27.4.2004

Official Journal of the European Union

CE 101/1

COMMON POSITION (EC) No 26/2004

adopted by the Council on 14 April 2004

with a view to adopting Decision No …/2004/EC of the European Parliament and of the Council of … amending Decision No 1692/96/EC on Community guidelines for the development of the trans-European transport network

(Text with EEA relevance)

(2004/C 101E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular the first paragraph of Article 156 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the Opinion of the European Economic and Social Committee (2),

Having regard to the Opinion of the Committee of the Regions (3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (4),

Whereas:

(1)

Decision No 1692/96/EC of the European Parliament and of the Council (5) laid down Community guidelines for the trans-European transport network, identifying projects of common interest intended to contribute to the development of that network and, in Annex III, identifying the specific projects to which the European Council attached particular importance at its meetings in Essen in 1994 and in Dublin in 1996.

(2)

Growth in traffic, in particular due to the growing share of heavy goods vehicles, has resulted in increased congestion and bottlenecks on international transport corridors. In order to ensure international mobility of goods and passengers, it is therefore necessary to optimise the capacity of the trans-European transport network.

(3)

The Gothenburg European Council in 2001 invited the Community institutions to adopt revised guidelines for the trans-European transport network, with a view to giving priority, where appropriate, to infrastructure investment for railways, inland waterways, short sea shipping, intermodal operations and effective interconnections. In this framework, the contribution of inland waterways ports and regional airports to the objectives of the trans-European transport network should not be underestimated.

(4)

The forthcoming enlargement of the European Union and the objective of shifting the balance between transport modes, and achieving an infrastructure network capable of meeting growing needs, together with the fact that it could take over ten years to complete some of the priority projects, call for re-examination of the list of projects in Annex III to Decision No 1692/96/EC.

(5)

Bulgaria, the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, the Slovak Republic, Slovenia, and Turkey have concluded association agreements and Europe agreements and have applied for membership of the European Union. The transport administrations of eleven of these countries have carried out, with the support of the Commission, a transport infrastructure needs assessment aimed at defining a network according to the same principles as laid down in Decision No 1692/96/EC.

(6)	The Barcelona European Council in 2002 underlined the objective of reducing bottlenecks in regions such as the Alps, the Pyrenees and the Baltic Sea.

(7)

The Brussels European Council in December 2003 stressed that the priority projects identified in the guidelines are crucial to the strengthening of Internal Market cohesion, especially in view of the forthcoming enlargement of the Union and of the need to remove bottlenecks and/or complete missing links for the movement of goods (transit) across natural or other barriers or across borders.

(8)

The second Pan-European Transport Conference in Crete in 1994 and the third Pan-European Transport Conference in Helsinki in 1997 identified ten pan-European transport corridors and four pan-European areas as priorities for cooperation between the European Community and the third countries concerned.

(9)

In its report submitted to the Commission on 30 June 2003, the High-Level Group on the trans-European transport network (hereinafter ‘the High-Level Group’) identified a limited number of priority projects using a methodology based on criteria which include, in particular, their potential economic viability, the degree of commitment on the part of the Member States concerned to keeping to a timetable agreed in advance in the programming of projects, their impact on the mobility of goods and persons between Member States, and their impact on cohesion and sustainable development. The report also includes projects in the new Member States which will join the Union on 1 May 2004. The results of such cooperation should be taken into account.

(10)

Environmental protection requirements should be integrated into the definition and implementation of Community policy in the field of the trans-European networks in accordance with Article 6 of the Treaty. This entails the promotion as a priority of infrastructure for transport modes that cause less damage to the environment, namely rail transport, short sea shipping and inland waterways shipping.

(11)	It is necessary to implement the central objective of decoupling the negative effects of transport growth from growth in GDP, as the Commission proposed in its communication on a European Union strategy for sustainable development.

(12)

Environmental assessment pursuant to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (6) will in the future be carried out for all plans and programmes leading to projects of common interest. Funding for transport infrastructure should also be conditional on the compliance with the provisions of Community environmental legislation, in particular Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (7) and Council Directives 79/409/EEC of 2 April 1979 on the conservation of wild birds (8) and 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (9).

(13)

The Commission White Paper on the European transport policy calls for an integrated approach combining, inter alia, measures to revitalise the rail sector, in particular for freight services, to promote inland waterway shipping and short sea shipping, to encourage greater complementarity between high speed rail and air transport and to promote the development of interoperable intelligent transport systems in order to ensure increased network efficiency and safety.

(14)

The efficiency of the common transport policy depends, inter alia, on coherence between the measures to revitalise the rail sector and to develop the rail infrastructure. Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways (10) provides for a Trans-European Rail Freight Network open to international freight transport services after 2003. The lines of the Trans-European Rail Freight Network should be considered as part of the rail network defined by the guidelines set out in Decision No 1692/96/EC so that they can benefit from investments and attract traffic from the road.

(15)

Within the general objective of ensuring the sustainable mobility of persons and goods, mechanisms should be put in place to support the development of motorways of the sea between Member States in order to reduce road congestion and/or improve access to peripheral and island regions and States. Establishment of such mechanisms, backed up, inter alia, by tendering procedures, should be transparent and geared to needs andshould in no way prejudice the Community rules on competition or on public procurement.

(16)

Support for the development of the motorways of the sea should be seen as complementary to the provision of Community aid as an incentive to the development of short sea shipping operations under the Marco Polo Programme established by Regulation (EC) No 1382/2003 of the European Parliament and of the Council of 22 July 2003 on the granting of Community financial assistance to improve the environmental performance of the freight transport system (Marco Polo Programme) (11) and should be based on the same criteria. However, the granting of Community financial assistance under the two instruments should not be cumulative.

(17)	There is a need for declaring priority projects to be of European interest, for concentrating Community financing on such projects and for introducing mechanisms to encourage coordination between Member States in order to facilitate completion of the projects within the desired timetable.

(18)

In accordance with Article 154 of the Treaty, the trans-European network policy should help to strengthen economic and social cohesion within the Community. In order to achieve this objective, efforts should be made to maximise consistency between the Community guidelines for the trans-European transport network and the programming of the relevant financial instruments available at Community level.

(19)	A posteriori evaluation of the priority projects should facilitate future revisions of the guidelines and of the list of priority projects and should help improve the a priori evaluation methods practised by the Member States.

(20)

A situation in which national procedures for the assessment of the environmental and socio-economic impact of a project are carried out separately by Member States may prove to be inappropriate to the transnational dimension of projects declared to be of European interest. In order to resolve this, coordinated evaluation and public consultation procedures or transnational enquiry procedures covering the different Member States concerned and focusing on the socio-economic and environmental aspects should be developed, in addition to joint evaluation methods. These procedures should apply without prejudice to the obligations imposed by the Community legislation on environmental protection.

(21)	Closer coordination between the States involved in projects on the same route may be necessary to improve the return on investments and to make it easier to synchronise investments and to put together a funding package.

(22)

Cross-border sections should be identified by Member States on the basis of criteria to be defined by the Committee set up under Article 18(2) of Decision No 1692/96/EC. The existing references to cross-border sections of the priority projects included in Annex III to that Decision should not prejudge the definition of cross-border sections according to these criteria.

(23)

The Commission has conducted an analysis of the impact of the recommendations made by the High-Level Group. The results show that carrying out the projects identified by the Group, combined with several of the measures under the Common Transport Policy, such as charging for the use of infrastructure and opening up rail freight to competition, would produce significant benefits in terms of time savings, lower emissions and less congestion, better access to peripheral Member States and to the new Member States, and greater general well-being.

(24)	In order to comply with the objectives of the trans-European transport network and to meet the transport challenges of enlargement, a considerable increase in appropriations for the trans-European networks is needed.

(25)

The Commission might decide to propose to the European Parliament and the Council that it is necessary to take forward projects other than those included in Annex III of Decision No 1692/96/EC in order to pursue objectives to boost growth, to better integrate an enlarged Europe and to improve the productivity and competitiveness of European business on global markets, as well as to contribute to the objective of economic, social and territorial cohesion and to intermodality. These projects should be given appropriate priority within the context of Community financing instruments.

(26)	Decision No 1692/96/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DECISION:

Article 1

Decision No 1692/96/EC is hereby amended as follows:

1.	in Article 2(1), the date ‘2010’ shall be replaced by ‘2020’;

2.	Article 3(2) shall be replaced by the following: ‘2. The transport infrastructure shall comprise road, rail and inland waterway networks, motorways of the sea, seaports and inland waterway ports, airports and other interconnection points between modal networks.’;

Article 5 shall be replaced by the following:

‘Article 5

Priorities

Taking into account the objectives set out in Article 2 and the broad lines of measures set out in Article 4, the priorities shall be:

(a)	establishment and development of the key links and interconnections needed to eliminate bottlenecks, fill in missing sections and complete the main routes, especially their cross-border sections, cross natural barriers, and improve interoperability on major routes;

(b)

establishment and development of infrastructure which promotes the interconnection of national networks in order to facilitate the linkage of islands, or areas similar to islands, as well as landlocked, peripheral and outermost regions and the central regions of the Community, in particular to reduce the high transport costs of these areas;

(c)	the necessary measures for the gradual achievement of an interoperable rail network, including, where feasible, routes adapted for freight transport;

(d)	the necessary measures to promote long-distance, short sea and inland shipping;

(e)	the necessary measures to integrate rail and air transport, especially through rail access to airports, whenever appropriate, and the infrastructures and installations needed;

(f)	optimisation of the capacity and efficiency of existing and new infrastructure, promotion of intermodality and improvement of the safety and reliability of the network by establishing and improving intermodal terminals and their access infrastructure and/or by deploying intelligent systems;

(g)	integration of safety and environmental concerns in the design and implementation of the trans-European transport network;

(h)	development of sustainable mobility of persons and goods in accordance with the objectives of the European Union on sustainable development’;

Article 8 shall be replaced by the following:

‘Article 8

Environmental Protection

1. When projects are planned and carried out, environmental protection must be taken into account by the Member States by carrying out, pursuant to Council Directive 85/337/EEC, environmental impact assessments of projects of common interest which are to be implemented and by applying Council Directives 79/409/EEC of 2 April 1979 on the conservation of wild birds (12) and 92/43/EEC.

