29.12.2004   

EN

Official Journal of the European Union

L 385/1

(1)

The European Council of Thessaloniki, on 19 and 20 June 2003, confirmed that a coherent approach is needed in the European Union on biometric identifiers or biometric data for documents for third country nationals, European Union citizens’ passports and information systems (VIS and SIS II).

(2)

Minimum security standards for passports were introduced by a Resolution of the representatives of the Governments of the Member States, meeting within the Council, on 17 October 2000 (3). It is now appropriate to upgrade this Resolution by a Community measure in order to achieve enhanced harmonised security standards for passports and travel documents to protect against falsification. At the same time biometric identifiers should be integrated in the passport or travel document in order to establish a reliable link between the genuine holder and the document.

(3)

The harmonisation of security features and the integration of biometric identifiers is an important step towards the use of new elements in the perspective of future developments at European level, which render the travel document more secure and establish a more reliable link between the holder and the passport and the travel document as an important contribution to ensuring that it is protected against fraudulent use. The specifications of the International Civil Aviation Organisation (ICAO), and in particular those set out in Document 9303 on machine readable travel documents, should be taken into account.

(4)

This Regulation is limited to the harmonisation of the security features including biometric identifiers for the passports and travel documents of the Member States. The designation of the authorities and bodies authorised to have access to the data contained in the storage medium of documents is a matter of national legislation, subject to any relevant provisions of Community law, European Union law or international agreements.

(5)

This Regulation should lay down only such specifications that are not secret. These specifications need to be supplemented by specifications which may remain secret in order to prevent the risk of counterfeiting and falsifications. Such additional technical specifications should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (4).

(6)

The Commission should be assisted by the Committee established by Article 6 of Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas (5).

(7)

In order to ensure that the information referred to is not made available to more persons than necessary, it is also essential that each Member State should designate not more than one body having responsibility for producing passports and travel documents, with Member States remaining free to change the body, if need be. For security reasons, each Member State should communicate the name of the competent body to the Commission and the other Member States.

(8)

With regard to the personal data to be processed in the context of passports and travel documents, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (6) applies. It should be ensured that no further information shall be stored in the passport unless provided for in this Regulation, its annex or unless it is mentioned in the relevant travel document.

(9)

In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of introducing common security standards and interoperable biometric identifiers to lay down rules for all Member States giving effect to the Convention implementing the Schengen Agreement of 14 June 1985 (7). This Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty.

(10)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark will, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Regulation whether it will implement it in its national law.

(11)

This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis  (8). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.

(12)

This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis  (9). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.

(13)

As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis  (10) which fall within the area referred to in Article 1(B) of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement (11).

(14)

As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis  (12), which fall in the area referred to in Article 1(B) of Decision 1999/437/EC read in conjunction with Article 4(1) of the Council Decisions of 25 October 2004 on the signing on behalf of the European Union, and on the signing on behalf of the European Community, and on the provisional application of certain provisions of that Agreement (13),

(a)

additional security features and requirements including enhanced anti-forgery, counterfeiting and falsification standards;

(b)

technical specifications for the storage medium of the biometric features and their security, including prevention of unauthorised access;

(c)

requirements for quality and common standards for the facial image and the fingerprints.

(a)

the authenticity of the document;

(b)

the identity of the holder by means of directly available comparable features when the passport or other travel documents are required to be produced by law.

(a)

as regards the facial image: at the latest 18 months

(b)

as regards fingerprints: at the latest 36 months

29.12.2004   

EN

Official Journal of the European Union

L 385/7

(1)

Commission Regulation (EEC) No 2237/77 (2) lays down the contents of the farm return to be used.

(2)

The data collected for the purposes of the farm return need to take into account the evolution of the common agricultural policy. Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (3), changes profoundly the way in which subsidies are paid to the farmers in the Community. These changes have to be taken into account in the farm return, in order to be able to monitor correctly the development of agricultural incomes and provide sufficient basis for business analyses of the holdings.

(3)

The farm return has to be adapted due to the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia.

(4)

Regulation (EEC) No 2237/77 should therefore be amended accordingly.

(5)

Taking into account that some of the changes will apply from the year 2004 onwards, it is appropriate to make the amendments of the farm return applicable with effect from the 2004 accounting year.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Community Committee for the Farm Accountancy Data Network,

29.12.2004   

EN

Official Journal of the European Union

L 385/20

(1)

Harmonised rules for organic livestock production are still quite recent and with the current development of this sector there is still not a sufficient range of biodiversity of organically reared livestock available on the market. Hence, there is still a need to facilitate the development of the organic livestock production.

