(1)

Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.

(2)

In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,

(1)

The applications for import licences lodged under certain quotas during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 relate to quantities exceeding those available. The quantities for which licences may be issued should therefore be determined by setting the allocation coefficient by which the quantities applied for are to be multiplied.

(2)

The applications for import licences lodged under certain quotas during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 do not cover the total available. The quantities for which applications have not been lodged should therefore be determined, and these should be added to the quantity fixed for the following quota subperiod,

(1)

The applications for import licences lodged (under the quota bearing the serial number 09.4092) during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 relate to quantities exceeding those available. The quantities for which licences may be issued should therefore be determined by setting the allocation coefficient by which the quantities applied for are to be multiplied.

(2)

The applications for import licences lodged (under the quota bearing the serial number 09.4091) during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 do not cover the total quantities available. The quantities for which applications have not been lodged should therefore be determined, and these should be added to the quantity fixed for the following quota subperiod,

(1)

Regulation (EC) No 1383/2007 has opened tariff quotas for imports of poultrymeat products.

(2)

The applications for import licences lodged during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 do not cover the total quantity available. The quantities for which applications have not been lodged should therefore be determined, and these should be added to the quantity fixed for the following quota subperiod,

(1)

Regulation (EC) No 1382/2007 has opened tariff quotas for the import of pigmeat products.

(2)

The applications for import licences lodged during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 do not cover the total quantity available. The quantities for which applications have not been lodged should therefore be determined and these should be added to the quantity fixed for the following quota subperiod,

(1)

Regulation (EC) No 1399/2007 has opened tariff quotas for the import of certain meat products.

(2)

The applications for import licences lodged during the first seven days of December 2007 for the subperiod 1 January to 31 March 2008 do not cover the total quantity available. The quantities for which applications have not been lodged should therefore be determined and these should be added to the quantity fixed for the following quota subperiod,

(1)

Pursuant to Regulation (EC) No 842/2006, records for refrigeration, air conditioning and heat pump equipment shall contain certain information. In order to ensure the effective implementation of Regulation (EC) No 842/2006, it is appropriate to provide for further information to be indicated in the equipment records.

(2)

Information on the fluorinated greenhouse gas charge should be included in the equipment records. Where the fluorinated greenhouse gas charge is unknown, the operator of the equipment concerned should ensure that certified personnel determine that charge in order to facilitate the leakage checking.

(3)

Before the leakage check is carried out, certified personnel should carefully go through the information contained in the equipment records to determine any previous issues and consult previous reports.

(4)

In order to ensure an efficient leakage control, the leakage checks should focus on those parts of the equipment which are most likely to leak.

(5)

Leakage checks should be carried out using direct or indirect measuring methods. Direct measuring methods identify leakage by the use of detection devices which can determine whether the fluorinated greenhouse gas charge is escaping from the system. Indirect measuring methods are based on the identification of abnormal performance in the system and on the analysis of relevant parameters.

(6)

Indirect measuring methods should be applied in cases where the leakage develops very slowly and where the equipment is placed in a well ventilated environment making it difficult to detect fluorinated greenhouse gases escaping from the system in the air. Direct measuring methods are necessary to identify the exact location of the leakage. The decision on the measuring method to be used should be taken by certified personnel who have the necessary training and experience to determine the most appropriate measuring method on a case by case basis.

(7)

Where there is a presumption of a leakage it should be followed up by a check to identify and to repair it.

(8)

In order to ensure the safety of the system repaired, the follow-up check provided for in Regulation (EC) No 842/2006 should focus on the parts of the system where leakage has been detected and on the adjacent parts.

(9)

Defective installation of new systems constitutes a significant risk of leakage. Therefore, newly installed systems should be checked for leakage immediately after they have been put into service.

(10)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 18(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council (2),

1.

joints;

2.

valves including stems;

3.

seals, including seals on replaceable driers and filters;

4.

parts of the system subject to vibration;

5.

connections to safety or operational devices.

(1)

The second paragraph of point 3 of Part E of Annex III to Regulation (EEC) No 2092/91 provides for a derogation from the obligation for all equipment used in units preparing compound feedingstuffs covered by Council Regulation (EEC) No 2092/91 to be completely separated from equipment used for preparing compound feedingstuffs not covered by that Regulation. This derogation expires on 31 December 2007.

(2)

Experience shows that this derogation is broadly applied by the operators. The use of the same production line for organic and non-organic feedingstuffs production separated in time requires the application of appropriate cleaning measures to guarantee the integrity of organic feedingstuffs production. Evidence has been provided that such measures, when rigorously applied under strict control, can be effective.