As from 21 July 2004 an environmental assessment of the plans and programmes leading to such projects, especially where they concern new routes or other important nodal infrastructure development, shall be carried out by Member States pursuant to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (13). Member States shall take the results of this environmental assessment into account in the preparation of the plans and programmes concerned, according to Article 8 of that Directive.

2. By 21 July 2004, the Commission shall, in agreement with Member States, develop suitable methods for implementing the strategic environmental assessment with the objective of ensuring, inter alia, appropriate coordination, avoiding the duplication of efforts, and achieving simplification and acceleration of planning processes for cross-border projects and corridors.

The results of this work and of the environmental assessment of the TEN projects carried out by Member States pursuant to Directive 2001/42/EC shall, as appropriate, be taken into account by the Commission in its report on the guidelines and the possible accompanying legislative proposals to revise the guidelines provided for in Article 18(3) of this Decision.

in Article 9, paragraph 3 shall be replaced by the following:

‘3. The network shall also include management for traffic infrastructure, user information, dealing with incidents and emergencies and electronic fee collection, such infrastructure being based on active cooperation between traffic management systems at European, national and regional level and service providers of travel and traffic information and value added services, which will ensure the necessary complementarity with applications whose deployment is facilitated under the trans-European telecommunications networks programme.’;

Article 10 shall be replaced by the following:

‘Article 10

Characteristics

1. The rail network shall comprise high-speed rail lines and conventional rail lines.

2. The high-speed rail network using current or new technology shall comprise:

(a)	specially built high-speed lines equipped for speeds generally equal to or greater than 250 km/h;

(b)	specially upgraded high-speed lines equipped for speeds of the order of 200 km/h;

(c)	specially upgraded high-speed lines or lines specially built for high speed and connected to the high-speed rail network which have special features as a result of topographical or environmental, relief or town-planning constraints, on which speed must be adapted individually.

The high-speed rail network shallconsist of the lines indicated in Annex I. Essential requirements and technical specifications for interoperability applicable to high-speed rail lines using current technology shall be defined in accordance with Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail system (14). Member States shall give the Commission prior notice of the opening of any high-speed line and of the line's technical characteristics.

3. The conventional rail network shall comprise lines for the conventional transport by rail of passengers and freight, including the rail segments of the trans-European combined transport network referred to in Article 14, access links to sea and inland ports of common interest and those freight terminals which are open to all operators. Essential requirements and technical specifications for interoperability applicable to the conventional rail lines are defined in accordance with Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (15).

4. The rail network shall include the infrastructures and the facilities enabling the integration of rail and road and, where appropriate, maritime services and air transport services. In this regard, particular attention shall be paid to the interconnection of regional airports with the network.

5. The rail network shall fulfil at least one of the following functions:

(a)	play an important role in long-distance passenger traffic;

(b)	permit interconnection with airports, where appropriate;

(c)	permit access to regional and local rail networks;

(d)	facilitate freight transport by identifying and developing trunk routes dedicated to freight or routes on which freight trains have a priority;

(e)	play an important role in combined transport;

(f)	permit interconnection via ports of common interest with short sea shipping and inland waterways.

6. The rail network shall offer users a high level of quality and safety, by virtue of its continuity and of the gradual implementation of its interoperability, brought about in particular by technical harmonisation and the ERTMS harmonised command and control system recommended for the European railway network. To this end, a deployment plan, coordinated with national plans, shall be established by the Commission in consultation with the Member States.

Article 11 shall be amended as follows:

(a)	the following paragraph shall be inserted: ‘3b. The inland ports of the network equipped with transhipment facilities for intermodal transport or with an annual freight traffic volume of at least 500 000 tonnes are shown in Annex I.’;

(b)

paragraph 4 shall be replaced by the following:

‘4. The network shall also include the traffic management infrastructure. This shall entail in particular the establishment of an interoperable, intelligent traffic and transport system known as the ’River Information Services‘ intended to optimise the existing capacity and safety of the inland waterway network and to improve interoperability with other modes of transport.’;

the following Article shall be inserted:

‘Article 12a

Motorways of the sea

1. The trans-European network of motorways of the sea shall aim to concentrate flows of freight on sea-based logistical routes in such a way as to improve existing maritime links or to establish new viable, regular and frequent maritime links for the transport of goods between Member States so as to reduce road congestion and/or improve access to peripheral and island regions and States. Motorways of the sea should not exclude the combined transport of persons and goods, when freight is predominant.

2. The trans-European network of motorways of the sea shall consist of facilities and infrastructure concerning at least two ports in two different Member States. These facilities and infrastructure shall include elements, in at least one Member State, such as the port facilities, electronic logistics management systems, safety and security and administrative and customs procedures, as well as infrastructure for direct land and sea access, including ways of ensuring year-round navigability, in particular the availability of facilities for dredging and icebreakers for winter access.

3. Waterways or canals, as identified in Annex I, which link two European motorways of the sea, or two sections thereof, and make a substantial contribution to shortening sea routes, increasing efficiency ands saving shipping time shall form part of the trans-European network of motorways of the sea.

4. The projects of common interest of the trans-European network of motorways of the sea shall be proposed by at least two Member States and shall be geared to actual needs. The projects proposed shall in general involve both the public and private sectors in accordance with procedures which, before aid granted from the national budgets can be supplemented, if necessary, by aid from the Community, provide for a tendering process in one of the following forms:

(a)	a public call for tenders organised jointly by the Member States concerned, intended to establish new links from the category A port, as defined in Article 12(2), which they select in advance within each sea area, as referred to in project No 21 in Annex III;

(b)	in so far as the location of the ports is comparable, a public call for tenders organised jointly by the Member States concerned and targeting consortia bringing together at least shipping companies and ports located in one of the sea areas, as referred to in project No 21 in Annex III.

5. The projects of common interest of the trans-European network of motorways of the sea:

—	shall focus on the facilities and infrastructure which make up the network of motorways of the sea,

—

may include, without prejudice to Articles 87 and 88 of the Treaty, start-up aid if, as a result of the tendering process referred to in paragraph 4, public support is deemed necessary for the financial viability of the project. Start-up aid shall be limited to two years and shall be granted only in support of duly justified capital costs. The aid may not exceed the minimum estimated amount required to start up the links concerned. The aid may not lead to distortions of competition in the relevant markets contrary to the common interest,

—	may also include activities which have wider benefits and are not linked to specific ports, such as making available facilities for ice-breaking and dredging operations, as well as information systems, including traffic management and electronic reporting systems.

6. The Commission shall, within three years, submit to the Committee referred to in Article 18 an initial list of specific projects of common interest, thereby putting the concept of the motorways of the sea into concrete form. This list shall also be communicated to the European Parliament.

7. The projects of common interest of the trans-European network of motorways of the sea shall be submitted to the Commission for approval.’;

the following paragraph shall be added to Article 13:

‘3. International and Community connecting points shall be gradually linked to the high-speed lines of the rail network, where appropriate. The network shall include the infrastructures and the facilities which permit the integration of air and rail transport services, and, where appropriate, maritime transport services.’;

10.

the following Section shall be inserted:

‘SECTION 10a

COORDINATION BETWEEN MEMBER STATES

Article 17a

European Coordinator

1. In order to facilitate the coordinated implementation of certain projects, in particular cross-border projects or sections of cross-border projects included among the projects declared to be of European interest referred to in Article 19a, the Commission may designate, in agreement with the Member States concerned, and after having consulted the European Parliament, a person called the ‘European Coordinator’. The European Coordinator shall act in the name of and on behalf of the Commission. The remit of the European Coordinator shall normally relate to a single project, especially in the case of a cross-border project, but may, if necessary, be extended to cover the whole of a major axis. The European Coordinator shall draw up together with the Member States concerned a work plan for his/her activities.

2. The European Coordinator shall be chosen, in particular, on the basis of his/her experience of European institutions and knowledge of issues relating to the financing and the socio-economic and environmental evaluation of major projects.

3. The Commission decision designating the European Coordinator shall specify how he/she is to perform the tasks referred to in paragraph 5.

4. The Member States concerned shall cooperate with the European Coordinator and give him/her the information required to perform the tasks referred to in paragraph 5.

5. The European Coordinator shall:

(a)	promote, in cooperation with the Member States concerned, joint methods for the evaluation of projects and, where appropriate, advise project promoters on the financial package for the projects;

(b)

draw up a report every year for the European Parliament, the Commission and the Member States concerned on progress achieved in the implementation of the project(s) for which he/she is responsible, new regulatory or other developments which could affect the characteristics of the projects and any difficulties and obstacles which may result in a significant delay in relation to the dates indicated in Annex III;

(c)

consult, together with the Member States concerned, regional and local authorities,, operators, transport users, and representatives of civil society with a view to gaining fuller knowledge of the demand for transport services, the possibilities of investment funding and the type of services that must be provided in order to facilitate access to such funding.

6. Without prejudice to the applicable procedures laid down in Community and national law, the Commission may request the opinion of the European Coordinator when examining applications for Community funding for projects or groups of projects for which the European Coordinator is responsible.’;

11.

Article 18 shall be amended as follows:

(a)	the title shall be replaced by the following: ‘Committee for monitoring guidelines and the exchange of information’;

(b)

paragraph 1 shall be replaced by the following:

‘1. The Member States shall provide the Commission with abstracts of national plans and programmes which they are drawing up with a view to development of the trans-European transport network, in particular in relation to the projects declared to be of European interest referred to in Article 19a. Once adopted, the Member States shall send the national plans and programmes to the Commission for information.’;

(c)

paragraph 3 shall be replaced by the following:

‘3. The Commission shall report every two years to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the guidelines described in this Decision. The Committee set up under paragraph 2 shall assist the Commission with drawing up the report. The report shall be accompanied where necessary by legislative proposals to revise the guidelines; these legislative proposals may, if necessary, include amendments to, or the addition to, the list of priority projects in Annex III of projects that are in conformity with Article 19(1). The revision shall have particular regard to projects that contribute to the territorial cohesion of the European Union in accordance with Article 19(1)(e).’;

12.