(2)

Commission Regulation (EC) No 2277/2003 (2), which amended Annexes I and II to Regulation (EEC) No 2092/91, extended the transitional period for bringing conventional animals into the organic farming system until 31 December 2004. However, this extension has proved not to be sufficient in particular in the case of poultry production, which comprises different stages where different specialised sectors are involved.

(3)

There is, therefore, still a need for reliance on non-organically reared animals. The provisions on the origin of the animals should be adapted accordingly.

(4)

Although it is already possible to reinforce the provisions on the origin of pullets for egg production, production standards for these animals have not been harmonised yet. Until such standards are established, it is appropriate to permit bringing non-organically reared pullets for egg production of not more than 18 weeks into an organic livestock unit when organically reared pullets are not available, under certain conditions applying prior to bringing these animals into the organic farming system.

(5)

Annex I to Regulation (EEC) No 2092/91 should therefore be amended accordingly.

(6)

Considering the urgency of the measure due to the fact that certain provisions on the origin of animals expire on 31 December 2004, this Regulation should enter into force on the day after its publication in the Official Journal of the European Union.

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Committee set up by Article 14 of Regulation (EEC) No 2092/91,

29.12.2004   

EN

Official Journal of the European Union

L 385/22

(1)

Article 27(5) of Regulation (EC) No 1260/2001 provides that export refunds in the sugar sector may vary according to destination, where the world market situation or the specific requirements of certain markets make this necessary.

(2)

Article 1 of Commission Regulation (EC) No 1327/2004 of 19 July 2004 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar for the 2004/05 marketing year (2) provides for such differentiation by excluding certain destinations. Moreover, the bi-monthly or monthly setting, as the case may be, of export refunds for white sugar, raw sugar without further processing, syrups and other sugar sector products as provided for in Articles 28 and 30 of Regulation (EC) No 1260/2001 excludes certain destinations.

(3)

The first subparagraph of Article 27(11) of Regulation (EC) No 1260/2001 provides that the refund is to be paid upon proof that the products have been exported from the Community and, in the case of a differentiated refund, the products have reached the destination indicated on the licence or another destination for which a refund has been fixed.

(4)

Article 16 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (3) lists the various documents that may constitute proof of the completion of customs formalities in a third country where the refund rate is differentiated according to destination. Under that Article the Commission may decide, in certain specific cases to be determined, that the proof referred to in that Article may be deemed to be furnished by a specific document or in any other way.

(5)

In the sugar sector, export operations are normally governed by contracts defined as fob on the London futures market. As a result, purchasers accept at that fob stage all the contractual obligations, including proof of completion of customs formalities, without being the direct beneficiaries of the refund to which that proof confers the right. Obtaining that proof for all quantities exported may entail considerable administrative difficulties in certain countries, which may substantially delay or prevent payment of the refund for all the quantities actually exported.

(6)

In order to limit the impact on the equilibrium of the sugar market, Commission Regulation (EC) No 40/2004 of 9 January 2004 on proof of completion of customs formalities for the import of sugar into third countries, as provided for in Article 16 of Regulation (EC) No 800/1999 (4), defined the alternative proofs offering guarantees enabling the product to be deemed to have been imported into a third country.

(7)

Since the administrative difficulties and their impact on the market still persist at the approach of the deadline of 31 December 2004, when Regulation (EC) No 40/2004 ceases to apply, the alternative proofs of destination should be defined again for exports effected as from 1 January 2005.

(8)

This being a derogation, its period of application should be restricted.

(9)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,

(a)

a copy of the transport document;

(b)

a declaration that the product has been unloaded, drawn up by an official authority of the third country in question, by the official authorities of a Member State established in the country of destination, or by an international supervisory agency approved under Articles 16a to 16f of Regulation (EC) No 800/1999, certifying that the product has left the unloading site or at least that, to the knowledge of the authority or agency issuing the declaration, the product has not subsequently been reloaded with a view to being re-exported;

(c)

a bank document issued by approved intermediaries established in the Community certifying that payment corresponding to the export in question has been credited to the account of the exporter opened with them, or proof of payment.

