28.5.2014   

EN

Official Journal of the European Union

L 159/1

(1)

Council Directive 93/7/EEC (2) has been substantially amended by Directives 96/100/EC (3) and 2001/38/EC (4) of the European Parliament and of the Council. Since further amendments are to be made, it should be recast in the interests of clarity.

(2)

The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the Treaty on the Functioning of the European Union (TFEU). According to Article 36 TFEU, the relevant provisions on free movement of goods do not preclude prohibitions or restrictions on imports, exports or goods in transit, justified on grounds of the protection of national treasures possessing artistic, historic or archaeological value.

(3)

Under the terms and within the limits of Article 36 TFEU, Member States retain the right to define their national treasures and to take the necessary measures to protect them. Nevertheless, the Union plays a valuable role in encouraging cooperation between Member States with a view to protecting cultural heritage of European significance, to which such national treasures belong.

(4)

Directive 93/7/EEC introduced arrangements enabling Member States to secure the return to their territory of cultural objects which are classified as national treasures within the meaning of Article 36 TFEU, which fall within the common categories of cultural objects referred to in the Annex to that Directive, and which have been removed from their territory in breach of the national measures or of Council Regulation (EC) No 116/2009 (5). That Directive also covered cultural objects classified as national treasures and forming an integral part of public collections or inventories of ecclesiastical institutions which did not fall within those common categories.

(5)

Directive 93/7/EEC established administrative cooperation between Member States as regards their national treasures, closely linked to their cooperation with Interpol and other competent bodies in the field of stolen works of art and involving, in particular, the recording of lost, stolen or illegally removed cultural objects forming part of their national treasures and their public collections.

(6)

The procedure provided for in Directive 93/7/EEC was a first step in establishing cooperation between Member States in this field in the context of the internal market, with the aim of further mutual recognition of relevant national laws.

(7)

Regulation (EC) No 116/2009, together with Directive 93/7/EEC, introduced a Union system for the protection of Member States' cultural objects.

(8)

The objective of Directive 93/7/EEC was to ensure the physical return of the cultural objects to the Member State from whose territory those objects have been unlawfully removed, irrespective of the property rights applying to such objects. The application of that Directive, however, has shown the limitations of the arrangements for securing the return of such cultural objects. The reports on the application of that Directive have pointed out its infrequent application due in particular to the limitation of its scope, which resulted from the conditions set out in the Annex to that Directive, the short period of time allowed to initiate return proceedings and the costs associated with return proceedings.

(9)

The scope of this Directive should be extended to any cultural object classified or defined by a Member State under national legislation or administrative procedures as a national treasure possessing artistic, historic or archaeological value within the meaning of Article 36 TFEU. This Directive should thus cover objects of historical, paleontological, ethnographic, numismatic interest or scientific value, whether or not they form part of public or other collections or are single items, and whether they originate from regular or clandestine excavations, provided that they are classified or defined as national treasures. Furthermore, cultural objects classified or defined as national treasures should no longer have to belong to categories or comply with thresholds related to their age and/or financial value in order to qualify for return under this Directive.

(10)

The diversity of national arrangements for protecting national treasures is recognised in Article 36 TFEU. In order to foster mutual trust, a willingness to cooperate and mutual understanding between Member States, the scope of the term ‘national treasure’ should be determined, in the framework of Article 36 TFEU. Member States should also facilitate the return of cultural objects to the Member State from whose territory those objects have been unlawfully removed regardless of the date of accession of that Member State, and should ensure that the return of such objects does not give rise to unreasonable costs. It should be possible for Member States to return cultural objects other than those classified or defined as national treasures provided that they respect the relevant provisions of the TFEU, as well as cultural objects unlawfully removed before 1 January 1993.

(11)

The administrative cooperation between Member States needs to be increased so that this Directive can be applied more effectively and uniformly. Therefore, the central authorities should be required to cooperate efficiently with each other and to exchange information relating to unlawfully removed cultural objects through the use of the Internal Market Information System (‘IMI’) provided for by Regulation (EU) No 1024/2012 of the European Parliament and of the Council (6). In order to improve the implementation of this Directive, a module of the IMI system specifically customised for cultural objects should be established. It is also desirable for other competent authorities of the Member States to use the same system, where appropriate.

(12)

In order to ensure the protection of personal data, administrative cooperation and the exchange of information between the competent authorities should comply with the rules set out in Directive 95/46/EC of the European Parliament and of the Council (7), and, in so far as the IMI is used, in Regulation (EU) No 1024/2012. The definitions used in Directive 95/46/EC and in Regulation (EC) No 45/2001 of the European Parliament and of the Council (8) should also apply for the purposes of this Directive.

(13)

The time-limit for checking whether the cultural object found in another Member State is a cultural object within the meaning of Directive 93/7/EEC was identified as being too short in practice. Therefore, it should be extended to six months. A longer period should allow Member States to take the necessary measures to preserve the cultural object and, where appropriate, prevent any action to evade the return procedure.

(14)

The time-limit for bringing return proceedings should also be extended to three years after the Member State from whose territory the cultural object was unlawfully removed became aware of the location of the cultural object and of the identity of its possessor or holder. The extension of this period should facilitate the return and discourage the illegal removal of national treasures. In the interest of clarity, it should be stipulated that the time-limit for bringing proceedings begins on the date on which the information came to the knowledge of the central authority of the Member State from whose territory the cultural object was unlawfully removed.

(15)

Directive 93/7/EEC provided that return proceedings may not be brought more than 30 years after the object was unlawfully removed from the territory of the Member State. However, in the case of objects forming part of public collections and of objects belonging to inventories of ecclesiastical institutions in the Member States where they are subject to special protection arrangements under national law, return proceedings are subject to a longer time-limit under certain circumstances. Due to the fact that Member States may have special protection arrangements under national law with religious institutions other than ecclesiastical ones, this Directive should also extend to those other religious institutions.

(16)

In its Conclusions on preventing and combating crime against cultural goods adopted on 13 and 14 December 2011, the Council recognised the need to take measures in order to make preventing and combating crime concerning cultural objects more effective. It recommended that the Commission support Member States in the effective protection of cultural objects with a view to preventing and combating trafficking and promoting complementary measures where appropriate. In addition, the Council recommended that the Member States consider the ratification of the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property signed in Paris on 17 November 1970, and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects signed in Rome on 24 June 1995.

(17)

It is desirable to ensure that all those involved in the market exercise due care and attention in transactions involving cultural objects. The consequences of acquiring a cultural object of unlawful origin will only be genuinely dissuasive if the payment of compensation is coupled with an obligation on the possessor to prove the exercise of due care and attention. Therefore, in order to achieve the Union's objectives of preventing and combating unlawful trafficking in cultural objects, this Directive should stipulate that the possessor must provide proof that he exercised due care and attention in acquiring the object, for the purpose of compensation.

(18)

It would also be useful for any person, and in particular those who are involved in the market, to have easy access to public information on cultural objects classified or defined as national treasures by the Member States. Member States should try to facilitate access to this public information.

