(1)

A number of amendments are to be made to Regulation (EC) No 1371/2007 of the European Parliament and of the Council (3) in order to enhance protection for passengers and to encourage an increase in rail travel, whilst having due regard in particular to Articles 11, 12 and 14 of the Treaty on the Functioning of the European Union (TFEU). In view of those amendments and in the interests of clarity, Regulation (EC) No 1371/2007 should therefore be recast.

(2)

In the framework of the common transport policy, it is important to safeguard users’ rights for rail passengers and to improve the quality and effectiveness of rail passenger services in order to help increase the share of rail transport in relation to other modes of transport.

(3)

Despite considerable progress having been made in protecting consumers in the Union, further improvements to the protection of rail passengers’ rights still need to be made.

(4)

In particular, since the rail passenger is the weaker party to the transport contract, rail passengers’ rights should be safeguarded.

(5)

Granting the same rights to rail passengers taking international and domestic journeys seeks to raise the level of consumer protection in the Union, to ensure a level playing field for railway undertakings and to guarantee a uniform level of passengers’ rights. Passengers should receive as precise information as possible on their rights. As certain modern formats of tickets do not physically allow information to be printed on them, it should be possible to provide the information required by this Regulation by other means.

(6)

Rail services offered strictly for historic or touristic use do not usually serve normal transport needs. Such services are usually isolated from the rest of the Union rail system and use technology that may limit their accessibility. With the exception of certain provisions which should apply to all rail passenger services throughout the Union, Member States should be able to grant exemptions from the application of the provisions of this Regulation to rail services offered strictly for historic or touristic use.

(7)

Urban, suburban and regional rail passenger services are different in character from long-distance rail passenger services. Member States should therefore be allowed to exempt such services from certain provisions of this Regulation on passengers’ rights. Such exemptions should however not apply to essential rules, in particular not to those provisions relating to non-discriminatory conditions of transport contracts, to the right to purchase rail tickets without undue difficulty, to the railway undertakings’ liability in respect of passengers and their luggage, to the requirement that railway undertakings be adequately insured and to the requirement that adequate measures be taken to ensure passengers’ personal security in railway stations and on trains. Regional services are more integrated in the rest of the Union rail system and the journeys concerned are longer. For regional rail passenger services, possible exemptions should therefore be restricted even further. As regards regional rail passenger services, exemptions to the provisions of this Regulation that facilitate the use of rail services by persons with disabilities or persons with reduced mobility should be completely phased out, and exemptions should not apply as regards provisions of this Regulation promoting the use of bicycles. In addition, the possibility to exempt regional services from certain obligations as regards the provision of through-tickets and re-routing should be limited in time.

(8)

It is an aim of this Regulation to improve rail passenger services within the Union. Therefore, Member States should be able to grant exemptions for services in regions where a significant part of the service is operated outside the Union.

(9)

Furthermore, to allow a smooth transition from the framework established pursuant to Regulation (EC) No 1371/2007 to the one under this Regulation, earlier national exemptions should be phased out gradually to ensure the necessary legal certainty and continuity. Member States which currently have in place exemptions pursuant to Article 2(4) of Regulation (EC) No 1371/2007 should be allowed to exempt domestic rail passenger services only from the provisions of this Regulation that require significant adaptation and, in any event, only for a limited period in time. Member States should also be allowed, for a transitional period, to grant an exemption from the obligation to distribute traffic and travel information among operators, but only where it is not technically feasible for the infrastructure manager to provide real-time data to any railway undertaking, ticket vendor, tour operator or station manager. An assessment of what is technically feasible should be made at least every two years.

(10)

Member States should inform the Commission when they exempt rail passenger services from the application of certain provisions of this Regulation. When providing this information, Member States should explain the reasons for granting such exemptions and the measures taken or envisaged to comply with the obligations under this Regulation when the exemptions concerned expire.

(11)

Where there are several station managers responsible for one station, Member States should have the possibility to designate the body tasked with the responsibilities referred to in this Regulation.

(12)

Access to real-time travel information, including that on tariffs, makes rail travel more accessible to new customers and provides them with a wider range of journey possibilities and tariffs to choose from. Railway undertakings should provide other railway undertakings, ticket vendors and tour operators that sell their services with access to such travel information and give them the possibility to make and cancel reservations in order to facilitate rail travel. Infrastructure managers should distribute real-time data relating to the arrival and the departure of trains to railway undertaking and station managers, as well as to ticket vendors and tour operators in order to facilitate rail travel.

(13)

More detailed requirements regarding the provision of travel information are set out in the technical specifications for interoperability referred to in Commission Regulation (EU) No 454/2011 (4).

(14)

Strengthening of the rights of rail passengers should build on the existing international law contained in Appendix A – Uniform rules concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV) – to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention concerning International Carriage by Rail of 3 June 1999 (1999 Protocol). However, it is desirable to extend the scope of this Regulation and protect not only international passengers but domestic passengers too. On 23 February 2013, the Union acceded to the COTIF.

(15)

Member States should prohibit discrimination on the basis of the nationality of the passenger or the place of establishment within the Union of the railway undertaking, ticket vendor or tour operator. However, social tariffs and the encouragement of wider use of public transport should not be prohibited, provided that such measures are proportionate and independent of the nationality of the passenger concerned. Railway undertakings, ticket vendors and tour operators are free to determine their commercial practices, including the use of special offers and the promotion of certain sales channels. In light of the development of online platforms selling passenger transport tickets, Member States should pay special attention to ensuring that no discrimination occurs during the process of accessing online interfaces or purchasing tickets. Furthermore, regardless of how a certain type of a ticket is purchased, the level of protection of the passenger should be the same.

(16)

The increasing popularity of cycling across the Union has implications for overall mobility and tourism. An increase in the use of both railways and cycling in the modal split reduces the environmental impact of transport. Therefore, railway undertakings should facilitate the combination of cycling and train journeys as much as possible. In particular, when acquiring new rolling stock or making a major upgrade to existing rolling stock, they should provide an adequate number of places for bicycles unless the acquisition or upgrade concerns restaurant cars, sleeping cars or couchette cars. In order to avoid a negative impact on the safety performance of the existing rolling stock, that obligation should only apply in cases of a major upgrade requiring a new vehicle authorisation for placement on the market.

(17)

The adequate number of bicycle places for a train composition should be determined taking into consideration the size of train composition, the type of service and the demand for transport of bicycles. Railway undertakings should have the possibility to establish plans with concrete numbers of bicycle places for their services, after consulting the public. Where railway undertakings choose not to establish plans, a statutory number should apply. That statutory number should also serve as guidance by railway undertakings when establishing their plans. A number which is below the statutory number should be considered adequate only where it is justified by special circumstances such as operation of rail services in winter time where there is clearly no or low demand for the transport of bicycles. Furthermore, in some Member States demand for the transport of bicycles is particularly high as regards certain types of services. Therefore, Member States should have the possibility to determine the minimum adequate numbers of bicycle places for certain types of services. These numbers should prevail over the concrete numbers as mentioned in any plans of the railway undertakings. This should not impede the free movement of railway rolling stock within the Union. Passengers should be informed of the space available for bicycles.

(18)

The rights and obligations regarding carriage of bicycles on trains should apply to bicycles that can be readily ridden prior to and after the rail journey. Carriage of bicycles in packages and bags, as applicable, is covered by the provisions of this Regulation relating to luggage.

(19)

Rail passengers’ rights to rail services include the receipt of information regarding the service both before and during the journey. Railway undertakings, ticket vendors and tour operators should provide general information on the rail service in advance of travel. That information should be provided in accessible formats for persons with disabilities or persons with reduced mobility. Railway undertakings and, where possible, ticket vendors and tour operators should provide the passenger during the journey with further information required by this Regulation. Where a station manager has such information, he or she should also provide the information to the passengers.

(20)

The size of ticket vendors varies substantially from micro to large enterprises and some ticket vendors offer their services only offline or only online. The obligation to provide travel information to passengers should therefore be proportional to the different sizes, and therefore the different capacities, of the ticket vendors.

(21)

This Regulation should not prevent railway undertakings, tour operators or ticket vendors from offering to passengers more favourable conditions than those laid down in this Regulation. However, this Regulation should not lead to a railway undertaking being bound by more favourable contractual conditions offered by a tour operator or ticket vendor, unless an arrangement between the railway undertaking and the tour operator or the ticket vendor provides otherwise.

(22)

Through-tickets allow seamless journeys for passengers and therefore all reasonable efforts should be made to offer such tickets for long-distance, urban, suburban and regional rail passenger services, whether international or domestic, including rail passenger services exempted under this Regulation. It should be possible, for the purpose of determining the total delay for which compensation is available, to exclude periods of delay that occurred during the parts of the journey relating to rail services exempted under this Regulation.

(23)

Regarding services operated by the same railway undertaking, the transfer of rail passengers from one service to another should be facilitated by the introduction of an obligation to provide through-tickets, since no commercial agreements between railway undertakings are needed. The requirement to provide through-tickets should also apply to services operated by railway undertakings belonging to the same owner or which are wholly-owned subsidiaries of one of the railway undertakings providing rail services comprised in the journey. The railway undertaking should have the possibility to specify on the through-ticket the time of departure of each rail service, including regional services, for which the through-ticket is valid.