29.12.2004   

EN

Official Journal of the European Union

L 385/24

(1)

By its Decision 2004/664/EC (3) of 24 September 2004, the Council has given authorisation for the signature and has provided for the provisional application from 1 May 2004 of a Protocol to the Euro-Mediterranean Agreement between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part, to take account of the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Hungary, the Republic of Latvia, the Republic of Lithuania, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union.

(2)

This Protocol provides for a new tariff quota and for changes to the existing tariff quotas laid down in Regulation (EC) No 747/2001.

(3)

To implement the new tariff quota and the changes to the existing tariff quotas, it is necessary to amend Regulation (EC) No 747/2001.

(4)

For the year 2004 the volumes of the new tariff quota and the increases of the volumes of existing tariff quotas should be calculated as a pro rata of the basic volumes specified in the Protocol, taking into account the part of the period elapsed before 1 May 2004.

(5)

In order to facilitate the management of certain existing tariff quotas provided for in Regulation (EC) No 747/2001, the quantities imported within the framework of those quotas should be taken into account for charging on the tariff quotas opened in accordance with Regulation (EC) No 747/2001, as amended by this Regulation.

(6)

After the accession of Malta and Cyprus to the European Union, the tariff quotas and reference quantities for products originating in those Member States as provided for in Regulation (EC) No 747/2001 should lapse. The references to those quotas and reference quantities should therefore be deleted.

(7)

Since the Protocol to the EU-Egypt Euro-Mediterranean Agreement applies on a provisional basis from 1 May 2004, this Regulation should apply from the same date and should enter into force as soon as possible.

(8)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

1.

Article 1 is replaced by the following:

‘Article 1

Tariff concessions within Community tariff quotas or within reference quantities

When products originating in Algeria, Morocco, Tunisia, Egypt, Jordan, Syria, Lebanon, Israel, the West Bank and the Gaza Strip and Turkey, listed in Annexes I to IX, are put into free circulation in the Community, they shall be eligible for exemption or reduced rates of customs duties within the limits of the Community tariff quotas or in the framework of the reference quantities, during the periods and in accordance with the provisions set out in this Regulation.’.

2.

Article 3(2) is deleted.

3.

Annex IV is amended as set out in the Annex to this Regulation.

4.

Annexes X and XI are deleted.

29.12.2004   

EN

Official Journal of the European Union

L 385/28

(1)

On 16 October 2001, the Council authorised the Commission to negotiate with the Swiss Confederation an appropriate agreement for securing the adoption by the Swiss Confederation of measures equivalent to those to be applied within the Community to ensure effective taxation of savings income in the form of interest payments.

(2)

The application of the provisions of Directive 2003/48/EC (2) depends on the application by the Swiss Confederation of measures equivalent to those contained in that Directive, in accordance with an Agreement entered into by the Swiss Confederation with the Community.

(3)

The Community has decided to grant the request of the Swiss Confederation for the inclusion in the Agreement of measures equivalent to the regimes provided for in Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (3) and in Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (4) in their original versions.

(4)

The Agreement and the Memorandum of Understanding should be signed and approved on behalf of the Community.

(5)

It is necessary to provide for a simple and rapid procedure for possible adaptations of Annexes I and II to the Agreement,

29.12.2004   

EN

Official Journal of the European Union

L 385/50

(1)

Article 17(2) of the Agreement between the European Community and the Swiss Confederation providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments provides that, subject to the conditions set out therein, Switzerland and where applicable the Community shall effectively implement and apply this Agreement from 1 January 2005.

(2)

Pursuant to Article 18(1), the application of the Agreement is conditional on the adoption and implementation by certain dependent or associated territories of the Member States and by the United States of America, Andorra, Liechtenstein, Monaco and San Marino respectively of measures which conform with or are equivalent to those contained in the Directive or the Agreement. Under Article 18(2), if the Contracting Parties do not, at least six months prior to the date referred to in Article 17(2) (1 January 2005), decide that the condition will be met, they shall, by common accord, adopt a new date for the purposes of Article 17(2). No such decision was taken.

(3)

Not all the third countries in question will be in a position to implement the measures referred to in Article 18(1) by 1 January 2005. Moreover, it will only be possible for Switzerland to implement and apply this Agreement from 1 July 2005 and this on the condition that Swiss constitutional requirements will be met by that date. It appears that each of the third countries and dependent or associated territories referred to in Article 18(1) of the Agreement will also be able to meet the conditions set out in that paragraph by 1 July 2005.