(19)

In order to facilitate a uniform interpretation of the concept of due care and attention, this Directive should set out non-exhaustive criteria to be taken into account to determine whether the possessor exercised due care and attention when acquiring the cultural object.

(20)

Since the objective of this Directive, namely to enable the return of cultural objects classified or defined as national treasures which have been unlawfully removed from the territory of Member States, cannot be sufficiently achieved by the Member States, but can, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(21)

Since the tasks of the committee set up by Regulation (EC) No 116/2009 are rendered obsolete by the deletion of the Annex to Directive 93/7/EEC, references to that committee should be deleted accordingly. However, in order to maintain the platform for the exchange of experience and good practices on the implementation of this Directive among Member States, the Commission should set up an expert group, composed of experts from the Member States' central authorities responsible for the implementation of this Directive, which should be involved, inter alia, in the process of customising a module of the IMI system for cultural objects.

(22)

Since the Annex to Regulation (EU) No 1024/2012 contains a list of provisions on administrative cooperation in Union acts which are implemented by means of the IMI, that Annex should be amended to include this Directive.

(23)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the earlier Directives. The obligation to transpose the provisions which are unchanged arises from the earlier Directives.

(24)

This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law of the Directives set out in Annex I, Part B,

(1)

‘cultural object’ means an object which is classified or defined by a Member State, before or after its unlawful removal from the territory of that Member State, as being among the ‘national treasures possessing artistic, historic or archaeological value’ under national legislation or administrative procedures within the meaning of Article 36 TFEU;

(2)

‘unlawfully removed from the territory of a Member State’ means:

(3)

‘requesting Member State’ means the Member State from whose territory the cultural object has been unlawfully removed;

(4)

‘requested Member State’ means the Member State in whose territory a cultural object, which was unlawfully removed from the territory of another Member State, is located;

(5)

‘return’ means the physical return of the cultural object to the territory of the requesting Member State;

(6)

‘possessor’ means the person physically holding the cultural object on his own account;

(7)

‘holder’ means the person physically holding the cultural object for third parties;

(8)

‘public collections’ means collections, defined as public in accordance with the legislation of a Member State, which are the property of that Member State, of a local or regional authority within that Member State or of an institution situated in the territory of that Member State, such institution being the property of, or significantly financed by, that Member State or local or regional authority.

(1)

upon application by the requesting Member State, seek a specified cultural object which has been unlawfully removed from its territory, identifying the possessor and/or holder. The application must include all information needed to facilitate the search, with particular reference to the actual or presumed location of the object;

(2)

notify the Member States concerned, where a cultural object is found in their own territory and there are reasonable grounds for believing that it has been unlawfully removed from the territory of another Member State;

(3)

enable the competent authorities of the requesting Member State to check that the object in question is a cultural object, provided that the check is made within six months of the notification provided for in point (2). If it is not made within the stipulated period, points (4) and (5) shall cease to apply;

(4)

take any necessary measures, in cooperation with the Member State concerned, for the physical preservation of the cultural object;

(5)

prevent, by the necessary interim measures, any action to evade the return procedure;

(6)

act as intermediary between the possessor and/or holder and the requesting Member State with regard to return. To that end, the competent authorities of the requested Member State may, without prejudice to Article 6, first facilitate the implementation of an arbitration procedure, in accordance with the national legislation of the requested Member State and provided that the requesting Member State and the possessor or holder give their formal approval.

(a)

a document describing the object covered by the request and stating that it is a cultural object;

(b)

a declaration by the competent authorities of the requesting Member State that the cultural object has been unlawfully removed from its territory.

28.5.2014   

EN

Official Journal of the European Union

L 159/11

(1)

The free movement of workers, freedom of establishment and freedom to provide services are fundamental principles of the internal market in the Union enshrined in the Treaty on the Functioning of the European Union (TFEU). The implementation of those principles is further developed by the Union aimed at guaranteeing a level playing field for businesses and respect for the rights of workers.

(2)

The freedom to provide services includes the right of undertakings to provide services in another Member State, to which they may post their own workers temporarily in order to provide those services there. It is necessary for the purpose of the posting of workers to distinguish this freedom from the free movement of workers, which gives every citizen the right to move freely to another Member State to work and reside there for that purpose and protects them against discrimination as regards employment, remuneration and other conditions of work and employment in comparison to nationals of that Member State.

(3)

With respect to workers temporarily posted to carry out work in order to provide services in another Member State than the one in which they habitually carry out their work, Directive 96/71/EC of the European Parliament and of the Council (4) establishes a core set of clearly defined terms and conditions of employment which are required to be complied with by the service provider in the Member State to which the posting takes place to ensure the minimum protection of the posted workers concerned.

(4)

All measures introduced by this Directive should be justified and proportionate so as not to create administrative burdens or to limit the potential that undertakings, in particular small and medium-sized enterprises (SMEs), have to create new jobs, while protecting posted workers.

(5)

In order to ensure compliance with Directive 96/71/EC, whilst not putting an unnecessary administrative burden on the service providers, it is essential that the factual elements referred to in the provisions on the identification of a genuine posting and preventing abuse and circumvention in this Directive are considered to be indicative and non-exhaustive. In particular, there should be no requirement that each element is to be satisfied in every posting case.

(6)

Notwithstanding the fact that the assessment of the indicative factual elements should be adapted to each specific case and take account of the specificities of the situation, situations representing the same factual elements should not lead to a different legal appreciation or assessment by competent authorities in different Member States.

(7)

In order to prevent, avoid and combat abuse and circumvention of the applicable rules by undertakings taking improper or fraudulent advantage of the freedom to provide services enshrined in the TFEU and/or of the application of Directive 96/71/EC, the implementation and monitoring of the notion of posting should be improved and more uniform elements, facilitating a common interpretation, should be introduced at Union level.

(8)

Therefore, the constituent factual elements characterising the temporary nature inherent to the notion of posting, and the condition that the employer is genuinely established in the Member State from which the posting takes place, need to be examined by the competent authority of the host Member State and, where necessary, in close cooperation with the Member State of establishment.

(9)

When considering the size of the turnover realised by an undertaking in the Member State of establishment for the purpose of determining whether that undertaking genuinely performs substantial activities, other than purely internal management and/or administrative activities, competent authorities should take into account differences in the purchasing power of currencies.

(10)

The elements set out in this Directive relating to the implementation and monitoring of posting may also assist the competent authorities in identifying workers falsely declared as self-employed. According to Directive 96/71/EC, the relevant definition of a worker is that which applies in the law of the Member State to whose territory a worker is posted. Further clarification and improved monitoring of posting by relevant competent authorities would enhance legal certainty and provide a useful tool contributing to combating bogus self-employment effectively and ensuring that posted workers are not falsely declared as self-employed, thus helping prevent, avoid and combat circumvention of the applicable rules.

(11)

Where there is no genuine posting situation and a conflict of law arises, due regard should be given to the provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council (5) (‘Rome I’) or the Rome Convention (6) that are aimed at ensuring that employees should not be deprived of the protection afforded to them by provisions which cannot be derogated from by an agreement or which can only be derogated from to their benefit. Member States should ensure that provisions are in place to adequately protect workers who are not genuinely posted.

