27.6.2014   

EN

Official Journal of the European Union

L 189/1

(1)

Union law provides for requirements regarding food and food safety and feed and feed safety, at all stages of production, including rules that aim to guarantee fair practices in trade and the provision of information to consumers. It also lays down requirements regarding the prevention and control of transmissible diseases in animals and zoonoses, as well as requirements regarding animal welfare, animal by-products, plant health and plant reproductive material, the protection of plant varieties, genetically modified organisms, the placing on the market and use of plant protection products and the sustainable use of pesticides. Union law also provides for official controls and other official activities aimed at ensuring the effective implementation of and the compliance with those requirements.

(2)

The general objective of Union law in those areas is to contribute to a high level of health for humans, animals and plants along the food chain, a high level of protection and information for consumers and a high level of protection of the environment, while favouring competitiveness and creation of jobs.

(3)

The pursuit of that general objective requires appropriate financial resources. It is therefore necessary for the Union to contribute to the funding of measures undertaken in the different areas relating to that general objective. In addition, in order to efficiently target the use of the expenditure, specific objectives should be laid down and indicators should be set to assess the achievement of those objectives.

(4)

Union financing for expenditure relating to food and feed has, in the past, taken the form of grants, procurement and payments to international organisations active in the field. It is appropriate to continue such financing in the same manner.

(5)

Union financing may also be used by Member States to support them in actions on plant or animal health for the control, prevention or eradication of pests or animal diseases to be carried out by organisations active in those fields.

(6)

For reasons of budgetary discipline, it is necessary to lay down in this Regulation the list of eligible measures which may benefit from a Union contribution as well as the eligible costs and applicable rates.

(7)

Taking into account Council Regulation (EU, Euratom) No 1311/2013 (3), the maximum amount for expenditure in relation to food and feed during the whole period 2014 to 2020 is to be EUR 1 891 936 000.

(8)

Furthermore, Union-level funding should be provided in order to cope with exceptional circumstances such as emergency situations related to animal and plant health, when the appropriations under budget heading 3 are insufficient but emergency measures are necessary. Funding in order to cope with such crises should be mobilised by, for example, drawing on the flexibility instrument, in accordance with the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (4).

(9)

The law currently provides that some of the eligible costs are to be reimbursed at fixed rates. In relation to other costs, the law does not provide for limits on reimbursement. In order to rationalise and simplify the system, a fixed maximum rate for reimbursement should be set. It is appropriate to set that rate at the level which is usually applied to grants. It is also necessary to provide the possibility to raise that maximum rate in certain circumstances.

(10)

Due to the importance of achieving the objectives of this Regulation, it is appropriate to finance 100 % of the eligible costs for certain actions, provided that the implementation of those actions also implies incurring costs which are not eligible.

(11)

The Union is responsible for ensuring that funds are properly spent and for taking measures that respond to the need to simplify its spending programmes in order to reduce the administrative burden and the costs for the beneficiaries of funds and for all actors involved, in line with the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 8 October 2010 entitled Smart Regulation in the European Union.

(12)

Union law requires Member States to implement certain measures when certain animal diseases or zoonoses occur or develop. Therefore, the Union should make a financial contribution to such emergency measures.

(13)

It is also necessary to reduce, by appropriate eradication, control and monitoring measures, the number of outbreaks of animal diseases and zoonoses which pose a risk to human and animal health, as well as to prevent the occurrence of such outbreaks. National programmes for the eradication, control and monitoring of those diseases and zoonoses should therefore benefit from Union funding.

(14)

For organisational and efficiency reasons in respect of the handling of funding in the animal and plant health areas, it is appropriate to lay down rules on content, submission, evaluation and approval of national programmes, including those implemented in the outermost regions of the Union referred to in Article 349 of the Treaty on the Functioning of the European Union (‘TFEU’). For the same reasons, deadlines for reporting and filing of payment requests should also be laid down.

(15)

Council Directive 2000/29/EC (5) requires Member States to take certain emergency measures for the eradication of organisms harmful to plants or plant products (‘pests’). The Union should make a financial contribution towards the eradication of those pests. A Union financial contribution should also be available, subject to certain conditions, for emergency measures aimed at containing the pests which have the most severe impact on the Union and which cannot be eradicated in certain zones and for prevention measures concerning those pests.

(16)

Emergency measures taken against pests should be eligible for Union co-financing provided that they lead to added value for the Union as a whole. For this reason, a Union financial contribution should be made available for pests listed in Section I of Part A of Annex I and Section I of Part A of Annex II to Directive 2000/29/EC under the heading ‘Harmful organisms not known to occur in any part of the Union and relevant for the entire Union’. Where pests are known to occur in the Union, only measures relating to those of them which have the most severe impact on the Union should be eligible for a Union financial contribution. Such pests include in particular those subject to the measures under Council Directive 69/464/EEC (6), 93/85/EEC (7), 98/57/EC (8) or 2007/33/EC (9). A Union financial contribution should also be made available for those pests which are not listed in Annex I or Annex II to Directive 2000/29/EC which are subject to national measures and which provisionally qualify for listing in Section I of Part A of Annex I to Directive 2000/29/EC or Section I of Part A of Annex II thereto. Measures relating to pests subject to Union emergency measures that aim to eradicate them should also be eligible for a Union financial contribution.

(17)

It is necessary to detect in a timely manner the presence of certain pests. Surveys of such presence carried out by Member States are essential to ensure the immediate eradication of outbreaks of those pests. The surveys carried out by individual Member States are essential to protecting the territory of all other Member States. The Union may contribute to the financing of those surveys in general, on condition that their scope includes at least one of the two critical categories of pests, namely the pests which are not known to occur in the Union and the pests which are subject to Union emergency measures.

(18)

Union financing for measures in the field of animal and plant health should cover specific eligible costs. In exceptional and duly justified cases, it should also cover the costs incurred by the Member States in carrying out other necessary measures. Such measures may include the implementation of enhanced biosecurity measures in case of outbreak of disease or presence of pests, the destruction and transport of carcasses during eradication programmes, and the costs of compensation to owners resulting from emergency vaccination campaigns.

(19)

The outermost regions of Member States experience difficulties caused by their remoteness and by their dependence on a limited number of products. It is appropriate for the Union to grant a financial contribution to Member States for programmes that they carry out for the control of pests in those outermost regions in line with the objectives of Regulation (EU) No 228/2013 of the European Parliament and of the Council (10). Since certain outermost regions are subject to national rules specific for those regions instead of the Union rules laid down in Directive 2000/29/EC, that Union financial contribution should apply to the rules in force in those regions, regardless of whether they are Union rules or national rules.

(20)

Official controls carried out by the Member States are an essential tool for verifying and monitoring that relevant Union requirements are being implemented, complied with and enforced. The effectiveness and efficiency of official control systems is vital for maintaining a high level of safety for humans, animals and plants along the food chain whilst ensuring a high level of protection of the environment. Union financial support should be made available for such control measures. In particular, a financial contribution should be available to Union reference laboratories in order to help them bear the costs arising from the implementation of work programmes approved by the Commission. Moreover, since the effectiveness of official controls also depends on the availability to the control authorities of well trained staff with an appropriate knowledge of Union law, the Union should be able to contribute to their training and relevant exchange programmes organised by competent authorities.

(21)

The efficient management of official controls depends on a rapid exchange of data and information related to those controls. In addition, the proper and harmonised implementation of the relevant rules depends on the setting up of efficient systems involving Member State competent authorities. Therefore the establishment and operation of databases and computerised information management systems for those purposes should also be eligible for financial contributions.

(22)

The Union should make funding available for the technical, scientific, coordination and communication activities necessary to ensure the correct implementation of Union law and to ensure the adaptation of the law to scientific, technological and societal developments. Funding should also be made available for projects that aim to improve the effectiveness and efficiency of official controls.

(23)

Pursuant to Article 3 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (11), any proposal submitted to the legislative authority containing derogations from the provisions of that Regulation is required to clearly indicate such derogations and to state the specific reasons justifying them. Therefore, given the specific nature of some of the objectives covered by this Regulation and since the respective competent authorities of the Member States are best placed to implement the activities associated with those objectives, those authorities should be considered to be identified beneficiaries for the purposes of Article 128(1) of Regulation (EU, Euratom) No 966/2012. It should therefore be possible to award grants to such authorities without prior publication of calls for proposals.

(24)

By way of derogation from Article 86 of Regulation (EU, Euratom) No 966/2012, and as an exception to the principle of non-retroactivity provided for in Article 130 thereof, the costs for the emergency measures covered by Articles 7 and 17 of this Regulation should be eligible from the date of notification of the occurrence of a disease or the presence of a pest by the Member State to the Commission due to the urgent and unforeseeable nature of those measures. The corresponding budgetary commitments and the payment of eligible expenditure should be made by the Commission, after assessment of the payment applications submitted by the Member States.

(25)

It is of the utmost importance that such emergency measures are implemented immediately. It would therefore be counterproductive to exclude, from funding, those costs incurred prior to the submission of the grant application, as this would encourage Member States to focus their immediate efforts on the preparation of a grant application, instead of on the implementation of emergency measures.

(26)

Given the extent of the Union law in force concerning the implementation of eradication and surveillance measures and the technical limitations as regards other expertise available, the implementation of the measures covered by this Regulation needs to be carried out principally by the competent authorities of the Member States. It is therefore necessary, in certain cases, to co-finance the salary costs of the personnel of national administrations.

(27)

Programming allows coordination and prioritisation and thus contributes to the effective use of Union financial resources. In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission with regard to the adoption of work programmes for the implementation of certain measures provided for in this Regulation.

(28)

To ensure responsible and effective use of Union financial resources, the Commission should be allowed to check that Union funding is effectively used for the implementation of eligible measures either by on-the-spot checks or by documentary checks.

(29)

The financial interests of the Union should be protected throughout the expenditure cycle, including by the prevention, detection and investigation of irregularities and by the recovery of funds lost, wrongly paid or incorrectly used.

(30)

The list of animal diseases which qualify for funding under emergency measures is annexed to this Regulation and contains the animal diseases referred to in Articles 3(1), 4(1), 6(2) and 14(1) of Council Decision 2009/470/EC (12). In order to take account of the animal diseases which are required to be notified in accordance with Council Directive 82/894/EEC (13), and the diseases which are likely to constitute a new threat for the Union, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission, in respect of supplementing that list.

(31)

The lists of animal diseases and zoonoses which qualify for funding under the eradication, control and surveillance programmes are annexed to this Regulation and contain the animal diseases and zoonoses referred to in Annex I to Decision 2009/470/EC. In order to take account of the situations that are provoked by those animal diseases that have a significant impact on livestock production or trade, the development of zoonoses which pose a threat to humans, or new scientific or epidemiological developments, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission, in respect of supplementing those lists.

(32)

When adopting delegated acts under this Regulation, it is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. 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.

(33)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission with regard to the establishment of annual and multiannual work programmes; of the financial contribution for emergency measures or where it is necessary to respond to unforeseeable developments; of procedures for the submission by Member States of applications, and of reports and requests for payments for the grants. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (14).

(34)

Union law should be implemented in such a way as to ensure that it delivers the intended benefits, in the light of experience. It is therefore appropriate for the Commission to evaluate the functioning and effectiveness of this Regulation and to communicate the results to the other institutions.

(35)

Different committees currently assist the Commission in the implementation of existing Union rules covered by this Regulation, in particular the Committees established by Council Decisions 66/399/EEC (15), 76/894/EEC (16), Council Directives 98/56/EC (17), 2008/90/EC (18), and by Regulation (EC) No 178/2002 of the European Parliament and of the Council (19). It is appropriate to streamline the Committee procedure in this area. The Committee established by Article 58 of Regulation (EC) No 178/2002 should be charged with the task of assisting the Commission in the exercise of its implementing powers in respect of the expenditure incurred in the relevant areas and the name of that Committee should be changed in order to reflect its increased responsibilities. Consequently, Decisions 66/399/EEC and 76/894/EEC should be repealed and Directives 98/56/EC and 2008/90/EC and Regulation (EC) No 178/2002 should be amended accordingly.

(36)

This Regulation replaces the provisions of Decision 2009/470/EC. It also replaces Articles 13c(5) and Articles 22 to 26 of Directive 2000/29/EC, Article 66 of Regulation (EC) No 882/2004 of the European Parliament and of the Council (20), Chapter VII of Regulation (EC) No 396/2005 of the European Parliament and of the Council (21), Article 22 of Directive 2009/128/EC of the European Parliament and of the Council (22) and Article 76 of Regulation (EC) No 1107/2009 of the European Parliament and of the Council (23). Consequently, Directive 2000/29/EC, Regulations (EC) No 882/2004 and (EC) No 396/2005, Directive 2009/128/EC and Regulation (EC) No 1107/2009 should be amended accordingly.