(4)

The date of 1 July 2005 should therefore be adopted as the new date for the purposes of Article 17(2) of the Agreement, in accordance with Article 18(2) of the Agreement.

(5)

The Agreement in the form of an Exchange of Letters providing for a new date of application of the Agreement on taxation of savings income in the form of interest payments should be approved,

29.12.2004   

EN

Official Journal of the European Union

L 385/55

(1)

In May 2003, the Commission adopted a Communication on ‘Modernising Company Law and enhancing Corporate Governance in the European Union – A plan to move forward’ (1). Among a range of proposals to strengthen shareholders' rights and modernise the board of directors, it provides for an initiative aimed at encouraging an appropriate regulatory regime for directors' remuneration in the Member States.

(2)

The form, structure and level of directors' remuneration are matters falling within the competence of companies and their shareholders. This should facilitate the recruitment and retention of directors having the qualities required to run a company. However, remuneration is one of the key areas where executive directors may have a conflict of interest and where due account should be taken of the interests of shareholders. Remuneration systems should therefore be subjected to appropriate governance controls, based on adequate information rights. In this respect, it is important to respect fully the diversity of corporate governance systems within the Community, which reflect different Member States' views about the roles of corporations and of bodies responsible for the determination of policy on the remuneration of directors, and the remuneration of individual directors.

(3)

The disclosure of accurate and timely information by the issuers of securities builds sustained investor confidence and constitutes an important tool for promoting sound corporate governance throughout the Community. To that end, it is important that listed companies display appropriate transparency in dealings with investors, so as to enable them to express their views.

(4)

When implementing this Recommendation, Member States should consider the specificities of collective investment undertakings of the corporate type and should prevent the various types of collective investment undertaking from being subjected, unnecessarily, to unequal treatment. As regards collective investment undertakings as defined in Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (2), that Directive already provides for a set of specific governance mechanisms. However, in order to prevent the unnecessarily unequal treatment of those collective investment undertakings of the corporate type not subject to harmonisation at Community level, Member States should take into account whether and to what extent these non-harmonised collective investment undertakings are subject to equivalent governance mechanisms.

(5)

Shareholders should be provided with a clear and comprehensive overview of the company's remuneration policy. Such disclosure would enable shareholders to assess a company's approach to remuneration and strengthen a company's accountability to shareholders. It should include elements related to compensation. This should not, however, oblige the company to disclose any information of a commercially sensitive nature which could be detrimental to the company's strategic position.

(6)

Adequate transparency should also be ensured in the policy regarding directors' contracts. This should include the disclosure of information on issues such as notice periods and termination payments under such contracts which are directly linked to directors' remuneration.

(7)

In order to give shareholders an effective chance to express their views and an opportunity to debate the remuneration policy on the basis of a comprehensive disclosure, without having to initiate the process of tabling a shareholders' resolution, the remuneration policy should be an explicit item on the agenda of the annual general meeting.

(8)

In order to increase accountability, the remuneration policy should be submitted to the annual general meeting for a vote. The vote at that meeting could be advisory, so that the rights of the relevant bodies responsible for directors' remuneration would not be altered. An advisory vote would not entail any obligation either to amend directors' contractual entitlements or to amend the remuneration policy.

(9)

Shareholders should also be provided with the information on the basis of which they can hold individual directors accountable for the remuneration they earn or have earned. Disclosure of the remuneration of individual directors of the company, executive and non-executive or supervisory directors, in the preceding financial year is therefore important to help them appreciate the remuneration in the light of the overall performance of the company.

(10)

Variable remuneration schemes under which directors are remunerated in shares, share options or any other right to acquire shares or to be remunerated on the basis of share price movements, and any substantial change in such schemes, should be subject to the prior approval of the annual general meeting. The approval should relate to the scheme of remuneration and the rules applied to establish the individual remuneration under the scheme but not to the individual remuneration of directors under the scheme.

(11)

In view of the importance attached to the question of remuneration of directors it is appropriate to monitor the implementation of this Recommendation and in case of insufficient implementation to consider further measures,

1.1.