(12)

The lack of the certificate concerning the applicable social security legislation referred to in Regulation (EC) No 883/2004 of the European Parliament and of the Council (7) may be an indication that the situation should not be characterised as one of temporarily posting to a Member State other than the one in which the worker concerned habitually works in the framework of the provision of services.

(13)

As is the case with Directive 96/71/EC, this Directive should not prejudice the application of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 of the European Parliament and of the Council (8).

(14)

Respect for the diversity of national industrial relations systems as well as the autonomy of social partners is explicitly recognised by the TFEU.

(15)

In many Member States, the social partners play an important role in the context of the posting of workers for the provision of services since they may, in accordance with national law and/or practice, determine the different levels, alternatively or simultaneously, of the applicable minimum rates of pay. The social partners should communicate and inform about those rates.

(16)

Adequate and effective implementation and enforcement are key elements in protecting the rights of posted workers and in ensuring a level-playing field for the service providers, whereas poor enforcement undermines the effectiveness of the Union rules applicable in this area. Close cooperation between the Commission and the Member States, and where relevant, regional and local authorities, is therefore essential, without neglecting the important role of labour inspectorates and the social partners in this respect. Mutual trust, a spirit of cooperation, continuous dialogue and mutual understanding are essential in this respect.

(17)

Effective monitoring procedures in Member States are essential for the enforcement of Directive 96/71/EC and of this Directive and therefore they should be established throughout the Union.

(18)

Difficulties in accessing information on terms and conditions of employment are very often the reason why existing rules are not applied by service providers. Member States should therefore ensure that such information is made generally available, free of charge and that effective access to it is provided, not only to service providers from other Member States, but also to the posted workers concerned.

(19)

Where terms and conditions of employment are laid down in collective agreements which have been declared to be universally applicable, Member States should ensure, while respecting the autonomy of social partners, that those collective agreements are made generally available in an accessible and transparent way.

(20)

In order to improve accessibility of information, a single source of information should be established in Member States. Each Member State should provide for a single official national website, in accordance with web accessibility standards, and other suitable means of communication. The single official national website should, as a minimum, be in the form of a website portal and should serve as a gateway or main entry point and should provide in clear and precise way links to the relevant sources of the information as well as brief information on the content of the website and the links referred to. Such websites should include in particular any website put in place pursuant to Union legislation with a view to promoting entrepreneurship and/or the development of cross-border provision of services. Host Member States should provide information on the periods laid down in their national law for which the service providers have to retain documents after the period of posting.

(21)

Posted workers should have the right to receive from the host Member State general information on national law and/or practice that is applicable to them.

(22)

Administrative cooperation and mutual assistance between the Member States should comply with the rules on the protection of personal data laid down in Directive 95/46/EC of the European Parliament and of the Council (9), and in accordance with national data protection rules implementing Union legislation. With regard to administrative cooperation through the Internal Market Information System (IMI), it should also comply with Regulation (EC) No 45/2001 of the European Parliament and of the Council (10) and Regulation (EU) No 1024/2012 of the European Parliament and of the Council (11).

(23)

In order to ensure the correct application of, and to monitor compliance with, the substantive rules on the terms and conditions of employment to be respected with regard to posted workers, Member States should apply only certain administrative requirements and control measures to undertakings that post workers in the framework of the provision of services. According to the case law of the Court of Justice of the European Union, such requirements and measures may be justified by overriding reasons of general interest, which include the effective protection of workers' rights, provided they are appropriate for securing the attainment of the objective pursued and do not go beyond what is necessary to attain it. Such requirements and measures may only be imposed provided that the competent authorities cannot carry out their supervisory task effectively without the requested information and/or less restrictive measures would not ensure that the objectives of the national control measures deemed necessary are attained.

(24)

A service provider should ensure that the identity of the posted workers included in the declaration made by the service provider in order to allow factual controls at the workplace is verifiable for the duration of the posting by the competent authorities.

(25)

A service provider established in another Member State should inform the competent authorities in the host Member State without undue delay of any important changes to the information contained in the declaration made by the service provider in order to allow factual controls at the workplace.

(26)

The obligation to communicate administrative requirements and control measures to the Commission should not constitute an ex-ante authorisation process.

(27)

In order to ensure better and more uniform application of Directive 96/71/EC as well as its enforcement in practice and to reduce, as far as possible, differences in the level of application and enforcement across the Union, Member States should ensure that effective and adequate inspections are carried out on their territory, thus contributing, inter alia, to the fight against undeclared work in the context of posting, also taking into account other legal initiatives to address this issue better.

(28)

Member States should provide, where applicable, in accordance with their national law and/or practice, the inspected undertaking with a post- inspection or control document which includes any relevant information.

(29)

Member States should ensure that sufficient staff are available with the skills and qualifications needed to carry out inspections effectively and to enable requests for information as provided for in this Directive, from the host Member State or the Member State of establishment to be responded to without undue delay.

(30)

Labour inspectorates, social partners and other monitoring bodies are of paramount importance in this respect and should continue to play a crucial role.

(31)

In order to cope in a flexible way with the diversity of labour markets and industrial relations systems, by way of exception, the management and labour and/or other actors and/or bodies may monitor certain terms and conditions of employment of posted workers, provided they offer the persons concerned an equivalent degree of protection and exercise their monitoring in a non-discriminatory and objective manner.

(32)

Member States' inspection authorities and other relevant monitoring and enforcement bodies should avail themselves of the cooperation and exchange of information provided for in the relevant law in order to verify whether the rules applicable to posted workers have been respected.

(33)

Member States are particularly encouraged to introduce a more integrated approach to labour inspections. The need to develop common standards in order to establish comparable methods, practices and minimum standards at Union level should equally be examined. However, the development of common standards should not result in Member States being hampered in their efforts to combat undeclared work effectively.

(34)

To facilitate the enforcement of Directive 96/71/EC and ensure its more effective application, effective complaint mechanisms should exist through which posted workers may lodge complaints or engage in proceedings either directly or, with their approval, through relevant designated third parties, such as trade unions or other associations as well as common institutions of social partners. This should be without prejudice to national rules of procedure concerning representation and defence before the courts and to the competences and other rights of trade unions and other employee representatives under national law and/or practice.

(35)

For the purpose of ensuring that a posted worker receives the correct pay and provided that allowances specific to posting can be considered part of minimum rates of pay, such allowances should only be deducted from wages if national law, collective agreements and/or practice of the host Member State provide for this.

(36)

Compliance with the applicable rules in the field of posting in practice and the effective protection of workers' rights in this respect is a matter of particular concern in subcontracting chains and should be ensured through appropriate measures in accordance with national law and/or practice and in compliance with Union law. Such measures may include the introduction on a voluntary basis, after consulting the relevant social partners, of a mechanism of direct subcontracting liability, in addition to or in place of the liability of the employer, in respect of any outstanding net remuneration corresponding to the minimum rates of pay and/or contributions due to common funds or institutions of social partners regulated by law or collective agreement in so far as these are covered by Article 3(1) of Directive 96/71/EC. However, Member States remain free to provide for more stringent liability rules under national law or to go further under national law on a non-discriminatory and proportionate basis.