Article 19 shall be replaced by the following:

‘Article 19

Priority projects

1. The priority projects shall be projects of common interest referred to in Article 7 where examination confirms that they:

(a)	aim to eliminate a bottleneck or complete a missing link on a major route of the trans-European network, in particular projects which are cross-border projects, cross natural barriers or have a cross-border section;

(b)	are on such a scale that long-term planning at European level provides significant added value;

(c)	present, overall, potential socio-economic net benefits and other socio-economic advantages;

(d)	significantly improve the mobility of goods and persons between Member States and thus also contribute to the interoperability of national networks;

(e)	contribute to the territorial cohesion of the European Union by integrating the networks of the new Member States and improving connections with the peripheral and island regions;

(f)	contribute to the sustainable development of transport by improving safety and reducing environmental damage caused by transport, in particular by promoting a modal shift towards railways, intermodal transport, inland waterways and maritime transport;

(g)	demonstrate commitment on the part of the Member States concerned to carrying out studies and evaluation procedures in time to complete the work in accordance with a date agreed in advance, based upon national plans or any other equivalent document relating to the project in question.

2. The priority projects on which work is due to start before 2010, the sections thereof and the dates agreed for completing the work referred to in paragraph 1(g) are set out in Annex III.

3. By 2010 the Commission shall draft a progress report and, if necessary, propose amendments to the list of priority projects identified in Annex III in line with paragraph 1.’;

13.

the following Articles shall be inserted:

‘Article 19a

Declaration of European interest

1. The priority projects identified in Annex III are declared to be of European interest. This declaration is made solely in accordance with the procedure laid down in the Treaty and in the legal acts based thereon.

2. Without prejudice to the legal basis of the Community financial instrument in question:

(a)	when submitting their projects under the Cohesion Fund, in accordance with Article 10 of Regulation (EC) No 1164/94 (16), the Member States shall give appropriate priority to the projects declared to be of European interest;

(b)	when submitting their projects under the budget for the trans-European networks, in accordance with Articles 9 and 10 of Regulation (EC) No 2236/95 (17), the Member States shall give appropriate priority to the projects declared to be of European interest;

(c)

the Commission shall encourage the Member States to take into account the projects declared to be of European interest when planning the programming of the Structural Funds, in particular in regions covered by Objective 1, having regard to national transport plans falling within the scope of existing Community support frameworks;

(d)

the Commission shall ensure that the countries qualifying for the Instrument for Structural Policies for Pre-accession give appropriate priority, when submitting their projects under that instrument in accordance with Articles 2 and 7 of Regulation (EC) No 1267/1999 (18), to the projects declared to be of European interest.

3. When forecasting its financial needs, the Commission shall give appropriate priority to the projects declared to be of European interest.

4. In the event of a significant delay in relation to the deadline of 2010, in starting work on one of the projects declared to be of European interest, the Commission shall ask the Member States concerned to give the reasons for the delay within three months. On the basis of the reply given, the Commission shall consult all the Member States concerned in order to solve the problem which has led to the delay.

The Commission may, in consultation with the Committee set up under Article 18(2), and in the framework of its monitoring of the implementation of the project declared to be of European interest and having due regard to the principle of proportionality, decide to adopt appropriate measures. The Member States concerned shall be given the opportunity to submit observations on such measures before their adoption.

The European Parliament shall be informed immediately of any measure taken.

In adopting these measures, the Commission shall take due account of the share of responsibility for the delay of each Member States concerned and shall refrain from taking measures that would affect the realisation of the project in Member States not responsible for the delay.

5. When one of the projects declared to be of European interest is not substantially completed in a reasonable period of time after the expected date of its completion indicated in Annex III, and all Member States concerned are responsible for the delay, the Commission shall review the project, in accordance with the procedure referred to in paragraph 4, with a view to withdrawing its classification as a project declared to be of European interest through the revision procedure referred to in Article 18(3). The Commission shall, in any case, review the project at the end of a period of fifteen years after the project has been declared to be of European interest within the meaning of this Decision.

6. Five years after completion of a project declared to be of European interest or of one of the sections thereof, the Member States concerned shall carry out an assessment of its socio-economic impact and its impact on the environment, including its impact on trade and the free movement of persons and goods between Member States, on territorial cohesion and on sustainable development. Member States shall inform the Commission of the results of this assessment.

7. If a project of European interest includes a cross-border section which is technically and financially indivisible, the Member States concerned shall coordinate their procedures for assessing the socio-economic effects thereof and use their best endeavours to conduct a transnational enquiry prior to granting construction permission and within the existing framework.

8. Other sections of projects of European interest will be coordinated bilaterally or multilaterally by the Member States on a case by case basis.

9. The coordinated actions or transnational enquiries referred to in paragraph 7 shall apply without prejudice to the obligations imposed by the Community legislation on environmental protection, and particularly those relating to environmental impact assessment. The Member States concerned shall inform the Commission when such coordinated actions or transnational enquiries are launched and of the results. The Commission shall include that information in the report referred to in Article 18(3).

Article 19b

Cross-border sections

In the context of certain priority projects, cross-border sections between two Member States, including motorways of the sea, shall be identified by the Member States on the basis of criteria defined by the Committee set up under Article 18(2) and notified to the Commission. These will be, notably, sections which are technically and financially indivisible or to which the Member States concerned commit themselves jointly and for which they put in place a common structure.

14.	Articles 20 and 21 shall be deleted.

15.

The Annexes shall be amended as follows:

1.	In Annex I, sections 2, 3, 4 and 6 and the attached maps shall be replaced as indicated in Annex I to this Decision.

In Annex III:

(a)	the title shall be replaced by the following: ‘Priority projects on which work is due to start before 2010’;

(b)	the content shall be replaced by the text set out in Annex II to this Decision.

Article 2

This Decision shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.

Article 3

This Decision is addressed to the Member States.

Done at …,

For the European Parliament

The President

For the Council

The President

(1) OJ C 362 E, 18.12.2001, p. 205 and OJ C 20 E, 28.1.2003, p. 274.

(2) OJ C 125, 27.5.2002, p. 75.

(3) OJ C 278, 14.11.2002, p. 7.

(4) Opinion of the European Parliament of 30 May 2002 (OJ C 187 E, 7.8.2003, p. 130), Council Common Position of 14 April 2004 and Position of the European Parliament of ….

(5) OJ L 228, 9.9.1996, p. 1. Decision as last amended by Decision No 1346/2001/EC (OJ L 185, 6.7.2001, p. 1).

(6) OJ L 197, 21.7.2001, p. 30.

(7) OJ L 175, 5.7.1985, p. 40. Directive as last amended by Directive 2003/35/EC of the European Parliament and of the Council (OJ L 156, 25.6.2003, p. 17).

(8) OJ L 103, 25.4.1979, p. 1. Directive as last amended by Council Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

(9) OJ L 206, 22.7.1992, p. 7. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(10) OJ L 75, 15.3.2001, p. 1.

(11) OJ L 196, 2.8.2003, p. 1.

(12) OJ L 103, 25.4.1979, p. 1. Directive as last amended by Council Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

(13) OJ L 197, 21.7.2001, p. 30.’;

(14) OJ L 235, 17.9.1996, p. 6. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(15) OJ L 110, 20.4.2001, p. 1.’;

(16) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ L 130, 25.5.1994, p. 1). Regulation as last amended by Regulation (EC) No 1265/1999 (OJ L 161, 26.6.1999, p. 62).

(17) Council Regulation (EC) No 2236/95 of 18 September 1995 laying down general rules for the granting of Community financial aid in the field of trans-European networks (OJ L 228, 23.9.1995, p. 1). Regulation as amended by Regulation (EC) No 1655/1999 of the European Parliament and of the Council (OJ L 197, 29.7.1999, p. 1).

(18) Council Regulation (EC) No 1267/1999 of 21 June 1999 establishing an Instrument for Structural Policies for Pre-accession (OJ L 161, 26.6.1999, p. 73). Regulation as last amended by Council Regulation (EC) No 2500/2001 (OJ L 342, 27.12.2001, p. 1).’;

ANNEX I

Annex I to Decision No 1692/96/EC shall be amended as follows:

Sections 2, 3 and 4 shall be replaced by the following:

‘Section 2: Road network

2.0.

Europe

2.1.

Belgium

2.2.

Denmark

2.3.

Germany

2.4.

Greece

2.5.

Spain

2.6.

France

2.7.

Ireland

2.8.

Italy

2.9.	Luxembourg

2.10.

Netherlands

2.11.

Austria

2.12.

Portugal

2.13.

Finland

2.14.

Sweden

2.15.

United Kingdom

Section 3: Rail network

3.0.

Europe

3.1.

Belgium

3.2.

Denmark

3.3.

Germany

3.4.

Greece

3.5.

Spain

3.6.

France

3.7.

Ireland

3.8.

Italy

3.9.	Luxembourg

3.10.

Netherlands

3.11.

Austria

3.12.

Portugal

3.13.

Finland

3.14.

Sweden

3.15.

United Kingdom

Section 4: Inland waterways network and inland ports’

Section 6 shall be replaced by the following:

‘Section 6: Airports network

6.0.

Europe

6.1.	Belgium/Denmark/Germany/ Luxembourg/Netherlands/Austria

6.2.

Greece

6.3	Spain/Portugal

6.4.

France

6.5.	Ireland/United Kingdom

6.6.

Italy

6.7.	Finland/Sweden’

3.	The following maps shall replace the corresponding maps in Decision No 1692/96/EC.

ANNEX II

Annex III of Decision No 1692/96/EC shall be replaced by the following:

‘ANNEX III

PRIORITY PROJECTS ON WHICH WORK IS DUE TO START BEFORE 2010

Railway axis Berlin-Verona/Milano-Bologna-Napoli-Messina-Palermo

—	Halle/Leipzig-Nürnberg (2015);

—	Nürnberg-München (2006);

—	München-Kufstein (2015);

—	Kufstein-Innsbruck (2009);

—	Brenner tunnel (2015), cross-border section;

—	Verona-Napoli (2007);

—	Milano-Bologna (2006);

—	Rail/road bridge over the Strait of Messina-Palermo (2015).

High-speed railway axis Paris-Bruxelles/Brussel-Köln-Amsterdam-London

—	Channel tunnel-London (2007);

—	Bruxelles/Brussel-Liège-Köln (2007);

—	Bruxelles/Brussel-Rotterdam-Amsterdam (2007) (1).

High-speed railway axis of south-west Europe

—	Lisboa/Porto-Madrid (2011) (2);

—	Madrid-Barcelona (2005);

—	Barcelona-Figueras-Perpignan (2008);

—	Perpignan-Montpellier (2015);

—	Montpellier-Nîmes (2010);

—	Madrid-Vitoria-Irún/Hendaye (2010);

—	Irún/Hendaye-Dax, cross-border section (2010);

—	Dax-Bordeaux (2020);

—	Bordeaux-Tours (2015).

High-speed railway axis east

—	Paris-Baudrecourt (2007);

—	Metz-Luxembourg (2007);

—	Saarbrücken-Mannheim (2007).

5.	Betuwe line (2007).

Railway axis Lyon-Trieste- Divača/Koper- Divača -Ljubljana-Budapest-Ukrainian border (3)

—	Lyon-St Jean de Maurienne (2015);

—	Mont-Cenis tunnel (2015-2017), cross-border section;

—	Bussoleno-Torino (2011);

—	Torino-Venezia (2010);

—	Venezia-south Ronchi-Trieste Divača (2015);

—	Koper- Divača -Ljubljana (2015)

—	Ljubljana-Budapest (2015).

Motorway axis Igoumenitsa/Patra-Athina-Sofia-Budapest

—	Via Egnatia (2006);

—	Pathe (2008);

—	Sofia-Kulata-Greek/Bulgarian border motorway (2010), with Promahon-Kulata as cross-border section;

—	Nadlac-Sibiu motorway (branch towards Bucuresti and Constanţa) (2007).

Multimodal axis Portugal/Spain-rest of Europe (4)

—	Railway La Coruña-Lisboa-Sines (2010);

—	Railway Lisboa-Valladolid (2010);

—	Railway Lisboa-Faro (2004);

—	Lisboa-Valladolid motorway (2010);

—	La Coruña-Lisboa motorway (2003);

—	Sevilla-Lisboa motorway (completed 2001);

—	New Lisboa airport (2015).

9.	Railway axis Cork-Dublin-Belfast-Stranraer (5) (2001)

10.	Malpensa (completed 2001) (6)

11.	Öresund fixed link (completed 2000) (7)

12.

Nordic triangle railway/road axis

—	Road and railway projects in Sweden (8) (2010);

—	Helsinki-Turku motorway (2010);

—	Railway Kerava-Lahti (2006);

—	Helsinki-Vaalimaa motorway (2015);

—	Railway Helsinki-Vainikkala (Russian border) (2014).

13.	UK/Ireland/Benelux road axis (2010)

14.	West coast main line (2007)

15.	Galileo (2008)

16.

Freight railway axis Sines-Madrid-Paris

—	New high-capacity rail axis across the Pyrenees;

—	Railway Sines-Badajoz (2010).

—	Railway line Algeciras-Bobadilla (2010)

17.

Railway axis Paris-Strasbourg-Stuttgart-Wien-Bratislava

—	Baudrecourt-Strasbourg-Stuttgart (2015) with the Kehl bridge as cross-border section;

—	Stuttgart-Ulm (2012);

—	München-Salzburg (2015), cross-border section;

—	Salzburg-Wien (2012);

—	Wien-Bratislava (2010), cross-border section.

18.

Rhine/Meuse-Main-Danube inland waterway axis (9)

—	Rhine-Meuse (2019) with the lock of Lanaye as cross-border section;

—	Vilshofen-Straubing (2013);

—	Wien-Bratislava (2015) cross-border section;

—	Palkovicovo-Mohács (2014);

—	Bottlenecks in Romania and Bulgaria (2011).

19.

High-speed rail interoperability on the Iberian peninsula

—	Madrid-Andalucía (2010);

—	North-east (2010);

—	Madrid-Levante and Mediterranean (2010);

—	North/North-west corridor, including Vigo-Porto (2010);

—	Extremadura (2010).

20.

Fehmarn Belt railway axis

—	Fehmarn Belt fixed rail/road link (2014);

—	Railway for access in Denmark from Öresund (2015);

—	Railway for access in Germany from Hamburg (2015);

—	Railway Hannover-Hamburg/Bremen (2015).

21.

Motorways of the sea

Projects of common interest identified in accordance with Article 12a and concerning the following motorways of the sea:

—	Motorway of the Baltic Sea (linking the Baltic Sea Member States with Member States in Central and Western Europe, including the route through the North Sea/Baltic Sea Canal (Kiel Canal) (2010));

—	Motorway of the sea of western Europe (leading from Portugal and Spain via the Atlantic Arc to the North Sea and the Irish Sea) (2010);

—	Motorway of the sea of south-east Europe (connecting the Adriatic Sea to the Ionian Sea and the Eastern Mediterranean to include Cyprus) (2010);

—	Motorway of the sea of south-west Europe (western Mediterranean), connecting Spain, France, Italy and including Malta, and linking with the motorway of the sea of south-east Europe (10) (2010).

22.

Railway axis Athina-Sofia-Budapest-Wien-Praha-Nürnberg/Dresden (11)

—	Railway Greek/Bulgarian border-Kulata-Sofia-Vidin/Calafat (2015);

—	Railway Curtici-Brasov (towards Bucuresti and Constanta) (2010);

—	Railway Budapest-Wien (2010), cross-border section;

—	Railway Břeclav-Praha-Nürnberg (2010), with Nürnberg-Praha as cross-border section.

—	Railway axis Prague-Linz (2016).

23.

Railway axis Gdansk-Warszawa-Brno/Bratislava-Wien (12)

—	Railway Gdansk-Warszawa-Katowice (2015);

—	Railway Katowice-Břeclav (2010);

—	Railway Katowice-Zilina-Nove Mesto n.V. (2010).

24.

Railway axis Lyon/Genova-Basel-Duisburg-Rotterdam/Antwerpen

—	Lyon-Mulhouse-Mülheim (13), with Mulhouse-Mülheim as cross-border section (2018);

—	Genova-Milano/Novara-Swiss border (2013);

—	Basel-Karlsruhe (2015);

—	Frankfurt-Mannheim (2012);

—	Duisburg-Emmerich (2009) (14);

—	“Iron Rhine” Rheidt-Antwerpen, cross-border section (2010).

25.

Motorway axis Gdansk-Brno/Bratislava-Wien (15)

—	Gdansk-Katowice motorway (2010);

—	Katowice-Brno/Zilina motorway (2010), cross-border section;

—	Brno-Wien motorway (2009), cross-border section.

26.

Railway/road axis Ireland/United Kingdom/continental Europe

—	Road/railway axis linking Dublin with the North (Belfast-Larne) and South (Cork) (2010) (16);

—	Road/railway axis Hull-Liverpool (2015);

—	Railway Felixstowe-Nuneaton (2011);

—	Railway Crewe-Holyhead (2008).

27.

“Rail Baltica” axis Warsaw-Kaunas-Riga-Tallinn-Helsinki

—	Warsaw-Kaunas (2010);

—	Kaunas-Riga (2014);

—	Riga-Tallinn (2016).

28.

“Eurocaprail” on the Brussels-Luxembourg-Strasbourg railway axis

—	Brussels-Luxembourg-Strasbourg (2012).

29.

Railway axis of the Ionian/Adriatic intermodal corridor

—	Kozani-Kalambaka-Igoumenitsa (2012);

—	Ioannina-Antirrio-Rio-Kalamata (2014).

30.

Inland waterway Seine-Scheldt.

—	Navigability improvements Deulemont-Gent (2012-2014-2016);

—	Compiègne-Cambrai (2012-2014-2016).

The date, agreed in advance, for completing the work is shown in brackets. The dates for completing the work for projects 1 to 20 and 30 and the details of the sections are as indicated in the High-Level Group's report where these have actually been identified.’.

(1) Including the two high-speed train stations in Rotterdam and Amsterdam which were not included in the project endorsed by the Essen European Council in 1994.

(2) Including links Lisboa-Porto (2013), Lisboa-Madrid (2010) and Aveiro-Salamanca (2015).

(3) Parts of this route correspond to pan-European corridor V.

(4) Including upgrade of ports and airports (2015) as in accordance with the contents endorsed by the Essen/Dublin European Council.

(5) A further increase in capacity on this line was decided in 2003 and added as a separate project.

(6) Project completed.

(7) Project completed.

(8) A few short sections of road and railway line will be completed between 2010 and 2015.

(9) Part of this route corresponds to the definition of pan-European corridor VII.

(10) Including to the Black Sea.

(11) This major route largely corresponds to the definition of pan-European corridor IV.

(12) This major route largely corresponds to the definition of pan-European corridor VI.

(13) Including the TGV Rhin-Rhône, minus the western branch.

(14) Project No 5 (Betuwe line) links Rotterdam and Emmerich.

(15) This major route largely corresponds to the definition of pan-European corridor VI.

(16) Including Essen project No 13: road axis Ireland/United Kingdom/Benelux.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In the framework of the codecision procedure (art. 251/TEC), the Council reached, on 5 December 2003, a political agreement on the draft Decision amending Decision No 1692/96/EC on Community guidelines for the development of trans-European transport network. (1) Following legal/linguistic revision, the Council adopted its common position on 14 April 2004.

In taking its position, the Council took account of the opinion of the European Parliament in its first reading on 30 May 2002 (2) and its renewed referral on 11 March 2004 (3), as well as of the opinions of the Economic and Social Committee (4) and of the Committee of Regions (5).

The Decision aims at updating the Community guidelines on the TEN-T of 1996 with a view to taking account of the increase of traffic forecasted by 2010 and resulting congestion problems as well as the enlargement of the European Union. The Decision includes a list of priority projects to be realised with the horizon of 2020, which incorporates and adds to the projects adopted by the Essen European Council in 1994 and which has been established on the basis of the recommendations contained in the report of the High-Level Group under the chairmanship of Karel Van Miert.

The new elements of the proposal include inter alia:

—	the focusing of Community priorities on intermodality and existing sustainable transport modes as rail, short sea and inland waterway shipping;

—	the changes to the definition of the rail network with a view to emphasising the role of the rail in freight transport;

—	the concept of the ‘motorways of the sea’;

—	the introduction of the concept of ‘projects of European interest’ which provides priority treatment as far as financing and consultation procedures are concerned;

—	the creation of a new coordination mechanism at Community level intended to facilitate in particular operational and financial cooperation between Member States affected by the same cross-border project;

—	the extension of the deadline for the conclusion of projects until 2020 and of the geographical scope of the TEN-T to include the new Member States.

II. ANALYSIS OF THE COMMON POSITION

The Council subscribes to the necessity that the Community legal framework governing the development of the trans-European transport network be adapted to the needs of an enlarged Europe so as to achieve a coherent, efficient and sustainable transport system. The Council can therefore fully support the overall objectives of the Commission proposal and indeed its content in broad lines. Where it decided to modify the text on some specific aspects, this was done mainly in order to make it clearer, simpler and easier to understand.

As regards the ‘priorities’ for the trans-European transport network (Article 5), the Council highlights the importance of promoting the interconnection of national networks, whilst also taking into consideration the high transport costs of islands and peripheral areas. The common position refers generally to the gradual achievement of an interoperable rail network including routes adapted for freight transport. The Council also subscribes to the promotion of long-distance and short sea shipping as well as to the development of sustainable mobility of persons and goods.

The Council attaches great importance to the environmental protection in the framework of transport projects (Article 8). It therefore clearly states that Member States shall take account of the results of environmental assessments in the preparation of plans and programmes. The Commission shall consider these results in its report on the guidelines and in possible legislative proposals for their review.

The Council welcomes the introduction of the new concept of the ‘motorways of the sea’ (Article 12a) promoting the transfer of freight from roads to short sea shipping. The specific projects — which give concrete expression to the concept of ‘motorways of the sea’ — shall be defined by the Commission within three years. The Council is of the opinion that this new framework should also allow for existing links to be improved; in that regard, it should be possible to promote transport of persons and goods, when freight is dominant. The common position states unequivocally that public funding (start-up aid) in the framework of ‘motorways of the sea’ may not lead to distortions of competition. This aid should be granted on the basis of the same criteria as those applicable under the Marco Polo programme, whilst the granting of Community financial assistance under the two instruments should not be cumulative.

The Council endorses the possibility, as this is foreseen by Article 17a, to designate an European Coordinator in order to coordinate the implementation of projects. The Council emphasises in its common position the particular competence of the Coordinator for cross-border projects and the importance of the cooperation with Member States in fulfilling the tasks assigned to the Coordinator.

With respect to the projects of common interest, which are considered priority projects, the Council's common position.

Pursuant to the general objective to speed up the implementation of the TEN-T projects, the Council welcomes the provisions on the declaration of European interest for Trans-national projects (Article 19a), which will allow a priority treatment of these projects in the framework of the Community funding. The Council states that this declaration is made in accordance with the Treaty. Given that cooperation between all Member States is a main element for the realisation of the projects, the Council deems it appropriate that the Commission consults all Member States concerned in case of a significant delay. Considering the financial and technical importance of the projects, the situation shall be examined by the Commission in an active follow-up, possibly resulting in the adoption of appropriate measures, while Member States have the opportunity to submit observations. The Commission should refrain from any measure that would penalise a Member State not responsible for the delay.

As regards coordinated actions and trans-national enquiries concerning technically and financially indivisible cross-border sections, the Council is of the view that the Member States concerned shall deploy their best efforts within the existing framework.

Finally, the Council could agree to the list of priority projects as proposed by the Commission — which was established on the basis of the work of the Van Miert High Level Group —, on which work should start before 2010; for technical reasons, one project was added to the list.

III. AMENDMENTS

The Council's common position incorporates the main features of the amendments as adopted by the European Parliament in its first reading of the proposal of 30 May 2002 and its renewed referral of 11 March 2004 respectively. However, and as a matter of principle, in the common position, no reference is made to specific projects in the text of the recitals or in that of the enacting terms; such references can only be found in Annex III, where the projects are clearly identified.

—

The Council shares Parliament's view that, in accordance with the provisions of the Treaty, any decision on Community guidelines for the development of trans-European transport network, including on specific projects following these guidelines, has to be taken via the co-decision procedure. The corresponding modifications of the text have been introduced in the common position (Recital 25, Articles 18.3 and 19a). In this regard, the provisions regarding the review of projects — including their possible withdrawal of their classification as a project of European interest — can be mentioned.

As to the Parliament's amendment that it be consulted on the measures which the Commission may take in the framework of an active follow-up of the different projects declared to be of European interest (Article 19a), the Council takes the view that satisfactory mechanisms are already in place in as much as the Council's common position provides for the co-decision procedure for any change to or addition of a project and for the usual budgetary procedure when it comes to that actual financing of the project. Finally, Parliament's amendment aiming at its consultation on the drawing up by the Commission of the initial list of specific projects in the framework of the ‘motorways of the sea’ (Article 12a) could not be accepted for institutional reasons.

—	The Council shares Parliament's concerns in relation to the protection of the environment in the framework of the preparation and realisation of transport projects. The provisions on the strategic environmental assessment have been adapted accordingly (Recital 12 and Article 8).

—

Fully in keeping with Parliament's opinion, the Council has introduced some modifications of the text in order to underline the necessity of territorial cohesion by linking islands, peripheral regions and regional airports to the network (Recital 3, Article 5, Article 10.4, Article 12a.1 and Article 19.1.e). Furthermore, the common position reflects the Council's agreement with Parliament concerning the importance of inland waterways (Recital 3, Article 11 and Article 12a.3).

—

Like Parliament, the Council is of the opinion that public support in the form of start-up aid for ‘motorways of the sea’ projects should not lead to distortion of competition. This principle has been expressly stated in the common position (Recital 16, Article 12a.4 and 12a.5). The Council also endorses that waterways or canals linking two motorways of the sea or sections thereof shall be part of the TEN-T (Article 12a.3) and that activities ensuring year-round navigability may form a project in the meaning of this Article (Article 12a.2 and 5).

—

As regards the European Coordinator (Article 17a), the Council adheres to Parliament's view that the Parliament has a role to play in the designation of Coordinator and should be informed about his work. The common position reflects furthermore the importance of the consultation of regional and local authorities.

—

Finally, Annex III containing the list of priority projects has been modified to take account of some technical specifications in line with Parliament's amendments (projects no. 6, 16, 21, 22 and 30). Amendments aiming at either adding projects or introducing substantive modifications to projects could not be contemplated; in this regard, it should be recalled that the Van Miert High Level Group made an extensive and technically detailed analysis of the relevance of each project, whilst fully taking account of the views of Member States concerned.

In conclusion, the Council considers its common position an appropriate and balanced text. With respect to the amendments proposed by the European Parliament in first reading, the Council observes that a large part of the amendments have been integrated — to the letter or in spirit, partially or in full — in the common position. The Council holds therefore that the text of its common position ensures that the aim sought by the amendments of Parliament is achieved.

(1) The Commission presented its proposal on 9 October 2001 (OJ C 362 E, 18.12.2001, p. 205) and its supplementing proposal on 17 October 2003 (not yet published in the Official Journal).

(2) OJ C 187 E, 7.8.2003, p. 130.

(3) doc. 7033/04 CODEC 319 TRANS 100 ECOFIN 76 (not yet published in the Official Journal).

(4) OJ C 125, 27.5.2002, p. 75.

(5) OJ C 278, 14.11.2002, p. 3.

27.4.2004

Official Journal of the European Union

CE 101/60

COMMON POSITION (EC) No 27/2004

adopted by the Council on 26 April 2004

with a view to adopting Directive 2004/…/EC of the European Parliament and of the Council of … amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles

(Text with EEA relevance)

(2004/C 101E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular the first and third sentences of Article 47(2), Article 55 and Article 95(1) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the Opinion of the European Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1)

Insurance against civil liability in respect of the use of motor vehicles (motor insurance) is of special importance for European citizens, whether they are policyholders or victims of an accident. It is also a major concern for insurance undertakings as it constitutes an important part of non-life insurance business in the Community. Motor insurance also has an impact on the free movement of persons and vehicles. It should therefore be a key objective of Community action in the field of financial services to reinforce and consolidate the single insurance market in motor insurance.

(2)

Very significant advances in this direction have already been achieved by Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (4), by Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (5), by Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (6) and by Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (Fourth motor insurance Directive) (7).

(3)	The Community system of motor insurance needs to be updated and improved. This need has been confirmed by the consultation conducted with the industry, consumers and victims' associations.

(4)

In order to exclude any possible misinterpretation of the provisions of Directive 72/166/EEC and to make it easier to obtain insurance cover for vehicles bearing temporary plates, the definition of the territory in which the vehicle is normally based should refer to the territory of the State of which the vehicle bears a registration plate, irrespective of whether such a plate is permanent or temporary.

(5)

In accordance with Directive 72/166/EEC, vehicles bearing false or illegal plates are considered to be normally based in the territory of the Member State that issued the original plates. This rule often means that national insurers' bureaux are obliged to deal with the economic consequences of accidents which do not have any connection with the Member State where they are established. Without altering the general criterion of the registration plate to determine the territory in which the vehicle is normally based, a special rule should be provided in the case of an accident caused by a vehicle without a registration plate or bearing a registration plate which does not correspond or no longer corresponds to the vehicle. In this case and for the sole purpose of settling the claim, the territory in which the vehicle is normally based should be the territory in which the accident took place.

(6)

In order to facilitate the interpretation and application of the term ‘random checks’ in Directive 72/166/EEC, the relevant provision should be clarified. The prohibition of systematic checks on motor insurance should apply to vehicles normally based in the territory of another Member State as well as to vehicles normally based in the territory of a third country but entering from the territory of another Member State. Only non-systematic checks which are not discriminatory and are carried out as part of a control not aimed exclusively at insurance verification may be permitted.

(7)

Article 4(a) of Directive 72/166/EEC permits a Member State to act in derogation from the general obligation to take out compulsory insurance in respect of vehicles belonging to certain natural or legal persons public or private. In case of accidents caused by these vehicles, the Member State so derogating must designate an authority or body to compensate damage to victims of accidents caused in another Member State. In order to ensure that not only the victims of accidents caused by these vehicles abroad are duly compensated but also the victims of accidents occurring in the same Member State in which the vehicle is normally based, whether they are or not resident in its territory, the aforementioned Article should be amended. Furthermore, the Member States should ensure that the list of persons exempt from compulsory insurance and the authorities or bodies responsible for compensation of victims of accidents caused by these vehicles is communicated to the Commission for publication.

(8)

Article 4(b) of Directive 72/166/EEC permits a Member State to act in derogation from the general obligation to take out compulsory insurance in respect of certain types of vehicles or certain vehicles having a special plate. In that case, the other Member States are allowed to require, at the entry into their territory, a valid green card or a frontier insurance contract, in order to ensure compensation to victims of any accident which may be caused by these vehicles in their territories. However, since the elimination of border controls within the Community does not make it possible to ensure that the vehicles crossing the frontier are covered by insurance, compensation for victims of accidents caused abroad can no longer be guaranteed. Furthermore, it should also be ensured that due compensation is awarded not only to the victims of accidents caused by these vehicles abroad, but also in the same Member State in which the vehicle is normally based. For this purpose, Member States should treat the victims of accidents caused by these vehicles in the same way as victims of accidents caused by non-insured vehicles. Indeed, as provided for in Directive 84/5/EEC, compensation to victims of accidents caused by uninsured vehicles should be paid by the compensation body of the Member State in which the accident took place. In the case of payment to victims of accidents caused by vehicles subject to the derogation, the compensation body should have a claim against the body of the Member State in which the vehicle is normally based. After a period of five years from the date of entry into force of this Directive, the Commission should, if appropriate, in view of the experience on the implementation and application of this derogation, submit proposals aiming at its replacement or repeal. The corresponding provision in Directive 2000/26/EC should also be deleted.

(9)	In order to clarify the scope of application of the motor insurance directives in accordance with Article 299 of the Treaty, the reference to the non-European territory of the Member States in Articles 6 and 7(1) of Directive 72/166/EEC should be deleted.

(10)

Member States' obligations to guarantee insurance cover at least in respect of certain minimum amounts constitute an important element in ensuring the protection of the victims. The minimum amounts provided for by Directive 84/5/EEC should not only be updated to take account of inflation, but should be increased in real terms to improve the protection of victims. With a view to facilitating the introduction of these minimum amounts, a transitional period of five years from the implementation date of this Directive should be established. Member States should increase the amounts to at least a half of the levels within 30 months of the implementation date.

(11)

In order to ensure that the minimum amount of cover is not eroded over time, a periodic review clause should be introduced using as a benchmark the European Index of Consumer Prices (EICP) published by Eurostat, as provided for in Council Regulation (EC) No 2494/95 of 23 October 1995 concerning harmonised indices of consumer prices (8). The procedural rules governing such a review need to be established.

(12)

Directive 84/5/EEC which allows Member States, in the interest of preventing fraud, to limit or exclude payments by the compensation body in the case of damage to property by an unidentified vehicle, may impede legitimate compensation of victims in some cases. The option to limit or exclude compensation on the basis that the vehicle is not identified should not apply where the body has paid compensation for significant personal injuries to any victim of the same accident in which damage to property was caused. Member States may provide for an excess up to the limit set out in the said Directive for which the victim of the damage to property may be responsible. The conditions for the personal injuries to be considered significant should be determined by the national legislation or administrative provisions of the Member State where the accident takes place. In establishing these conditions, the Member State may take into account, inter alia, whether the injury has required hospital care.

(13)

At present, an option contained in Directive 84/5/EEC allows Member States to authorise, up to a specified ceiling, excesses for which the victim would be responsible in the event of damage to property caused by uninsured vehicles. That option unjustly reduces the protection of victims and creates discrimination with respect to victims of other accidents. It should therefore no longer be permitted.

(14)

Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services (9), should be amended in order to permit branches of insurance undertakings to become representatives with respect to motor insurance activities, as already happens with respect to insurance services other than motor insurance.

(15)

The inclusion within the insurance cover of any passenger in the vehicle is a major achievement of the existing legislation. This objective would be placed in jeopardy if national legislation or any contractual clause contained in an insurance contract excluded passengers from insurance cover because they knew or should have known that the driver of the vehicle was under the influence of alcohol or of any other intoxicating agent at the time of the accident. The passenger is not usually in a position to assess properly the intoxication level of the driver. The objective of discouraging persons from driving whilst under the influence of intoxicating agents is not achieved by reducing the insurance cover for passengers who are victims of motor vehicle accidents. Cover of these passengers under the vehicle's compulsory motor insurance does not prejudge any liability they might have incurred pursuant to the applicable national legislation, nor the level of any award of damages in a specific accident.

(16)

Personal injuries and damage to property suffered by pedestrians, cyclists and other non-motorised users of the road, who are usually the weakest party in an accident, should be covered by the compulsory insurance of the vehicle involved in the accident where they are entitled to compensation according to national civil law. This provision does not prejudge the civil liability or the level of awards for damages in a specific accident, under national legislation.

(17)

Some insurance undertakings insert into insurance policies clauses to the effect that the contract will be cancelled if the vehicle remains outside the Member State of registration for longer than a specified period. This practice is in conflict with the principle set out in Directive 90/232/EEC, according to which the compulsory motor insurance should cover, on the basis of a single premium, the entire territory of the Community. It should therefore be specified that the insurance cover should remain valid during the whole term of the contract, irrespective of whether the vehicle remains in another Member State for a particular period, without prejudice to the obligations under Member States' national legislation with respect to the registration of vehicles.

(18)

Steps should be taken to make it easier to obtain insurance cover for vehicles imported from one Member State into another, even though the vehicle is not yet registered in the Member State of destination. A temporary derogation from the general rule determining the Member State where the risk is situated should be introduced. For a period of 30 days from the date when the vehicle is delivered, made available or dispatched to the purchaser, the Member State of destination should be considered to be the Member State where the risk is situated.

(19)

The person wishing to take out a new motor insurance contract with another insurer should be able to justify his accident and claims record under the old contract. The policyholder should have the right to request at any time a statement concerning the claims, or the absence of claims, involving the vehicle or vehicles covered by the insurance contract at least during the preceding five years of the contractual relationship. The insurance undertaking, or any body which may have been appointed by a Member State to provide compulsory insurance or to supply such statements, should provide this statement to the policyholder within 15 days of the request.

(20)	In order to ensure due protection for the victims of motor vehicle accidents, Member States should not permit insurance undertakings to rely on excesses against an injured party.

(21)

The right to invoke the insurance contract and to claim against the insurance undertaking directly is of great importance for the protection of the victim of any motor-vehicle accident. Directive 2000/26/EC already provides victims of accidents occurring in a Member State other than the Member State of residence of the injured party, which are caused by the use of vehicles insured and normally based in a Member State, with a right of direct action against the insurance undertaking covering the person responsible against civil liability. In order to facilitate an efficient and speedy settlement of claims and to avoid as far as possible costly legal proceedings, this right should be extended to victims of any motor vehicle accident.

(22)

To enhance the protection of any victim of a motor vehicle accident, the ‘reasoned offer’ procedure provided for in Directive 2000/26/EC should be extended to any kind of motor vehicle accident. This same procedure should also apply mutatis mutandis where the accident is settled by the system of national insurers' bureaux provided for in Directive 72/166/EEC.

(23)

In order to make it easier for the injured party to seek compensation, the information centres set up in accordance with Directive 2000/26/EC should not be confined to providing information concerning the accidents covered by that Directive, but should be able to provide the same kind of information for any motor vehicle accident.

(24)

As Directive 2000/26/EC was adopted before the adoption of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (10) which replaced the Brussels Convention of 27 September 1968 on the same matter for a number of Member States, the reference to such Convention in that Directive should be adapted as appropriate.

(25)	Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 72/166/EEC

Directive 72/166/EEC shall be amended as follows:

In Article 1, point 4 shall be amended as follows:

(a)

the first indent shall be replaced by the following:

‘—	the territory of the State of which the vehicle bears a registration plate, irrespective of whether the plate is permanent or temporary or;’;

(b)

the following indent shall be added:

‘—

in cases where vehicles do not bear any registration plate or bear a registration plate which does not correspond or no longer corresponds to the vehicle and have been involved in an accident, the territory of the State in which the accident took place, for the purpose of settling the claim as provided for in the first indent of Article 2(2) of this Directive or in Article 1(4) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (11);

in Article 2, paragraph 1 shall be replaced by the following:

‘1. Member States shall refrain from making checks on insurance against civil liability in respect of vehicles normally based in the territory of another Member State and in respect of vehicles normally based in the territory of a third country entering their territory from the territory of another Member State. However, they may carry out non-systematic checks on insurance provided that they are not discriminatory and are carried out as part of a control which is not aimed exclusively at insurance verification.’;

Article 4 shall be amended as follows:

(a)

in point (a), second subparagraph:

(i)	the first sentence shall be replaced by the following: ‘A Member State so derogating shall take the appropriate measures to ensure that compensation is paid in respect of any loss or injury caused in its territory and in the territory of other Member States by vehicles belonging to such persons.’;

(ii)	the last sentence shall be replaced by the following: ‘It shall communicate to the Commission the list of persons exempt from compulsory insurance and the authorities or bodies responsible for compensation. The Commission shall publish the list.’;

(b)

in point (b), the second subparagraph shall be replaced by the following:

‘In that case Member States shall ensure that vehicles as mentioned in the first subparagraph of this point are treated in the same way as vehicles for which the insurance obligation provided for in Article 3(1) has not been satisfied. The compensation body of the Member State in which the accident has taken place shall then have a claim against the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC in the Member State where the vehicle is normally based.

After a period of five years from the date of entry into force of Directive 2004/…/EC of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (12), Member States shall report to the Commission on the implementation and practical application of this point. The Commission, after having examined these reports, shall, if appropriate, submit proposals on the replacement or repeal of this derogation.

4.	in Articles 6 and 7(1) the words ‘or in the non-European territory of a Member State’ shall be deleted.

Article 2

Amendments to Directive 84/5/EEC

Article 1 of Directive 84/5/EEC shall be replaced by the following:

‘Article 1

1. The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover compulsorily both damage to property and personal injuries.

2. Without prejudice to any higher guarantees which Member States may lay down, each Member State shall require insurance to be compulsory at least in respect of the following amounts:

(a)	in the case of personal injury, EUR 1 000 000 per victim; Member States may, in place of such amount, provide for a minimum amount of EUR 5 000 000 per claim, whatever the number of victims;

(b)	in the case of damage to property, EUR 1 000 000 per claim, whatever the number of victims.

Member States shall have a transitional period of five years from the implementation date of Directive 2004/…/EC of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (13), within which to increase guarantees up to the levels requested by this paragraph.

Within 30 months of the implementation date of Directive 2004/…/EC Member States shall increase guarantees to at least a half of the levels provided for in this paragraph.

3. The amounts referred to in paragraph 2 shall be reviewed every five years in order to take account of changes in the European Index of Consumer Prices (EICP), as set out in Council Regulation (EC) No 2494/95 of 23 October 1995 concerning harmonised indices of consumer prices (14). The first review shall take place five years from the entry into force of Directive 2004/…/EC.

The amounts shall be adjusted automatically. Such amounts shall be increased by the percentage change indicated by the EICP for the relevant period, that is to say, the five years immediately preceding the review, and rounded up to a multiple of EUR 10 000.

The Commission shall communicate the adjusted amounts to the European Parliament and the Council and shall ensure their publication in the Official Journal of the European Union.

4. Each Member State shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied.

The first subparagraph shall be without prejudice to the right of the Member States to regard compensation by the body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between the body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident. However, Member States may not allow the body to make the payment of the compensation conditional on the victim establishing in any way that the person liable is unable or refuses to pay.

5. The victim may in any case apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation.

Member States may, however, exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured.

6. Member States may limit or exclude the payment of compensation by the body in the event of damage to property by an unidentified vehicle.

However, where the body has paid compensation for significant personal injuries to any victim of the same accident in which damage to property was caused by an unidentified vehicle, Member States may not exclude the payment of compensation for damage to property on the basis that the vehicle is not identified. Nevertheless, Member States may provide for an excess of not more than EUR 500 for which the victim of such damage to property may be responsible.

The conditions for the personal injuries to be considered significant shall be determined in accordance with the legislation or administrative provisions of the Member State in which the accident takes place. In this regard, Member States may take into account, inter alia, whether the injury has required hospital care.

7. Each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by the body, without prejudice to any other practice which is more favourable to the victim.

Article 3

Amendments to Directive 88/357/EEC

The second sentence in the fourth subparagraph of Article 12a(4) of Directive 88/357/EEC shall be deleted.

Article 4

Amendments to Directive 90/232/EEC

Directive 90/232/EEC shall be amended as follows:

In Article 1, the following paragraph shall be inserted between the first and second paragraphs:

‘Member States shall take the necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy which excludes a passenger from such cover on the basis that he knew or should have known that the driver of the vehicle was under the influence of alcohol or of any other intoxicating agent at the time of an accident, shall be deemed to be void in respect of the claims of such passenger.’;

the following Article shall be inserted:

‘Article 1a

The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover personal injuries and damage to property suffered by pedestrians, cyclists and other non-motorised users of the roads who, as a consequence of an accident in which a motor vehicle is involved, are entitled to compensation in accordance with national civil law. This Article shall be without prejudice either to civil liability or to the amount of damages.’

in Article 2, the first indent shall be replaced by the following:

‘—	cover, on the basis of a single premium and during the whole term of the contract, the entire territory of the Community, including for any period when the vehicle remains in other Member States during the term of the contract; and’;

the following Articles shall be inserted:

‘Article 4a

1. By way of derogation from the second indent of Article 2(d) of Directive 88/357/EEC (15), where a vehicle is imported from one Member State to another, the Member State where the risk is situated shall be considered to be the Member State of destination, immediately upon the date when the vehicle has been delivered, made available or dispatched to the purchaser for a maximum period of 30 days, even though the vehicle has not formally been registered in the Member State of destination.

2. In the event that the vehicle is involved in an accident during the period mentioned in paragraph 1 of this Article while being uninsured, the body referred to in Article 1(4) of Directive 84/5/EEC in the Member State of destination shall be liable for the compensation provided for in Article 1 of the said Directive.

Article 4b

Member States shall ensure that the policyholder shall have the right to request at any time a statement relating to the third party liability claims involving the vehicle or vehicles covered by the insurance contract at least during the preceding five years of the contractual relationship, or to the absence of such claims. The insurance undertaking, or a body which may have been appointed by a Member State to provide compulsory insurance or to supply such statements, shall provide this statement to the policyholder within 15 days of the request.

Article 4c

Insurance undertakings shall not rely on excesses against the injured party to an accident as far as the insurance referred to in Article 3(1) of Directive 72/166/EEC is concerned.

Article 4d

Member States shall ensure that injured parties to accidents caused by a vehicle covered by insurance as referred to in Article 3(1) of Directive 72/166/EEC enjoy a direct right of action against the insurance undertaking covering the responsible person against civil liability.

Article 4e

Member States shall establish the procedure provided for in Article 4(6) of Directive 2000/26/EC (16) for the settlement of claims arising from any accident caused by a vehicle covered by insurance as referred to in Article 3(1) of Directive 72/166/EEC.

In the case of accidents which may be settled by the system of national insurers' bureaux provided for in Article 2(2) of Directive 72/166/EEC, Member States shall establish the same procedure as in Article 4(6) of Directive 2000/26/EC. For the purpose of applying this procedure any reference to insurance undertaking shall be understood as a reference to national insurers' bureaux as defined in Article 1, point 3 of Directive 72/166/EEC.

in Article 5, paragraph 1 shall be replaced by the following:

‘1. Member States shall ensure that, without prejudice to their obligations under Directive 2000/26/EC, the information centres established or approved in accordance with Article 5 of that Directive, provide the information specified in that Article to any party involved in any traffic accident caused by a vehicle covered by insurance as referred to in Article 3(1) of Directive 72/166/EEC.’.

Article 5

Amendments to Directive 2000/26/EC

Directive 2000/26/EC shall be amended as follows:

In Article 4, paragraph 8 shall be replaced by the following:

‘8. The appointment of a claims representative shall not in itself constitute the opening of a branch within the meaning of Article 1(b) of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (17) and the claims representative shall not be considered an establishment within the meaning of Article 2(c) of Second Council Directive 88/357/EEC or

—	an establishment within the meaning of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters — as far as Denmark is concerned,

—	an establishment within the meaning of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (18) — as far as the other Member States are concerned.

2.	in Article 5(1)(a), point 2(ii) shall be deleted.

Article 6

Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (19) at the latest. They shall inform the Commission thereof forthwith.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication.

The methods of making such reference shall be laid down by Member States.

2. Member States may, in accordance with the Treaty, maintain or bring into force provisions which are more favourable to the injured party than the provisions necessary to comply with this Directive.

3. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 7

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 8

Addressees

This Directive is addressed to the Member States.

Done at …,

For the European Parliament

The President

For the Council

The President

(1) OJ C 227 E, 24.9.2002, p. 387.

(2) OJ C 95, 23.4.2003, p. 45.

(3) Opinion of the European Parliament of 22 October 2003 (not yet published in the Official Journal), Council Common Position of 26 April 2004 and Position of the European Parliament of … (not yet published in the Official Journal).

(4) OJ L 103, 2.5.1972, p. 1. Directive as last amended by Directive 84/5/EEC (OJ L 8, 11.1.1984, p. 17).

(5) OJ L 8, 11.1.1984, p. 17. Directive as last amended by Directive 90/232/EEC (OJ L 129, 19.5.1990, p. 33).

(6) OJ L 129, 19.5.1990, p. 33.

(7) OJ L 181, 20.7.2000, p. 65.

(8) OJ L 257, 27.10.1995, p. 1. Regulation as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(9) OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 2000/26/EC.

(10) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by 2003 Act of Accession.

(11) OJ L 8, 11.1.1984, p. 17.’;

(12) OJ L …, p. …’;

(13) OJ L …, p. …

(14) OJ L 257, 27.10.1995, p. 1. Regulation as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).’.

(15) Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services (OJ L 172, 4.7.1988, p. 1). Directive as last amended by Directive 2000/26/EC (OJ L 181, 20.7.2000, p. 65).

(16) Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ L 181, 20.7.2000, p. 65).’;

(17) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 2002/87/EC of the European Parliament and of the Council (OJ L 35, 11.2.2003, p. 1).

(18) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by 2003 Act of Accession.’;

(19) 24 months after the date of entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 7 June 2002, the Commission presented its proposal for a Directive of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5 EEC, 88/357/EEC, 90/232/EEC and Directive 2000/26/EC on insurance against civil liability in respect of the use of motor vehicles (1). The proposal was based on Articles 47(2), 55 and 95(1) of the Treaty.

The European Parliament delivered its opinion at first reading on 22 October 2003 (2).

The Economic and Social Committee has given its opinion on 26 February 2003 (3).

On 27 November 2003, the Council reached a political agreement with a view to adopting a common position at a later stage in accordance with Article 251(2) of the Treaty.

On 26 April 2004 the Council adopted its Common Position on the proposal as set out in doc. 16182/03.

II. OBJECTIVE

The objective of the above-mentioned proposal is to update existing provisions in the field of motor vehicle insurance in order to enhance the protection of possible victims, to take into account the increased cross-border-traffic with practically only exceptional border controls and to create a more efficient market in motor insurance products. To this end, some apparent gaps in existing legislation had to be filled, too.

Among the most important elements are the improvements of insurance cover in the case of a long-term stay outside the country of registration, the increase in minimum amounts of insurance cover for personal injury and damage to property throughout the Union, and the elimination of any existing exclusion from the insurance cover on the basis that the driver was under influence of alcohol or in the case of an accident with an unidentified vehicle. In the case of victims caused by non-identified vehicles, the risk of fraud and the objective of not excluding payments to victims too easily had to be balanced out. Another question was those of different legal concepts in Member States, for example with regard to the possibility of excesses to be borne by the insured himself in certain cases. Moreover, provisions to facilitate short term insurance cover in the case of purchase and registration of a car in different jurisdictions as well as harmonized provisions with regard to the settlement of claims along the lines of the Fourth Motor Insurance Directive should help to further clarify the European legal environment.

III. ANALYSIS OF THE COMMON POSITION AS SET OUT IN DOC. 16182/03 (4)

1. GENERAL

The compromise text on which a political agreement was reached in Council maintains the main objectives of the Commission's proposal. At the same time it takes on board some of the amendments of the European Parliament. The Council modified the Commission's proposal following the spirit of the European Parliament's amendments especially by not deleting the existing derogation for agricultural vehicles and by replacing the proposed provision on the insurance cover for pedestrians and cyclists by a provision which more clearly takes into account existing national law (Article 4(2)). As an innovation, the Council introduced a new provision in Article 1(4) to avoid any misinterpretation of the territorial scope of the Motor Insurance Directives. Similarly, the Council simplified the proposed provision on the application to any kind of motor accidents of the settlement procedures as given in the Fourth Motor Insurance Directive and extended them to the ‘Green Card’ settlement system (Article 4(4) inserting Article 4e into Directive 90/232/EEC).

These modifications were justified mainly for technical reasons. However, some provisions of the Commission proposal were modified to avoid some possible conflicts with the law already applicable in Member States.

2. EP AMENDMENTS

At its first reading the European Parliament adopted 26 amendments to the text (5). During the Working Party meetings, these EP amendments were scrutinized and a number of them were integrated into the Council text, at least in principle. Concerning other amendments, however, the Council has not been in a position to accept them.

2.1. The following EP amendments have been accepted in principle or partly, but integrated into the text with modifications:

Amendments 26 and 11 — New recital 7a (now: 8) and Article 1(3) amending Article 4(b) of Directive 72/166/EEC

(Clarification on the derogation for agricultural vehicles)

The Council has integrated the main content of these amendments by maintaining the existing derogation for agricultural vehicles. However, the issue behind, the protection of all kinds of victims in the case of cross-border traffic, has been solved by invoking the guarantee fund procedure instead of demanding a special insurance when leaving the registration state. Furthermore, a provision on a reporting period has been brought into the text as a compromise.

Amendments 25 and 27 — New recital 8a (now: 10) and Article 2 modifying Article 1, paragraph 2 of Directive 84/5/EEC

(Minimum amounts of insurance cover)

Notwithstanding the legitimate aim of enhancing the protection of victims, the Council had to take into account the different situations in Member States and acceding countries concerning a manageable increase of amounts in an adequate time frame. Although a full introduction of the figures suggested by Parliament was not possible, the figures fixed in the Common Position and the transitional period laid down take on board the main objectives of the amendments.

Amendment 5 — Deletion of recital 20

(‘Reasoned offer’ — procedure)

The deletion of the whole recital on the ‘reasoned offer’ procedure could not be supported. Instead the Council has preferred an additional clarification and the deletion of the second sentence only, which, however, should cover part of Parliament's concerns, namely to avoid a reference to the claims representative (see also amendment 20).

Amendment 20 — Article 4, point 4, inserting Article 4e into Directive 90/232/EEC

(Relationship between provisions on the ‘claims representative’ and the ‘Green Card’-office)

The Council has taken on board the EP amendments to a large extent. The clarification of the role of the claims representative and the maintenance of the Green Card office procedures, also for the cases described here, serve good administrative practice and do not counteract any substantive objective of the proposal.

Amendments 7 and 21 — New recital 21b (now: 24) and Article 5, point 1 modifying Directive 2000/26/EC

(Replacement, when appropriate, of the Brussels Convention by Regulation 44/2001 concerning a provision on the place of establishment)

The Council has integrated these amendments in substance. However, by amending Article 4 of Directive 2000/26/EC, the Council has made it clear that a mere recital would not be sufficient in this regard.

Amendment 14 — Article 2, modifying Article 1, paragraph 6, subparagraph 2 of Directive 84/5/EEC

(Exclusion of an option not to compensate when the victim has been in hospital)

The Council has accepted the substance of the EP amendment. However, in order to ensure the necessary flexibility for Member States and as a consequence of changes brought about in the preceding paragraph of the Article, the Council has adapted the wording of the proposed amendment.

Amendment 15 — Deletion of Article 4(2) inserting a new Article 1a in Directive 90/232/EEC

(Insurance cover for pedestrians and cyclists)

The Council has acknowledged that the aim of the provision to harmonise the provisions for the insurance cover for pedestrians and cyclists and other non-motorised users of the roads might be too difficult to achieve along the proposed lines. However, instead of deleting the suggested provision altogether — as the Parliament had suggested — the Council has preferred to clarify the provision by mentioning the entitlement to compensation according to national law as a relevant safeguard. Thereby the principle of inclusion of these non-motorised users of the roads would be maintained without running the risk of prejudging national decisions on entitlement to compensation via this Directive.

Amendment 18 — Article 4, point 4, inserting Article 4b into Directive 90/232/EEC

(Information to be provided to the policy-holder)

The Council has integrated the main ideas of the EP amendment. The relevant information should be available upon request by the policyholder at any time during the duration of the insurance contract. Thereby consumer protection should be enhanced and at the same time an unnecessary delivery of letters can be avoided. The differences between the Council text and the EP amendment mainly concern editorial points.

2.2. The following amendments have been rejected and have not been integrated into the Council text:

Amendments 1, 6, 9 and 23 — New recitals 3a and 21a; Article 1, point 1 (new) and new Article 5a

(Definition of trailers and introduction of special provisions applying to them)

The Council has not been in a position to accept the amendments on ‘trailers’. Although the issue of accidents with trailers as such might deserve further consideration, the Council does not share the view that the lack of coherent registration of towing engines and trailers is currently a predominant problem. Moreover, the harmonisation of the different national provisions regarding number plates for towing machines and trailers would go beyond the objective of the insurance directives.

Amendments 2 and 12 — New recital 7b and Article 2, point 1

(Inclusion of the costs of pursuing claims in legal proceedings)

The Council has not been in a position to accept these EP amendments. In its view, the cover of the costs of legal proceedings constitutes a modality of voluntary insurance and is already addressed in a specific insurance directive. Moreover, the regime of legal expenses differs widely between Member States and the inclusion of compulsory cover might lead to the negative side-effect of reducing the number of out-of-court agreements.

Amendments 4 and 19 — New recital 19a and Article 4, Point 4, inserting Article 4d, point 1a (new) into Directive 90/232/EEC

(Limitation period for direct right of action)

The Council has not considered it useful to introduce a harmonization of the periods within which the victim can claim a damage. The reasons are the different legal traditions and situations in the Member States and the fact that not only the starting point of this period, but also the provisions regarding an interruption or standstill of the period differ considerably. Moreover, harmonisation of these periods would go beyond the objective of the non-life insurance directives.

Amendments 8 and 24 — New recital 21c and Article 5, point 2a (new)

(Creation of a central body for gathering information on accidents)

The Council has not supported a strict obligation to create a central information body. Although the aim of better and faster information to all parties concerned, especially the persons having suffered a damage, is acknowledged, the suggested provision is not clear enough to determine how Member States should fulfil such an obligation and whether any enforceable right against a Member State could be derived in the context of this directive. The creation of such a centre, which would collect police information, would also go beyond the objective of the non-life insurance directives.

Amendment 10 — Article 1, point 2, modifying Article 2, paragraph 1 of Directive 72/166/EEC

(Possibility of checks)

The proposed amendment seeks to avoid the exclusion of the possibility regarding systematic checks on the insurance status of vehicles, which might be necessary in the view of some Member States. However, the Council has preferred to stay closer to the Commission's proposal and takes the view that the last sentence of the provision offers a sufficient balance between all interests concerned and gives some flexibility for Member States' authorities.

Amendment 28 — Article 2, modifying Article 1, paragraph 3 of Directive 84/5/EEC

(Revision of amounts)

The Council has not considered it advantageous to replace the provision of the Commission's proposal by the one suggested in the EP amendment. Firstly, the provision proposed by the Commission aims at a periodic review of amounts in order to avoid that they are eroded by inflation (as is also explained in the relevant recital). The proposed amendment cannot replace this inflation provision. Secondly, the proposed amendment would mean that the result of a future analysis of the experience to be gained would be pre-empted (‘shall be revised upwards’).

Amendment 16 — Article 4(3) modifying Article 2 of Directive 90/232/EEC

(Scope of insurance cover)

The Council has not considered it useful to take on board the EP amendment. It might give the impression of limiting the temporal or territorial applicability of the relevant provision and thus impair the objective of easier circulation of insurance holders.

Amendment 17 — Article 4(4) inserting Article 4a into Directive 90/232/EEC

(Definition of the Member State where the risk is situated)

The Council has not been able to accept the EP amendment, since a clear definition is necessary of which Member State is to be regarded as the State where the risk is situated. The Council has therefore preferred to stick to the Commission's proposal.

Amendment 22 — Article 5, new point

(Obligation to make a ‘reasoned offer’)

The Council has rejected this amendment for reasons of legal technique as a consequence of the rejection of amendments 2 and 12.

3. IMPORTANT INNOVATIONS TO THE TEXT INTRODUCED BY THE COUNCIL

Article 1(5), now: Article 1(4) — Clarification of the scope of Directive 72/166/EEC

The reference to the non-European territory of the Member States in Articles 6 and 7(1) of Directive 72/166/EEC was deleted in order to clarify the current scope of application of the Directives.

Article 4(4) inserting Article 4e into Directive 90/232/EEC

(Green Card Offices and technical clarification)

The Council has followed partly EP amendment 20 by changing the Commission's proposal in order to replace the suggested role of the claims representatives by a streamlined role of the Green Card offices. In doing so, the provision in question was clarified and considerably shortened. Moreover, the Council has extended the application of the reasoned offer procedure provided for in the Fourth Motor Insurance Directive to the Green Card Offices. In this regard, a reference has been added to Article 1(3) of Dir. 72/166/EEC in order to make clear that references to ‘insurance undertakings’ can be interpreted as references to the green card offices in the cases described.

4. CONCLUSION

The Common Position adopted by the Council is fully in line with the main objective of the Commission's proposal. Although certain provisions take greater account of national options, the Directive will fulfil the aim of simplifying administrative provisions in a more efficient internal market for motor vehicle insurance, while at the same time taking full account of the interest of better protection for consumers and potential victims. The Council has furthermore been in a position to accept some of the most central EP amendments, at least partly or in substance, in an effort to meet Parliament's concerns and to follow good legislative practice on a number of important points.

(1) OJ C 227 E, 24.9.2002, p. 387.

(2) Not yet published in the Official Journal.

(3) OJ C 95, 23.4.2003, p. 45.

(4) Note: The numbering of articles refers to the result of the first reading of Parliament (doc. 13585/03) or, where it is specially indicated (‘now:…’) to the document reflecting the Common Position in Council (doc. 16182/03).

(5) See doc. 13585/03. Draft amendments 3 and 13 were not voted favourably, their substance being covered by amendments 25 and 27.

		ISSN 1725-2423
Official Journal of the European Union		C 101E

English edition	Information and Notices	Volume 47 27 April 2004

Notice No	Contents	page
	I Information
	Council
2004/C 101E/1	Common Position (EC) No 26/2004 of 14 April 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a decision of the European Parliament and of the Council amending Decision No 1692/96/EC on Community guidelines for the development of the trans-European transport network ( 1 )	1

2004/C 101E/2	Common Position (EC) No 27/2004 of 26 April 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles ( 1 )	60