Member States should take all appropriate measures to ensure that listed companies having their registered office in their territory have regard to this Recommendation. They should however duly consider the specific features of collective investment undertakings of the corporate type under the scope of Directive 85/611/EEC. Member States should also consider the specific features of collective investment undertakings of the corporate type which are not subject to that Directive and whose sole purpose is the investment of money raised from investors in a diversified range of assets and which do not seek to take legal or managerial control over any of the issuers of its underlying investments.

1.2.

Member States should also take all appropriate measures to ensure that listed companies which are not incorporated in one of the Member States but which have their primary listing on a regulated market established in their territory have regard to the provisions of this Recommendation.

1.3.

Member States should ensure that this Recommendation applies to the remuneration of the chief executive officers in circumstances where they are not members of the administrative, managerial and supervisory bodies of a listed company.

2.1.

‘Director’, means any member of the administrative, managerial or supervisory bodies of a listed company.

2.2.

‘Listed company’, means a company whose securities are admitted to trading on a regulated market within the meaning of Directive 2004/39/EC in one or more Member States.

3.1.

Each listed company should disclose a statement of the remuneration policy of the company (the remuneration statement). It should be part of an independent remuneration report and/or be included in the annual accounts and annual report or in the notes to the annual accounts of the company. The remuneration statement should also be posted on the listed company's website.

3.2.

The remuneration statement should mainly focus on the company's policy on directors' remuneration for the following financial year and, if appropriate, the subsequent years. It should also contain an overview of the manner in which the remuneration policy has been implemented in the previous financial year. Particular emphasis should be laid on any significant changes in the listed company's remuneration policy as compared to the previous financial year.

3.3.

The remuneration statement should set out at least the following information:

The disclosure of that information in the remuneration statement should nevertheless not entail the disclosure of information of a commercially sensitive nature.

3.4.

The remuneration statement should also summarise and explain the listed company's policy with regard to the terms of the contracts of executive directors. This should include, inter alia, information on the duration of contracts with executive directors, the applicable notice periods and details of provisions for termination payments and other payments linked to early termination under contracts for executive directors.

3.5.

Information concerning the preparatory and decision-making process used for determining the listed company's remuneration policy for directors should also be disclosed. This should include information, if applicable, about the mandate and composition of a remuneration committee, the names of external consultants whose services have been used in determination of the remuneration policy, and the role of the shareholders' annual general meeting

4.1.

Without prejudice to the role and organisation of the relevant bodies responsible for setting directors' remunerations, the remuneration policy and any significant change to the remuneration policy should be an explicit item on the agenda of the annual general meeting.

4.2.

Without prejudice to the role and organisation of the relevant bodies responsible for setting directors' remunerations, the remuneration statement should be submitted to the annual general meeting of shareholders for a vote. The vote may be either mandatory or advisory.

Member States may, however, provide that such a vote will be held only if shareholders representing at least 25 % of the total number of votes held by shareholders present or represented at the annual general meeting request it. This should nevertheless be without prejudice to the right for shareholders to table a resolution in accordance with national provisions.

4.3.

The listed company should inform shareholders entitled to receive notice of the meeting of the intention to table a resolution approving the remuneration statement at the annual general meeting.

5.1.

The total remuneration and other benefits granted to individual directors over the relevant financial year should be disclosed in detail in the annual accounts or in the notes to the annual accounts or, where applicable, in the remuneration report.

5.2.

The annual accounts or the notes to the annual accounts or, where applicable, the remuneration report should show at least the information listed in points 5.3. to 5.6. for each person who has served as a director of the listed company at any time during the relevant financial year.

5.3.

As regards the remuneration and/or emoluments, the following information should be presented:

5.4.

As regards shares and/or rights to acquire share options and/or all other share-incentive schemes, the following information should be presented:

5.5.

As regards supplementary pension schemes, the following information should be presented:

5.6.

If it is permissible under national law or under the Articles of Association of the listed company to make such payments, amounts should be shown which the company, or any subsidiary or company included in the company's consolidated annual accounts, has paid by way of loans, advance payments and guarantees to each person who has served as a director at any time during the relevant financial year, including the amount outstanding and the interest rate.

6.1.

Schemes under which directors are remunerated in shares, share options or any other right to acquire shares or to be remunerated on the basis of share price movements should be subject to the prior approval of shareholders by way of a resolution at the annual general meeting prior to their adoption. The approval should relate to the scheme in itself and not to the grant of such share-based benefits under that scheme to individual directors.

6.2.

Approval by the annual general meeting should be obtained for the following:

6.3.