(37)

The introduction of Union co-financing for costs incurred by Member States for compensation to owners for the value of destroyed plants, plant products or other objects subject to the measures referred to in Article 16 of Directive 2000/29/EC requires the development of guidelines on the conditions applicable as regards the limits of the market value of the crops and trees concerned. That introduction should therefore apply only from 1 January 2017,

(a)

governing food and food safety, at any stage of the production, processing, distribution and disposal of food, including rules aimed at guaranteeing fair practices in trade and protecting consumer interests and information, and the manufacture and use of materials and articles intended to come into contact with food;

(b)

governing feed and feed safety at any stage of the production, processing, distribution, disposal and use of feed, including rules aimed at guaranteeing fair practices in trade and protecting consumer interests and information;

(c)

laying down animal health requirements;

(d)

laying down welfare requirements for animals;

(e)

on protective measures against organisms harmful to plants or plant products as defined in point (e) of Article 2(1) of Directive 2000/29/EC (‘pests’);

(f)

on the production, with a view to placing on the market, and placing on the market of plant reproductive material;

(g)

laying down the requirements for placing on the market of plant protection products and the sustainable use of pesticides;

(h)

aiming to prevent and minimise risks to public and animal health arising from animal by-products and derived products;

(i)

governing the deliberate release into the environment of genetically modified organisms;

(j)

on the protection of intellectual property rights in relation to plant varieties and conservation and exchange of plant genetic resources.

(a)

the general objective of contributing to a high level of health for humans, animals and plants along the food chain and in related areas, by preventing and eradicating diseases and pests and by ensuring a high level of protection for consumers and the environment, while enhancing the competitiveness of the Union food and feed industry and favouring the creation of jobs;

(b)

the following specific objectives:

(a)

for the specific objective in paragraph 1(b)(i), a reduction in the number of cases of diseases in humans in the Union which are linked to food safety or zoonoses;

(b)

for the specific objective in paragraph 1(b)(ii):

(c)

for the specific objective in paragraph 1(b)(iii):

(d)

for the specific objective in paragraph 1(b)(iv), a favourable trend in the results of controls in particular areas of concern carried out and reported on by Commission experts in the Member States.

(a)

cross-border activities implemented together by two or more Member States in order to control, prevent or eradicate pests or animal diseases;

(b)

Member States whose gross national income per inhabitant based on the latest Eurostat data is less than 90 % of the Union average.

(a)

are designed to avoid human casualties or major economic disruptions for the Union as a whole;

(b)

are specific tasks which are indispensable for the Union as a whole as laid down by the Commission in the work programme adopted in accordance with Article 36(1); or

(c)

are implemented in third countries.

(a)

human health;

(b)

animal health or animal welfare; or

(c)

the agricultural or aquaculture production or related sectors of the economy.

(a)

costs of compensation to owners for the value of their animals slaughtered or culled, limited to the market value of such animals if they had not been affected by the disease;

(b)

costs of slaughtering or culling the animals and related transport costs;

(c)

costs of compensation to owners for the value of their destroyed products of animal origin, limited to the market value of those products immediately before any suspicion of the disease arose or was confirmed;

(d)

costs of cleaning, desinsectisation and disinfection of holdings and equipment, based on the epidemiology and characteristics of the pathogen;

(e)

costs for the transport and the destruction of the contaminated feeding stuffs and, where it can not be disinfected, contaminated equipment;

(f)

costs of purchase, storage, administration or distribution of vaccines and baits as well as the costs of inoculation itself, if the Commission decides or authorises such actions;

(g)

costs of transport and disposal of carcasses;

(h)

in exceptional and duly justified cases, any other costs essential for the eradication of the disease, as provided for in the financing decision referred to in Article 36(4) of this Regulation.

(a)

the situation of animal diseases that have a significant impact on livestock production or trade;

(b)

the development of zoonoses which pose a threat to humans; or

(c)

new scientific or epidemiological developments.

(a)

costs of sampling animals;

(b)

costs of tests, provided that they are limited to:

(c)

costs of compensation to owners for the value of their animals slaughtered or culled, limited to the market value of such animals if they had not been affected by the disease;

(d)

costs of slaughtering or culling of the animals;

(e)

costs of compensation to owners for the value of their destroyed products of animal origin, limited to the market value of those products immediately before any suspicion of the disease arose or was confirmed;

(f)

costs of purchase, storage, inoculation, administration or distribution of vaccine doses or vaccine and baits used for the programmes;

(g)

costs of cleaning, disinfection, desinsectisation of the holding and equipment based on the epidemiology and characteristics of the pathogen; and

(h)

in exceptional and duly justified cases, the costs incurred in carrying out necessary measures other than those referred to in points (a) to (g), provided that such measures are set out in the grant decision referred to in Article 13(3) and (4).

(a)

a description of the epidemiological situation of the animal disease or zoonosis before the date of the beginning of the programme;

(b)

a description and demarcation of the geographical and administrative areas in which the programme is to be applied;

(c)

the duration of the programme;

(d)

the measures to be implemented;

(e)

the estimated budget;

(f)

the targets to be attained by the completion date of the programme and the anticipated benefits thereof; and

(g)

appropriate indicators to measure the achievement of the targets of the programme.

(a)

the list of national programmes technically approved and proposed for co-financing;

(b)

the provisional amount allocated to each programme;

(c)

the provisional maximum level of the Union financial contribution for each programme; and

(d)

any provisional conditions to which the Union financial contribution may be subject.

(a)

measures to eradicate a pest from an infested area, taken by the competent authorities pursuant to Article 16(1) and (2) of Directive 2000/29/EC or pursuant to the Union measures adopted in accordance with Article 16(3) of that Directive;

(b)

measures to contain a pest, against which Union containment measures have been adopted pursuant to Article 16(3) of Directive 2000/29/EC, in an infested area from which that pest cannot be eradicated, where those measures are essential to protect the Union against further spread of that pest. Those measures shall exclusively concern the eradication of that pest from the buffer zone in case its presence is detected in that buffer zone;

(c)

additional protective measures taken against the spread of a pest, against which Union measures have been adopted pursuant to Article 16(3) of Directive 2000/29/EC, other than the eradication measures referred to in point (a) and the containment measures referred to in point (b), where those measures are essential to protect the Union against further spread of that pest.

(a)

they concern pests listed in Section I of Part A of Annex I to Directive 2000/29/EC and Section I of Part A of Annex II thereto;

(b)

they concern pests covered by a measure adopted by the Commission pursuant to Article 16(3) of Directive 2000/29/EC;

(c)

they concern pests for which measures have been adopted pursuant to Directives 69/464/EEC, 93/85/EEC, 98/57/EC or 2007/33/EC; or

(d)

they concern pests, not listed in Annex I or Annex II to Directive 2000/29/EC, which are subject to a measure adopted by the competent authority of a Member State pursuant to Article 16(2) of Directive 2000/29/EC and which provisionally qualify for listing in Section I of Part A of Annex I to Directive 2000/29/EC or Section I of Part A of Annex II thereto.

(a)

costs of personnel, regardless of their status, directly involved in the measures, as well as costs of renting equipment, of consumables and of any other necessary materials, of treatment products, of sampling and of laboratory tests;

(b)

costs of service contracts with third parties to execute part of the measures;

(c)

costs of compensating the operators or owners concerned for the treatment, the destruction and subsequent removal of plants, of plant products and of other objects, and for the cleaning and disinfection of premises, land, water, soil, growing media, facilities, machinery and equipment;

(d)

costs of compensating the owners concerned for the value of the destroyed plants, plant products or other objects subject to the measures referred to in Article 16 of Directive 2000/29/EC, limited to the market value of such plants, plant products and other objects as if they had not been affected by those measures; the salvage value, if any, shall be deducted from the compensation; and

(e)

in exceptional and duly justified cases, the costs incurred in carrying out necessary measures other than those referred to in points (a) to (d), provided that such measures are set out in the financing decision referred to in Article 36(4).

(a)

they concern pests listed in Section I of Part A of Annex I to Directive 2000/29/EC and Section I of Part A of Annex II thereto;

(b)

they concern pests covered by a measure adopted by the Commission pursuant to Article 16(3) of Directive 2000/29/EC.

(a)

costs for sampling;

(b)

costs of tests, provided that they are limited to:

(c)

in exceptional and duly justified cases, costs incurred in carrying out necessary measures other than those referred to in points (a) and (b), provided that such measures are set out in the grant decision referred to in Article 22(3) and (4).

(a)

the pests included in the programme;

(b)

a description and demarcation of the geographical and administrative areas in which the programme is to be applied and a description of the status of those areas as regards the presence of the pests concerned;

(c)

the duration of the programme;

(d)

the number of visual examinations, samples and tests scheduled for the pests and plants, plants products and other objects concerned;

(e)

the estimated budget;

(f)

the targets to be attained by the completion date of the programme and the anticipated benefits thereof; and

(g)

appropriate indicators to measure the achievement of the targets of the programme.

(a)

the list of survey programmes technically approved and proposed for co-financing;

(b)

the provisional amount allocated to each programme;

(c)

the provisional maximum level of the Union financial contribution for each programme; and

(d)

any provisional conditions to which the Union financial contribution may be subject.

(a)

costs of personnel, regardless of their status, directly involved in the implementation of the measures, as well as the costs of renting equipment, of consumables and of treatment products;

(b)

costs of service contracts with third parties to execute part of the measures;

(c)

costs of sampling;

(d)

costs of tests, provided that they are limited to:

(a)

the pests included in the programme;

(b)

a description and demarcation of the geographical and administrative areas in which the programme is to be applied and a description of the status of those areas as regards the presence of the pests concerned;

(c)

a technical analysis of the regional phytosanitary situation;

(d)

the duration of the programme;

(e)

the activities included in the programme and, where relevant, the number of visual examinations, samples and tests scheduled for the pests and plants, plants products and other objects concerned;

(f)

the estimated budget;

(g)

the targets to be attained by the completion date of the programme and the anticipated benefits thereof; and

(h)

appropriate indicators to measure the achievement of the targets of the programme.

(a)

the list of programmes for the outermost regions technically approved and proposed for co-financing;

(b)

the provisional amount allocated to each programme;

(c)

the provisional maximum level of the Union financial contribution for each programme; and

(d)

any provisional conditions to which the Union financial contribution may be subject.

(a)

costs of personnel, regardless of their status, directly involved in activities of the laboratories which are carried out in their capacity of Union reference laboratory;

(b)

costs of capital equipment;

(c)

cost of consumables;

(d)

costs of shipment of samples, missions, meetings, training activities.

(a)

cost of the organisation of the training, including training that is also open to participants from third countries, or exchange activities;

(b)

costs of travel, accommodation and daily subsistence of the personnel of the competent authorities taking part in the training.

(a)

costs of sampling and laboratory tests,

(b)

cost of equipment necessary to perform the official control and data collection tasks.

(a)

have a proven added value for the Union as a whole and are available across the Union to all interested users; and

(b)

are necessary for the effective and efficient implementation of the rules referred to in Article 1.

(a)

the effective implementation of the measures benefitting from the Union financial contribution;

(b)

the compliance of administrative practices with Union rules;

(c)

the existence of the requisite supporting documents and their correlation with the measures benefitting from a Union contribution.

(1)

In Article 17, paragraph 1 is replaced by the following:

‘1.   The Commission shall be assisted by the Standing Committee on Plants, Animals, Food and Feed established by Article 58(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council (25). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (26).

(25)  Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1)."

(26)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).’"

(2)

In Article 18, paragraph 1 is replaced by the following:

‘1.   The Commission shall be assisted by the Standing Committee on Plants, Animals, Food and Feed established by Article 58(1) of Regulation (EC) No 178/2002. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.’.

(1)

In Article 13c, paragraph 5 is deleted.

(2)

The following Article is inserted:

‘Article 15a

Member States shall provide that anyone who becomes aware of the presence of a pest listed in Annex I or Annex II or a pest covered by a measure pursuant to Article 16(2) or 16(3), or has reason to suspect such a presence, shall notify, in writing, the competent authority within ten calendar days, and, if so requested by that competent authority, shall provide the information concerning that presence which is in its possession.’.

(3)

Articles 22 to 26 are deleted.

27.6.2014   

EN

Official Journal of the European Union

L 189/33

(1)

In 1997, Council Regulation (EC) No 820/97 (3) reinforced Union rules on the identification and traceability of bovine animals in the light of the bovine spongiform encephalopathy (BSE) epidemic and the resulting increased need to trace the origin and movement of animals using conventional ear tags.

(2)

Regulation (EC) No 1760/2000 of the European Parliament and of the Council (4) provides that each Member State is to establish a system for the identification and registration of bovine animals in accordance with that Regulation.

(3)

Regulation (EC) No 1760/2000 establishes a system for the identification and registration of bovine animals comprising ear tags applied to both ears of each animal, computerised databases, animal passports and individual registers kept at each holding.

(4)

Tracing of beef back to source via identification and registration is a prerequisite for origin labelling throughout the food chain. Those measures ensure consumer protection and public health and promote consumer confidence.

(5)

Regulation (EC) No 1760/2000 and, more specifically, bovine identification and voluntary beef labelling systems were listed as information obligations with special importance in terms of the burdens they imply to businesses in the Communication from the Commission of 22 October 2009 entitled ‘Action Programme for Reducing Administrative Burdens in the EU — Sectoral Reduction Plans and 2009 Actions’.