(3)

Article 18 of Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (2) provides for the production of processed organic feed to be separated from production of processed non-organic feed either in time or space.

(4)

It is therefore appropriate to prolong the derogation until Regulation (EC) No 834/2007 enters into application from 1 January 2009.

(5)

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

(6)

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

(1)

The Agreement in the form of an Exchange of Letters between the European Community and the Argentine Republic relating to the modification of concessions in the schedules of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic in the course of accession to the European Community (2), approved by Council Decision 2006/930/EC (3), provides for the opening of tariff rate quota (erga omnes) for vermouth. This quota must be opened.

(2)

Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (4) sets the management rules for tariff quotas designed to be used following the chronological order of dates of acceptance of customs declarations. It is appropriate to provide that the tariff quota opened by this Regulation is to be managed in accordance with those rules.

(3)

In accordance with the commitments taken by the Community pursuant to the Agreement in the form of an Exchange of Letters, this Regulation should apply from 1 January 2007.

(4)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I,

(1)

Article 13(3) of Regulation (EC) No 1831/2003 provides for the possibility of changing the terms of authorisation of an additive further to an application from the holder of the authorisation.

(2)

The use of the additive diclazuril 0,5 g/100 g (Clinacox 0,5 % Premix), diclazuril 0,2 g/100 g (Clinacox 0,2 % Premix), belonging to the group of ‘Coccidiostats and other medicinal substances’ was authorised for 10 years for chickens for fattening by Commission Regulation (EC) No 2430/1999 (2). The authorisation was linked to the person responsible for putting the additive into circulation.

(3)

The use of the additive diclazuril 0,5 g/100 g (Clinacox 0,5 % Premix), diclazuril 0,2 g/100 g (Clinacox 0,2 % Premix) belonging to the group of ‘Coccidiostats and other medicinal substances’ was authorised for 10 years for turkeys for fattening by Commission Regulation (EC) No 418/2001 (3). The authorisation was linked to the person responsible for putting the additive into circulation.

(4)

The use of the additive diclazuril 0,5 g/100 g (Clinacox 0,5 % Premix), diclazuril 0,2 g/100 g (Clinacox 0,2 % Premix) belonging to the group of ‘Coccidiostats and other medicinal substances’ was authorised for 10 years for chickens reared for laying by Commission Regulation (EC) No 162/2003 (4). The authorisation was linked to the person responsible for putting the additive into circulation.

(5)

The holder of the authorisations, Janssen Animal Health BVBA, has submitted an application under Article 13(3) of Regulation (EC) No 1831/2003 proposing to change the name of the person responsible for putting into circulation the additives referred to in recitals 2 to 4 of this Regulation. With the application they have submitted data showing that the marketing rights for those additives have been transferred to Janssen Pharmaceutica NV, its Belgian parent company, with effect from 2 July 2007.

(6)

Assigning the authorisation of an additive linked to a person responsible for putting it into circulation to another person is based on a purely administrative procedure and did not entail a fresh assessment of the additives. The European Food Safety Authority was informed of the application.

(7)

To allow Janssen Pharmaceutica NV to exploit its ownership rights from 2 July 2007 on, it is necessary to change the name of the person responsible for putting the additives into circulation, with effect from 2 July 2007. Therefore, it is necessary for this Regulation to apply retroactively.

(8)

Regulations (EC) No 2430/1999, (EC) No 418/2001 and (EC) No 162/2003 should therefore be amended accordingly.

(9)

It is appropriate to provide for a transitional period during which existing stocks may be used up.

(10)

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

(1)

Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition.

(2)

Article 25 of Regulation (EC) No 1831/2003 lays down transitional measures for applications for the authorisation of feed additives submitted in accordance with Directive 70/524/EEC before the date of application of Regulation (EC) No 1831/2003.

(3)

The applications for the authorisation of the additives listed in the Annexes to this Regulation were submitted before the date of application of Regulation (EC) No 1831/2003.

(4)

Initial comments on those applications, as provided for in Article 4(4) of Directive 70/524/EEC, were forwarded to the Commission before the date of application of Regulation (EC) No 1831/2003. Those applications are therefore to continue to be treated in accordance with Article 4 of Directive 70/524/EEC.

(5)

The use of the microorganism preparation of Saccharomyces cerevisiae (MUCL 39885) was provisionally authorised for the first time for dairy cows by Commission Regulation (EC) No 879/2004 (3). New data were submitted in support of an application for authorisation without a time limit of that microorganism preparation for dairy cows. The assessment shows that the conditions laid down in Article 3a of Directive 70/524/EEC for such authorisation are satisfied. Accordingly, the use of that microorganism preparation, as specified in Annex I to this Regulation, should be authorised without a time limit.