The annual general meeting should also set the deadline within which the body responsible for directors' remuneration may award these types of compensation to individual directors.

6.4.

Any substantial change in the terms and conditions of the schemes should also be subject to the approval of shareholders by way of a resolution at the annual general meeting prior to their adoption. In those cases, shareholders should be informed of the full terms of the proposed changes and should be given an explanation of the effect of the proposed changes.

6.5.

If such arrangement is permissible under national law or under the Articles of Association of the listed company, any discounted option arrangement under which any rights are granted to subscribe to shares at a price lower than the market value of the share on the date when the price is determined, or the average of the market values over a number of days preceding the date when the exercise price is determined, should also receive the approval of shareholders.

6.6.

Points 6.1. to 6.4. should not apply to schemes in which participation is offered on similar terms to employees of the listed company or any of its subsidiary undertaking whose employees are eligible to participate in the scheme and which has been approved by the annual general meeting.

7.1.

Prior to the annual general meeting where a draft resolution is tabled in accordance with point 6.1. and in accordance with national law and/or the Articles of Association of the listed company, an information notice concerning the resolution should be made available to shareholders.

The notice should contain the full text of the share-based remuneration schemes or a description of their principal terms, and the names of the participants in the schemes. It should also set out the relationship of the schemes with the overall directors' remuneration policy.

The draft resolution should clearly refer either to the scheme itself or to the summary of its principal terms.

7.2.

Information should also be made available to shareholders about how the company intends to provide for the shares needed to meet its obligations under incentive schemes. In particular it should be clearly stated whether the company intends to purchase the necessary shares in the market, whether it holds them in treasury, or whether it will issue new shares.

7.3.

This information should also provide an overview of the costs of the scheme to the company in view of the intended application.

7.4.

Such information should be posted on the listed company's website.

8.1.

Member States are invited to take the necessary measures to promote the application of this Recommendation by 30 June 2006 and are invited to notify the Commission of measures taken in accordance with this Recommendation in order to allow the Commission to monitor closely the situation and, on this basis, to assess the need for further measures.

8.2.

This Recommendation is addressed to the Member States.

29.12.2004   

EN

Official Journal of the European Union

L 385/60

(1)

Commission Decision 2003/858/EC of 21 November 2003 laying down the animal health conditions and certification requirements for imports of live fish, their eggs and gametes intended for farming, and live fish of aquaculture origin and products thereof intended for human consumption (2), sets out the specific animal health conditions for imports of live fish and certain products of aquaculture origin into the Community from third countries.

(2)

The definition of ‘farming’ in Decision 2003/858/EC has led to different interpretations concerning the scope of the Decision. For the sake of clarity, this definition should therefore be made more precise.

(3)

The requirements laid down in Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products (3), apply also to live fish imported for the purpose of human consumption. For the sake of clarity, Article 4 of Decision 2003/858/EC should be amended accordingly.

(4)

The import requirements for fish products to be further processed in Decision 2003/858/EC should apply only to species susceptible to diseases referred to in List II of Annex A to Directive 91/67/EEC or diseases that are considered exotic to the Community. Experience has shown that these requirements are not clearly described by the wording of Article 5(2), and therefore that article should be amended for the sake of clarification.

(5)

Commission Regulation (EC) No 282/2004 of 18 February 2004 introducing a document for the declaration of, and veterinary checks on, animals from third countries entering the Community (4), has replaced Decision 92/527/EEC (5). Where live fish are destined for farming or restocking purposes, the control procedure in Article 8 of Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (6), should be used and the common veterinary entry document in Regulation (EC) No 282/2004 completed accordingly by the official veterinarian.

(6)

Commission Regulation (EC) No 136/2004 of 22 January 2004 laying down procedures for veterinary checks at Community border inspection posts on products imported from third countries (7) has replaced Decision 93/13/EEC (8). Where certain products of aquaculture origin are destined for further processing in the Community, the control procedure in Article 8 of Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (9) should be used and the common veterinary entry document in Regulation (EC) No 136/2004 completed accordingly by the official veterinarian.

(7)

The certification procedures laid down in Article 7 of Decision 2003/858/EC should be amended accordingly, and its Annex VI deleted.

(8)

It is necessary, for the sake of simplification and clarification, to harmonise statements on the model certificates laid down in the Annexes to Decision 2003/858/EC, with those on the model certificates laid down pursuant to Directive 91/493/EEC. Annexes II, III, IV and V to Decision 2003/858/EC should be amended accordingly.