(6)

The use of electronic identification (‘EID’) systems could potentially streamline traceability processes through automated and more accurate reading and recording into the holding register. Moreover, it would enable automated reporting of animal movements to the computerised database and thus improve the speed, reliability and accuracy of the traceability system. The use of EID systems would also improve the management of certain direct payments to farmers.

(7)

EID systems based on radio frequency identification have considerably improved over the last 10 years. That technology allows a faster and more accurate reading of individual animal identity codes directly into data processing systems. This results in a reduction of the time needed to trace potentially infected animals or food, leading to improved reliability of databases and an increase in the capacity to react promptly in the event of disease outbreaks, saving labour costs even if it involves an increase in equipment costs.

(8)

This Regulation is coherent with the fact that EID systems have already been introduced in the Union for non-bovine animal species, such as the mandatory system used in ovine and caprine animals.

(9)

Given the technological advances in EID systems, several Member States have decided to start to implement bovine EID on a voluntary basis. Those initiatives are likely to lead to the development of different systems in individual Member States and by different stakeholders. The development of differing systems would impede the subsequent harmonisation of technical standards within the Union. The interoperability of the Member State EID systems should be ensured, as should their consistency with the relevant ISO standards or other international technical standards adopted by recognised international standard-setting organisations, with the understanding that those international standards are able to guarantee, at the very least, a higher level of performance than ISO standards.

(10)

The Report from the Commission of 25 January 2005 on the possibility of introduction of EID for bovine animals concluded that it had been demonstrated that radio frequency identification had been developed to the extent that it could already be applied in practice. That report also concluded that it was highly desirable to switch to EID of bovine animals within the Union since, among other benefits, it would contribute to the reduction of the administrative burden.

(11)

According to the Communication from the Commission of 10 September 2008 entitled ‘Action Plan for the implementation of the EU Animal Health Strategy’ the Commission is to simplify information obligations, such as holding registers and animal passports in the course of the introduction of EID systems.

(12)

The Communication from the Commission of 19 September 2007 entitled ‘A new Animal Health Strategy for the European Union (2007-2013) where ‘Prevention is better than cure’ ’ proposes considering EID for bovine animals as a possible improvement to the existing Union system of identification and registration in order to simplify information obligations, such as holding registers and animal passports, and suggests implementing an electronic bovine passport exchange. That exchange would entail the introduction of EID with real time insertion of data. Such an exchange would lead to considerable savings in terms of costs and efforts for the competent authorities of the Member States and other stakeholders and would reduce the workload when transferring animal passports data into computerised databases. This Regulation is consistent with that initiative.

(13)

This Regulation is thus expected to contribute to some key objectives of major Union strategies including the Europe 2020 strategy for smart, sustainable and inclusive growth by improving economic growth, cohesion and competitiveness.

(14)

Certain third countries have already established rules allowing advanced EID technologies. The Union should establish similar rules to facilitate trade and increase the competitiveness of the sector.

(15)

In the light of the technological development of new types of electronic identifiers, it is appropriate to broaden the scope of the means of identification provided for in Regulation (EC) No 1760/2000 in order to enable the use of electronic identifiers as an official means of identification. Since the introduction of the corresponding provisions implies considerable investment, it is necessary to allow for a transitional period of five years to give the Member States the necessary time to prepare. During that transitional period conventional ear tags will continue to be the only official means of identification for bovine animals.

(16)

Making EID mandatory throughout the Union could have economically adverse effects on certain operators. It is therefore appropriate that, once EID becomes an official means of identification, its use by keepers should be voluntary. Under such a voluntary regime, EID would be chosen by keepers who are likely to benefit economically from it, while it should be possible for other keepers to continue to identify their animals with two conventional ear tags.

(17)

Member States have very different husbandry systems, farming practices and sector organisations. Member States should therefore be allowed to make EID compulsory on their territory only when they deem it appropriate, after considering all of those factors, including impacts on small farmers, and following consultation with organisations representing the cattle industry. During intra-Union animal trade movements the obligation to electronically identify a bovine animal should fall to the Member State which has made the use of EID compulsory on its territory. This should not imply that that Member State is obliged to re-identify animals which have already been electronically identified in the Member State of dispatch.

(18)

Animals and meat entering the Union from third countries should be subject to identification and traceability requirements that provide an equivalent level of protection.

(19)

When live animals are imported into the Union from third countries, they should be subject, on arrival, to the same identification requirements that apply to animals that are born in the Union.

(20)

The two official means of identification allocated to one animal should bear the same identification code. However, during the initial phase of adjustment to the use of electronic identifiers as an official means of identification, it could not be excluded that, in certain cases, technical limitations related to the configuration of an animal’s original identification code could prevent the reproduction of that code on an electronic identifier. This could occur where the characters forming an animal’s existing identification code prevent that code from being converted into an electronic format. Therefore, specific transitory derogations should be provided for in order to allow the application of an electronic identifier also to those animals, provided that full traceability is ensured and that the animals can be identified individually, including the holding on which they were born.

(21)

Regulation (EC) No 1760/2000 provides that the competent authority is to issue a passport for each animal which has to be identified in accordance with that Regulation. This causes a considerable administrative burden for Member States. The competent authorities of Member States have an obligation to set up a computerised database in accordance with Articles 14 and 18 of Council Directive 64/432/EEC (5). Since those databases have had to be fully operational since 31 December 1999, they should sufficiently ensure traceability of domestic movements of bovine animals. Passports should therefore be issued only for animals intended for intra-Union trade. However, this Regulation should not preclude national provisions concerning the issuing of passports for animals not intended for intra-Union trade.

(22)

BOVEX, the pilot project for bovine passport exchange between Member States, was put in place by the Commission in order to facilitate data exchange between Member States, while at the same time ensuring the traceability of the animals during their intra-Union movements. Once the data exchange between national computerised databases is fully operational, the requirement of issuing animal passports in a paper form should no longer apply to animals intended for intra-Union movements. This should contribute to the reduction of the administrative burden of Member States and economic operators.

(23)

Section II of Title II of Regulation (EC) No 1760/2000 lays down rules for a voluntary beef labelling system which provide for the approval of certain labelling specifications by the competent authority of the Member State concerned. The administrative burden borne and the costs incurred by Member States and by economic operators in applying that system are not proportionate to the benefits of the system. Since new legislation has entered into force following the adoption of that Regulation, specific rules on the voluntary labelling system have become superfluous and should therefore be deleted. However, the right of operators to inform consumers through voluntary labelling on the characteristics of the meat and the right of the consumers to receive verifiable information should not be compromised. Consequently, as for any other sort of meat, food information on beef which goes beyond mandatory labelling should respect the current horizontal legislation, including Regulation (EU) No 1169/2011 of the European Parliament and of the Council (6).

(24)

To prevent risks of fraud in meat labelling and to protect European consumers, applicable controls and penalties should have a sufficiently dissuasive effect.

(25)

In accordance with Regulation (EU) No 1169/2011, the Commission submitted a report to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance of the meat used as an ingredient. That report was to be accompanied by a legislative proposal, if appropriate, in order to ensure more transparency throughout the meat chain and to better inform European consumers. Taking into account the latest problems in relation to the labelling of meat products that have affected the functioning of the food chain, the European Parliament and the Council expected the report to be adopted as early as possible during the second semester of 2013 and it was finally adopted on 17 December 2013.

(26)

As a consequence of the entry into force of the Lisbon Treaty, the powers conferred under Regulation (EC) No 1760/2000 upon the Commission need to be aligned with Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU).

(27)

In order to ensure that the necessary rules for the proper functioning of the identification, registration and traceability of bovine animals and of beef are applied, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the requirements for alternative means of identification of bovine animals; the special circumstances in which Member States are to be permitted to extend the maximum periods for the application of the means of identification; data to be exchanged between the computerised databases of the Member States; the maximum period for certain reporting obligations; the requirements for the means of identification; the addition of means of identification to the list set out in Annex I; the rules concerning the information from the computerised database to be included in the animal passports and in the individual registers to be kept on each holding; the identification and registration of movements of bovine animals when put out to seasonal grazing including transhumance; rules for labelling certain products which should be equivalent to the rules laid down in Regulation (EC) No 1760/2000; the labelling provisions relating to a simplified presentation of the indication of origin for cases of very short stay of an animal in the Member State or third country of birth or of slaughter; and the definitions and requirements applicable to terms or categories of terms that may be put on the labels of pre-packed fresh and frozen beef and veal. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up such delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(28)

In order to ensure uniform conditions for the implementation of Regulation (EC) No 1760/2000 with respect to the registration of holdings making use of alternative means of identification; technical characteristics and detailed arrangements for the exchange of data between the computerised databases of Member States; recognition of the full operability of the data exchange systems; the format and design of the means of identification; technical procedures and standards for the implementation of EID; the rules concerning the configuration of the identification code, the maximum size and composition of certain groups of animals, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (7).

(29)

The implementation of this Regulation should be monitored. Consequently, no later than five years after the entry into force of this Regulation as regards the provisions concerning voluntary beef labelling, and nine years as regards the provisions concerning EID, the Commission should submit to the European Parliament and to the Council two reports dealing both with the implementation of this Regulation and with the technical and economic feasibility of introducing mandatory EID everywhere in the Union. Those reports should, if necessary, be accompanied by appropriate legislative proposals.

(30)

Regulation (EC) No 1760/2000 should therefore be amended accordingly,

(1)

in Article 1, the second sentence of paragraph 2 is deleted;

(2)

in Article 2, the first indent is replaced by the following:

(3)

in the first paragraph of Article 3, point (a) is replaced by the following:

(4)

Article 4 is replaced by the following:

‘Article 4

Obligation to identify animals

1.   All animals on a holding shall be identified by at least two means of identification listed in Annex I and in compliance with rules adopted pursuant to paragraph 3 and approved by the competent authority. At least one of the means of identification shall be visible and bear a visible identification code.

The first subparagraph shall not apply to animals that were born before 1 January 1998 and that are not intended for intra-Union trade. Those animals shall be identified by at least one means of identification.

In order to ensure the adaptation to technical progress, the Commission shall be empowered to adopt delegated acts in accordance with Article 22b concerning the addition of means of identification to the list set out in Annex I, whilst ensuring their interoperability.

The means of identification shall be allocated to the holding, distributed and applied to the animals in a manner determined by the competent authority.

The two means of identification, authorised in accordance with the delegated and implementing acts adopted pursuant to paragraph 3 and this paragraph and which are applied to one animal, shall bear the same unique identification code, which, together with the registration of the animals, makes it possible to identify the animal individually and the holding on which it was born.

2.   By way of derogation from paragraph 1, where the characters forming the animal’s identification code do not permit the application of an electronic identifier with the same unique identification code, the Member State concerned may allow that, under the supervision of its competent authority, the second means of identification may bear a different code, provided each of the following conditions are fulfilled:

3.   To ensure adequate traceability and adaptability to technical progress and optimal functioning of the identification system, the Commission shall adopt delegated acts in accordance with Article 22b concerning the requirements for the means of identification set out in Annex I, and the transitional measures required for the introduction of a particular means of identification.

On the basis of the relevant ISO standards or other international technical standards adopted by recognised international standard-setting organisations, with the understanding that those international standards are able to guarantee, at the very least, a higher level of performance and reliability than ISO standards, the Commission shall lay down, by means of implementing acts, the necessary rules concerning:

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 23(2).

4.   As from 18 July 2019, the Member States shall ensure that the necessary infrastructure is in place in order to provide for the identification of animals on the basis of an electronic identifier as an official means of identification in accordance with this Regulation.

As from 18 July 2019, Member States may introduce national provisions making the use of an electronic identifier compulsory as one of the two means of identification provided for in paragraph 1.

Member States that make use of the option under the second subparagraph shall provide the Commission with the text of such national provisions and make this information available on the internet. The Commission shall assist the Member States in making this information available to the public by providing, on its website, the links to the relevant websites of the Member States.

5.   By way of derogation from paragraph 1, bovine animals intended for cultural and sporting events, other than fairs and exhibitions, may be identified by alternative means of identification offering equivalent identification standards to those provided for in paragraph 1.

Holdings making use of alternative means of identification referred to in the first subparagraph shall be registered in the computerised database provided for in Article 5.

The Commission shall, by means of implementing acts, lay down the necessary rules concerning such registration. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 23(2).

In order to ensure traceability based on the identification standards equivalent to those provided for in paragraph 1, the Commission shall be empowered to adopt delegated acts in accordance with Article 22b concerning the requirements for the alternative means of identification referred to in the first subparagraph, including transitional measures required for their introduction.

The Commission may lay down, by means of implementing acts, the rules concerning the format and design of the alternative means of identification, referred to in the first subparagraph, including transitional measures required for their introduction. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 23(2).