(37)

Member States that have introduced measures to ensure compliance with the applicable rules in subcontracting chains should have the possibility to provide that a (sub)contractor should not be liable in specific circumstances or that the liability may be limited in cases where due diligence obligations have been undertaken by that (sub)contractor. Those measures should be defined by national law, taking into account the specific circumstances of the Member State concerned, and they may include, inter alia, measures taken by the contractor concerning documentation of compliance with administrative requirements and control measures in order to ensure effective monitoring of compliance with the applicable rules on the posting of workers.

(38)

It is a matter of concern that there are still many difficulties for Member States to recover cross-border administrative penalties and/or fines and therefore the mutual recognition of administrative penalties and/or fines needs to be addressed.

(39)

The disparities between the systems of the Member States for enforcing imposed administrative penalties and/or fines in cross-border situations are prejudicial to the proper functioning of the internal market and risk making it very difficult, if not impossible, to ensure that posted workers enjoy an equivalent level of protection throughout the Union.

(40)

Effective enforcement of the substantive rules governing the posting of workers for the provision of services should be ensured by specific action focusing on the cross-border enforcement of imposed financial administrative penalties and/or fines. Approximation of the legislation of the Member States in this field is therefore an essential prerequisite in order to ensure a higher, more equivalent and comparable level of protection necessary for the proper functioning of the internal market.

(41)

The adoption of common rules which provide mutual assistance and support for enforcement measures and the associated costs, as well as the adoption of uniform requirements for the notification of decisions relating to administrative penalties and/or fines imposed for the non-respect of Directive 96/71/EC, as well as of this Directive, should resolve a number of practical cross-border enforcement problems and guarantee better communication and better enforcement of such decisions emanating from another Member State.

(42)

If it emerges that the service provider is indeed not established in the Member State of establishment or that the address or the company data are false, the competent authorities should not terminate the procedure on formal grounds but should investigate the matter further in order to establish the identity of the natural or legal person responsible for the posting.

(43)

The recognition of decisions imposing an administrative penalty and/or fine and requests to recover such a penalty and/or fine should be based on the principle of mutual trust. To that end, the grounds for non-recognition or a refusal to recover an administrative penalty and/or fine should be limited to the minimum necessary.

(44)

Notwithstanding the establishment of more uniform rules with respect to the cross-border enforcement of administrative penalties and/or fines and the need for more common criteria to make follow-up procedures more effective in the event of the non-payment, they should not affect the Member States' competences to determine their system of penalties, sanctions and fines or the recovery measures available under their national law. Therefore, the instrument permitting enforcement or execution of such penalties and/or fines may, if appropriate, and taking into account national law and/or practice in the requested Member State, be completed, or be accompanied or replaced by a title permitting its enforcement or execution in the requested Member State.

(45)

The more uniform rules should not have the effect of amending or modifying the obligation to respect fundamental rights and freedoms of defendants as well as fundamental legal principles that apply to them as enshrined in Article 6 of the Treaty on European Union (TEU), such as the right to be heard and the right to an effective remedy and to a fair trial or the principle ‘ne bis in idem’.

(46)

This Directive does not aim to establish harmonised rules for judicial cooperation, jurisdiction, or the recognition and enforcement of decisions in civil and commercial matters, or to deal with applicable law.

(47)

Member States should take appropriate measures in the event of failure to comply with the obligations laid down in this Directive, including administrative and judicial procedures, and should provide for effective, dissuasive and proportionate penalties for any breaches of the obligations under this Directive.

(48)

This Directive respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union, notably protection of personal data (Article 8), the freedom to choose an occupation and right to engage in work (Article 15), the freedom to conduct a business (Article 16), the right to collective bargaining and action (Article 28), fair and just working conditions (Article 31), the right to an effective remedy and to a fair trial (Article 47), the presumption of innocence and right of defence (Article 48) and the right not to be tried twice for the same offence (ne bis in idem) (Article 50), and has to be implemented in accordance with those rights and principles.

(49)

In order to facilitate better and more uniform application of Directive 96/71/EC, it is appropriate to provide for an electronic information exchange system to facilitate administrative cooperation and competent authorities should use the IMI as much as possible. However, that should not prevent the application of existing and future bilateral agreements or arrangements concerning administrative cooperation and mutual assistance.

(50)

Since the objective of this Directive, namely to establish a common framework of a set of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, application and enforcement in practice of Directive 96/71/EC, cannot be sufficiently achieved by the Member States, and can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(51)

The European Data Protection Supervisor has been consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 19 July 2012 (12),

(a)

‘competent authority’ means an authority or body, which may include the liaison office(s) as referred to in Article 4 of Directive 96/71/EC, designated by a Member State to perform functions set out in Directive 96/71/EC and this Directive;

(b)

‘requesting authority’ means the competent authority of a Member State which makes a request for assistance, information, notification or recovery of a penalty and/or fine, as referred to in Chapter VI;

(c)

‘requested authority’ means the competent authority of a Member State to which a request for assistance, information, notification or recovery of a penalty and/or fine is made, as referred to in Chapter VI.

(a)

the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security contributions and, where applicable, in accordance with national law has a professional licence or is registered with the chambers of commerce or professional bodies;

(b)

the place where posted workers are recruited and from which they are posted;

(c)

the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other;

(d)

the place where the undertaking performs its substantial business activity and where it employs administrative staff;

(e)

the number of contracts performed and/or the size of the turnover realised in the Member State of establishment, taking into account the specific situation of, inter alia, newly established undertakings and SMEs.

(a)

the work is carried out for a limited period of time in another Member State;

(b)

the date on which the posting starts;

(c)

the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out his or her work according to Regulation (EC) No 593/2008 (Rome I) and/or the Rome Convention;

(d)

the posted worker returns to or is expected to resume working in the Member State from which he or she is posted after completion of the work or the provision of services for which he or she was posted;

(e)

the nature of activities;

(f)

travel, board and lodging or accommodation is provided or reimbursed by the employer who posts the worker and, if so, how this is provided or the method of reimbursement;

(g)

any previous periods during which the post was filled by the same or by another (posted) worker.

(a)

indicate clearly, in a detailed and user-friendly manner and in an accessible format on a single official national website and by other suitable means, which terms and conditions of employment and/or which parts of their national and/or regional law are to be applied to workers posted to their territory;

(b)

take the necessary measures to make generally available on the single official national website and by other suitable means information on which collective agreements are applicable and to whom they are applicable, and which terms and conditions of employment are to be applied by service providers from other Member States in accordance with Directive 96/71/EC, including where possible, links to existing websites and other contact points, in particular the relevant social partners;

(c)

make the information available to workers and service providers free of charge in the official language(s) of the host Member State and in the most relevant languages taking into account demands in its labour market, the choice being left to the host Member State. That information shall be made available if possible in summarised leaflet form indicating the main labour conditions applicable, including the description of the procedures to lodge complaints and upon requests in formats accessible to persons with disabilities; further detailed information on the labour and social conditions applicable to posted workers, including occupational health and safety, shall be made easily available and free of charge;

(d)

improve the accessibility and clarity of the relevant information, in particular that provided on a single official national website, as referred to in point (a);

(e)

indicate a contact person at the liaison office in charge of dealing with requests for information;

(f)

keep the information provided for in the country fiches up to date.

(a)

in urgent cases requiring the consultation of registers, such as those on confirmation of the VAT registration, for the purpose of checking an establishment in another Member State, as soon as possible and up to a maximum of two working days from the receipt of the request.

The reason for the urgency shall be clearly indicated in the request, including some details to substantiate that urgency.

(b)

in all other requests for information, up to a maximum of 25 working days from the receipt of the request, unless a shorter time limit is mutually agreed between the Member States.

(a)

an obligation for a service provider established in another Member State to make a simple declaration to the responsible national competent authorities at the latest at the commencement of the service provision, into (one of) the official language(s) of the host Member State, or into (an)other language(s) accepted by the host Member State, containing the relevant information necessary in order to allow factual controls at the workplace, including:

(b)

an obligation to keep or make available and/or retain copies, in paper or electronic form, of the employment contract or an equivalent document within the meaning of Council Directive 91/533/EEC (13), including, where appropriate or relevant, the additional information referred to in Article 4 of that Directive, payslips, time-sheets indicating the beginning, end and duration of the daily working time and proof of payment of wages or copies of equivalent documents during the period of posting in an accessible and clearly identified place in its territory, such as the workplace or the building site, or for mobile workers in the transport sector the operations base or the vehicle with which the service is provided;

(c)

an obligation to deliver the documents referred to under point (b), after the period of posting, at the request of the authorities of the host Member State, within a reasonable period of time;

(d)

an obligation to provide a translation of the documents referred to under point (b) into (one of) the official language(s) of the host Member State, or into (an)other language(s) accepted by the host Member State;

(e)

an obligation to designate a person to liaise with the competent authorities in the host Member State in which the services are provided and to send out and receive documents and/or notices, if need be;

(f)

an obligation to designate a contact person, if necessary, acting as a representative through whom the relevant social partners may seek to engage the service provider to enter into collective bargaining within the host Member State, in accordance with national law and/or practice, during the period in which the services are provided. That person may be different from the person referred to under point (e) and does not have to be present in the host Member State, but has to be available on a reasonable and justified request;

(a)

national rules on prescription deadlines or time limits for bringing similar actions, provided that they are not regarded as capable of rendering virtually impossible or excessively difficult the exercise of those rights;

(b)

other competences and collective rights of social partners, employees and employers representatives, where applicable, under national law and/or practice;

(c)

national rules of procedure concerning representation and defence before the courts.

(a)

any outstanding net remuneration which, under the applicable terms and conditions of employment covered by Article 3 of Directive 96/71/EC, would have been due;

(b)

any back-payments or refund of taxes or social security contributions unduly withheld from their salaries;

(c)

a refund of excessive costs, in relation to net remuneration or to the quality of the accommodation, withheld or deducted from wages for accommodation provided by the employer;

(d)

where relevant, employer's contributions due to common funds or institutions of social partners unduly withheld from their salaries.

(a)

recover an administrative penalty and/or fine that has been imposed in accordance with the laws and procedures of the requesting Member State by a competent authority or confirmed by an administrative or judicial body or, where applicable, by industrial tribunals, which is not subject to further appeal; or

(b)

notify a decision imposing such a penalty and/or fine.

(a)

the name and known address of the addressee, and any other relevant data or information for the identification of the addressee;

(b)

a summary of the facts and circumstances of the infringement, the nature of the offence and the relevant applicable rules;

(c)

the instrument permitting enforcement in the requesting Member State and all other relevant information or documents, including those of a judicial nature, concerning the underlying claim, administrative penalty and/or fine; and

(d)

the name, address and other contact details regarding the competent authority responsible for the assessment of the administrative penalty and/or fine, and, if different, the competent body where further information can be obtained concerning the penalty and/or fine or the possibilities for contesting the payment obligation or decision imposing it.

(a)

in the case of notification of a decision, the purpose of the notification and the period within which it shall be effected;

(b)

in the case of a request for recovery, the date when the judgment or decision has become enforceable or final, a description of the nature and amount of the administrative penalty and/or fine, any dates relevant to the enforcement process, including whether, and if so how, the judgment or decision has been served on defendant(s) and/or given in default of appearance, a confirmation from the requesting authority that the penalty and/or fine is not subject to any further appeal, and the underlying claim in respect of which the request is made and its different components.

(a)

the action taken on its request for recovery and notification and, more specifically, of the date on which the addressee was notified;

(b)

the grounds for refusal, in the event that it refuses to execute a request for recovery of an administrative penalty and/or fine or to notify a decision imposing an administrative penalty and/or fine in accordance with Article 17.

(a)

following inquiries by the requested authority it is obvious that the envisaged costs or resources required to recover the administrative penalty and/or fine are disproportionate in relation to the amount to be recovered or would give rise to significant difficulties;

(b)

the overall financial penalty and/or fine is below EUR 350 or the equivalent to that amount;

(c)

fundamental rights and freedoms of defendants and legal principles that apply to them as laid down in the Constitution of the requested Member State are not respected.

(a)

the necessity and appropriateness of the factual elements for identification of a genuine posting, including the possibilities to amend existing and defining possible new elements to be taken into account in order to determine whether the undertaking is genuine and a posted worker temporarily carries out his or her work, as referred to in Article 4;

(b)

the adequacy of data available relating to the posting process;

(c)

the appropriateness and adequacy of the application of national control measures in light of the experience with and effectiveness of the system for administrative cooperation and exchange of information, the development of more uniform, standardised documents, the establishment of common principles or standards for inspections in the field of the posting of workers and technological developments, as referred to in Article 9;

(d)

liability and/or enforcement measures introduced to ensure compliance with the applicable rules and effective protection of workers' rights in subcontracting chains, as referred to Article 12;

(e)

the application of the provisions on cross-border enforcement of financial administrative penalties and fines in particular in light of experience with and effectiveness of the system, as laid down in Chapter VI;

(f)

the use of bilateral agreements or arrangements in relation to IMI, taking into account, where appropriate, the report referred to in Article 25(1) of Regulation (EU) No 1024/2012;

(g)

the possibility to adjust the deadlines established in Article 6(6) for supplying the information requested by Member States or the Commission with a view to reducing those deadlines, taking into account the progress achieved in the functioning and use of IMI.

28.5.2014   

EN

Official Journal of the European Union

L 159/32

(1)

In its conclusions of 17 June 2010, the European Council adopted the Europe 2020 Strategy for jobs and smart, sustainable and inclusive growth (‘Europe 2020’). The European Council called for the mobilisation of all Union instruments and policies to support the achievement of the common objectives and invited the Member States to take enhanced coordinated action. Public Employment Services (PES) play a central role in contributing to the achievement of the Europe 2020 employment rate headline target of 75 % for women and men aged between 20 and 64 by 2020, in particular by decreasing youth unemployment.

(2)

Article 45 of the Treaty on the Functioning of the European Union (‘Treaty’) lays down the freedom of movement for workers within the Union, while Article 46 thereof sets out the measures to bring about this freedom, in particular by ensuring close cooperation between the public employment services. A network of PES established under this Decision (‘the Network’) should, in addition to the general aspects of geographical mobility, cover a wide range of objectives and initiatives by way of incentive measures designed to improve cooperation between Member States in the field of employment.

(3)

This Decision should aim to encourage cooperation between Member States within the areas of PES responsibility. It formalises and strengthens the informal cooperation between the PES via the current European Network of Heads of PES, in which all Member States have agreed to participate. The full potential value of the Network resides in the continued participation of all Member States. That participation should be notified to the Secretariat of the Network.

(4)

In accordance with Article 148(4) of the Treaty, by Decision 2010/707/EU (3) the Council adopted guidelines for the employment policies of the Member States, which have been maintained for the years 2011-13. Those integrated guidelines provide guidance to the Member States on defining their national reform programmes and on implementing reforms. The integrated guidelines form the basis for country-specific recommendations that the Council addresses to the Member States under that Article. In recent years, those recommendations have included specific recommendations on the functioning and capacity of PES and on the effectiveness of active labour market policies in Member States.

(5)

The country-specific recommendations would benefit from being further supported by an enhanced evidence-based feedback on the success of policy implementation and cooperation between the PES of Member States. To this end, the Network should carry out concrete initiatives such as common evidence-based benchmarking systems, corresponding mutual learning activities, mutual assistance between the Network members and the implementation of strategic actions for the modernisation of PES. The specific knowledge of the Network and its individual members should also be used to provide, at the request of the European Parliament, the Council, the Commission or the Employment Committee (EMCO), evidence for the development of employment policies.

(6)

Greater and more focused cooperation between the PES should lead to an improved sharing of best practices. The Network should link findings based on benchmarking and mutual learning activities in a way that allows the development of a systematic, dynamic and integrated benchlearning process.

(7)

The Network should work in close cooperation with EMCO, pursuant to Article 150 of the Treaty, and should contribute to EMCO's work by providing factual evidence and reports on policies implemented by the PES. Contributions from the Network to the European Parliament should be channelled through the Secretariat, and those to the Council should be channelled through EMCO, without any modification and, where appropriate, together with comments. In particular, the combined knowledge of the Network on the delivery aspects of employment policies and the comparative analyses of PES could assist policy decision-makers, at both Union and national level, in assessing and designing employment policies.

(8)

The Network, within the areas of PES responsibility, should contribute to the implementation of policy initiatives in the field of employment such as the Council Recommendation of 22 April 2013 on establishing a Youth Guarantee (4). The Network should also support initiatives aimed at better skills matching, decent and sustainable work, enhanced voluntary labour mobility and facilitating the transition from education and training to work, including through support for the provision of guidance and the enhanced transparency of skills and qualifications. The activities of the Network should address the evaluation and assessment of active labour market policies, including those targeting vulnerable social groups and social exclusion.

(9)

The Network should reinforce cooperation between its members, develop joint initiatives aimed at exchanges of information and best practices in all areas covered by PES, comparative analyses and advice, as well as the promotion of innovative approaches to the delivery of employment services. By establishing the Network, an inclusive, evidence-based and performance-oriented comparison of all PES will be possible, leading to the identification of best practices in the areas of PES services. Those results should contribute to a better design and delivery of employment services within their specific responsibilities. The initiatives of the Network should improve the effectiveness of PES and allow for more efficient public spending. The Network should also cooperate with other providers of employment services.

(10)

In its annual work programme, the Network should define the technical details of the PES benchmarking and the related mutual learning exercise, in particular the benchlearning methodology, on the basis of the benchmarking indicators as set out in the Annex to this Decision to assess the performance of PES, the context variables, the data delivery requirements, and the learning instruments of the integrated mutual learning programme. The benchmarking areas should be defined in this Decision. Member States remain competent to decide whether to engage on a voluntary basis in additional benchlearning exercises in other areas.

(11)

The power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of amending the Annex on benchmarking indicators. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, in particular with PES experts. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(12)

Due to the variety of PES models, tasks and forms of service delivery, it is up to Member States to nominate, from the senior management of the PES, one member and one alternate member for the Board of the Network (‘the Board’). Where applicable, the member or the alternate member should represent, on the Board, other PES from his or her Member State. Where it is not possible, for constitutional reasons, for a Member State to nominate only one PES, the relevant PES should be identified, keeping their number to a minimum and without changing the rule that one Member State equals one vote on the Board. The members of the Board should make every effort to ensure that the opinions and experiences of local and regional authorities are incorporated into the Network's activities, and that such authorities are kept informed of those activities. The members of the Board should have the authority to take decisions on behalf of their PES. In order to ensure the involvement of all PES in the Network, activities should be open to the participation of PES from all levels.

(13)

In order to ensure that the common tasks of PES are closely matched to the actual situation on the labour market, the Network should have the most up-to-date unemployment figures at NUTS 3 level.

(14)

The Network should build on the experience of and replace the existing informal advisory group of the European Network of Heads of PES that the Commission has supported since 1997, the views of which have been taken into account in this Decision. The key areas for action identified by that advisory group in its paper entitled ‘PES Strategy 2020’ should contribute to the modernisation and the strengthening of PES.

(15)

The Network should provide mutual assistance to the benefit of its members and should help its members to support each other in the modernisation of organisational structures and service delivery by enhancing cooperation, in particular the transfer of knowledge, study visits and staff exchanges.

(16)

The Network and its initiatives should be funded through the PROGRESS/employment section of the European Union Programme for Employment and Social Innovation' (‘EaSI’) established by Regulation (EU) No 1296/2013 of the European Parliament and of the Council (5), within the appropriations set by the European Parliament and the Council.

(17)

For projects developed by the Network or identified in the mutual learning activities and then implemented in the individual PES, Member States should have access to funding from the European Social Fund (ESF), the Regional Development Fund (ERDF) and ‘Horizon 2020’, the Union's Framework Programme for Research and Innovation (2014-20) established by Regulation (EU) No 1291/2013 of the European Parliament and of the Council (6).

(18)

The Network should ensure that it complements and does not replace nor duplicate actions undertaken as part of the European Employment Strategy within the meaning of Title IX of the Treaty, in particular those of EMCO and its tools such as the Joint Assessment Framework (JAF), as well as the Mutual Learning Programme. Furthermore, in order for synergies to be made, the Commission should ensure that the Secretariat of the Network cooperates closely with that of EMCO.

(19)

This Decision respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, this Decision seeks to ensure full respect for the right of access to free placement services and to promote the application of Article 29 of the Charter,

(a)

the PES as nominated by the Member States;

(b)

the Commission.

(a)

the most vulnerable social groups with high unemployment rates, especially older workers and young persons not in employment, education or training (‘NEETs’);

(b)

decent and sustainable work;

(c)

the better functioning of the labour markets in the EU;

(d)

the identification of skills shortages and the provision of information on their extent and location, as well as the better matching of the skills of job-seekers with the needs of employers;

(e)

the better integration of labour markets;

(f)

increased voluntary geographical and occupational mobility on a fair basis to meet specific labour market needs;

(g)

the integration of persons excluded from the labour market as part of the combat against social exclusion;

(h)

the evaluation and assessment of active labour market initiatives and their effective and efficient implementation.

(a)

the development and implementation of Union-wide, evidence-based benchlearning among PES to compare, with appropriate methodology, the performance of their activities in the following areas:

(b)

the provision of mutual assistance, either in the form of peer-to-peer or group activities, through cooperation, exchanges of information, experiences and staff between the members of the Network, including support for the implementation of PES-related country-specific recommendations issued by the Council upon request by the Member State or the PES concerned;

(c)

contribute to modernising and strengthening PES in key areas, in line with the employment and social objectives of Europe 2020;

(d)

prepare reports at the request of the European Parliament, the Council or the Commission, or on its own initiative;

(e)

contribute to the implementation of relevant policy initiatives;

(f)

adopt and implement its annual work programme setting out its working methods, deliverables and the details related to the implementation of benchlearning;

(g)

promote and share best practices on the identification of NEETs and on the development of initiatives to ensure those young people gain the skills necessary to enter and remain in the labour market.

(a)

the annual work programme of the Network, including the setting up of working groups and the language arrangements of the meetings of the Network;

(b)

the technical framework for the delivery of the benchmarking and mutual learning activities, as part of the annual work programme of the Network, including the benchlearning methodology on the basis of the benchmarking indicators as set out in the Annex to this Decision to compare PES performance, the context variables, the data delivery requirements, and the learning instruments of the integrated mutual learning programme;

(c)

the annual report of the Network. That report shall be sent to the European Parliament and to the Council, and shall be published.

28.5.2014   

EN

Official Journal of the European Union

L 159/40

28.5.2014   

EN

Official Journal of the European Union

L 159/41

(1)

Article 4(1) of Regulation (EU) No 305/2011 obliges manufacturers of construction products to draw up a declaration of performance when a construction product that is covered by a harmonised standard or conforms to a European Technical Assessment issued for that product is placed on the market. According to Article 6(4) of Regulation (EU) No 305/2011, that declaration should be drawn up using the model set out in Annex III to that Regulation.

(2)

In accordance with Article 60(e) of Regulation (EU) No 305/2011, the Commission is delegated the task of adapting Annex III to Regulation (EU) No 305/2011 in response to technical progress.

(3)

The model set out in Annex III to Regulation (EU) No 305/2011 should be adapted, in order to respond to technological progress, to allow the flexibility required by different kinds of construction products and manufacturers as well as to simplify the declaration of performance.

(4)

Furthermore, practical experience with the implementation of Annex III shows that manufacturers would need further instructions for drawing up declarations of performance on construction products in line with applicable legislation. Providing such instructions would also ensure a harmonised and correct application of Annex III.

(5)

The manufacturers should be allowed some flexibility for drawing up declarations of performance as long as they provide, in a clear and coherent manner, the essential information required by Article 6 of Regulation (EU) No 305/2011.

(6)

In order to unequivocally identify the product covered by a declaration of performance in relation with its performance levels or classes, manufacturers should link every single product to the respective product-type and to a given set of performance levels or classes by the unique identification code referred to in Article 6(2)(a) of Regulation (EU) No 305/2011.

(7)

The purpose of Article 11(4) of Regulation (EU) No 305/2011 is to enable the identification and the traceability of any single construction product by the indication, by the manufacturers, of a type, batch or serial number. This purpose is not served by a declaration of performance, which should be subsequently used for all products corresponding to the product-type defined in it. Therefore, the information required by Article 11(4) should not be required to be contained in the declaration of performance.

(8)

When the notified bodies are properly identified, the listing of all certificates, test, calculation or assessment reports issued might become extensive and burdensome but does not bring about added value for the users of the products covered by a declaration of performance. The manufacturers should thus not be obliged to include these listings in their declarations of performance.

(9)

In order to enhance the efficiency and competitiveness of the European construction sector as a whole, manufacturers providing declarations of performance wishing to benefit from the simplification and instructions for the purposes of facilitating the provision of such declarations should be able to do so as soon as possible,

28.5.2014   

EN

Official Journal of the European Union

L 159/47

(1)

Commission Regulation (EU) No 383/2012 (2) applies to driving licences which include a microchip and lays down a series of technical requirements.

(2)

In particular, Section III.4.2 of Annex III to Regulation (EU) No 383/2012 lays down an EU type-approval numbering system based on the assignment of a distinguishing number for the Member State which has granted the EU type-approval.

(3)

Following the accession of Croatia to the Union, it is necessary to provide for a distinguishing number for this country which is in compliance with the UN/ECE numerical order for type-approval.

(4)

Regulation (EU) No 383/2012 should therefore be amended accordingly.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on driving licences,

28.5.2014   

EN

Official Journal of the European Union

L 159/50

(1)

Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto.

(2)

The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

28.5.2014   

EN

Official Journal of the European Union

L 159/52

(1)

The Survey of Health, Ageing and Retirement in Europe as a European Research Infrastructure Consortium (SHARE-ERIC) was set up by Commission Decision 2011/166/EU (2).

(2)

The Statutes of the SHARE-ERIC annexed to Decision 2011/166/EU provide for the transfer of the statutory seat from the Netherlands to Germany as soon as the necessary declaration according to point (d) of Article 5(1) of Regulation (EC) No 723/2009 is provided by the German authorities.

(3)

As a result of the declaration provided by Germany, SHARE-ERIC submitted on 21 September 2013 a proposal to the Commission to amend its Statutes in accordance with Article 11(1) of Regulation (EC) No 723/2009.

(4)

Several amendments, including the amendment taking into account the transfer of the statutory seat to Germany, entered into force in accordance with Article 11(4) of Regulation (EC) No 723/2009.

(5)

Other amendments specifying ownership and dissemination of SHARE-ERIC data and modifying tax exemptions as a result of the transfer of the seat to Germany require the Commission's approval.

(6)

The measures provided for in this Decision are in accordance with the opinion of the Committee established by Article 20 of Regulation (EC) No 723/2009,

28.5.2014   

EN

Official Journal of the European Union

L 159/54

(1)

Pursuant to Article 271(d) of the Treaty on the Functioning of the European Union, and Article 35.6 of the Statute of the European System of Central Banks and the European Central Bank, in conjunction with the ninth recital of Council Regulation (EC) No 3603/93 (1), the Governing Council is mandated to assess compliance by national central banks (NCBs) with their obligations under the Treaties. To that effect the Governing Council monitors compliance of NCBs with the prohibition on monetary financing as laid down in Article 123 of the Treaty on the Functioning of the European Union. This Decision aims to clarify the criteria that the European Central Bank (ECB) will apply regarding the remuneration of deposits held by governments and public authorities with their central bank in relation to the Treaty prohibition of monetary financing, for the purposes of the abovementioned Governing Council's monitoring role.

(2)

To monitor compliance with the monetary financing prohibition laid down in Article 123 of the Treaty on the Functioning of the European Union, the ECB will take into account the remuneration of government deposits, which should not be higher than a remuneration based on the relevant money market rates. This Decision specifies the market rates that will operate as ceilings for the remuneration of government deposits and that will be taken into account in monitoring compliance with the Treaty from 1 December 2014,

(a)

‘government’ means all public entities mentioned in Article 123 of the Treaty, as interpreted in the light of Regulation (EC) No 3603/93, except for publicly-owned credit institutions which, in the context of the supply of reserves by NCBs, are given the same treatment by NCBs and the ECB as private credit institutions;

(b)

‘government deposits’ means overnight and fixed-term deposits accepted by NCBs from any government;

(c)

‘unsecured overnight market rate’ means: (i) with regard to overnight deposits in euro, the euro overnight index average rate (EONIA); and (ii) with regard to overnight deposits in a different currency, a comparable rate;

(d)

‘secured market rate’ means: (i) with regard to fixed term deposits in euro, the euro repo market offered rate (EUREPO) with comparable maturity if available; and (ii) with regard to fixed term deposits in a different currency, a comparable rate.

(a)

for overnight deposits, the unsecured overnight market rate;

(b)

for fixed-term deposits, the secured market rate or, if unavailable, the unsecured overnight market rate.

28.5.2014   

EN

Official Journal of the European Union

L 159/56

(1)

The achievement of the single monetary policy requires that the European Central Bank (ECB) specifies the general principles to be followed by the national central banks of Member States whose currency is the euro (hereinafter the ‘NCBs’) when carrying out domestic operations in assets and liabilities on their own initiative; such operations should not interfere with the single monetary policy.

(2)

Repurchase agreements entered into by NCBs with non-Eurosystem national central banks may have an impact on euro liquidity and hence on the single monetary policy once they are activated. Therefore, to better safeguard the integrity of the single monetary policy, the Governing Council decided on 22 October 2009 that its prior approval should be required for certain liquidity arrangements entered into by NCBs with non-Eurosystem national central banks.

(3)

Limitations on the remuneration of government deposits held with NCBs as fiscal agents pursuant to Article 21.2 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) must be specified to preserve the integrity of the single monetary policy, and in order to provide incentives for government deposits to be placed in the market, so as to facilitate the Eurosystem's liquidity management and monetary policy implementation. In addition, the introduction of a ceiling on the remuneration of government deposits based on money market rates facilitates the monitoring of the NCBs' compliance with the prohibition on monetary financing carried out by the ECB in accordance with Article 271(d) of the Treaty.

(4)

In view of the exceptional and temporary nature of the government deposits related to European Union/International Monetary Fund and other comparable financial support programmes, the applicable procedures should not restrict the ability of a national government to maintain deposits with its NCB, not least because the holding of such deposits may be part of the conditions of the relevant programme. The exclusion of such deposits from the threshold amount does not interfere with the single monetary policy to the same extent as the holding of government deposits in other Member States whose currency is the euro,

(a)

standing facilities and operations executed by NCBs on the ECB's initiative, in particular, operations carried out in accordance with Guideline ECB/2011/14 (1);

(b)

transactions in precious metals and foreign exchange operations against the euro, which are covered by Guideline ECB/2003/12 (2);

(c)

operations of NCBs related to emergency liquidity assistance.

(a)

while acting as fiscal agents pursuant to Article 21.2 of the Statute of the ESCB;

(b)

for their administrative purposes or for their staff pursuant to Article 24 of the Statute of the ESCB;

(c)

while managing a pension fund for their staff;

(d)

while operating a deposit scheme for their staff or other customers;

(e)

while transferring their profit to the government.

(a)

‘repurchase agreement’ means an agreement by which an NCB and a non-euro area national central bank agree to enter into one or more specific repurchase transactions. In a repurchase transaction, one party agrees to purchase from (or sell to) the other party securities denominated in euro against payment of an agreed price in euro on the trade date, with a simultaneous agreement to sell to (or purchase from) the other party equivalent securities against payment of another agreed price in euro at the maturity date;

(b)

‘government’ means all public entities of a Member State or any public entities of the Union mentioned in Article 123 of the Treaty, as interpreted in the light of Council Regulation (EC) No 3603/93 (3), except for publicly owned credit institutions which, in the context of the supply of reserves by NCBs, are given the same treatment by NCBs and the ECB as private credit institutions;

(c)

‘government deposits’ means overnight and fixed term deposits accepted by NCBs from any government, including deposits held in foreign currencies;

(d)

‘unsecured overnight market rate’ means: (a) with regard to overnight deposits in domestic currency, the euro overnight index average rate (EONIA); (b) with regard to overnight deposits in a foreign currency, a comparable rate;

(e)

‘secured market rate’ means: (a) with regard to fixed term deposits in domestic currency, the euro repo market offered rate (EUREPO) with comparable maturity if available; and (b) with regard to fixed term deposits in foreign currency, a comparable rate;

(f)

‘gross domestic product’ means the value of an economy's total output of goods and services, less intermediate consumption, plus net taxes on products and imports, in a specified period;

(g)

‘deposit facility rate’ means the pre-specified interest rate that is applied to counterparties who use the Eurosystem deposit facility to make overnight deposits with an NCB.

(a)

identity of the counterparty to the repurchase agreement;

(b)

purpose of the repurchase agreement;

(c)

to the extent already available, amount and dates of the specific repurchase transactions; the envisaged aggregated amount of such transactions;

(d)

maturity of the repurchase agreement and, to the extent already available, maturity of the specific repurchase transactions to be entered into;

(e)

any other information considered relevant by the NCB submitting the request.

(a)

the primary objective of ensuring the integrity of monetary policy;

(b)

the preservation of the effectiveness of euro liquidity management by the Eurosystem;

(c)

a coordinated Eurosystem approach with respect to the conduct of repurchase transactions with non-Eurosystem national central banks;

(d)

a level-playing field for all credit institutions located in a Member State whose currency is the euro.

(a)

entered into at a later date than that originally planned; or

(b)

subject to specific amendments and resubmitted for approval before it can be entered into by the relevant NCB.

(a)

for overnight deposits, the unsecured overnight market rate;

(b)

for fixed term deposits, the secured market rate or, if not available, the unsecured overnight market rate.

(a)

the gross sum of purchases, sales and redemptions for each of the following categories:

(b)

the gross sum of securities lending and borrowing for the following categories:

(c)

the gross sum of credit granting and deposit taking for the category credit and deposit schemes;

(d)

the amount for each of the following categories:

(a)

the application of the prior approval procedure;

(b)

NCBs' domestic asset and liability management practices;

(c)

compliance with this Guideline.