(9)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

1.

Article 2(2)(g) is replaced by:

2.

Article 4 is replaced by the following:

‘Article 4

Conditions related to importation of live fish of aquaculture origin for human consumption

Member States shall authorise the importation into their territory of live fish of aquaculture origin intended for immediate human consumption or for further processing before human consumption, only if:

3.

Article 5(2) is replaced by:

‘2.   Member States shall ensure that the processing of fish products of aquaculture origin from species susceptible to EHN, ISA, VHS and IHN takes place in approved import centres unless:

4.

Article 6 is replaced by the following:

‘Article 6

Conditions related to importation of fish products of aquaculture origin for immediate human consumption

Member States shall authorise the importation into their territory of fish products of aquaculture origin intended for immediate human consumption only if:

5.

Article 7 is replaced by the following:

‘Article 7

Control procedures

1.   Live fish, their eggs and gametes imported for the purpose of farming, and live fish of aquaculture origin imported for the purposes of restocking of put and take fisheries shall be subject to veterinary checks at the border inspection post in the Member State of arrival according to Article 8 of Directive 91/496/EEC, and the common veterinary entry document provided for in Regulation (EC) No 282/2004 shall be completed accordingly.

2.   Live fish of aquaculture origin and products thereof imported for immediate human consumption or for further processing before human consumption, shall be subject to veterinary checks at the border inspection post in the Member State of arrival according to Article 8 of Directive 97/78/EC, and the common veterinary entry document provided for in Regulation (EC) No 136/2004 shall be completed accordingly.’

6.

Article 8 is replaced by the following:

‘Article 8

Preventing contamination of natural waters

1.   Member States shall ensure that imported live fish of aquaculture origin intended for human consumption are not released into natural waters within their territory.

2.   Member States shall ensure that imported products of aquaculture origin intended for human consumption do not contaminate any natural waters within their territory.

3.   Members States shall ensure that transport water from imported consignments does not lead to contamination of natural waters within their territory.’

7.

Annex II is replaced by Annex I to this Decision.

8.

Annex III is replaced by Annex II to this Decision.

9.

Annex IV is replaced by Annex III to this Decision.

10.

Annex V is replaced by Annex IV to this Decision.

11.

Annex VI is deleted.

29.12.2004   

EN

Official Journal of the European Union

L 385/74

(1)

In order to facilitate data flows from the Community, it is desirable for data controllers to be able to perform data transfers globally under a single set of data protection rules. In the absence of global data protection standards, standard contractual clauses provide an important tool allowing the transfer of personal data from all Member States under a common set of rules. Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC (2) therefore lays down a model set of standard contractual clauses which ensures adequate safeguards for the transfer of data to third countries.

(2)

Much experience has been gained since the adoption of that Decision. In addition, a coalition of business associations (3) has submitted a set of alternative standard contractual clauses designed to provide a level of data protection equivalent to that provided for by the set of standard contractual clauses laid down in Decision 2001/497/EC while making use of different mechanisms.

(3)

Since the use of standard contractual clauses for international data transfers is voluntary as standard contractual clauses are only one of several possibilities under Directive 95/46/EC, for lawfully transferring personal data to a third country, data exporters in the Community and data importers in third countries should be free to choose any of the sets of standard contractual clauses, or to choose some other legal basis for data transfer. As each set as a whole forms a model, data exporters should not, however, be allowed to amend these sets or totally or partially merge them in any manner.

(4)

The standard contract clauses submitted by the business associations aim at increasing the use of contractual clauses among operators by mechanisms such as more flexible auditing requirements and more detailed rules on the right of access.

(5)

Moreover, as an alternative to the system of joint and several liability provided for in Decision 2001/497/EC, the set now submitted contains a liability regime based on due diligence obligations where the data exporter and the data importer would be liable vis-à-vis the data subjects for their respective breach of their contractual obligations; the data exporter is also liable for not using reasonable efforts to determine that the data importer is able to satisfy its legal obligations under the clauses (culpa in eligendo) and the data subject can take action against the data exporter in this respect. The enforcement of clause I(b) of the new set of standard contractual clauses is of particular importance in this regard, in particular in connection with the possibility for the data exporter to carry out audits on the data importers’ premises or to request evidence of sufficient financial resources to fulfil its responsibilities.