(6)

The use of the microorganism preparation of Enterococcus faecium (DSM 10663/NCIMB 10415) was provisionally authorised for the first time for turkeys for fattening by Commission Regulation (EC) No 1801/2003 (4). New data were submitted in support of an application for authorisation without a time limit of that microorganism preparation. The assessment shows that the conditions laid down in Article 3a of Directive 70/524/EEC for such authorisation are satisfied. Accordingly, the use of that microorganism preparation, as specified in Annex II to this Regulation, should be authorised without a time limit.

(7)

The use of the microorganism preparation of Enterococcus faecium (DSM 10663/NCIMB 10415) was provisionally authorised for the first time for dogs by Commission Regulation (EC) No 1288/2004 (5). New data were submitted in support of an application for authorisation without a time limit of that microorganism preparation. The assessment shows that the conditions laid down in Article 3a of Directive 70/524/EEC for such authorisation are satisfied. Accordingly, the use of that microorganism preparation, as specified in Annex III to this Regulation, should be authorised without a time limit.

(8)

The use of the microorganism preparation of Lactobacillus acidophilus (D2/CSL CECT 4529) was provisionally authorised for the first time for laying hens by Commission Regulation (EC) No 2154/2003 (6). New data were submitted in support of an application for authorisation without a time limit of that microorganism preparation. The assessment shows that the conditions laid down in Article 3a of Directive 70/524/EEC for such authorisation are satisfied. Accordingly, the use of that microorganism preparation, as specified in Annex IV to this Regulation, should be authorised without a time limit.

(9)

The use of the enzyme preparation of endo-1,4-beta-glucanase, EC 3.2.1.4 produced by Trichoderma longibrachiatum (IMI SD 142) was provisionally authorised for the first time for piglets by Commission Regulation (EC) No 1436/98 (7). New data were submitted in support of an application for authorisation without a time limit of that enzyme preparation. The assessment shows that the conditions laid down in Article 3a of Directive 70/524/EEC for such authorisation are satisfied. Accordingly, the use of that enzyme preparation, as specified in Annex V to this Regulation, should be authorised without a time limit.

(10)

The assessment of these applications shows that certain procedures should be required to protect workers from exposure to the additives set out in the Annexes. Such protection should be assured by the application of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (8).

(11)

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

(1)

Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation.

(2)

In accordance with Article 7 of Regulation (EC) No 1831/2003, an application was submitted for the authorisation of the preparation set out in the Annex to this Regulation. This application was accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003.

(3)

The application concerns the authorisation of a new use of the preparation Enterococcus faecium DSM 7134 (Bonvital), as a feed additive for sows, to be classified in the additive category ‘zootechnical additives’.

(4)

The use of the preparation Enterococcus faecium DSM 7134 was authorised provisionally for piglets and pigs for fattening by Commission Regulation (EC) No 666/2003 (2), provisionally for sows by Commission Regulation (EC) No 2154/2003 (3), provisionally for chickens for fattening by Commission Regulation (EC) No 521/2005 (4) and for ten years (Bonvital) for piglets (weaned) and pigs for fattening by Commission Regulation (EC) No 538/2007 (5).

(5)

New data were submitted in support of the application for authorisation for sows. The European Food Safety Authority (the Authority) concluded in its opinion of 10 July 2007 that the preparation Enterococcus faecium DSM 7134 (Bonvital) does not have an adverse effect on animal health, human health or the environment (6). It further concluded that this preparation does not present any other risk which would, in accordance with Article 5(2) of Regulation (EC) No 1831/2003, exclude authorisation for this additional animal category. According to this opinion, the use of this preparation is efficacious in improving the performance parameters of sows. The Authority does not consider that there is a need for the specific requirements of post market monitoring. This opinion also verified the report on the method of analysis of feed additive in feed submitted by the Community Reference Laboratory set up by Regulation (EC) No 1831/2003.

(6)

The assessment of this preparation shows that the conditions for authorisation, provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied. Accordingly, the use of this preparation should be authorised, as specified in the Annex to this Regulation.

(7)

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

(1)

Commission Regulation (EC) No 795/2004 (2) introduces the implementing rules for the single payment scheme as from 2005.

(2)

Regulation (EC) No 1782/2003 as amended by Regulation (EC) No 1182/2007 (3), which lays down specific rules as regards the fruit and vegetable sector, defines the rules for the decoupled support and the integration of the support for fruit and vegetables into the single payment scheme. The related detailed rules should therefore be adopted. Those detailed rules should follow the same lines as those already laid down in Regulation (EC) No 795/2004 with regard to olive oil, tobacco, cotton, hops, sugar beet, cane, chicory and banana.

(3)

Article 2 of Regulation (EC) No 795/2004 should be further articulated as regards the definition of nurseries.

(4)

Article 21 of Regulation (EC) No 795/2004 provides for the detailed rules for farmers who made investments in production capacity or who leased parcels on a long-term basis. Those provisions need to be adapted in order to take into account the special situation of farmers in the fruit and vegetable sector who made such investments or entered into such long-term lease-contracts before the entry into force of Regulation (EC) No 1182/2007.

(5)

Member States which have acceded to the Community as from 1 May 2004 have established an identification system for agricultural parcels in compliance with Article 20 of Regulation (EC) No 1782/2003. When switching from the old to the new identification system, the features or certain parcels as existing in 2003 may not have been accurately reflected in the new identification system due to technical difficulties. In order to facilitate the implementation of the definition of ‘hectare eligible for set-aside entitlement’ as referred to in Article 54(2) of that Regulation in this context in all those Member States, they should be authorised to derogate, without prejudice to Article 33 of Regulation (EC) No 795/2004, from the reference to the date provided for the area aid applications for 2003 fixed in first subparagraph of that Article 54(2) provided that they ensure that the total agricultural area eligible to set-aside entitlements will not be increased. Article 32 of Regulation (EC) No 795/2004 should be amended accordingly. Given that some of those Member States have implemented the Single Payment Scheme as from 1 January 2007, this derogation should apply as from that date.

(6)

For farmers who have already been allocated, bought or received payment entitlements by the last date for applying for the establishment of payment entitlements for the year of the determination of the amounts and eligible hectares as referred to in point M of Annex VII to Regulation (EC) No 1782/2003, the value and number of their payment entitlements should be recalculated as a result of the reference amounts and hectares derived from the integration of the fruit and vegetable sector. Set-aside payment entitlements and entitlements subject to special conditions should not be taken into account in this calculation.

(7)

In accordance with Article 42(1) of Regulation (EC) No 1782/2003, the national reserve has to be replenished by a linear reduction of all the reference amounts. Rules need to be established to clarify how Member States have to proceed with regard to the integration of the reference amount for fruit and vegetables into the replenishment of the national reserve.

(8)

Member States that apply the regional model established in Article 59(1) and (3) of Regulation (EC) No 1782/2003, should be empowered to fix the number of payment entitlements per farmer resulting from the integration of fruit and vegetable hectares.

(9)

The date for the communication by Member States of information to the Commission regarding the options provided for in Article 51 of Regulation (EC) No 1782/2003 should be established.

(10)

Regulation (EC) No 795/2004 should therefore be amended accordingly.

(11)

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

1.

Article 2 is amended as follows:

2.

Article 21 is amended as follows:

3.

in Article 32(4), the following subparagraph is added:

‘Without prejudice to Article 33 of this Regulation, in the case where the new Member States within the meaning of Article 2(g) of Regulation (EC) No 1782/2003 have encountered technical difficulties to determine the limits of certain agricultural parcels as a consequence of the transition from the parcel identification system existing at the date referred to in Article 54(2) of that Regulation to the identification system for agricultural parcels referred to in Article 20 of that Regulation, they may derogate from the first subparagraph of paragraph 2 of Article 54 of Regulation (EC) No 1782/2003 in order to fix the reference to the date provided for the area aid applications for 2003 at 30 June 2006. They shall take action to prevent any significant increase in the total area eligible to set-aside entitlements. However Bulgaria and Romania may fix that date at 30 June 2007.’;

4.

the following Chapter 6c is inserted before Chapter 7:

5.

the following Article 49b is inserted before Article 50:

(1)

Council Directives 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (4) and 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (5) concern the review procedures with regard to contracts awarded by contracting authorities as referred to in Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (6) and contracting entities as referred to in Article 2 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (7). Directives 89/665/EEC and 92/13/EEC are intended to ensure the effective application of Directives 2004/18/EC and 2004/17/EC.

(2)

Directives 89/665/EEC and 92/13/EEC therefore apply only to contracts falling within the scope of Directives 2004/18/EC and 2004/17/EC as interpreted by the Court of Justice of the European Communities, whatever competitive procedure or means of calling for competition is used, including design contests, qualification systems and dynamic purchasing systems. According to the case law of the Court of Justice, the Member States should ensure that effective and rapid remedies are available against decisions taken by contracting authorities and contracting entities as to whether a particular contract falls within the personal and material scope of Directives 2004/18/EC and 2004/17/EC.

(3)

Consultations of the interested parties and the case law of the Court of Justice have revealed a certain number of weaknesses in the review mechanisms in the Member States. As a result of these weaknesses, the mechanisms established by Directives 89/665/EEC and 92/13/EEC do not always make it possible to ensure compliance with Community law, especially at a time when infringements can still be corrected. Consequently, the guarantees of transparency and non-discrimination sought by those Directives should be strengthened to ensure that the Community as a whole fully benefit from the positive effects of the modernisation and simplification of the rules on public procurement achieved by Directives 2004/18/EC and 2004/17/EC. Directives 89/665/EEC and 92/13/EEC should therefore be amended by adding the essential clarifications which will allow the results intended by the Community legislature to be attained.

(4)

The weaknesses which were noted include in particular the absence of a period allowing an effective review between the decision to award a contract and the conclusion of the contract in question. This sometimes results in contracting authorities and contracting entities who wish to make irreversible the consequences of the disputed award decision proceeding very quickly to the signature of the contract. In order to remedy this weakness, which is a serious obstacle to effective judicial protection for the tenderers concerned, namely those tenderers who have not yet been definitively excluded, it is necessary to provide for a minimum standstill period during which the conclusion of the contract in question is suspended, irrespective of whether conclusion occurs at the time of signature of the contract or not.

(5)

The duration of the minimum standstill period should take into account different means of communication. If rapid means of communication are used, a shorter period can be provided for than if other means of communication are used. This Directive only provides for minimum standstill periods. Member States are free to introduce or to maintain periods which exceed those minimum periods. Member States are also free to decide which period should apply, if different means of communication are used cumulatively.

(6)

The standstill period should give the tenderers concerned sufficient time to examine the contract award decision and to assess whether it is appropriate to initiate a review procedure. When the award decision is notified to them, the tenderers concerned should be given the relevant information which is essential for them to seek effective review. The same applies accordingly to candidates to the extent that the contracting authority or contracting entity has not made available in due time information about the rejection of their application.

(7)

Such relevant information includes, in particular, a summary of the relevant reasons as set out in Article 41 of Directive 2004/18/EC and Article 49 of Directive 2004/17/EC. As the duration of the standstill period varies from one Member State to another, it is also important that the tenderers and candidates concerned should be informed of the effective period available to them to bring review proceedings.

(8)

This type of minimum standstill period is not intended to apply if Directive 2004/18/EC or Directive 2004/17/EC does not require prior publication of a contract notice in the Official Journal of the European Union, in particular in cases of extreme urgency as provided for in Article 31(1)(c) of Directive 2004/18/EC or Article 40(3)(d) of Directive 2004/17/EC. In those cases it is sufficient to provide for effective review procedures after the conclusion of the contract. Similarly, a standstill period is not necessary if the only tenderer concerned is the one who is awarded the contract and there are no candidates concerned. In this case there is no other person remaining in the tendering procedure with an interest in receiving the notification and in benefiting from a standstill period to allow for effective review.

(9)

Finally, in cases of contracts based on a framework agreement or a dynamic purchasing system, a mandatory standstill period could have an impact on the efficiency gains intended by those tendering procedures. Member States should be able therefore, instead of introducing a mandatory standstill period, to provide for ineffectiveness as an effective sanction in accordance with Article 2d of both Directives 89/665/EEC and 92/13/EEC for infringements of the second indent of the second subparagraph of Article 32(4) and of Article 33(5) and (6) of Directive 2004/18/EC, and of Article 15(5) and (6) of Directive 2004/17/EC.

(10)

In the cases referred to in Article 40(3)(i) of Directive 2004/17/EC, contracts based on a framework agreement do not require prior publication of a contract notice in the Official Journal of the European Union. In those cases a standstill period should not be mandatory.

(11)

When a Member State requires a person intending to use a review procedure to inform the contracting authority or contracting entity of that intention, it is necessary to make it clear that this should not affect the standstill period or any other period to apply for review. Furthermore, when a Member State requires that the person concerned has first sought a review with the contracting authority or contracting entity, it is necessary that this person should have a reasonable minimum period within which to refer to the competent review body before the conclusion of the contract, in the event that that person should wish to challenge the reply or lack of reply from the contracting authority or contracting entity.

(12)

Seeking review shortly before the end of the minimum standstill period should not have the effect of depriving the body responsible for review procedures of the minimum time needed to act, in particular to extend the standstill period for the conclusion of the contract. It is thus necessary to provide for an independent minimum standstill period that should not end before the review body has taken a decision on the application. This should not prevent the review body from making a prior assessment of whether the review as such is admissible. Member States may provide that this period shall end either when the review body has taken a decision on the application for interim measures, including on a further suspension of the conclusion of the contract, or when the review body has taken a decision on the merits of the case, in particular on the application for the setting aside of an unlawful decision.

(13)

In order to combat the illegal direct award of contracts, which the Court of Justice has called the most serious breach of Community law in the field of public procurement on the part of a contracting authority or contracting entity, there should be provision for effective, proportionate and dissuasive sanctions. Therefore a contract resulting from an illegal direct award should in principle be considered ineffective. The ineffectiveness should not be automatic but should be ascertained by or should be the result of a decision of an independent review body.

(14)

Ineffectiveness is the most effective way to restore competition and to create new business opportunities for those economic operators which have been deprived illegally of their opportunity to compete. Direct awards within the meaning of this Directive should include all contract awards made without prior publication of a contract notice in the Official Journal of the European Union within the meaning of Directive 2004/18/EC. This corresponds to a procedure without prior call for competition within the meaning of Directive 2004/17/EC.

(15)

Possible justifications for a direct award within the meaning of this Directive may include the exemptions in Articles 10 to 18 of Directive 2004/18/EC, the application of Article 31, Article 61 or Article 68 of Directive 2004/18/EC, the award of a service contract in accordance with Article 21 of Directive 2004/18/EC or a lawful ‘in-house’ contract award following the interpretation of the Court of Justice.

(16)

The same applies to contracts which meet the conditions for an exclusion or special arrangements in accordance with Article 5(2), Articles 18 to 26, Articles 29 and 30 or Article 62 of Directive 2004/17/EC, to cases involving the application of Article 40(3) of Directive 2004/17/EC or to the award of a service contract in accordance with Article 32 of Directive 2004/17/EC.

(17)

A review procedure should be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

(18)

In order to prevent serious infringements of the standstill obligation and automatic suspension, which are prerequisites for effective review, effective sanctions should apply. Contracts that are concluded in breach of the standstill period or automatic suspension should therefore be considered ineffective in principle if they are combined with infringements of Directive 2004/18/EC or Directive 2004/17/EC to the extent that those infringements have affected the chances of the tenderer applying for review to obtain the contract.

(19)

In the case of other infringements of formal requirements, Member States might consider the principle of ineffectiveness to be inappropriate. In those cases Member States should have the flexibility to provide for alternative penalties. Alternative penalties should be limited to the imposition of fines to be paid to a body independent of the contracting authority or entity or to a shortening of the duration of the contract. It is for Member States to determine the details of alternative penalties and the rules of their application.

(20)

This Directive should not exclude the application of stricter sanctions in accordance with national law.

(21)

The objective to be achieved where Member States lay down the rules which ensure that a contract shall be considered ineffective is that the rights and obligations of the parties under the contract should cease to be enforced and performed. The consequences resulting from a contract being considered ineffective should be determined by national law. National law may therefore, for example, provide for the retroactive cancellation of all contractual obligations (ex tunc) or conversely limit the scope of the cancellation to those obligations which would still have to be performed (ex nunc). This should not lead to the absence of forceful penalties if the obligations deriving from a contract have already been fulfilled either entirely or almost entirely. In such cases Member States should provide for alternative penalties as well, taking into account the extent to which a contract remains in force in accordance with national law. Similarly, the consequences concerning the possible recovery of any sums which may have been paid, as well as all other forms of possible restitution, including restitution in value where restitution in kind is not possible, are to be determined by national law.

(22)

However, in order to ensure the proportionality of the sanctions applied, Member States may grant the body responsible for review procedures the possibility of not jeopardising the contract or of recognising some or all of its temporal effects, when the exceptional circumstances of the case concerned require certain overriding reasons relating to a general interest to be respected. In those cases alternative penalties should be applied instead. The review body independent of the contracting authority or contracting entity should examine all relevant aspects in order to establish whether overriding reasons relating to a general interest require that the effects of the contract should be maintained.

(23)

In exceptional cases the use of the negotiated procedure without publication of a contract notice within the meaning of Article 31 of Directive 2004/18/EC or Article 40(3) of Directive 2004/17/EC is permitted immediately after the cancellation of the contract. If in those cases, for technical or other compelling reasons, the remaining contractual obligations can, at that stage, only be performed by the economic operator which has been awarded the contract, the application of overriding reasons might be justified.

(24)

Economic interests in the effectiveness of a contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences. However, economic interests directly linked to the contract concerned should not constitute overriding reasons.

(25)

Furthermore, the need to ensure over time the legal certainty of decisions taken by contracting authorities and contracting entities requires the establishment of a reasonable minimum period of limitation on reviews seeking to establish that the contract is ineffective.

(26)

In order to avoid legal uncertainty which may result from ineffectiveness, Member States should provide for an exemption from any finding of ineffectiveness in cases where the contracting authority or contracting entity considers that the direct award of any contract without prior publication of a contract notice in the Official Journal of the European Union is permissible in accordance with Directives 2004/18/EC and 2004/17/EC and has applied a minimum standstill period allowing for effective remedies. The voluntary publication which triggers this standstill period does not imply any extension of obligations deriving from Directive 2004/18/EC or Directive 2004/17/EC.

(27)

As this Directive strengthens national review procedures, especially in cases of an illegal direct award, economic operators should be encouraged to make use of these new mechanisms. For reasons of legal certainty the enforceability of the ineffectiveness of a contract is limited to a certain period. The effectiveness of these time limits should be respected.

(28)

Strengthening the effectiveness of national review procedures should encourage those concerned to make greater use of the possibilities for review by way of interlocutory procedure before the conclusion of a contract. In those circumstances, the corrective mechanism should be refocused on serious infringements of Community law on public procurement.

(29)

The voluntary attestation system provided for by Directive 92/13/EEC, whereby contracting entities have the possibility of having the conformity of their award procedures established through periodic examinations, has been virtually unused. It cannot thus achieve its objective of preventing a significant number of infringements of Community law on public procurement. On the other hand, the requirement imposed on Member States by Directive 92/13/EEC to ensure the permanent availability of bodies accredited for this purpose can represent an administrative maintenance cost which is no longer justified in the light of the lack of real demand by contracting entities. For these reasons, the attestation system should be abolished.

(30)

Similarly, the conciliation mechanism provided for by Directive 92/13/EEC has not elicited any real interest from economic operators. This is due both to the fact that it does not of itself make it possible to obtain binding interim measures likely to prevent in time the illegal conclusion of a contract, and also to its nature, which is not readily compatible with observance of the particularly short deadlines applicable to reviews seeking interim measures and the setting aside of decisions taken unlawfully. In addition, the potential effectiveness of the conciliation mechanism has been weakened further by the difficulties encountered in establishing a complete and sufficiently wide list of independent conciliators in each Member State, available at any time and capable of dealing with conciliation requests at very short notice. For these reasons, the conciliation mechanism should be abolished.

(31)

The Commission should be entitled to request Member States to provide it with information on the operation of national review procedures proportionate to the objective pursued by involving the Advisory Committee for Public Contracts in determining the extent and nature of such information. Indeed, only by making such information available will it be possible to assess correctly the effects of the changes introduced by this Directive at the end of a significant period of implementation.

(32)

The Commission should review progress made in the Member States and report to the European Parliament and to the Council on the effectiveness of this Directive no later than three years after its deadline for implementation.

(33)

The measures necessary for the implementation of Directives 89/665/EEC and 92/13/EEC should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (8).

(34)

Since, for the reasons stated above, the objective of this Directive, namely improving the effectiveness of review procedures concerning the award of contracts falling within the scope of Directives 2004/18/EC and 2004/17/EC, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective, while respecting the principle of the procedural autonomy of the Member States.

(35)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (9), Member States should draw up, for themselves and in the interests of the Community, their own tables illustrating the correlation between this Directive and the transposition measures, and make them public.

(36)

This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second subparagraphs of Article 47 of the Charter.

(37)

Directives 89/665/EEC and 92/13/EEC should therefore be amended accordingly,

1.

Articles 1 and 2 shall be replaced by the following:

(*1)   OJ L 134, 30.4.2004, p. 114. Directive as last amended by Council Directive 2006/97/EC (OJ L 363, 20.12.2006, p. 107).’;"

2.

the following articles shall be inserted:

3.

Article 3 shall be replaced by the following:

4.

the following articles shall be inserted:

(*2)   OJ L 185, 16.8.1971, p. 15. Decision as amended by Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15)."

(*3)   OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).’;"

5.

Article 4 shall be replaced by the following:

6.

the following article shall be inserted:

1.

Article 1 shall be replaced by the following:

(*4)   OJ L 134, 30.4.2004, p. 1. Directive as last amended by Council Directive 2006/97/EC (OJ L 363, 20.12.2006, p. 107).’;"

2.

Article 2 shall be amended as follows:

3.

the following articles shall be inserted:

4.

Articles 3 to 7 shall be replaced by the following:

(*5)   OJ L 185, 16.8.1971, p. 15. Decision as amended by Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15)."

(*6)   OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).’;"

5.

Article 8 shall be replaced by the following:

6.

Articles 9 to 12 shall be replaced by the following:

7.

the Annex shall be deleted.

(1)

Decision 90/424/EEC lays down the procedures governing the Community’s financial contribution for programmes for the eradication, control and monitoring of animal diseases and zoonoses.

(2)

Commission Decision 2006/687/EC of 12 October 2006 on programmes which qualify for a Community financial contribution in 2007 for the eradication and monitoring of certain animal diseases, for the prevention of zoonoses, for the monitoring of TSEs as well as programmes for the eradication of BSE and scrapie (2) sets out the proposed rate and maximum amount of the Community’s financial contribution for each programme submitted by the Member States.

(3)

Commission Decision 2006/875/EC of 30 November 2006 approving programmes for the eradication and monitoring of animal diseases, of certain TSEs, and for the prevention of zoonoses presented by the Member States for the year 2007 (3) and Commission Decision 2006/876/EC of 30 November 2006 approving programmes for the eradication and monitoring of animal diseases, of certain TSEs, and for the prevention of zoonoses presented by Bulgaria and Romania for the year 2007 and amending Decision 2006/687/EC set out the maximum amount of the Community’s financial contribution for each programme submitted by the Member States.

(4)

The Commission has assessed the reports forwarded by the Member States on the expenditures of those programmes. The results of that assessment show that certain Member States will not utilise their full allocation for 2007 while others will spend in excess of the allocated amount.

(5)

The Community’s financial contribution to certain of those programmes therefore needs to be adjusted. It is appropriate to reallocate funding from programmes of Member States, which are not using their full allocation to those that are exceeding it. The reallocation should be based on the most recent information on the expenditure actually incurred by the concerned Member States.

(6)

Decisions 2006/687/EC, 2006/875/EC and 2006/876/EC should therefore be amended accordingly.

(7)

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

1.

Article 1 is amended as follows:

2.

Article 2(2) is amended as follows:

3.

Article 3(2) is amended as follows:

4.

Article 4(2) is amended as follows:

5.

Article 5 is amended as follows:

6.

Article 6(2) is amended as follows:

7.

Article 7(2) is amended as follows:

8.

Article 8(2) is amended as follows:

9.

In Article 9(2)(a), ‘EUR 250 000’ is replaced by ‘EUR 350 000’;

10.

In Article 10(2), ‘EUR 120 000’ is replaced by ‘EUR 350 000’;

11.

Article 12(2) is amended as follows:

12.

Article 13(2) is amended as follows:

13.

Article 14(2) is amended as follows:

14.

Article 15(2) is amended as follows:

1.

Article 1(2) is amended as follows:

2.

In Article 2(2)(a), ‘EUR 425 000’ is replaced by ‘EUR 275 000’;

3.

In Article 3(2)(a), ‘EUR 508 000’ is replaced by ‘EUR 5 000’;

4.

Article 4(2) is amended as follows:

(1)

Commission Decision 2005/5/EC of 27 December 2004 setting out the arrangements for Community comparative trials and tests on seeds and propagating material of certain plants of agricultural and vegetable species and vine under Council Directives 66/401/EEC, 66/402/EEC, 68/193/EEC, 92/33/EEC, 2002/54/EC, 2002/55/EC, 2002/56/EC and 2002/57/EC for the years 2005 to 2009 (2) sets out the arrangements for the comparative trials and tests to be carried out under Council Directive 2002/55/EC as regards Asparagus officinalis from 2005 to 2009.

(2)

The body responsible for carrying out those trials and tests has informed the Commission that work has progressed more rapidly than expected and that, due to a proper development of plants being observed during the years 2005 to 2007, it now expects all relevant observations required by the call for projects published on 21 June 2004 (3) to be completed by the end of 2008 instead of 2009. It pointed out that as a result total eligible costs would be lower than originally assumed, while costs in 2008 would be higher.

(3)

Based on those facts, the responsible body has submitted a proposal for a recalculation of the eligible costs and of the Community contribution.

(4)

Consequently, the eligible expenditure and the Community contribution should be adapted.

(5)

Decision 2005/5/EC should therefore be amended accordingly.

(6)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry,

1.

in the first paragraph of Article 1, ‘2009’ is replaced by ‘2008’;

2.

in the first paragraph of Article 3, ‘2009’ is replaced by ‘2008’;

3.

the Annex is amended in accordance with the Annex to this Decision.