6.   Member States shall communicate to each other and to the Commission a model of the means of identification used in their territory. They shall make this information available on the internet. The Commission shall assist the Member States in making this information available to the public by providing, on its website, the links to the relevant websites of the Member States.’;

(5)

the following Articles are inserted:

‘Article 4a

Time period for the application of the means of identification

1.   The means of identification provided for in Article 4(1) shall be applied to the animal before the expiry of a maximum period, to be determined by the Member State in which the animal was born. The maximum period shall be calculated from the date of birth of the animal and shall not exceed 20 days.

By way of derogation from the first subparagraph, for reasons related to the physiological development of the animals, that period may, for the second means of identification, be extended up to 60 days following the birth of the animal.

No animal may leave the holding where it was born before the two means of identification have been applied to that animal.

2.   To enable the application of the means of identification in special circumstances involving practical difficulties, the Commission shall be empowered to adopt delegated acts in accordance with Article 22b to determine the special circumstances under which the Member States may extend the maximum periods for the application of the means of identification as provided for in the first and second subparagraphs of paragraph 1. Member States shall inform the Commission of each use of that option.

Article 4b

Identification of animals from third countries

1.   Any animal subject to veterinary checks, pursuant to Directive 91/496/EEC, entering the Union from a third country and intended for a holding of destination within the territory of the Union, shall be identified at the holding of destination with the means of identification provided for in Article 4(1).

The original identification applied to the animal in the third country of origin shall be recorded in the computerised database provided for in Article 5 together with the unique identification code of the means of identification allocated to the animal by the Member State of destination.

The first subparagraph shall not apply to animals destined directly for a slaughterhouse situated in a Member State, provided that the animals are slaughtered within 20 days following those veterinary checks pursuant to Directive 91/496/EEC.

2.   The means of identification of animals referred to in Article 4(1) shall be applied within a maximum period to be determined by the Member State in which the holding of destination is located. That period shall not exceed 20 days following the veterinary checks referred in paragraph 1.

By way of derogation from the first subparagraph, for reasons related to the physiological development of the animals, that period may, for the second means of identification, be extended up to 60 days following the birth of the animal.

In all cases, the two means of identification referred to in the first subparagraph of Article 4(1) shall be applied to the animals before they leave the holding of destination.

3.   Where the holding of destination is situated in a Member State that has introduced national provisions under the second subparagraph of Article 4(4) to make the use of an electronic identifier compulsory, the animals shall be identified with that electronic identifier in the holding of destination in the Union, within a period to be determined by the Member State of destination. That period shall not exceed 20 days following the veterinary checks referred in paragraph 1.

By way of derogation from the first subparagraph, for reasons related to the physiological development of the animals, that period may, for the second means of identification, be extended up to 60 days following the birth of the animal.

In all cases, the electronic identifier shall be applied to the animals before they leave the holding of destination.

Article 4c

Identification of animals moved from one Member State to another

1.   Animals moved from one Member State to another shall retain the original means of identification applied to them pursuant to Article 4(1).

However, by way of derogation from the first subparagraph, starting from 18 July 2019, the competent authority of the Member State of destination may allow:

2.   Where the holding of destination is situated in a Member State that has introduced national provisions to make the use of an electronic identifier compulsory, the animals shall be identified with that electronic identifier at the latest in the holding of destination within a maximum period to be determined by the Member State where that holding of destination is located. That maximum period shall not exceed 20 days from the date of arrival of the animals on the holding of destination.

By way of derogation from the first subparagraph, for reasons related to the physiological development of the animals, that period may, for the second means of identification, be extended up to 60 days following the birth of the animal.

In all cases, the electronic identifier shall be applied to the animals before they leave the holding of destination.

However, the first subparagraph shall not apply to animals destined directly for a slaughterhouse situated in the territory of the Member State that has introduced national provisions to make the use of an electronic identifier compulsory.

Article 4d

Removal, modification or replacement of means of identification

No means of identification may be removed, modified or replaced without the permission of the competent authority. Such permission may only be granted where the removal, modification or replacement do not compromise the traceability of the animal and where its individual identification, including the holding on which it was born, is possible.

Any replacement of an identification code shall be recorded in the computerised database provided for in Article 5, together with the unique identification code of the original means of identification of the animal.’;

(6)

Article 5 is replaced by the following:

‘Article 5

The competent authority of the Member States shall set up a computerised database in accordance with Articles 14 and 18 of Directive 64/432/EEC.

Member States may exchange electronic data between their computerised databases from the date on which the Commission recognises the full operability of the data exchange system. The exchange shall be done in such a way that data protection is guaranteed and any abuse prevented in order to protect the interests of the keeper.

In order to ensure the electronic exchange of information between Member States, the Commission shall adopt delegated acts in accordance with Article 22b to lay down the rules concerning the data to be exchanged between computerised databases of Member States.

The Commission shall by means of implementing acts lay down the technical conditions and modalities for such exchange and recognise the full operability of the data exchange system. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 23(2).’;

(7)

Article 6 is replaced by the following:

‘Article 6

1.   Where a Member State does not exchange electronic data with other Member States, in the framework of the electronic exchange system referred to in Article 5, the following applies:

2.   In order to allow for the tracing of animal movements back to the holding of origin situated in a Member State, the Commission shall be empowered to adopt delegated acts in accordance with Article 22b to lay down rules concerning the information from the computerised database to be included in the animal passport, including transitional measures required for their introduction.’;

(8)

the following Article is inserted:

‘Article 6a

This Regulation shall not prevent national provisions by a Member State concerning the issuing of passports for animals not intended for intra-Union trade.’;

(9)

Article 7 is amended as follows:

(10)

Article 8 is deleted;

(11)

the following Article is inserted:

‘Article 9a

Training

Member States shall ensure that any person responsible for the identification and registration of animals has received instructions and guidance on the relevant provisions of this Regulation and of any delegated and implementing acts adopted by the Commission pursuant to this Regulation.

Whenever the relevant provisions are amended, the corresponding information shall be made available to the person referred to in the first subparagraph.

Member States shall ensure that appropriate training courses are available.

The Commission shall facilitate the exchange of best practices to improve the quality of information and training across the Union.’;

(12)

Article 10 is deleted;

(13)

Article 12 is replaced by the following:

‘Article 12

For the purposes of this Title, the following definitions apply:

(14)

Article 13 is amended as follows:

(15)

in Article 14, the fourth paragraph is replaced by the following:

‘To ensure conformity with the horizontal rules relating to the labelling in this Section, the Commission shall be empowered to adopt delegated acts in accordance with Article 22b to lay down, on the basis of the experience regarding minced meat, rules equivalent to those in the first three paragraphs of this Article for beef trimmings or cut beef.’;

(16)

Article 15 is replaced by the following:

‘Article 15

Compulsory labelling of beef from third countries

By way of derogation from Article 13, beef imported into the territory of the Union for which not all the information provided for in Article 13 is available, shall be labelled with the indication:

“Origin: non-EU” and “Slaughtered in (name of the third country)”.’;

(17)

from 13 December 2014:

(18)

Articles 19, 20 and 21 are deleted;

(19)

Article 22 is replaced by the following:

‘Article 22

1.   Member States shall take all the necessary measures to ensure compliance with the provisions of this Regulation.

The controls provided for shall be without prejudice to any controls which the Commission may carry out pursuant to Article 9 of Regulation (EC, Euratom) No 2988/95.

Any penalties imposed by the Member State on a keeper, operator or organisation marketing beef shall be effective, dissuasive and proportionate.

The competent authority shall carry out each year a minimum number of official checks in relation to identification and registration of animals which shall cover at least 3 % of the holdings.

The competent authority shall immediately increase the minimum rate of official checks referred to in the second subparagraph where it is established that provisions on identification and registration of animals have not been complied with.

The selection of holdings to be inspected by the competent authority shall be made on the basis of a risk analysis.

Each Member State shall submit an annual report to the Commission by 31 August on the implementation of the official checks during the previous year.

2.   Notwithstanding paragraph 1, the competent authority shall impose on a keeper the following administrative penalties:

3.   Notwithstanding paragraph 1, where operators and organisations marketing beef have labelled beef without complying with their obligations laid down in Title II, Member States shall, as appropriate, and in accordance with the principle of proportionality, require the removal of the beef from the market. In addition to the penalties referred to in paragraph 1, Member States may:

4.   Experts from the Commission, in conjunction with the competent authorities, shall:

5.   A Member State in whose territory an on-the-spot check is made shall provide the experts from the Commission with any assistance they may require in the performance of their tasks. The outcome of the checks made shall be discussed with the competent authority of the Member State concerned before a final report is drawn up and circulated. This report shall, where appropriate, contain recommendations for Member States on the improvement of compliance with this Regulation.’;

(20)

the following Articles are inserted:

‘Article 22a

Competent authorities

Member States shall designate the competent authority or authorities responsible for ensuring compliance with this Regulation and any acts adopted by the Commission on its basis.

They shall inform the Commission and the other Member States of the identity of those authorities.

Article 22b

Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions under this Article.

2.   The power to adopt delegated acts referred to in Articles 4(1), 4(3), 4(5), 4a(2), 5, 6(2), 7(1), 7(2), 7(6), 13(6), 14(4) and 15a shall be conferred on the Commission for a period of five years from 17 July 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.   The delegation of power referred to in Articles 4(1), 4(3), 4(5), 4a(2), 5, 6(2), 7(1), 7(2), 7(6), 13(6), 14(4) and 15a may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Articles 4(1), 4(3), 4(5), 4a(2), 5, 6(2), 7(1), 7(2), 7(6), 13(6), 14(4) and 15a shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’;

(21)

Article 23 is replaced by the following:

‘Article 23

Committee procedure

1.   The Commission shall be assisted for the implementing acts adopted pursuant to Articles 4(3), 4(5), 5 and 13(6) by the Standing Committee on the Food Chain and Animal Health established by Article 58 of Regulation (EC) No 178/2002 of the European Parliament and of the Council (9).

That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (10).

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Where the opinion of the Committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the Committee so decides or a simple majority of committee members so requests.

(9)  Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 1.2.2002, p. 1)."

(10)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).’;"

(22)

the following Article is inserted:

‘Article 23a

Report and legislative developments

No later than:

the Commission shall submit to the European Parliament and the Council the corresponding reports dealing with the implementation and impact of this Regulation including, in the first case, the possibility of reviewing the voluntary labelling provisions, and, in the second case, the technical and economic feasibility of introducing mandatory electronic identification throughout the Union.

Those reports shall, if necessary, be accompanied by appropriate legislative proposals.’;

(23)

the following Annex is inserted:

27.6.2014   

EN

Official Journal of the European Union

L 189/50

(1)

The Union has concluded a number of multilateral, regional and bilateral international trade agreements creating rights and obligations for the mutual benefit of the parties.

(2)

It is essential that the Union possess appropriate instruments to ensure the effective exercise of the Union's rights under international trade agreements in order to safeguard its economic interests. This is particularly the case in situations where third countries enact trade restrictive measures that diminish the benefits accruing to the Union's economic operators under international trade agreements. The Union should be in a position to react swiftly and in a flexible manner in the context of the procedures and deadlines set out by the international trade agreements which it has concluded. There is therefore a need for rules defining the framework for exercising the Union's rights in certain specific situations.

(3)

The dispute settlement mechanisms set up by the Agreement establishing the World Trade Organization (WTO) and by other international trade agreements, including regional or bilateral agreements, aim at finding a positive solution to any disputes arising between the Union and the other party or parties to those agreements. The Union should, nevertheless, be able to suspend concessions or other obligations, in accordance with those dispute settlement mechanisms, when other avenues to find a positive solution to a dispute have proven unsuccessful. Action by the Union in such cases should serve the purpose of inducing compliance of the third country concerned with the relevant international trade rules in order to restore a situation of reciprocal benefits.

(4)

Under the WTO Agreement on Safeguards, a WTO member proposing to apply a safeguard measure or seeking an extension of a safeguard measure has to endeavour to maintain a substantially equivalent level of concessions and other obligations between it and the exporting Members, which would be affected by such a measure. Similar rules are laid down in other international trade agreements concluded by the Union, including regional or bilateral agreements. The Union should take rebalancing measures by suspending concessions or other obligations in cases where the third country concerned implements no adequate and proportionate adjustments. Action by the Union in such cases should serve the purpose of inducing the introduction of trade-enhancing measures by third countries in order to restore a situation of reciprocal benefits.

(5)

Article XXVIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the related Understanding govern the modification or withdrawal of concessions established in the tariff schedules of WTO Members. WTO Members affected by any such modification are entitled, under certain conditions, to withdraw substantially equivalent concessions. The Union should adopt rebalancing measures in such cases, unless compensatory adjustments are agreed. Action by the Union should be aimed at inducing third countries to implement trade-enhancing measures.

(6)

The Union should have the possibility to enforce its rights in the area of public procurement when a trade partner fails to respect its commitments under the WTO Agreement on Government Procurement (GPA) or other international trade agreements. The GPA states that any dispute arising thereunder is not to result in the suspension of concessions or other obligations under any other covered agreement of the WTO. The Union's action should be aimed at ensuring the maintenance of a substantially equivalent level of concessions, as laid down in the relevant international trade agreements.

(7)

Member States should ensure the application within their respective territories of commercial policy measures in the field of public procurement in the manner that is best suited to their administrative structures and practices, while respecting Union law.

(8)

Commercial policy measures adopted under this Regulation should be selected and designed on the basis of objective criteria, including the effectiveness of the measures in inducing compliance of third countries with international trade rules, their potential to provide relief to economic operators within the Union affected by third country measures, and the aim of minimising negative economic impacts on the Union, including with regard to essential raw materials.

(9)

This Regulation should focus on those measures in respect of which the Union has experience in design and application. The possibility to extend its scope in order to provide for the adoption of measures in the sector of intellectual property rights and additional measures concerning services should be assessed as part of the review on the functioning of this Regulation, with due regard to the specificities of each area.

(10)

When enforcing the Union's rights, the origin of a good should be determined in accordance with Council Regulation (EEC) No 2913/92 (2). When enforcing the Union's rights following dispute settlement in the area of public procurement, the origin of a service should be determined on the basis of the origin of the natural or legal person providing it. Contracting authorities or entities should apply normal precautions and exercise due diligence when assessing information and guarantees provided by tenderers as regards the origin of goods and services.

(11)

The Commission should review the scope, functioning and efficiency of this Regulation, including possible measures in the sector of intellectual property rights and additional measures concerning services, no later than three years after the first instance of its implementation or no later than five years from its date of entry into force, whichever is the earlier. The Commission should report on its assessment to the European Parliament and the Council. The review may be followed up by appropriate legislative proposals.

(12)

It is important to ensure an effective communication and exchange of views between the Commission on the one hand and the European Parliament and the Council on the other, in particular on disputes under international trade agreements that may lead to the adoption of measures under this Regulation.

(13)

Council Regulation (EC) No 3286/94 (3) should be amended in order to refer to this Regulation with regard to the implementation of commercial policy measures.

(14)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (4).

(15)

In light of the high complexity involved in the examination of the multiple impacts that commercial policy measures adopted under this Regulation may have, and with a view to allowing sufficient opportunities to achieve the widest possible support, implementing acts should not be adopted by the Commission where, exceptionally, the committee referred to in this Regulation delivers no opinion on the draft implementing act presented by the Commission.

(16)

In order to safeguard the Union's interests, the Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to the need to adapt commercial policy measures to the behaviour of the third party concerned, imperative grounds of urgency so require.

(17)

This Regulation is without prejudice to the possible adoption of commercial policy measures on the basis of other relevant Union acts or of the provisions of the Treaty on the Functioning of the European Union, while respecting the applicable provisions in international trade agreements on the suspension or withdrawal of concessions or other obligations,

(a)

responding to breaches by third countries of international trade rules which affect the Union's interests, with a view to seeking a satisfactory solution that restores benefits for the Union's economic operators;

(b)

rebalancing concessions or other obligations in the trade relations with third countries, when the treatment accorded to goods from the Union is altered in a way that affects the Union's interests.

(a)

"country" means any State or separate customs territory;

(b)

"concessions or other obligations" means tariff concessions or any other benefits that the Union has committed itself to applying in its trade with third countries by virtue of international trade agreements to which it is a party;

(c)

"level of nullification or impairment" means the degree to which the benefits accruing to the Union under an international trade agreement are affected. Except as otherwise defined in the relevant agreement, it includes any adverse economic impact resulting from a third country measure;

(d)

"mandatory price penalty" means an obligation on contracting authorities or entities conducting public procurement procedures to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures.

(a)

following the adjudication of trade disputes under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO Dispute Settlement Understanding), when the Union has been authorised to suspend concessions or other obligations under the multilateral and plurilateral agreements covered by the WTO Dispute Settlement Understanding;

(b)

following the adjudication of trade disputes under other international trade agreements, including regional or bilateral agreements, when the Union has the right to suspend concessions or other obligations under such agreements;

(c)

for the rebalancing of concessions or other obligations, to which the application of a safeguard measure by a third country may give right pursuant to Article 8 of the WTO Agreement on Safeguards, or to the provisions on safeguards included in other international trade agreements, including regional or bilateral agreements;

(d)

in cases of modification of concessions by a WTO member under Article XXVIII of the GATT 1994, where no compensatory adjustments have been agreed.

(a)

where concessions or other obligations are suspended following the adjudication of a trade dispute under the WTO Dispute Settlement Understanding, their level shall not exceed the level authorised by the WTO Dispute Settlement Body;

(b)

where concessions or other obligations are suspended following the discharge of an international dispute settlement procedure under other international trade agreements, including regional or bilateral agreements, their level shall not exceed the level of nullification or impairment as a result of the third country measure concerned, as determined by the Commission or through recourse to arbitration, as the case may be;

(c)

in the case of rebalancing of concessions or other obligations under provisions on safeguards in international trade agreements, the Union's action shall be substantially equivalent to the level of concessions or other obligations affected by the safeguard measure, in accordance with the conditions of the WTO Agreement on Safeguards or of the provisions on safeguards in other international trade agreements, including regional or bilateral agreements, under which the safeguard measure is applied;

(d)

where concessions are withdrawn in the trade with a third country in connection with Article XXVIII of the GATT 1994 and the related Understanding (5), they shall be substantially equivalent to the concessions modified or withdrawn by that third country, in accordance with the terms established in Article XXVIII of the GATT 1994 and the related Understanding.

(a)

effectiveness of the measures in inducing compliance of third countries with international trade rules;

(b)

potential of the measures to provide relief to economic operators within the Union affected by third country measures;

(c)

availability of alternative sources of supply for the goods or services concerned, in order to avoid or minimise any negative impact on downstream industries, contracting authorities or entities, or final consumers within the Union;

(d)

avoidance of disproportionate administrative complexity and costs in the application of the measures;

(e)

any specific criteria that may be established in international trade agreements in connection with the cases referred to in Article 3.

(a)

the suspension of tariff concessions and the imposition of new or increased customs duties, including the re-establishment of customs duties at the most favoured nation level or the imposition of customs duties beyond the most favoured nation level, or the introduction of any additional charge on imports or exports of goods;

(b)

the introduction or increase of quantitative restrictions on imports or exports of goods, whether made effective through quotas, import or export licences or other measures;

(c)

the suspension of concessions regarding goods, services or suppliers in the area of public procurement, through:

(a)

include thresholds, according to the characteristics of the goods or services concerned, above which the exclusion and/or mandatory price penalty is to apply, taking into account the provisions of the trade agreement concerned and the level of nullification or impairment;

(b)

determine the sectors or the categories of goods or services to which they apply, as well as any applicable exceptions;

(c)

determine the contracting authorities or entities or categories of contracting authorities or entities, listed by Member State, whose procurement is covered. To provide the basis for this determination, each Member State shall submit a list of appropriate contracting authorities or entities or categories of contracting authorities or entities. The measures shall ensure that an appropriate level of suspension of concessions or other obligations and a fair distribution among Member States is achieved.

(a)

in the case of a natural person, the country of which the person is a national or where he has a right of permanent residence;

(b)

in the case of a legal person, either of the following:

(a)

when the third country whose measures were found to be in breach of international trade rules in a dispute settlement procedure brings itself into compliance, or where a mutually satisfactory solution has otherwise been reached;

(b)

in cases of rebalancing of concessions or other obligations following the adoption by a third country of a safeguard measure, when the safeguard measure is withdrawn or expires, or when the third country concerned accords adequate and proportionate compensation to the Union after the adoption of an implementing act under Article 4(1);

(c)

in cases of modification of concessions by a WTO member under Article XXVIII of the GATT 1994, when the third country concerned accords adequate and proportionate compensation to the Union after the adoption of an implementing act under Article 4(1).

(a)

international developments with regard to the suspension of other obligations under the General Agreement on Trade in Services (GATS);

(b)

developments within the Union with regard to the adoption of common rules on services sectors;

(c)

the effectiveness of possible additional commercial policy measures as a means to enforce the Union's rights under international trade agreements;

(d)

available mechanisms to ensure the practical implementation, in a uniform and efficient manner, of possible additional commercial policy measures concerning services; and

(e)

implications for service providers present in the Union at the time of adoption of implementing acts under this Regulation.

27.6.2014   

EN

Official Journal of the European Union

L 189/59

(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.

(2)

In accordance with Article 81(2) of the Treaty on the Functioning of the European Union (TFEU), such measures may include measures aimed at ensuring, inter alia, the mutual recognition and enforcement of judgments between Member States, effective access to justice and the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

(3)

On 24 October 2006, by way of the ‘Green Paper on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts’, the Commission launched a consultation on the need for a uniform European procedure for the preservation of bank accounts and the possible features of such a procedure.

(4)

In the Stockholm Programme of December 2009 (3), which sets freedom, security and justice priorities for 2010 to 2014, the European Council invited the Commission to assess the need for, and the feasibility of, providing for certain provisional, including protective, measures at Union level, to prevent for example the disappearance of assets before the enforcement of a claim, and to put forward appropriate proposals for improving the efficiency of enforcement of judgments in the Union regarding bank accounts and debtors’ assets.

(5)

National procedures for obtaining protective measures such as account preservation orders exist in all Member States, but the conditions for the grant of such measures and the efficiency of their implementation vary considerably. Moreover, recourse to national protective measures may prove cumbersome in cases having cross-border implications, in particular when the creditor seeks to preserve several accounts located in different Member States. It therefore seems necessary and appropriate to adopt a binding and directly applicable legal instrument of the Union which establishes a new Union procedure allowing, in cross-border cases, for the preservation, in an efficient and speedy way, of funds held in bank accounts.

(6)

The procedure established by this Regulation should serve as an additional and optional means for the creditor, who remains free to make use of any other procedure for obtaining an equivalent measure under national law.

(7)

A creditor should be able to obtain a protective measure in the form of a European Account Preservation Order (‘Preservation Order’ or ‘Order’) preventing the transfer or withdrawal of funds held by his debtor in a bank account maintained in a Member State if there is a risk that, without such a measure, the subsequent enforcement of his claim against the debtor will be impeded or made substantially more difficult. The preservation of funds held in the debtor’s account should have the effect of preventing not only the debtor himself, but also persons authorised by him to make payments through that account, for example by way of a standing order or through direct debit or the use of a credit card, from using the funds.

(8)

The scope of this Regulation should cover all civil and commercial matters apart from certain well-defined matters. In particular, this Regulation should not apply to claims against a debtor in insolvency proceedings. This should mean that no Preservation Order can be issued against the debtor once insolvency proceedings as defined in Council Regulation (EC) No 1346/2000 (4) have been opened in relation to him. On the other hand, the exclusion should allow the Preservation Order to be used to secure the recovery of detrimental payments made by such a debtor to third parties.

(9)

This Regulation should apply to accounts held with credit institutions whose business is to take deposits or other repayable funds from the public and to grant credits for their own account.

It should thus not apply to financial institutions which do not take such deposits, for instance institutions providing financing for export and investment projects or projects in developing countries or institutions providing financial market services. Furthermore, this Regulation should not apply to accounts held by or with central banks when acting in their capacity as monetary authorities, nor to accounts that cannot be preserved by national orders equivalent to a Preservation Order or which are otherwise immune from seizure under the law of the Member State where the account in question is maintained.

(10)

This Regulation should apply to cross-border cases only and should define what constitutes a cross-border case in this particular context. For the purposes of this Regulation, a cross-border case should be considered to exist when the court dealing with the application for the Preservation Order is located in one Member State and the bank account concerned by the Order is maintained in another Member State. A cross-border case should also be considered to exist when the creditor is domiciled in one Member State and the court and the bank account to be preserved are located in another Member State.

This Regulation should not apply to the preservation of accounts maintained in the Member State of the court seized of the application for the Preservation Order if the creditor’s domicile is also in that Member State, even if the creditor applies at the same time for a Preservation Order which concerns an account or accounts maintained in another Member State. In such a case, the creditor should make two separate applications, one for a Preservation Order and one for a national measure.

(11)

The procedure for a Preservation Order should be available to a creditor wishing to secure the enforcement of a later judgment on the substance of the matter prior to initiating proceedings on the substance of the matter and at any stage during such proceedings. It should also be available to a creditor who has already obtained a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim.

(12)

The Preservation Order should be available for the purpose of securing claims that have already fallen due. It should also be available for claims that are not yet due as long as such claims arise from a transaction or an event that has already occurred and their amount can be determined, including claims relating to tort, delict or quasi-delict and civil claims for damages or restitution which are based on an act giving rise to criminal proceedings.

A creditor should be able to request that the Preservation Order be issued in the amount of the principal claim or in a lower amount. The latter may be in his interest, for instance, where he has already obtained some other security for part of his claim.

(13)

In order to ensure a close link between the proceedings for the Preservation Order and the proceedings on the substance of the matter, international jurisdiction to issue the Order should lie with the courts of the Member State whose courts have jurisdiction to rule on the substance of the matter. For the purposes of this Regulation, the notion of proceedings on the substance of the matter should cover any proceedings aimed at obtaining an enforceable title on the underlying claim including, for instance, summary proceedings concerning orders to pay and proceedings such as the French ‘procédure de référé’. If the debtor is a consumer domiciled in a Member State, jurisdiction to issue the Order should lie only with the courts of that Member State.

(14)

The conditions for issuing the Preservation Order should strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order.

Consequently, when the creditor applies for a Preservation Order prior to obtaining a judgment, the court with which the application is lodged should have to be satisfied on the basis of the evidence submitted by the creditor that the creditor is likely to succeed on the substance of his claim against the debtor.

Furthermore, the creditor should be required in all situations, including when he has already obtained a judgment, to demonstrate to the satisfaction of the court that his claim is in urgent need of judicial protection and that, without the Order, the enforcement of the existing or a future judgment may be impeded or made substantially more difficult because there is a real risk that, by the time the creditor is able to have the existing or a future judgment enforced, the debtor may have dissipated, concealed or destroyed his assets or have disposed of them under value, to an unusual extent or through unusual action.

The court should assess the evidence submitted by the creditor to support the existence of such a risk. This could relate, for instance, to the debtor’s conduct in respect of the creditor’s claim or in a previous dispute between the parties, to the debtor’s credit history, to the nature of the debtor’s assets and to any recent action taken by the debtor with regard to his assets. In assessing the evidence, the court may consider that withdrawals from accounts and instances of expenditure by the debtor to sustain the normal course of his business or recurrent family expenses are not, in themselves, unusual. The mere non-payment or contesting of the claim or the mere fact that the debtor has more than one creditor should not, in themselves, be considered sufficient evidence to justify the issuing of an Order. Nor should the mere fact that the financial circumstances of the debtor are poor or deteriorating, in itself, constitute a sufficient ground for the issuing of an Order. However, the court may take these factors into account in the overall assessment of the existence of the risk.

(15)

In order to ensure the surprise effect of the Preservation Order, and to ensure that it will be a useful tool for a creditor trying to recover debts from a debtor in cross-border cases, the debtor should not be informed about the creditor’s application nor be heard prior to the issue of the Order or notified of the Order prior to its implementation. Where, on the basis of the evidence and information provided by the creditor or, if applicable, by his witness(es), the court is not satisfied that the preservation of the account or accounts in question is justified, it should not issue the Order.

(16)

In situations where the creditor applies for a Preservation Order before initiating proceedings on the substance of the matter before a court, this Regulation should oblige him to initiate such proceedings within a specified period of time and should also oblige him to provide proof of such initiation to the court with which he lodged his application for an Order. Should the creditor fail to comply with this obligation, the Order should be revoked by the court of its own motion or should terminate automatically.

(17)

In view of the absence of a prior hearing of the debtor, this Regulation should provide for specific safeguards in order to prevent abuse of the Order and to protect the debtor’s rights.

(18)

One such important safeguard should be the possibility of requiring the creditor to provide security so as to ensure that the debtor can be compensated at a later stage for any damage caused to him by the Preservation Order. Depending on national law, such security could be provided in the form of a security deposit or an alternative assurance, such as a bank guarantee or a mortgage. The court should have discretion in determining the amount of security sufficient to prevent abuse of the Order and to ensure compensation to the debtor and it should be open to the court, in the absence of specific evidence as to the amount of the potential damage, to consider the amount in which the Order is to be issued as a guideline for determining the amount of the security.

In cases where the creditor has not yet obtained a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim, the provision of security should be the rule and the court should dispense with this requirement, or require the provision of security in a lower amount, only exceptionally if it considers that such security is inappropriate, superfluous or disproportionate in the circumstances of the case. Such circumstances could be, for instance, that the creditor has a particularly strong case but does not have sufficient means to provide security, that the claim relates to maintenance or to the payment of wages or that the size of the claim is such that the Order is unlikely to cause any damage to the debtor, for instance a small business debt.

In cases where the creditor has already obtained a judgment, court settlement or authentic instrument, the provision of security should be left to the discretion of the court. The provision of security may, for instance, be appropriate, except in the abovementioned exceptional circumstances, where the judgment the enforcement of which the Preservation Order intends to secure is not yet enforceable or only provisionally enforceable due to a pending appeal.

(19)

Another important element for striking an appropriate balance between the creditor’s and the debtor’s interests should be a rule on the creditor’s liability for any damage caused to the debtor by the Preservation Order. This Regulation should therefore, as a minimum standard, provide for the liability of the creditor where the damage caused to the debtor by the Preservation Order is due to fault on the creditor’s part. In this context, the burden of proof should lie with the debtor. As regards the grounds for liability specified in this Regulation, provision should be made for a harmonised rule establishing a rebuttable presumption of fault on the part of the creditor.

Furthermore, the Member States should be able to maintain or introduce in their national law grounds for liability other than those specified in this Regulation. For such other grounds of liability, the Member States should also be able to maintain or introduce other types of liability, such as strict liability.

This Regulation should also lay down a conflict-of-laws rule specifying that the law applicable to the creditor’s liability should be the law of the Member State of enforcement. Where there are several Member States of enforcement, the law applicable should be the law of the Member State of enforcement in which the debtor is habitually resident. In a case in which the debtor is not habitually resident in any of the Member States of enforcement, the law applicable should be the law of the Member State of enforcement with which the case has the closest connection. In determining the closest connection, the size of the amount preserved in the different Member States of enforcement could be one of the factors to be taken into account by the court.

(20)

In order to overcome existing practical difficulties in obtaining information about the whereabouts of the debtor’s bank account in a cross-border context, this Regulation should set out a mechanism allowing the creditor to request that the information needed to identify the debtor’s account be obtained by the court, before a Preservation Order is issued, from the designated information authority of the Member State in which the creditor believes that the debtor holds an account. Given the particular nature of such an intervention by public authorities and of such access to private data, access to account information should, as a rule, be given only in cases where the creditor has already obtained an enforceable judgment, court settlement or authentic instrument. However, by way of exception, it should be possible for the creditor to make a request for account information even though his judgment, court settlement or authentic instrument is not yet enforceable. Such a request should be possible where the amount to be preserved is substantial taking into account the relevant circumstances and the court is satisfied, on the basis of the evidence submitted by the creditor, that there is an urgent need for such account information because there is a risk that, without it, the subsequent enforcement of the creditor’s claim against the debtor is likely to be jeopardised and that this could consequently lead to a substantial deterioration of the creditor’s financial situation.

To allow that mechanism to work, the Member States should make available in their national law one or more methods for obtaining such information which are effective and efficient and which are not disproportionately costly or time-consuming. The mechanism should apply only if all the conditions and requirements for issuing the Preservation Order are met and the creditor has duly substantiated in his request why there are reasons to believe that the debtor holds one or more accounts in a specific Member State, for instance because the debtor works or exercises a professional activity in that Member State or has property there.

(21)

In order to ensure protection of the personal data of the debtor, the information obtained regarding the identification of the debtor’s bank account or accounts should not be provided to the creditor. It should be provided only to the requesting court and, exceptionally, to the debtor’s bank if the bank or other entity responsible for enforcing the Order in the Member State of enforcement is not able to identify an account of the debtor on the basis of the information provided in the Order, for instance where there are accounts held with the same bank by several persons having the same name and the same address. Where, in such a case, it is indicated in the Order that the number or numbers of the account(s) to be preserved was or were obtained through a request for information, the bank should request that information from the information authority of the Member State of enforcement and should be able to make such a request in an informal and simple manner.

(22)

This Regulation should grant the creditor the right to appeal against a refusal to issue the Preservation Order. That right should be without prejudice to the possibility for the creditor to make a new application for a Preservation Order on the basis of new facts or new evidence.

(23)

Enforcement structures for preserving bank accounts vary considerably in the Member States. In order to avoid duplication of those structures in the Member States and to respect national procedures to the extent possible, this Regulation should, as regards the enforcement and actual implementation of the Preservation Order, build on the methods and structures in place for the enforcement and implementation of equivalent national orders in the Member State in which the Order is to be enforced.

(24)

In order to ensure swift enforcement, this Regulation should provide for transmission of the Order from the Member State of origin to the competent authority of the Member State of enforcement by any appropriate means which ensure that the content of the documents transmitted is true and faithful and easily legible.

(25)

Upon receiving the Preservation Order, the competent authority of the Member State of enforcement should take the necessary steps to have the Order enforced in accordance with its national law, either by transmitting the Order received to the bank or other entity responsible for enforcing such orders in that Member State or, where national law so provides, by otherwise instructing the bank to implement the Order.

(26)

Depending on the method available under the law of the Member State of enforcement for equivalent national orders, the Preservation Order should be implemented by blocking the preserved amount in the debtor’s account or, where national law so provides, by transferring that amount to an account dedicated for preservation purposes, which could be an account held by either the competent enforcement authority, the court, the bank with which the debtor holds his account or a bank designated as coordinating entity for the preservation in a given case.

(27)

This Regulation should not prevent the payment of fees for the enforcement of the Preservation Order from being requested in advance. This issue should be left to the national law of the Member State in which the Order is to be enforced.

(28)

A Preservation Order should have the same rank, if any, as an equivalent national order in the Member State of enforcement. If, under national law, certain enforcement measures have priority over preservation measures, the same priority should be given to them in relation to Preservation Orders under this Regulation. For the purposes of this Regulation, the in personam orders which exist in some national legal systems should be considered to be equivalent national orders.

(29)

This Regulation should provide for the imposition on the bank or other entity responsible for enforcing the Preservation Order in the Member State of enforcement of an obligation to declare whether and, if so, to what extent the Order has led to the preservation of any funds of the debtor, and of an obligation on the creditor to ensure the release of any funds preserved that exceed the amount specified in the Order.

(30)

This Regulation should safeguard the debtor’s right to a fair trial and his right to an effective remedy and should therefore, having regard to the ex parte nature of the proceedings for the issue of the Preservation Order, enable him to contest the Order or its enforcement on the grounds provided for in this Regulation immediately after the implementation of the Order.

(31)

In this context, this Regulation should require that the Preservation Order, all documents submitted by the creditor to the court in the Member State of origin and the necessary translations be served on the debtor promptly after the implementation of the Order. The court should have discretionary powers to append any further documents on which it based its decision and which the debtor might need for his remedy action, such as verbatim transcripts of any oral hearing.

(32)

The debtor should be able to request a review of the Preservation Order, in particular if the conditions or requirements set out in this Regulation were not met or if the circumstances that led to the issuing of the Order have changed in such a way that the issuing of the Order would no longer be founded. For instance, a remedy should be available to the debtor if the case did not constitute a cross-border case as defined in this Regulation, if the jurisdiction rules set out in this Regulation were not respected, if the creditor did not initiate proceedings on the substance of the matter within the period of time provided for in this Regulation and the court did not, as a consequence, revoke the Order of its own motion or the Order did not terminate automatically, if the creditor’s claim was not in need of urgent protection in the form of a Preservation Order because there was no risk that the subsequent enforcement of that claim would be impeded or made substantially more difficult, or if the provision of security was not in conformity with the requirements set out in this Regulation.

A remedy should also be available to the debtor if the Order and the declaration on the preservation have not been served on him as provided for in this Regulation or if the documents served on him did not meet the language requirements provided for in this Regulation. However, such a remedy should not be granted if the lack of service or translation is cured within a given period of time. In order to cure the lack of service, the creditor should make a request to the body responsible for service in the Member State of origin to have the relevant documents served by registered post on the debtor or, where the debtor has agreed to collect the documents at the court, should provide the necessary translations of the documents to the court. Such a request should not be required if the lack of service has already been cured by other means, for instance if, in accordance with national law, the court initiated the service of its own motion.

(33)

The question as to who has to provide any translations required under this Regulation and who has to bear the costs for such translations is left to national law.

(34)

Jurisdiction to grant the remedies against the issue of the Preservation Order should lie with the courts of the Member State in which the Order was issued. Jurisdiction to grant the remedies against the enforcement of the Order should lie with the courts or, where applicable, with the competent enforcement authorities in the Member State of enforcement.

(35)

The debtor should have the right to apply for the release of the preserved funds if he provides appropriate alternative security. Such alternative security could be provided in the form of a security deposit or an alternative assurance, such as a bank guarantee or a mortgage.

(36)

This Regulation should ensure that the preservation of the debtor’s account does not affect amounts which are exempt from seizure under the law of the Member State of enforcement, for example amounts necessary to ensure the livelihood of the debtor and his family. Depending on the procedural system applicable in that Member State, the relevant amount should either be exempted ex officio by the body responsible, which could be the court, the bank or the competent enforcement authority, before the Order is implemented, or be exempted at the request of the debtor after the implementation of the Order. Where accounts in several Member States are preserved and the exemption has been applied more than once, the creditor should be able to apply to the competent court of any of the Member States of enforcement or, where the national law of the Member State of enforcement concerned so provides, to the competent enforcement authority in that Member State, for an adjustment of the exemption applied in that Member State.

(37)

In order to ensure that the Preservation Order is issued and enforced swiftly and without delay, this Regulation should establish time-limits by which the different steps in the procedure must be completed. Courts or authorities involved in the procedure should only be allowed to derogate from those time-limits in exceptional circumstances, for instance in cases which are legally or factually complex.

(38)

For the purposes of calculating the periods and time-limits provided for in this Regulation, Regulation (EEC, Euratom) No 1182/71 of the Council (5) should apply.

(39)

In order to facilitate the application of this Regulation, provision should be made for an obligation on the Member States to communicate certain information regarding their legislation and procedures relating to Preservation Orders and equivalent national orders to the Commission.

(40)

In order to facilitate the application of this Regulation in practice, standard forms should be established, in particular, for the application for an Order, for the Order itself, for the declaration concerning the preservation of funds and for the application for a remedy or appeal under this Regulation.

(41)

To increase the efficiency of proceedings, this Regulation should allow for the greatest possible use of modern communication technologies accepted under the procedural rules of the Member States concerned, particularly for the purposes of filling in the standard forms provided for in this Regulation and of communication between the authorities involved in the proceedings. Furthermore, the methods for signing the Preservation Order and other documents under this Regulation should be technologically neutral in order to allow for the application of existing methods, such as digital certification or secure authentication, and for future technical developments in this field.

(42)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission with regard to the establishment and subsequent amendment of the standard forms provided for in this Regulation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (6).

(43)

The advisory procedure should be used for the adoption of implementing acts establishing and subsequently amending the standard forms provided for in this Regulation in accordance with Article 4 of Regulation (EU) No 182/2011.

(44)

This Regulation respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for private and family life, the protection of personal data, the right to property, and the right to an effective remedy and to a fair trial as established in Articles 7, 8, 17 and 47 thereof respectively.

(45)

In the context of access to personal data and the use and transmission of such data under this Regulation, the requirements of Directive 95/46/EC of the European Parliament and of the Council (7), as transposed into the national law of the Member States, should be complied with.

(46)

For the purposes of the application of this Regulation, it is however necessary to lay down certain specific conditions for access to personal data and for the use and transmission of such data. In this context, the opinion of the European Data Protection Supervisor (8) has been taken into account. Notification of the data subject should take place in accordance with national law. However, the notification of the debtor about the disclosure of information relating to his account or accounts should be deferred for 30 days, in order to prevent an early notification from jeopardising the effect of the Preservation Order.

(47)

Since the objective of this Regulation, namely to establish a Union procedure for a protective measure which enables a creditor to obtain a Preservation Order preventing the subsequent enforcement of the creditor’s claim from being jeopardised through the transfer or withdrawal of funds held by the debtor in a bank account within the Union, cannot be sufficiently achieved by the Member States but can rather, 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 (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(48)

This Regulation should apply only to those Member States which are bound by it in accordance with the Treaties. The procedure for obtaining a Preservation Order provided for in this Regulation should therefore be available only to creditors who are domiciled in a Member State bound by this Regulation and Orders issued under this Regulation should relate only to the preservation of bank accounts which are maintained in such a Member State.

(49)

In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, Ireland has notified its wish to take part in the adoption and application of this Regulation.

(50)

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(51)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application,

(a)

rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;

(b)

wills and succession, including maintenance obligations arising by reason of death;

(c)

claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened;

(d)

social security;

(e)

arbitration.

(a)

the Member State of the court seised of the application for the Preservation Order pursuant to Article 6; or

(b)

the Member State in which the creditor is domiciled.

(1)

‘bank account’ or ‘account’ means any account containing funds which is held with a bank in the name of the debtor or in the name of a third party on behalf of the debtor;

(2)

‘bank’ means a credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (10), including branches, within the meaning of point (17) of Article 4(1) of that Regulation, of credit institutions having their head offices inside or, in accordance with Article 47 of Directive 2013/36/EU of the European Parliament and of the Council (11), outside the Union where such branches are located in the Union;

(3)

‘funds’ means money credited to an account in any currency, or similar claims for the repayment of money, such as money market deposits;

(4)

‘Member State in which the bank account is maintained’ means:

(5)

‘claim’ means a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court;

(6)

‘creditor’ means a natural person domiciled in a Member State or a legal person domiciled in a Member State or any other entity domiciled in a Member State having legal capacity to sue or be sued under the law of a Member State, who or which applies for, or has already obtained, a Preservation Order relating to a claim;

(7)

‘debtor’ means a natural person or a legal person or any other entity having legal capacity to sue or be sued under the law of a Member State, against whom or which the creditor seeks to obtain, or has already obtained, a Preservation Order relating to a claim;

(8)

‘judgment’ means any judgment given by a court of a Member State, whatever the judgment may be called, including a decision on the determination of costs or expenses by an officer of the court;

(9)

‘court settlement’ means a settlement which has been approved by a court of a Member State or concluded before a court of a Member State in the course of proceedings;

(10)

‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:

(11)

‘Member State of origin’ means the Member State in which the Preservation Order was issued;

(12)

‘Member State of enforcement’ means the Member State in which the bank account to be preserved is maintained;

(13)

‘information authority’ means the authority which a Member State has designated as competent for the purposes of obtaining the necessary information on the debtor’s account or accounts pursuant to Article 14;

(14)

‘competent authority’ means the authority or authorities which a Member State has designated as competent for receipt, transmission or service pursuant to Article 10(2), Article 23(3), (5) and (6), Articles 25(3), 27(2) and 28(3) and the second subparagraph of Article 36(5);

(15)

‘domicile’ means domicile as determined in accordance with Articles 62 and 63 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (12).

(a)

before the creditor initiates proceedings in a Member State against the debtor on the substance of the matter, or at any stage during such proceedings up until the issuing of the judgment or the approval or conclusion of a court settlement;

(b)

after the creditor has obtained in a Member State a judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim.

(a)

the name and address of the court with which the application is lodged;

(b)

details concerning the creditor: name and contact details and, where applicable, name and contact details of the creditor’s representative, and:

(c)

details concerning the debtor: name and contact details and, where applicable, name and contact details of the debtor’s representative and, if available:

(d)

a number enabling the identification of the bank, such as the IBAN or BIC and/or the name and address of the bank, with which the debtor holds one or more accounts to be preserved;

(e)

if available, the number of the account or accounts to be preserved and, in such a case, an indication as to whether any other accounts held by the debtor with the same bank should be preserved;

(f)

where none of the information required under point (d) can be provided, a statement that a request is made for the obtaining of account information pursuant to Article 14, where such a request is possible, and a substantiation as to why the creditor believes that the debtor holds one or more accounts with a bank in a specific Member State;

(g)

the amount for which the Preservation Order is sought:

(h)

where the creditor has not yet obtained a judgment, court settlement or authentic instrument:

(i)

where the creditor has already obtained a judgment, court settlement or authentic instrument, a declaration that the judgment, court settlement or authentic instrument has not yet been complied with or, where it has been complied with in part, an indication of the extent of non-compliance;

(j)

a description of all relevant circumstances justifying the issuing of the Preservation Order as required by Article 7(1);

(k)

where applicable, an indication of the reasons why the creditor believes he should be exempted from providing security pursuant to Article 12;

(l)

a list of the evidence provided by the creditor;

(m)

a declaration as provided for in Article 16 as to whether the creditor has lodged with other courts or authorities an application for an equivalent national order or whether such an order has already been obtained or refused and, if obtained, the extent to which it has been implemented;

(n)

an optional indication of the creditor’s bank account to be used for any voluntary payment of the claim by the debtor;

(o)

a declaration that the information provided by the creditor in the application is true and complete to the best of his knowledge and that the creditor is aware that any deliberately false or incomplete statements may lead to legal consequences under the law of the Member State in which the application is lodged or to liability pursuant to Article 13.

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the creditor has not subsequently failed to take the steps he was required to take to have service effected on the debtor; or

(b)

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the creditor has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

(a)

if the Order is revoked because the creditor has failed to initiate proceedings on the substance of the matter, unless that omission was a consequence of the debtor’s payment of the claim or another form for settlement between the parties;

(b)

if the creditor has failed to request the release of over-preserved amounts as provided for in Article 27;

(c)

if it is subsequently found that the issue of the Order was not appropriate or appropriate only in a lower amount due to a failure on the part of the creditor to comply with his obligations under Article 16; or

(d)

if the Order is revoked or its enforcement terminated because the creditor has failed to comply with his obligations under this Regulation with regard to service or translation of documents or with regard to curing the lack of service or the lack of translation.

(a)

in which the debtor has his habitual residence as defined in Article 23 of Regulation (EC) No 864/2007 of the European Parliament and of the Council (13), or, failing that,

(b)

which has the closest connection with the case.

(a)

an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;

(b)

access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;

(c)

the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or

(d)

any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.

(a)

part A, containing the information set out in paragraph 2 to be provided to the bank, the creditor and the debtor; and

(b)

part B, containing the information set out in paragraph 3 to be provided to the creditor and the debtor in addition to the information pursuant to paragraph 2.

(a)

the name and address of the court and the file number of the case;

(b)

details of the creditor as indicated in point (b) of Article 8(2);

(c)

details of the debtor as indicated in point (c) of Article 8(2);

(d)

the name and address of the bank concerned by the Order;

(e)

if the creditor has provided the account number of the debtor in the application, the number of the account or accounts to be preserved, and, where applicable, an indication as to whether any other accounts held by the debtor with the same bank also have to be preserved;

(f)

where applicable, an indication that the number of any account to be preserved was obtained by means of a request pursuant to Article 14 and that the bank, where necessary pursuant to the second subparagraph of Article 24(4), is to obtain the number or numbers concerned from the information authority of the Member State of enforcement;

(g)

the amount to be preserved by the Order;

(h)

an instruction to the bank to implement the Order in accordance with Article 24;

(i)

the date of issue of the Order;

(j)

if the creditor has indicated an account in his application pursuant to point (n) of Article 8(2), an authorisation to the bank pursuant to Article 24(3) to release and transfer, if so requested by the debtor and if allowed by the law of the Member State of enforcement, funds up to the amount specified in the Order from the preserved account to the account that the creditor has indicated in his application;

(k)

information on where to find the electronic version of the form to be used for the declaration pursuant to Article 25.

(a)

a description of the subject matter of the case and the court’s reasoning for issuing the Order;

(b)

the amount of the security provided by the creditor, if any;

(c)

where applicable, the time-limit for initiating the proceedings on the substance of the matter and for proving such initiation to the issuing court;

(d)

where applicable, an indication as to which documents must be translated pursuant to the second sentence of Article 49(1);

(e)

where applicable, an indication that the creditor is responsible for initiating the enforcement of the Order and consequently, where applicable, an indication that the creditor is responsible for transmitting it to the competent authority of the Member State of enforcement pursuant to Article 23(3) and for initiating service on the debtor pursuant to Article 28(2), (3) and (4); and

(f)

information about the remedies available to the debtor.

(a)

until the Order is revoked;

(b)

until the enforcement of the Order is terminated; or

(c)

until a measure to enforce a judgment, court settlement or authentic instrument obtained by the creditor relating to the claim which the Preservation Order was aimed at securing has taken effect with respect to the funds preserved by the Order.

(a)

by ensuring that that amount is not transferred or withdrawn from the account or accounts indicated in the Order or identified pursuant to paragraph 4; or

(b)

where national law so provides, by transferring that amount to an account dedicated for preservation purposes.

(a)

such authorisation of the bank is specifically indicated in the Order in accordance with point (j) of Article 19(2);

(b)

the law of the Member State of enforcement allows for such release and transfer; and

(c)

there are no competing Orders with regard to the account concerned.

(a)

where, in accordance with point (f) of Article 19(2), it is indicated in the Order that the number or numbers of the account or accounts to be preserved was or were obtained by means of a request pursuant to Article 14, obtain that number or those numbers from the information authority of the Member State of enforcement; and

(b)

in all other cases, not implement the Order.

(a)

savings accounts in the sole name of the debtor;

(b)

current accounts in the sole name of the debtor;

(c)

savings accounts in joint names, subject to Article 30;

(d)

current accounts in joint names, subject to Article 30.

(a)

where the Order covers several accounts in the same Member State or in different Member States; or

(b)

where the Order was issued after the implementation of one or more equivalent national orders against the same debtor and aimed at securing the same claim.

(a)

the Preservation Order using parts A and B of the form referred to in Article 19(2) and (3);

(b)

the application for the Preservation Order submitted by the creditor to the court;

(c)

copies of all documents submitted by the creditor to the court in order to obtain the Order.

(a)

the conditions or requirements set out in this Regulation were not met;

(b)

the Order, the declaration pursuant to Article 25 and/or the other documents referred to in Article 28(5) were not served on the debtor within 14 days of the preservation of his account or accounts;

(c)

the documents served on the debtor in accordance with Article 28 did not meet the language requirements set out in Article 49(1);

(d)

preserved amounts exceeding the amount of the Order were not released in accordance with Article 27;

(e)

the claim the enforcement of which the creditor was seeking to secure by means of the Order has been paid in full or in part;

(f)

a judgment on the substance of the matter has dismissed the claim the enforcement of which the creditor was seeking to secure by means of the Order; or

(g)

the judgment on the substance of the matter, or the court settlement or authentic instrument, the enforcement of which the creditor was seeking to secure by means of the Order has been set aside or, as the case may be, annulled.

(a)

if the creditor requests the body responsible for service under the law of the Member State of origin to serve the documents on the debtor; or

(b)

where the debtor has indicated in his application for a remedy that he agrees to collect the documents at the court of the Member State of origin and where the creditor was responsible for providing translations, if the creditor transmits to that court any translations required pursuant to Article 49(1).

(a)

limited on the ground that certain amounts held in the account should be exempt from seizure in accordance with Article 31(3), or that amounts exempt from seizure have not or not correctly been taken into account in the implementation of the Order in accordance with Article 31(2); or

(b)

terminated on the ground that:

(a)

the court that issued the Preservation Order may order the release of the funds preserved if the debtor provides to that court security in the amount of the Order, or an alternative assurance in a form acceptable under the law of the Member State in which the court is located and of a value at least equivalent to that amount;

(b)

the competent court or, where national law so provides, the competent enforcement authority of the Member State of enforcement may terminate the enforcement of the Preservation Order in the Member State of enforcement if the debtor provides to that court or authority security in the amount preserved in that Member State, or an alternative assurance in a form acceptable under the law of the Member State in which the court is located and of a value at least equivalent to that amount.

(a)

to contest a Preservation Order shall lie with the courts of the Member State of origin, and

(b)

to contest the enforcement of the Preservation Order in the Member State of enforcement shall lie with the courts of the Member State of enforcement or, where the national law of that Member State so provides, with the competent enforcement authority.

(a)

Regulation (EC) No 1393/2007 of the European Parliament and of the Council (14), except as provided for in Article 10(2), Article 14(3) and (6), Article 17(5), Article 23(3) and (6), Article 25(2) and (3), Article 28(1), (3), (5) and (6), Article 29, Article 33(3), Article 36(2) and (4), and Article 49(1) of this Regulation;

(b)

Regulation (EU) No 1215/2012;

(c)

Regulation (EC) No 1346/2000;

(d)

Directive 95/46/EC, except as provided for in Articles 14(8) and 47 of this Regulation;

(e)

Regulation (EC) No 1206/2001 of the European Parliament and of the Council (15);

(f)

Regulation (EC) No 864/2007, except as provided for in Article 13(4) of this Regulation.

(a)

the courts designated as competent to issue a Preservation Order (Article 6(4));

(b)

the authority designated as competent to obtain account information (Article 14);

(c)

the methods of obtaining account information available under their national law (Article 14(5));

(d)

the courts with which an appeal is to be lodged (Article 21);

(e)

the authority or authorities designated as competent to receive, transmit and serve the Preservation Order and other documents under this Regulation (point (14) of Article 4);

(f)

the authority competent to enforce the Preservation Order in accordance with Chapter 3;

(g)

the extent to which joint and nominee accounts can be preserved under their national law (Article 30);

(h)

the rules applicable to amounts exempt from seizure under national law (Article 31);

(i)

whether, under their national law, banks are entitled to charge fees for the implementation of equivalent national orders or for providing account information and, if so, which party is liable, provisionally and finally, to pay those fees (Article 43);

(j)

the scale of fees or other set of rules setting out the applicable fees charged by any authority or other body involved in the processing or enforcement of the Preservation Order (Article 44);

(k)

whether any ranking is conferred on equivalent national orders under national law (Article 32);

(l)

the courts or, where applicable, the enforcement authority, competent to grant a remedy (Article 33(1), Article 34(1) or (2));

(m)

the courts with which an appeal is to be lodged, the period of time, if prescribed, within which such an appeal must be lodged under national law and the event marking the start of that period (Article 37);

(n)

an indication of court fees (Article 42); and

(o)

the languages accepted for translations of the documents (Article 49(2)).

(a)

financial instruments should be included in the scope of this Regulation, and

(b)

amounts credited to the debtor’s account after the implementation of the Preservation Order could be made subject to preservation under the Order.

(a)

the number of applications for a Preservation Order and the number of cases in which the Order was issued;

(b)

the number of applications for a remedy pursuant to Articles 33 and 34 and, if possible, the number of cases in which the remedy was granted; and

(c)

the number of appeals lodged pursuant to Article 37 and, if possible, the number of cases in which such an appeal was successful.

27.6.2014   

EN

Official Journal of the European Union

L 189/93

(1)

The objective of Union policy in the field of the Union external borders is to ensure the efficient monitoring of the crossing of external borders including through border surveillance, while contributing to ensuring the protection and saving of lives. The purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend or take other measures against those persons who have crossed the border in an irregular manner. Border surveillance should be effective in preventing and discouraging persons from circumventing the checks at border crossing points. To this end, border surveillance is not limited to the detection of attempts at unauthorised border crossings but equally extends to steps such as intercepting vessels suspected of trying to gain entry to the Union without submitting to border checks, as well as arrangements intended to address situations such as search and rescue that may arise during a border surveillance operation at sea and arrangements intended to bring such an operation to a successful conclusion.

(2)

The policies of the Union in border management, asylum and immigration and their implementation should be governed by the principle of solidarity and fair sharing of responsibility between the Member States pursuant to Article 80 of the Treaty on the Functioning of the European Union (TFEU). Wherever necessary, Union acts adopted in the framework of those policies are to contain appropriate measures to give effect to that principle and promote burden-sharing including through the transfer, on a voluntary basis, of beneficiaries of international protection.

(3)

The scope of application of this Regulation should be limited to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’) established by Council Regulation (EC) No 2007/2004 (2). Investigative and punitive measures are governed by national criminal law and the existing instruments of mutual legal assistance in the field of judicial cooperation in criminal matters in the Union.

(4)

The Agency is responsible for the coordination of operational cooperation between Member States in the field of management of the external borders, including as regards border surveillance. The Agency is also responsible for assisting Member States in circumstances requiring increased technical assistance at the external borders, taking into account the fact that some situations may involve humanitarian emergencies and rescue at sea. Specific rules with regard to border surveillance activities carried out by maritime, land and aerial units of one Member State at the sea border of other Member States or on the high seas in the context of operational cooperation coordinated by the Agency are necessary to further strengthen such cooperation.

(5)

Cooperation with neighbouring third countries is crucial to prevent unauthorised border crossings, to counter cross-border criminality and to avoid loss of life at sea. In accordance with Regulation (EC) No 2007/2004 and insofar as full respect for the fundamental rights of migrants is ensured, the Agency may cooperate with the competent authorities of third countries, in particular as regards risk analysis and training, and should facilitate operational cooperation between Member States and third countries. When cooperation with third countries takes place on the territory or the territorial sea of those countries, the Member States and the Agency should comply with norms and standards at least equivalent to those set by Union law.

(6)

The European Border Surveillance System (Eurosur) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council (3) aims to strengthen the information exchange and operational cooperation between Member States and with the Agency. That is to ensure that the situational awareness and reaction capability of Member States improves considerably, also with the support of the Agency, for the purposes of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants at their external borders. When coordinating border surveillance operations, the Agency should provide Member States with information and analysis concerning those operations in accordance with that Regulation.

(7)

This Regulation replaces Council Decision 2010/252/EU (4) which was annulled by the Court of Justice of the European Union (‘the Court’) by its judgment of 5 September 2012 in Case C-355/10. In that judgment, the Court maintained the effects of Decision 2010/252/EU until the entry into force of new rules. Therefore, as of the day of entry into force of this Regulation, that Decision ceases to produce effects.

(8)

During border surveillance operations at sea, Member States should respect their respective obligations under international law, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the United Nations Convention relating to the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention on the Rights of the Child and other relevant international instruments.

(9)

When coordinating border surveillance operations at sea, the Agency should fulfil its tasks in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), and relevant international law, in particular that referred to in recital 8.

(10)

In accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council (5) and general principles of Union law, any measure taken in the course of a surveillance operation should be proportionate to the objectives pursued, non-discriminatory and should fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement. Member States and the Agency are bound by the provisions of the asylum acquis, and in particular of Directive 2013/32/EU of the European Parliament and of the Council (6) with regard to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of Member States.

(11)

The application of this Regulation should be without prejudice to Directive 2011/36/EU of the European Parliament and the Council (7), in particular as regards assistance to be given to victims of trafficking in human beings.

(12)

This Regulation should be applied in full compliance with the principle of non-refoulement as defined in the Charter and as interpreted by the case-law of the Court and of the European Court of Human Rights. In accordance with that principle, no person should be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.

(13)

The possible existence of an arrangement between a Member State and a third country does not absolve Member States from their obligations under Union and international law, in particular as regards compliance with the principle of non-refoulement, whenever they are aware or ought to be aware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that third country amount to substantial grounds for believing that the asylum seeker would face a serious risk of being subjected to inhuman or degrading treatment or where they are aware or ought to be aware that that third country engages in practices in contravention of the principle of non-refoulement.

(14)

During a border surveillance operation at sea, a situation may occur where it will be necessary to render assistance to persons found in distress. In accordance with international law, every State must require the master of a vessel flying its flag, in so far as he can do so without serious danger to the vessel, the crew or the passengers, to render assistance without delay to any person found at sea in danger of being lost and to proceed with all possible speed to the rescue of persons in distress. Such assistance should be provided regardless of the nationality or status of the persons to be assisted or of the circumstances in which they are found. The shipmaster and crew should not face criminal penalties for the sole reason of having rescued persons in distress at sea and brought them to a place of safety.

(15)

The obligation to render assistance to persons found in distress should be fulfilled by Member States in accordance with the applicable provisions of international instruments governing search and rescue situations and in accordance with requirements concerning the protection of fundamental rights. This Regulation should not affect the responsibilities of search and rescue authorities, including for ensuring that coordination and cooperation is conducted in such a way that the persons rescued can be delivered to a place of safety.

(16)

When the operational area of a sea operation includes the search and rescue region of a third country, the establishment of communication channels with the search and rescue authorities of that third country should be sought when planning a sea operation, thereby ensuring that those authorities will be able to respond to search and rescue cases developing within their search and rescue region.

(17)

Pursuant to Regulation (EC) No 2007/2004, border surveillance operations coordinated by the Agency are conducted in accordance with an operational plan. Accordingly, as regards sea operations, the operational plan should include specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation, pilot project or rapid intervention takes place, including references to Union and international law regarding interception, rescue at sea and disembarkation. The operational plan should be established in accordance with the provisions of this Regulation governing interception, rescue at sea and disembarkation in the context of border surveillance operations at sea coordinated by the Agency and having regard to the particular circumstances of the operation concerned. The operational plan should include procedures ensuring that persons with international protection needs, victims of trafficking in human beings, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance, including access to international protection.

(18)

The practice under Regulation (EC) No 2007/2004 is that for each sea operation, a coordination structure is established within the host Member State, composed of officers from the host Member State, guest officers and representatives of the Agency, including the Coordinating Officer of the Agency. This coordination structure, usually called International Coordination Centre, should be used as a channel for communication between the officers involved in the sea operation and the authorities concerned.

(19)

This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and by the Charter, in particular respect for human dignity, the right to life, the prohibition of torture and of inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, the right to liberty and security, the right to the protection of personal data, the right to asylum and to protection against removal and expulsion, the principles of non-refoulement and non-discrimination, the right to an effective remedy and the rights of the child. This Regulation should be applied by Member States and the Agency in accordance with those rights and principles.

(20)

Since the objective of this Regulation, namely to adopt specific rules for the surveillance of the sea borders by border guards operating under the coordination of the Agency, cannot be sufficiently achieved by the Member States due to the differences in their laws and practices, but can rather, by reason of the multinational character of the operations, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(21)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, 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, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(22)

As regards Iceland and Norway, this Regulation constitutes a development of the 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 latters’ association with the implementation, application and development of the Schengen acquis  (8) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC (9).

(23)

As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis  (10) which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (11).

(24)

As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis  (12), which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (13).

(25)

This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (14); the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.

(26)

This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (15); Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application,

(1)

‘Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Regulation (EC) No 2007/2004;

(2)

‘sea operation’ means a joint operation, pilot project or rapid intervention carried out by Member States for the surveillance of their external sea borders under the coordination of the Agency;

(3)

‘host Member State’ means a Member State in which a sea operation takes place or from which it is launched;

(4)

‘participating Member State’ means a Member State which participates in a sea operation by providing technical equipment, border guards deployed as part of the European Border Guard Teams or other relevant staff but which is not a host Member State;

(5)

‘participating unit’ means a maritime, land or aerial unit under the responsibility of the host Member State or of a participating Member State that takes part in a sea operation;

(6)

‘International Coordination Centre’ means the coordination structure established within the host Member State for the coordination of a sea operation;

(7)

‘National Coordination Centre’ means the national coordination centre established for the purposes of the European Border Surveillance System (Eurosur) in accordance with Regulation (EU) No 1052/2013;