(6)

As regards the exercise of third party beneficiary rights by the data subjects, greater involvement of the data exporter in the resolution of data subjects' complaints is provided for, with the data exporter being obliged to make contact with the data importer and, if necessary, enforce the contract within the normal period of one month. If the data exporter refused to enforce the contract and the breach by the data importer still continues, the data subject may then enforce the clauses against the data importer and eventually sue him in a Member State. This acceptance of jurisdiction and the agreement to comply with a decision of a competent court or data protection authority does not prejudice any procedural rights of data importers established in third countries, such as rights of appeal.

(7)

In order, however, to prevent abuses with this additional flexibility, it is appropriate to provide that data protection authorities can more easily prohibit or suspend data transfers based on the new set of standard contractual clauses in those cases where the data exporter refuses to take appropriate steps to enforce contractual obligations against the data importer or the latter refuses to cooperate in good faith with competent supervisory data protection authorities.

(8)

The use of standard contractual clauses will be made without prejudice to the application of national provisions adopted pursuant to Directive 95/46/EC or to Directive 2002//58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (4), in particular as far as the sending of commercial communications for the purposes of direct marketing is concerned.

(9)

On that basis, the safeguards contained in the submitted standard contractual clauses can be considered as adequate within the meaning of Article 26(2) of Directive 95/46/EC.

(10)

The Working Party on the Protection of Individuals with regard to the Processing of Personal Data established under Article 29 of Directive 95/46/EC has delivered an opinion (5) on the level of protection provided under the submitted standard contractual clauses which has been taken into account.

(11)

In order to assess the operation of the amendments to Decision 2001/497/EC, it is appropriate that the Commission evaluates them three years after their notification to the Member States

(12)

Decision 2001/497/EC should be amended accordingly.

(13)

The measures provided for in this Decision are in accordance with the opinion of the Committee established under Article 31 of Directive 95/46/EC,

1.

In Article 1 the following paragraph is added:

‘Data controllers may choose either of the sets I or II in the Annex. However, they may not amend the clauses nor combine individual clauses or the sets.’

2.

In Article 4 paragraphs 2 and 3 are replaced by the following:

‘2.   For the purposes of paragraph 1, where the data controller adduces adequate safeguards on the basis of the standard contractual clauses contained in set II in the Annex, the competent data protection authorities are entitled to exercise their existing powers to prohibit or suspend data flows in either of the following cases:

For the purposes of the first subparagraph, refusal in bad faith or refusal to enforce the contract by the data importer shall not include cases in which cooperation or enforcement would conflict with mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, in particular sanctions as laid down in international and/or national instruments, tax-reporting requirements or anti-money-laundering reporting requirements.

For the purposes of point (a) of the first subparagraph cooperation may include, in particular, the submission of the data importer’s data processing facilities for audit or the obligation to abide by the advice of the data protection supervisory authority in the Community.

3.   The prohibition or suspension pursuant to paragraphs 1 and 2 shall be lifted as soon as the reasons for the prohibition or suspension no longer exist.

4.   When Member States adopt measures pursuant to paragraphs 1, 2 and 3, they shall without delay inform the Commission which will forward the information to the other Member States.’.

3.

In Article 5 the first sentence is replaced by the following:

‘The Commission shall evaluate the operation of this Decision on the basis of available information three years after its notification and the notification of any amendment thereto to the Member States.’.

4.

The Annex is amended as follows:

29.12.2004   

EN

Official Journal of the European Union

L 385/85

(1)

The customers to whom Eurosystem reserve management services can be provided under Guideline ECB/2004/13 (1) are non-European Union (non-EU) countries, non-EU central banks or monetary authorities, and international organisations.

(2)

In view of recent developments and after further assessment, the Governing Council considers it useful to broaden the definition of customer also to include the Member States that have not adopted the euro and their national central banks (NCBs). Guideline ECB/2004/13 should therefore be amended accordingly.

(3)

In accordance with Article 12(1) and Article 14(3) of the Statute, ECB guidelines form an integral part of Community law,

1.

The title is replaced by the following:

‘Guideline of the European Central Bank of 1 July 2004 on the Eurosystem’s provision of reserve management services in euro to central banks and countries located outside the euro area and to international organisations (ECB/2004/13)’.

2.

Article 1 is amended as follows: