMMENDATIONis addressed to Member States in so far as it affects them, in relation to those procedures designed to facilitate the out-of-court settlement of consumer disputes and to any natural or legal person responsible for the creation or operation of such procedures.Done at Brussels, 4 April 2001.For the CommissionDavid ByrneMember of the Commission(1) Commission Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (OJ L 115, 17.4.1998, p. 31).(2) OJ C 155, 6.6.2000, p. 1.(3) SEC(2000) 405. See Internet site: http://europa.eu.int/comm/consumers/policy/developments/acce_just/acce_just06_en.pdf(4) OJ L 178, 17.7.2000, p. 1.(5) SI (2000) 519.(6) Opinion delivered on 21 September 2000 regarding Regulation (EC) No 44/2001 (OJ L 12, 16.1.2001, p. 1).


title: Commission Recommendation of 27 May 2005 concerning authentication of euro coins and handling of euro coins unfit for circulation (notified under document number C(2005) 1540)

text:
               15.7.2005

               EN

               Official Journal of the European Union

               L 184/60

      COMMISSION RECOMMENDATION

   of 27 May 2005
   concerning authentication of euro coins and handling of euro coins unfit for circulation
   (notified under document number C(2005) 1540)
   (2005/504/EC)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community, and in particular Article 211 thereof,
   Whereas:

               (1)

               Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting (1) requires that credit institutions and any other institutions engaged in the sorting and distribution to the public of notes and coins as a professional activity, including establishments whose activity consists in exchanging notes and coins of different currencies, such as bureaux de change, shall be obliged to withdraw from circulation all euro notes and coins received by them which they know or have sufficient reason to believe to be counterfeit and hand them over to the competent national authorities.

               (2)

               There is no common method ensuring that counterfeit coins are detected and withdrawn from circulation. This entails the risk that counterfeit coins and other euro coin-like objects fraudulently or erroneously put into circulation be further used, thus potentially causing confusion and prejudice to the public.

               (3)

               In the process of authentication of coins through automated sorting a number of objects are rejected including, among others, counterfeit coins and genuine euro coins which are unfit for circulation. Genuine unfit coins are also presented to the competent authorities by companies and individuals.

               (4)

               There are no common rules for national authorities to handle and reimburse such genuine unfit coins, which results in differing treatment among euro area countries and causes distortions in the reimbursement of such euro coins.

               (5)

               In order to assist the implementation of Article 6 of Regulation (EC) No 1338/2001, it is desirable to provide for a process by which the circulating euro coins are authenticated and counterfeits, euro coin-like objects and euro coins unfit for circulation are removed from the cash cycle.

               (6)

               In order to create a level playing field with regard to genuine euro coins unfit for circulation, it is desirable to establish guidelines for handling and reimbursement or replacement of such coins,

         HEREBY RECOMMENDS:
   PART I
   DEFINITIONS AND RECOMMENDED PRACTICES
   Article 1
   Definitions
   For the purpose of this Recommendation, the following definitions shall apply:

               (a)

               ‘authentication of euro coins’ means the process of verifying the authenticity of euro coins through automated electromechanical sorting or manually. During that process counterfeits are rejected, as well as genuine euro coins unfit for circulation, foreign coins similar to the euro and other metallic objects such as medals and tokens similar to euro coins;

               (b)

               ‘euro coins unfit for circulation’ mean genuine euro circulation coins which are defective or whose technical parameters and identification characteristics have been altered notably by relatively long circulation or by accident (dimensions, weight, colour, corrosion, edge damages), as well as deliberately altered coins, other than counterfeits. Regarding, in particular, the technical specifications, for the purposes of this document, coins are unfit if one of the dimensions is different from the one specified for the respective euro coin by at least 0.30 millimetres and/or the weight by at least 5 %.

         Article 2
   Recommended practices
   Member States should carry out or supervise the authentication of the euro coins circulating on their territory in line with the provisions of Part II of this Recommendation.
   Member States should adopt common rules for handling, reimbursement or replacement of unfit euro coins in line with the provisions of Part III of this Recommendation.
   PART II
   AUTHENTICATION OF EURO COINS
   Article 3
   Authentication and testing requirements
   The following euro coin denominations should be authenticated as a minimum: EUR 2, EUR 1, 50 cent.
   Authentication should be carried out centrally and/or within the coin handling process. To that effect, Member States should be in contact with the credit institutions and other professional cash handlers concerned, with regard to the implementation of the authentication procedures provided for in Articles 4 to 6 of this Recommendation.
   The quantity of euro coins to be authenticated each year in each of the Member States should amount to at least 10 % of the total net volume of the relevant denominations issued by that Member State until the end of the previous year. To ensure the authentication of the relevant quantity of euro coins, in line with Articles 4 to 6, Member States should carry out checks to the appropriate number of credit institutions and other professional cash handlers.
   Article 4
   The tests for controlling the sorting machines
   The control of the functioning of sorting machines should be carried out by means of a detection test, preceded, if applicable, by a check for sorting, as follows:

               1.

               The purpose of the sorting test is to check that the machine is capable of correctly sorting all the euro coin denominations. This is applicable in the absence of national rules governing the sorting capacity.
               The sorting test requires at least one hundred genuine euro coins of each of the denominations to be tested. These coins of all denominations are mixed together and passed through the machine three times.
               The acceptance ratio should be at least 98 % in each of the trials. In cases where the genuine euro coins used for the sorting and detection tests are at the border of euro specified tolerance ranges, a lower acceptance ratio may be considered.
               Any genuine coins rejected by a machine should be re-tested. After three consecutive trials, all genuine coins should be accepted.

               2.

               The purpose of the detection test is to check that the machine is capable of rejecting euro coin-like objects that are not in conformity with the specifications of the euro coins, in particular counterfeit coins.
               The detection test requires samples of counterfeit coins for all denominations concerned, with a definition also covering materials used for producing coin-like objects and non-euro coins. For that purpose, a number of representative families should be used, coming from the stocks deposited with the Coin National Analysis Centres (CNACs) or the European Technical and Scientific Centre (ETSC). The ETSC, in collaboration with the CNACs defines and updates these families.
               These counterfeits are mixed with an appropriate number of genuine coins, defined in collaboration with the ETSC and passed through the machine three times. All counterfeits should be rejected on each of the trials.

               3.

               In the respect of national rules, the tests provided for in this Article should be performed at least once a year on each of the sorting machines at the sites where the authentication takes place, at the establishments selected in line with Article 3.

         Article 5
   Possibilities for additional testing of the sorting machines at a CNAC or the ETSC
   With a view to enabling manufacturers of sorting machines to obtain the indications necessary for the initial adjustment of their equipment, tests may be carried out at certain CNACs, the ETSC or, following bilateral agreement, on the premises of the manufacturer. These tests should be carried out on the basis of modalities and conditions of confidentiality defined in collaboration with the ETSC.
   Following the testing at a CNAC or the ETSC, a summary report is issued for the attention of the entity concerned and copied to the ETSC. The report is kept for at least three years and may be used for comparison purposes.
   The report should, as a minimum, include the identification of the machine tested, the test results and global assessment, the precise contents of the sample batches used for the tests, the acceptance criteria, the date and signature of the authorised person.
   The CNACs and the ETSC maintain a register of the performance of sorting machines tested on their premises. A consolidated list of sorting machines having successfully undergone the tests provided for in the second paragraph of this Article can be consulted at the CNACs or the ETSC, on an indicative basis.
   Article 6
   Auditing and reporting
   Member States should monitor the capacity of the institutions selected in line with Article 3 to authenticate euro coins on the basis, as a minimum, of the following elements:

               —

               existence of a written policy and organization in the sorting centre for detecting counterfeits, unfit euro coins and euro coin-like objects,

               —

               appointment of trained human resources to fulfil the policy,

               —

               adequacy of technical resources and existence of the manufacturer’s initial report indicating the level of performance of sorting machines,

               —

               existence of a written maintenance plan intended to keep sorting machines at their initial performance level,

               —

               existence of minimum written procedures defining the various processes for sorting euro coins and handing over counterfeits and suspect coins to competent national authorities in a short timeframe,

               —

               volume of coins authenticated.

         On the occasion of the checks provided for in Article 3, a light audit may, in the respect of national rules, be performed and reported, based on the above elements.
   Each Member State should report annually to the ETSC on the activity of authentication, including the controls and audits, as well as the volume of authenticated euro coins and ratio of each category of rejected objects against the amount of each sorted denomination in circulation.
   PART III
   HANDLING EURO COINS UNFIT FOR CIRCULATION
   Article 7
   Reimbursement or replacement of unfit euro coins
   Each Member State should provide for reimbursement or, if appropriate, replacement of euro coins unfit for circulation, whose denomination should be identified, irrespective of national side, for companies and individuals established in that Member State or outside the euro area. Member States should ensure similar conditions for reimbursement of unfit coins with a view to allowing submissions irrespective of the country where they were removed from circulation, based on the evaluation provided for in Article 12.
   Member States may decide to refuse reimbursement of deliberately altered genuine euro coins if this is in conflict with national practice or tradition (disrespect of king’s effigy, disrespect of issuing authority etc.).
   Article 8
   Handling fees
   A handling fee should, in principle, be imposed for reimbursement or replacement of unfit coins. The fee should be uniform throughout the euro area and should amount to 5 % of the nominal value of the submission.
   A quantity of up to one kilogramme of unfit coins per denomination may be exempted from the fee mentioned in the first paragraph each year for one submitting entity.
   An additional fee of 15 % of the nominal value of each bag/box may be charged in case a bag/box contains counterfeits or shows anomalies, such as wrongly sorted coins, non-euro coins or euro coins with a non-identifiable denomination or other discrepancies, when these anomalies are at a proportion requiring a more detailed examination, in line with Article 10.
   Member States may provide for general exemptions from handling fees in cases where submitting entities cooperate closely and regularly with the authorities in withdrawing from circulation unfit euro coins.
   Transport and related costs should be borne by the submitting entity.
   Counterfeit coins delivered to the authorities should not be subject to handling or other fees.
   Article 9
   Packaging of unfit euro coins
   The submitting entity should sort the coins per denomination in standardised bags or boxes in line with the standards applicable in the individual Member States to whom the request is addressed. Failure to meet these standards may lead to refusal of the submission.
   In the absence of national packaging standards, the bags or boxes should comprise:

               —

               500 coins for the denominations of EUR 2 or EUR 1,

               —

               1 000 coins for the denominations of EUR 0,50, EUR 0,20 and EUR 0,10,

               —

               2 000 coins for the denominations of EUR 0,05, EUR 0,02 and EUR 0,01.

         Each bag/box should bear clear indications of the submitting entity, the value and the denomination contained, the weight, date of packaging and bag/box number. The submitting entity should provide a packaging list with an overview of the bags/boxes submitted.
   In case the total quantity of unfit euro coins is smaller than the above standards, unfit euro coins should be sorted by denomination and may be submitted in non-standard packaging.
   Article 10
   Checks by Member States
   1.   Member States should check the unfit coins submitted for:

               —

               the quantity declared for each of the bags/boxes,

               —

               authenticity, with a view to ensuring that there are no counterfeits,

               —

               visual appearance, to determine that they are in line with the provisions of Article 7.

         2.   Checks for the quantity of coins submitted should be performed by weighing each bag/box. A tolerance range of – 2 % and + 1 % should be applied to the nominal weight of the standard packaging referred to in the second paragraph of Article 9. An equivalent control should be applied when national packaging conventions are different from the above standards. Additionally, each bag/box should be checked for visible anomalies.
   In the event that the weight of the bag/box is outside the tolerance range, the entire quantity of the concerned bag/box will need to be processed.
   3.   Checks for authenticity and visual appearance may be conducted through sampling. As a minimum, a representative sample of 10 % of the quantities submitted should be checked for the denominations of EUR 2, EUR 1, EUR 0,50, EUR 0,20 and EUR 0,10.
   4.   Checks for authenticity should be performed on the samples mentioned in paragraph 3 by means of the following procedures:

               (i)

               in the case of mechanical/automatic sorting, the machines should be adjusted according to the procedures provided for in Part II of this Recommendation;

               (ii)

               in other cases, the criteria of the CNACs are applied.

         In the event that one counterfeit is detected, the entire quantity in the bag/box will need to be authenticated.
   5.   Checks for visual appearance should be performed on the samples mentioned in paragraph 3 with a view to determining whether a bag/box shows anomalies, such as wrongly sorted coins, non-euro coins or euro coins with a non-identifiable denomination. In case such anomalies occur at a proportion greater than 1 %, the relevant bag/box should be re-checked and the proportion of non-reimbursable coins determined by means of one of the following methods:

               (i)

               the entire quantity of coins in each concerned bag/box is examined manually, in a way defined by the competent national authorities;

               (ii)

               a 10 % sample from the bag/box, additional to the one provided for in paragraph 3, is checked for visual appearance. The combined proportion of non-reimbursable coins counted in the two samples is then extended to the entire content of the bag/box.

         Article 11
   Flow of information and communication
   Member States should report annually to the Commission and the Economic and Financial Committee (EFC) the unfit euro coins reimbursed or replaced. The information should include the quantity of such coins and their denomination. Moreover, the Commission will prepare regular reports for the EFC.
   Member States should ensure that information concerning the services designated for reimbursement or replacement and specific modalities, such as packaging standards and fees, be made available on the appropriate web sites and through the appropriate publications.
   PART IV
   FINAL PROVISIONS
   Article 12
   Evaluation
   Three years after the publication of this Recommendation, the present rules will be evaluated in the light of the experience gained, inter alia, as regards the harmonisation of the conditions for reimbursement or replacement of unfit coins provided for in Article 7, the appropriateness of abrogating exemptions from handling fees provided for in Article 8, the possibility of providing for a compensation mechanism among Member States for the unfit coins reimbursed and the potential need for legislation.
   Article 13
   Addressees
   This recommendation is addressed to the participating Member States as defined in Article 1 of Council Regulation (EC) No 974/98 (2).

      Done at Brussels, 27 May 2005.

            For the Commission

         Siim KALLAS

            Vice-President

      (1)  OJ L 181, 4.7.2001, p. 6.

      (2)  OJ L 139, 11.5.1998, p. 1.


				|

		52014PC0206

			Recommendation for a COUNCIL DECISION to authorise the Commission to open negotiations on behalf of the European Union for the renewal of the protocol to the Fisheries Partnership Agreement with Mozambique /* COM/2014/0206 final - 2014/ () */

			   	EXPLANATORY MEMORANDUM
1.           EXPLANATORY MEMORANDUM
The European Union and the Republic of   Mozambique have signed a protocol to the Fisheries Agreement which is
applicable from 1st February 2012. The protocol, which grants
fishing opportunities for the EU vessels and fixes the financial counterpart,
will expire on 31 January 2015.
The Commission proposes to negotiate a new
protocol that meets the actual possibilities and needs of the Members States
fleet and is in line with the 19 March 2012 Council Conclusions on a
Communication from the Commission on the External dimension of the Common
Fisheries Policy.
The Council is asked to adopt the
negotiation guidelines attached to this recommandation.
2.           RECOMMENDATION
In the light of the above, the Commission
recommends that:
- The Council authorises the Commission to
open and conduct negotiations for the renewal of the protocol in the framework
of the Fisheries Partnership Agreement with the Republic of Mozambique;
- The Commission is nominated as the Union
negotiator for this subject;
- The Commission shall conduct such
negotiations in consultation with the special committee pursuant to the
provisions laid down in the Treaty on the functioning of the European Union;
- The Council approves the negotiation
guidelines attached to this recommendation.
Recommendation for a
COUNCIL DECISION
to authorise the Commission to open
negotiations on behalf of the European Union for the renewal of the protocol to
the Fisheries Partnership Agreement with Mozambique
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 218
paragraphs 3 and 4,
Having regard to the Recommendation from
the Commission,
Whereas negotiations should be opened with
a view to concluding a new Protocol to the Fisheries Partnership Agreement with
the Republic of Mozambique.
HAS ADOPTED THIS DECISION:
Article 1
The Commission is hereby authorised to
negotiate, on behalf of the European Union, with a view to renewing the
Protocol to the Fisheries Partnership Agreement with the Republic of Mozambique.
Article 2
These negotiations shall be conducted in
consultation with the Council Working Party on External Fisheries Policy and in
accordance with the negotiating directives set out in the Annex.
Article 3
This Decision is addressed to the
Commission
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
ANNEX
Recommendation for a
COUNCIL DECISION
to authorise the Commission to
open negotiations on behalf of the European Union for the renewal of the
protocol to the Fisheries Partnership Agreement with Mozambique
Negotiating directives
–
The objective of the negotiations is the renewal
of the Protocol to the Fisheries Partnership Agreement between the European
Union and the Republic of Mozambique in line with the Council Conclusions of
19 March 2012 on the Commission Communication of
13 July 2011 on the external dimension of the Common Fisheries
Policy.
–
With a view to ensuring, through this new
Protocol, the promotion of sustainable and responsible fishing, the
Commission's negotiation objectives shall be based on the following:
·
Ensuring access to the exclusive economic zone
(EEZ) of the Republic of Mozambique and the necessary authorisations for
vessels of the European Union fleet to carry out fishing activities in that
EEZ;
·
Duly taking into account the best available
scientific advice and relevant management plans adopted by Regional Fisheries
Management Organisations (RFMO), in order to ensure and enhance the
environmental sustainability of fishing activities, directed exclusively at
available resources, taking into account the local fleet's fishing capacity,
while paying special attention to the highly migratory nature of the stocks
concerned;
·
Seeking an appropriate share of the fisheries
resources, fully commensurate with the EU fleets' interests, when they also
interest other foreign fleets;
·
Ensuring that access to fisheries is based on
similar criteria to those that apply to the current Protocol, while taking into
account the changes observed in recent years and in the light of the most
updated available scientific assessments;
·
Continuing dialogue in order to reinforce
sectorial policy with a view to encouraging the implementation of a responsible
fisheries policy, in connection with the country's development objectives, in
particular as regards the governance, follow-up, control and monitoring of
fishing activities and scientific advice;
·
Including a clause on the consequences of
violations of human rights and democratic principles;
·
Taking into account, to the extent possible, the
interests of EU outermost regions economically and socially related to fishing
activities in Mozambique.
–
In order to avoid interruption of fishing
activities, the new Protocol should include a clause of provisional application
from the day following the date of expiry of the current Protocol.
–
In particular, the Protocol should define:
·
the fishing opportunities, by category, to be
granted to European Union vessels,
·
the financial compensation and the conditions
for its payment, and
·
the mechanisms for implementing sectorial
support.