30.5.2009   

EN

Official Journal of the European Union

L 135/1

30.5.2009   

EN

Official Journal of the European Union

L 135/3

(1)

Regulation (EC) No 1935/2004 establishes that active and intelligent food contact materials and articles (active and intelligent materials and articles) are included in its field of application and, therefore, all its provisions concerning materials and articles intended to come into contact with food (food contact materials) also apply to these materials and articles. Other Community measures, such as those provided for in Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (2) and its implementing measures, and Council Directive 87/357/EEC of 25 June 1987 on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of the consumers (3), also apply, where appropriate, to such materials and articles.

(2)

Regulation (EC) No 1935/2004 lays down the general principles for eliminating the differences between the laws of the Member States as regards food contact materials. Article 5(1) of that Regulation provides for the adoption of specific measures for groups of materials and articles and describes in detail the procedure for the authorisation of substances at Community level when a specific measure provides for a list of authorised substances.

(3)

Certain rules applicable to active and intelligent materials and articles are set out in Regulation (EC) No 1935/2004. These include rules for released active substances that have to comply with Community and national provisions applicable to food and labelling rules. Specific rules should be laid down in a specific measure.

(4)

This Regulation is a specific measure within the meaning of Article 5(1)(b) of Regulation (EC) No 1935/2004. This Regulation should establish the specific rules for active and intelligent materials and articles to be applied in addition to the general requirements established in Regulation (EC) No 1935/2004 for their safe use.

(5)

Many different types of active and intelligent materials and articles exist. The substances responsible for the active and/or intelligent function can be contained in a separate container, for example, inclusion in a small paper sachet or, the substances can be directly incorporated into the packaging material, for example, incorporation in the plastic of a plastic bottle. Those substances, responsible for creating the active and/or intelligent function of those materials and articles (the components) should be evaluated in accordance with this Regulation. The passive parts, such as the container, the packaging into which that container is placed and the packaging material, in which the substance is incorporated, should be covered by the specific Community or national provisions applicable to those materials and articles.

(6)

The active and intelligent materials and articles may be composed of one or more layers, or parts of different types of materials, such as plastics, paper and cardboard or coatings and varnishes. Requirements for those materials may be either fully harmonised, or only partially harmonised, or not yet harmonised at Community level. The rules laid down in this Regulation should apply without prejudice to Community or national provisions that regulate such materials.

(7)

The individual substance or, if relevant, the combination of substances which constitute the components should be evaluated to guarantee that they are safe and comply with the requirements laid down in Regulation (EC) No 1935/2004. In some cases, it may be necessary to evaluate and authorise the combination of substances, when the active or intelligent function implies interaction between different substances leading to an enhancement of the function or the generation of new substances responsible for the active and intelligent function.

(8)

Regulation (EC) No 1935/2004 provides that when specific measures include a list of substances authorised within the Community for use in the manufacture of materials and articles intended to come into contact with food, those substances should undergo a safety assessment prior to their authorisation.

(9)

It is appropriate that the person interested in placing on the market active and intelligent materials and articles or the components thereof, namely the applicant, should submit all the information necessary for the safety assessment of the substance or, if necessary, of the combination of substances which constitutes the component.

(10)

The safety assessment of a substance or of a combination of substances which constitutes the components should be carried out by the European Food Safety Authority (the Authority), after the submission of a valid application, in accordance with Articles 9 and 10 of Regulation (EC) No 1935/2004. In order to inform the applicant of the data to be provided for the safety assessment, the Authority should publish detailed guidelines concerning the preparation and the submission of the application. In order to enable the enforcement of any possible restrictions, it is necessary that the applicant provides an appropriate analytical method for the detection and quantification of the substance. The Authority should evaluate if the analytical method is suitable for the purpose of enforcement of any proposed restriction.

(11)

The safety assessment of a specific substance or of a combination of substances should be followed by a risk management decision as to whether the substance should be included in the Community list of authorised substances that may be used in active and intelligent components (the Community list). That decision should be adopted in accordance with the regulatory procedure referred to in Article 23(2) of Regulation (EC) No 1935/2004 ensuring close cooperation between the Commission and the Member States.

(12)

The Community list should include the identity, conditions of use, restrictions and/or specifications of use of the substance or of a combination of substances and, where necessary, of the component or of the material or of the article in which they are added to or incorporated into. The identity of a substance should include at least the name and, if available and necessary, the CAS numbers, particle size, composition or other specifications.

(13)

Active materials and articles may deliberately incorporate substances, which are intended to be released into food. As these substances are intentionally added to the food, they should only be used under the conditions set out in the relevant Community or national provisions for their use in food. Where the Community or national provisions provide for an authorisation of the substance, the substance and its use should comply with the requirements of the authorisation under the specific legislation on food, such as legislation on food additives. Food additives and enzymes could also be grafted or immobilised on the material and have a technological function on the food. Such applications are covered by legislation on food additives and enzymes and should, therefore, be treated in the same way as released active substances.

(14)

Intelligent packaging systems provide the user with information on the conditions of the food and should not release their constituents into the food. Intelligent systems may be positioned on the outer surface of the package and may be separated from the food by a functional barrier, which is a barrier within food contact materials or articles preventing the migration of substances from behind that barrier into the food. Behind a functional barrier, non-authorised substances may be used, provided they fulfil certain criteria and their migration remains below a given detection limit. Taking into account foods for infants and other particularly susceptible persons, as well as the difficulties of this type of analysis affected by a large analytical tolerance, a maximum level of 0,01 mg/kg in food should be established for the migration of a non-authorised substance through a functional barrier. New technologies that engineer substances in particle size that exhibit chemical and physical properties that significantly differ from those at a larger scale, for example, nanoparticles, should be assessed on a case-by-case basis as regards their risk until more information is known about such new technology. Therefore, they should not be covered by the functional barrier concept.

(15)

The specific Community measure covering the passive part of an active or intelligent material may lay down requirements for the inertness of the material, for example, an overall migration limit applicable to plastic materials. If a releasing active component is incorporated into a food contact material covered by a specific Community measure, there may be a risk of exceeding the overall migration limit due to the release of the active substance. As the active function is not an inherent feature of the passive material, the amount of released active substance should not be calculated in the value of overall migration.

(16)

Article 4(5) of Regulation (EC) No 1935/2004 provides that active and intelligent materials and articles already brought into contact with food are to be adequately labelled to allow identification by the consumer of non-edible parts. Consistency of such information is indispensable in order to avoid confusion at consumer level. Therefore, active and intelligent materials and articles should be labelled with appropriate words and accompanied, where technically possible, by a symbol, whenever materials and articles or parts of them are perceived as edible.

(17)

Article 16 of Regulation (EC) No 1935/2004 provides that materials and articles are to be accompanied by a written declaration of compliance attesting that they comply with the rules applicable to them. In accordance with Article 5(1)(h) and (i) of that Regulation, to strengthen the coordination and responsibility of the suppliers at each stage of the manufacturing process, the responsible persons should document compliance with the relevant rules in a declaration of compliance which is made available to his customer. In addition, at each stage of the manufacturing process, supporting documentation, substantiating the declaration of compliance, should be kept available for the enforcement authorities.

(18)

Article 17(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council (4) requires food business operators to verify that foods satisfy the relevant requirements of food law. Article 15(1)(e) of Regulation (EC) No 1935/2004 provides that active materials and articles, which are not yet in contact with food when placed on the market, are to be accompanied by information on the permitted use or uses and other relevant information such as the name and maximum quantity of the substances released by the active component so as to enable food business operators who use these materials and articles to comply with any other relevant Community provisions or, in their absence, national provisions applicable to food, including the provisions on food labelling. To this end, subject to the requirement of confidentiality, food business operators should be given access to the relevant information to enable them to ensure that the migration or intentional release from active and intelligent materials and articles to food complies with the specifications and restrictions laid down in Community or national provisions applicable to food.

(19)

Since several active and intelligent materials and articles are already on the market in the Member States, provisions should be established to ensure that the transition to a Community authorisation procedure is smooth and does not disturb the existing market for those materials and articles. Sufficient time should be allowed for the applicant to make available the information necessary for the safety assessment of the substance or the combination of substances which constitutes the component. Therefore, an 18 month period should be allowed, during which time the information on active and intelligent materials and articles should be submitted by the applicants. It should also be possible to submit applications for authorisation of a new substance or of a combination of substances during that 18 month period.

(20)

The Authority should evaluate, without delay, all applications for existing as well as new substances which constitute the components for which a valid application was submitted on time and in accordance with the guidelines of the Authority during the initial application phase.

(21)

A Community list of authorised substances should be drawn up by the Commission after the completion of the safety assessment of all substances for which a valid application was submitted in accordance with the guidelines of the Authority, during the initial 18 month period. In order to ensure fair and equal conditions for all applicants, this Community list should be drawn up in a single step.

(22)

The rules concerning the declaration of compliance and the specific labelling rules should only apply six months after the date of entry into force of this Regulation to give business operators sufficient time to adapt to these new rules.

(23)

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

(a)

‘active materials and articles’ means materials and articles that are intended to extend the shelf-life or to maintain or improve the condition of packaged food; they are designed to deliberately incorporate components that would release or absorb substances into or from the packaged food or the environment surrounding the food;

(b)

‘intelligent materials and articles’ means materials and articles which monitor the condition of packaged food or the environment surrounding the food;

(c)

‘component’ means an individual substance or a combination of individual substances which cause the active and/or intelligent function of a material or article, including the products of an in situ reaction of those substances; it does not include the passive parts, such as the material they are added to or incorporated into;

(d)

‘functional barrier’ means a barrier consisting of one or more layers of food contact materials which ensures that the finished material or article complies with Article 3 of Regulation (EC) No 1935/2004 and with this Regulation;

(e)

‘releasing active materials and articles’ are those active materials and articles designed to deliberately incorporate components that would release substances into or onto the packaged food or the environment surrounding the food;

(f)

‘released active substances’ are those substances intended to be released from releasing active materials and articles into or onto the packaged food or the environment surrounding the food and fulfilling a purpose in the food.

(a)

are suitable and effective for the intended purpose of use;

(b)

comply with the general requirements set out in Article 3 of Regulation (EC) No 1935/2004;

(c)

comply with the special requirements set out in Article 4 of Regulation (EC) No 1935/2004;

(d)

comply with the labelling requirements set out in Article 15(1)(e) of Regulation (EC) No 1935/2004;

(e)

comply with the composition requirements set out in Chapter II of this Regulation;

(f)

comply with labelling and declaration requirements set out in Chapters III and IV of this Regulation.

(a)

released active substances provided that they comply with the conditions set out in Article 9;

(b)

substances falling within the scope of Community or national provisions applicable to food, which are added to or incorporated into active materials and articles by techniques such as grafting or immobilisation in order to have a technological effect in the food, provided that they comply with the conditions set out in Article 9;

(c)

substances used in components which are not in direct contact with food or the environment surrounding the food and are separated from the food by a functional barrier provided that they comply with the conditions set out in Article 10 and that they do not fall within either of the following categories:

(a)

the identity of the substance(s);

(b)

the function of the substance(s);

(c)

the reference number;

(d)

if necessary, the conditions of use of the substance(s) or component;

(e)

if necessary, restrictions and/or specifications of use of the substance(s);

(f)

if necessary, conditions of use of the material or article to which the substance or component is added or into which it is incorporated.

(a)

with the words ‘DO NOT EAT’; and

(b)

always where technically possible, with the symbol reproduced in Annex I.

30.5.2009   

EN

Official Journal of the European Union

L 135/12

(1)

Deadlines for payments of aid to beneficiaries laid down in Community agricultural legislation must be respected by the Member States. Article 16 of Regulation (EC) No 1290/2005 provides that any overrun of those payment deadlines by the paying agencies shall make the payments ineligible for Community financing, except in cases, conditions and limits determined, according to the principle of proportionality.

(2)

Pursuant to Article 9 of Commission Regulation (EC) No 883/2006 (2) where the expenditure effected after the deadlines is equal to 4 % or less of the expenditure effected before the deadlines, no reduction should be made.

(3)

The Commission presented a declaration at the meeting of the Special Committee on Agriculture on 6 October 2008 (3) on the increase from 4 % to 5 % of the threshold provided for in Article 9 of Regulation (EC) No 883/2006. It is therefore appropriate to increase the threshold for eligible late payments. The new threshold should apply where the payment deadline expires after 15 October 2009.

(4)

Article 8(1) of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (4) provides that the total net amount of direct payments granted in a Member State in respect of a calendar year, after application of modulation and voluntary modulation and without prejudice to financial discipline with the exception of direct payment granted under Council Regulations (EC) No 247/2006 (5) and (EC) No 1405/2006 (6), shall not be higher than the ceilings set out in Annex IV to Regulation (EC) No 73/2009. In order to ensure financial discipline, specific provisions should be laid down to avoid that non-compliance with payment deadlines would lead to total expenditure for direct payments exceeding those ceilings in the corresponding financial exercise.

(5)

Furthermore, in line with current practice and in order to ensure transparency, certain provisions should be further clarified.

(6)

Regulation (EC) No 883/2006 should therefore be amended accordingly.

(7)

The amendments should apply from 16 October 2009 in the case of revenue received and expenditure effected by Member States in respect of 2010 and following financial years.

(8)

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

1.

Article 9 is amended as follows:

2.

In Article 19, paragraph 4 is replaced by the following:

‘4.   Amounts withheld in accordance with Articles 3 and 4 of Regulation (EC) No 1259/1999 or Article 1 of Regulation (EC) No 1655/2004 and any interest that they generate which have not been paid in accordance with Article 1 of Commission Regulation (EC) No 963/2001 (10) or Article 3(1) of Regulation (EC) No 1655/2004 shall be credited to EAGF with the expenditure for October of the financial year concerned. Where applicable, the exchange rate to be used shall be that referred to in Article 7(2) of this Regulation.

30.5.2009   

EN

Official Journal of the European Union

L 135/15

(1)

Commission Regulation (EC) No 1898/2005 (2) laid down detailed rules for the application of the aid scheme for the disposal of the surplus of certain milk products. That scheme, provided for in Article 101 of Regulation (EC) No 1234/2007, is abolished by Council Regulation (EC) No 72/2009 of 19 January 2009 on modifications to the common agricultural policy by amending Regulations (EC) No 247/2006, (EC) No 320/2006, (EC) No 1405/2006, (EC) No 1234/2007, (EC) No 3/2008 and (EC) No 479/2008 and repealing Regulations (EEC) No 1883/78, (EEC) No 1254/89, (EEC) No 2247/89, (EEC) No 2055/93, (EC) No 1868/94, (EC) No 2596/97, (EC) No 1182/2005 and (EC) No 315/2007 (3).

(2)

In this context and with a view to more cost-effective outlets for intervention butter and for reasons of simplification, the provisions on sales from intervention for use in pastry products, ice cream and other foodstuffs should also be abolished.

(3)

Commission Regulation (EC) No 1898/2005 should therefore be repealed.

(4)

Article 101 of Regulation (EC) No 1234/2007 is deleted by Regulation (EC) No 72/2009 from 1 July 2009. Regulation (EC) No 1898/2005 should therefore be repealed from the same date. However, Article 78 of Regulation (EC) No 1898/2005 provides that the butter may be taken over from the 20th day of the month preceding the calendar month indicated on the voucher up to the 10th day of the month following the calendar month indicated thereon. In order to allow operators to make full use of vouchers valid until and including the month of June 2009, Chapter IV of Regulation (EC) No 1898/2005 should continue to apply for those vouchers.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of the Agricultural Markets,

30.5.2009   

EN

Official Journal of the European Union

L 135/16

(1)

Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff.

(2)

Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question.

(3)

Under Article 2(2) of Regulation (EC) No 1249/96, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 4 of that Regulation.

(4)

Import duties should be fixed for the period from 1 June 2009 and should apply until new import duties are fixed and enter into force,

30.5.2009   

EN

Official Journal of the European Union

L 135/19

(1)

According to Article 104 of the Treaty Member States are to avoid excessive government deficits.

(2)

The Stability and Growth Pact is based on the objective of sound government finances as a means of strengthening the conditions for price stability and for strong sustainable growth conducive to employment creation.

(3)

The excessive deficit procedure (EDP) under Article 104, as clarified by Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure (1) (which is part of the Stability and Growth Pact), provides for a decision on the existence of an excessive deficit. The Protocol on the excessive deficit procedure annexed to the Treaty sets out further provisions relating to the implementation of the EDP. Council Regulation (EC) No 3605/93 (2) lays down detailed rules and definitions for the application of the provisions of the said Protocol.

(4)

The 2005 reform of the Stability and Growth Pact sought to strengthen its effectiveness and economic underpinnings as well as to safeguard the sustainability of the public finances in the long run. It aimed at ensuring that in particular the economic and budgetary background was taken fully into account in all steps in the EDP. In this way, the Stability and Growth Pact provides the framework supporting government policies for a prompt return to sound budgetary positions taking account of the economic situation.

(5)

Article 104(5) of the Treaty requires the Commission to address an opinion to the Council if the Commission considers that an excessive deficit in a Member State exists or may occur. Having taken into account its report in accordance with Article 104(3) and having regard to the opinion of the Economic and Financial Committee in accordance with Article 104(4), the Commission concluded that an excessive deficit exists in France. The Commission therefore addressed such an opinion to the Council in respect of France on 24 March 2009 (3).

(6)

Article 104(6) of the Treaty states that the Council should consider any observations which the Member State concerned may wish to make before deciding, after an overall assessment, whether an excessive deficit exists. In the case of France, this overall assessment leads to the following conclusions.

(7)

According to the data notified by the French authorities on 6 February 2009, the general government deficit in France reached 3,2 % of GDP in 2008 (4), thus exceeding the 3 % of GDP reference value. The Commission report under Article 104(3) considers that the deficit was close to the 3 % of GDP reference value but that the excess over the reference value cannot be qualified as exceptional within the meaning of the Treaty and the Stability and Growth Pact with GDP growth estimated to have attained 0,7 % of GDP in 2008, after 2,2 % in 2007. The excess over the reference value cannot be considered temporary. According to the Commission services January 2009 interim forecast, the general government deficit is forecast to reach 5,4 % of GDP in 2009 and, on a no-policy change basis, to decline only slightly to 5 % in 2010 as the budgetary impact of the recovery plan is phased out. Therefore the deficit criterion in the Treaty is not fulfilled.

(8)

According to Article 2(4) of Regulation (EC) No 1467/97, ‘relevant factors’ can only be taken into account in the steps leading to the Council decision on the existence of an excessive deficit in accordance with Article 104(6) if the double condition – that the deficit remains close to the reference value and that its excess over the reference value is temporary – is fully met. In the case of France, this double condition is not met. Therefore, relevant factors are not taken into account in the steps leading to this Decision,

30.5.2009   

EN

Official Journal of the European Union

L 135/21

(1)

According to Article 104 of the Treaty Member States are to avoid excessive government deficits.

(2)

The Stability and Growth Pact is based on the objective of sound government finances as a means of strengthening the conditions for price stability and for strong sustainable growth conducive to employment creation.

(3)

The excessive deficit procedure (EDP) under Article 104, as clarified by Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure (1) (which is part of the Stability and Growth Pact), provides for a decision on the existence of an excessive deficit. The Protocol on the excessive deficit procedure annexed to the Treaty sets out further provisions relating to the implementation of the EDP. Council Regulation (EC) No 3605/93 (2) lays down detailed rules and definitions for the application of the provisions of the said Protocol.

(4)

The 2005 reform of the Stability and Growth Pact sought to strengthen its effectiveness and economic underpinnings as well as to safeguard the sustainability of the public finances in the long run. It aimed at ensuring that in particular the economic and budgetary background was taken fully into account in all steps in the EDP. In this way, the Stability and Growth Pact provides the framework supporting government policies for a prompt return to sound budgetary positions taking account of the economic situation.

(5)

Article 104(5) of the Treaty requires the Commission to address an opinion to the Council if the Commission considers that an excessive deficit in a Member State exists or may occur. Having taken into account its report in accordance with Article 104(3) and having regard to the opinion of the Economic and Financial Committee in accordance with Article 104(4), the Commission concluded that an excessive deficit exists in Greece. The Commission therefore addressed such an opinion to the Council in respect of Greece on 24 March 2009 (3).

(6)

Article 104(6) of the Treaty states that the Council should consider any observations which the Member State concerned may wish to make before deciding, after an overall assessment, whether an excessive deficit exists. In the case of Greece, this overall assessment leads to the following conclusions.

(7)

The general government deficit in Greece reached 3,5 % of GDP in 2007, thus exceeding the 3 % of GDP reference value. According to the Commission services' January 2009 interim forecast, the general government deficit net of one-offs is estimated at 3,6 % of GDP in 2008 (or 3,4 % of GDP including one-offs). This estimation is based on a real GDP growth rate of 2,9 % in 2008 and takes account of the latest information on the execution of the 2008 Budget Law. For 2009, the Commission services' January 2009 interim forecast projects the general government deficit net of one-offs at 4,4 % of GDP (3,7 % including one-off revenues) based on a real GDP growth projection of 0,2 % and on the basis of a prudent assessment of the 2009 Budget Law approved by Parliament on 21 December. Based on the customary unchanged policy assumption and assuming the discontinuation of one-off measures, the 2010 deficit is projected at 4,2 % of GDP. Therefore, the deficit criterion in the Treaty is not fulfilled.

(8)

General government gross debt stood at 94,8 % of GDP in 2007 and 94,6 % of GDP in 2008, well above the 60 % of GDP Treaty reference value. According to the Commission services' January 2009 interim forecast, the general government debt ratio is projected to increase further to 96,25 % in 2009 and 98,5 % of GDP by 2010. The current deficit levels and estimates of medium-term growth are not compatible with a debt ratio converging to a level below 60 % of GDP. The debt ratio cannot be considered as diminishing sufficiently and approaching the reference value at a satisfactory pace within the meaning of the Treaty and the Stability and Growth Pact.

(9)

According to Article 2(4) of Regulation (EC) No 1467/97, ‘relevant factors’ can only be taken into account in the steps leading to the Council decision on the existence of an excessive deficit in accordance with Article 104(6) if the double condition – that the deficit remains close to the reference value and that its excess over the reference value is temporary – is fully met. In the case of Greece, this double condition is not met. Therefore, relevant factors are not taken into account in the steps leading to this Decision,

30.5.2009   

EN

Official Journal of the European Union

L 135/23

(1)

According to Article 104 of the Treaty Member States are to avoid excessive government deficits.

(2)

The Stability and Growth Pact is based on the objective of sound government finances as a means of strengthening the conditions for price stability and for strong sustainable growth conducive to employment creation.

(3)

The excessive deficit procedure (EDP) under Article 104, as clarified by Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure (1) (which is part of the Stability and Growth Pact), provides for a on the existence of an excessive deficit. The Protocol on the excessive deficit procedure ed to the Treaty sets out further provisions relating to the implementation of the EDP. Council Regulation (EC) No 3605/93 (2) lays down detailed rules and definitions for the application of the provisions of the said Protocol.

(4)

The 2005 reform of the Stability and Growth Pact sought to strengthen its effectiveness and economic underpinnings as well as to safeguard the sustainability of the public finances in the long run. It aimed at ensuring that in particular the economic and budgetary background was taken fully into account in all steps in the EDP. In this way, the Stability and Growth Pact provides the framework supporting government policies for a prompt return to sound budgetary positions taking account of the economic situation.

(5)

Article 104(5) of the Treaty requires the Commission to address an opinion to the Council if the Commission considers that an excessive deficit in a Member State exists or may occur. Having taken into account its report in accordance with Article 104(3) and having regard to the opinion of the Economic and Financial Committee in accordance with Article 104(4), the Commission concluded that an excessive deficit exists in Ireland. The Commission therefore addressed such an opinion to the Council in respect of Ireland on 24 March 2009 (3).

(6)

Article 104(6) of the Treaty states that the Council should consider any observations which the Member State concerned may wish to make before deciding, after an overall assessment, whether an excessive deficit exists. In the case of Ireland, this overall assessment leads to the following conclusions.

(7)

According to the updated stability programme, the general government deficit in Ireland reached 6,3 % of GDP in 2008, thus exceeding the 3 % of GDP reference value. The deficit was not close to the 3 % of GDP reference value but the excess over the reference value can be qualified as exceptional. In particular, it resulted from a severe economic downturn in the sense of the Treaty and the Stability and Growth Pact. According to the Commission services’ January 2009 interim forecast, real GDP growth in Ireland is projected to have been strongly negative in the year 2008 (– 2,0 %, somewhat worse than the Irish authorities’ forecast (at – 1,4 %) in the January 2009 addendum to the update of the stability programme).

(8)

Furthermore, the excess over the reference value cannot be considered temporary. According to the Commission services’ January 2009 interim forecast, taking into account the measures for the current year in the budget for 2009 (but not the 1 % of GDP additional consolidation package announced in February 2009), the deficit would widen to 11 % of GDP in 2009 and, on a no-policy change basis, worsen further to 13 % of GDP in 2010. The deficit criterion in the Treaty is not fulfilled.

(9)

General government gross debt stood at 40,6 % of GDP in 2008, remaining below the 60 % of GDP reference value. However, according to the Commission services’ January 2009 interim forecast the debt level should continue to rise quickly, resulting in a breach of the 60 % of GDP reference value by 2010.

(10)

According to Article 2(4) of Regulation (EC) No 1467/97, ‘relevant factors’ can only be taken into account in the steps leading to the Council on the existence of an excessive deficit in accordance with Article 104(6) if the double condition — that the deficit remains close to the reference value and that its excess over the reference value is temporary — is fully met. In the case of Ireland, this double condition is not met. Therefore, relevant factors are not taken into account in the steps leading to this Decision,

30.5.2009   

EN

Official Journal of the European Union

L 135/25

(1)

According to Article 104 of the Treaty Member States are to avoid excessive government deficits.

(2)

The Stability and Growth Pact is based on the objective of sound government finances as a means of strengthening the conditions for price stability and for strong sustainable growth conducive to employment creation.

(3)

The excessive deficit procedure (EDP) under Article 104, as clarified by Council Regulation (EC) No 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure (1) (which is part of the Stability and Growth Pact), provides for a decision on the existence of an excessive deficit. The Protocol on the excessive deficit procedure annexed to the Treaty sets out further provisions relating to the implementation of the EDP. Council Regulation (EC) No 3605/93 (2) lays down detailed rules and definitions for the application of the provisions of the said Protocol.

(4)

The 2005 reform of the Stability and Growth Pact sought to strengthen its effectiveness and economic underpinnings as well as to safeguard the sustainability of the public finances in the long run. It aimed at ensuring that in particular the economic and budgetary background was taken fully into account in all steps in the EDP. In this way, the Stability and Growth Pact provides the framework supporting government policies for a prompt return to sound budgetary positions taking account of the economic situation.

(5)

Article 104(5) of the Treaty requires the Commission to address an opinion to the Council if the Commission considers that an excessive deficit in a Member State exists or may occur. Having taken into account its report in accordance with Article 104(3) and having regard to the opinion of the Economic and Financial Committee in accordance with Article 104(4), the Commission concluded that an excessive deficit exists in Spain. The Commission therefore addressed such an opinion to the Council in respect of Spain on 24 March 2009 (3).

(6)

Article 104(6) of the Treaty states that the Council should consider any observations which the Member State concerned may wish to make before deciding, after an overall assessment, whether an excessive deficit exists. In the case of Spain, this overall assessment leads to the following conclusions.

(7)

According to the January 2009 update of the stability programme, Spain’s general government deficit is estimated to have reached 3,4 % of GDP in 2008, thus exceeding the 3 % of GDP reference value. The deficit was close to the 3 % of GDP reference value but the excess over the reference value cannot be qualified as exceptional within the meaning of the Treaty and the Stability and Growth Pact with real GDP growth in Spain estimated to have attained 1,2 % of GDP in 2008, after 3,7 % in 2007, and with the output gap remaining positive. Furthermore, the excess over the reference value cannot be considered temporary.

(8)

According to the Commission services’ January 2009 interim forecast, the general government headline deficit will increase to 6,2 % of GDP in 2009, including deficit-increasing one-off measures worth over 0,5 % of GDP. The forecast was based on a projected GDP contraction by 2 % as well as on a prudent assessment of both the 2009 Budget Law and the fiscal package announced by the Spanish authorities on 27 November 2008. Based on the customary unchanged policies assumption, the 2010 deficit is projected at 5,7 % of GDP. Therefore, the deficit criterion in the Treaty is not fulfilled.

(9)

General government gross debt remains well below the 60 % of GDP reference value and stood at an estimated 39,5 % of GDP in 2008 according to the January 2009 stability programme. However, according to the Commission services’ January 2009 interim forecast, the general government debt-to-GDP ratio is projected to increase significantly reaching 53 % in 2010.

(10)

According to Article 2(4) of Regulation (EC) No 1467/97, ‘relevant factors’ can only be taken into account in the steps leading to the Council decision on the existence of an excessive deficit in accordance with Article 104(6) if the double condition – that the deficit remains close to the reference value and that its excess over the reference value is temporary – is fully met. In the case of Spain, this double condition is not met. Therefore, relevant factors are not taken into account in the steps leading to this Decision,

30.5.2009   

EN

Official Journal of the European Union

L 135/27

30.5.2009   

EN

Official Journal of the European Union

L 135/28

30.5.2009   

EN

Official Journal of the European Union

L 135/29

(1)

In accordance with Commission Decision 2006/133/EC (2), Portugal is implementing an eradication plan against the dissemination of the pine wood nematode.

(2)

On 16 January 2009 the United Kingdom informed the Commission of the interception of wood packaging material coming from Portugal containing live PWN and not marked in accordance with the FAO International Standard for Phytosanitary Measures No 15 on Guidelines for regulating wood packaging material in international trade (hereinafter FAO International Standard for Phytosanitary Measures No 15) as required by Decision 2006/133/EC.

(3)

On 20 February 2009 Belgium informed the Commission of five non-compliant consignments of bark and wood waste coming from Portugal. The intercepted bark was accompanied by certificates of phytosanitary treatment by fumigation. Yet Decision 2006/133/EC requires bark to undergo heat treatment. In the case of the intercepted consignment of wood waste, in addition, inconsistencies were found in the accompanying documentation.

(4)

On 11 February 2009, Spain informed the Commission of interceptions of consignments of bark and wood waste of susceptible wood coming from Portugal in which live PWN was found. On 20 February 2009 and 3 March 2009, Spain informed the Commission of interceptions of consignments of susceptible wood coming from Portugal which were not accompanied by a plant passport, as required in accordance with point 1(a) of the Annex to Decision 2006/133/EC. On 3, 6 and 18 March 2009, Spain informed the Commission of interceptions of consignments of wood packaging material from Portugal not marked in accordance with FAO International Standard for Phytosanitary Measures No 15 as required by Decision 2006/133/EC.

(5)

On 1 April 2009, Ireland notified to the Commission the interception of wood packaging material coming from Portugal in which live PWN was found. Furthermore, Ireland notified on 21 April 2009 to the Commission the interceptions of four consignments of wood packaging material coming from Portugal not marked in accordance with FAO International Standard for Phytosanitary Measures No 15.

(6)

On 24 March 2009 and 3 April 2009, Lithuania informed the Commission of the interception of wood packaging material coming from Portugal not marked in accordance with FAO International Standard for Phytosanitary Measures No 15.

(7)

Inspections carried out by the Commission in Portugal from 2 to 11 March 2009 revealed that movements of wood and wood packaging material are not fully controlled, as required by Decision 2006/133/EC. In particular, inspectors discovered several cases of non-compliance while controlling road controls at the Spanish border. Consequently the risk cannot be excluded that PWN will be spread to areas outside the demarcated areas in Portugal.

(8)

In the light of those new findings in several Member States and of the results of the mission carried out by the Commission, it is necessary that Portugal intensifies the official controls applied on movement of susceptible wood, bark and plants from the demarcated areas to other areas up to the maximum feasible level of controls in order to ensure that the conditions set out in Decision 2006/133/EC are met. Those official controls should focus on the movements presenting the highest risk of spreading live PWN outside the demarcated areas. To limit the risks of fraud, the official checks should be carried out where susceptible wood, bark and plants are leaving the demarcated areas. The results of those official controls should be communicated to the Commission and the other Member States on a weekly basis to allow them to follow the developments of the situation in Portugal closely.

(9)

In addition, to increase surveillance on materials that could promote spread of live PWN into other Member States, it is appropriate to reinforce the level of official controls carried out by the Member States on susceptible wood, bark and plants, coming from Portugal and moved into their territory. Those official controls should consist of a documentary check, identity check and, as appropriate, a plant health check, which may include testing for the presence of PWN. The frequency of the official controls should be proportionate to the risk. In case of confirmation of non-compliance, the appropriate measures, as provided for in Directive 2000/29/EC, should be taken.

(10)

At the moment Decision 2006/133/EC does not provide for requirements to be applied on movements of susceptible wood, originating in areas other than the demarcated areas in the form of dunnage, spacers and bearers, including that which has not kept its natural round surface, as well as in the form of packing cases, boxes, crates, drums and similar packings, pallets, box pallets and other load boards, pallet collars, whether or not actually in use in the transport of objects of all kinds (hereafter ‘susceptible wood packaging material’) from the demarcated areas to other areas in Member States or in third countries as well as movement of these materials from part of the demarcated area in which PWN is known to occur to the part of the demarcated area designated as buffer zone.

(11)

The absence of such requirements follows from the fact that susceptible wood packaging material not originating in the demarcated areas does not present a risk of carrying PWN even if circulated within the demarcated areas. However it is currently not possible to distinguish such wood packaging material from wood packaging material originating within the demarcated areas which is not marked according to Annex II to FAO International Standard for Phytosanitary Measures No 15 in contradiction with Decision 2006/133/EC.

(12)

As a result, in application of the precautionary principle, susceptible wood packaging material of any origin, leaving the demarcated areas without having been marked according to Annex II to FAO International Standard for Phytosanitary Measures No 15 has to be considered by the responsible official bodies of Member States as material which is not in compliance with Decision 2006/133/EC. Therefore it is appropriate to prohibit the movements of such material, originating in areas other than the demarcated areas, from the demarcated areas into areas other than demarcated areas in Member States or in third countries, as well as movement of those materials from the part of the demarcated areas in which PWN is known to occur to the part of the demarcated areas designated as buffer zone, unless the material can be identified as free of risk of spreading PWN.

(13)

Such material should be identified as free of risk of spreading PWN when it has undergone one of the approved treatments specified in Annex I to FAO International Standard for Phytosanitary measures No 15 and it has been marked according to Annex II to the said Standard. At the moment there is no alternative that can provide the same level of guarantees given, in particular, that there is no system in place at Community level requiring the responsible official bodies of the Member States to certify the origin of the wood used to produce susceptible wood packaging material, and that the introduction of such provisions is not possible at short term.

(14)

There are indications that boxes entirely composed of wood of 6 mm thickness or less constitute a lower risk for spreading PWN compared to thicker sizes. It is therefore appropriate to exempt such boxes, whatever the origin of the wood used to produce them, from the treatment and marking obligations as provided for in the FAO International Standard for Phytosanitary Measures No 15.

(15)

In order to give sufficient time to the operators to adapt to the requirements set out in this Decision, the latter should not apply before 16 June 2009.

(16)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plant Health,

1.

in Article 2, the following paragraph is inserted after the first paragraph:

‘When verifying compliance with the conditions set out in point 1 of the Annex, Portugal shall apply the maximum feasible level of official controls to movements of susceptible wood, bark and plants from demarcated areas situated in its territory to areas other than demarcated areas in Member States or in third countries. It shall pay particular attention to the movements which present the highest risk of transporting live PWN outside the demarcated areas. Those official controls shall be carried out at the points where the susceptible wood, bark and plants are leaving the demarcated areas. All results shall be communicated to the Commission and the other Member States on a weekly basis.’;

2.

Article 3 is replaced by the following:

‘Article 3

1.   Member States of destination other than Portugal shall carry out official controls on susceptible wood, bark and plants, coming from Portugal and moved into their territory. These controls shall include a documentary check comprising a check for the presence and the conformity of the marking in accordance with this Decision, an identity check and, as appropriate, a plant health check which may include testing for the presence of PWN.

2.   Official controls in accordance with paragraph 1 shall be carried out at a frequency depending in particular on the risk associated with different types of susceptible wood, bark and plants and the history of compliance with the requirements of this Decision of the operator responsible for the movement of susceptible wood, bark and plants.

3.   In case non-compliances are confirmed following official controls carried out in accordance with paragraph 1, appropriate measures, similar to the ones referred to in Article 11 of Directive 2000/29/EC shall be taken.’;

3.

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