(24)

Passengers should be clearly informed whether tickets sold by a railway undertaking in a single commercial transaction constitute a through-ticket. Where passengers are not correctly informed, the railway undertaking should be liable as if those tickets were a through-ticket.

(25)

The offer of through-tickets should be promoted. However, correct information concerning the rail service is essential also when passengers buy tickets from a ticket vendor or a tour operator. Where the ticket vendors or the tour operators sell separate tickets as a bundle, they should clearly inform the passenger that those tickets do not offer the same level of protection as through-tickets and that those tickets have not been issued as through-tickets by the railway undertaking or railway undertakings providing the service. Where ticket vendors or tour operators fail to comply with this requirement, their liability should go beyond the reimbursement of the tickets.

(26)

When offering through-tickets, it is important that the railway undertakings take into account realistic and applicable minimum connection times when originally booked, as well as any relevant factors such as the size and location of the respective stations and platforms.

(27)

In light of the United Nations Convention on the Rights of Persons with Disabilities and in order to give persons with disabilities and persons with reduced mobility opportunities for rail travel comparable to those of other citizens, rules for non-discrimination and assistance during their journey should be established. Persons with disabilities and persons with reduced mobility have the same rights as all other citizens to free movement and to non-discrimination. Inter alia, special attention should be given to the provision of information to persons with disabilities and persons with reduced mobility concerning the accessibility of rail services, access conditions of rolling stock and the facilities on board. In order to provide passengers with sensory impairment with the best information on delays, visual and audible systems should be used, as appropriate. Persons with disabilities should be enabled to buy tickets on board a train without extra charges where there is no accessible means to buy a ticket prior to boarding the train. However, there should be a possibility to limit this right in circumstances relating to security or compulsory train reservation. Staff should be adequately trained to respond to the needs of persons with disabilities and persons with reduced mobility, in particular when providing assistance. To ensure equal travel conditions, assistance should be provided to such persons at stations and on board or, in the absence of trained accompanying staff on board the train and at the station, all reasonable efforts should be taken to allow access to travel by rail.

(28)

Railway undertakings and station managers should actively cooperate with organisations representing people with disabilities in order to improve the quality of accessibility of transport services.

(29)

In order to facilitate access to rail passenger services for persons with disabilities and persons with reduced mobility, Member States should have the possibility to require railway undertakings and station managers to set up national Single Points of Contact to coordinate information and assistance.

(30)

In order to ensure that assistance to persons with disabilities and persons with reduced mobility is provided, for practical reasons it is necessary to notify the railway undertaking, the station manager, the ticket vendor or the tour operator in advance of the need for assistance. While this Regulation establishes a common maximum time period for such pre-notifications, voluntary arrangements providing for shorter periods are valuable where they improve the mobility of persons with disabilities and persons with reduced mobility. To guarantee the widest possible distribution of information concerning such reduced time periods, it is important that the Commission includes in its report on the implementation and results of this Regulation information on the development of reduced pre-notification arrangements and related dissemination of information.

(31)

Railway undertakings and station managers should take into account the needs of persons with disabilities and persons with reduced mobility, through compliance with Directive (EU) 2019/882 of the European Parliament and of the Council (5) and Commission Regulation (EU) No 1300/2014 (6). Where this Regulation refers to provisions of Directive (EU) 2019/882, those provisions should be applied by the Member States from 28 June 2025 and in accordance with the transitional measures laid down in Article 32 of that Directive. With regard to rail passenger services, the scope of those provisions is set out in point (c) of Article 2(2) of that Directive.

(32)

Certain animals are trained to assist persons with disabilities to enable them to be independently mobile. For such mobility it is essential that those animals can be taken on board trains. This Regulation establishes common rights and obligations as regards assistance dogs. However, Member States should have the possibility to conduct trials using other mobility assistance animals and to allow them on board trains in their domestic rail services. It is important that the Commission monitors the development regarding this matter in view of future work on mobility assistance animals.

(33)

It is desirable that this Regulation creates a system of compensation for passengers in the case of delay, including in cases where the delay is caused by a cancellation of a service or a missed connection. In the event of a delay of a rail passenger service, railway undertakings should provide passengers with compensation based on a percentage of the ticket price.

(34)

Railway undertakings should be obliged to be insured, or to have adequate guarantees, for their liability to rail passengers in the event of accident.

(35)

Strengthened rights of compensation and assistance in the event of delay, missed connection or cancellation of a service should lead to greater incentives for the rail passenger market, to the benefit of passengers.

(36)

In the event of delay, passengers should be provided with continued or re-routed transport options under comparable transport conditions. The needs of persons with disabilities and persons with reduced mobility should be taken into account in such an event.

(37)

However, a railway undertaking should not be obliged to pay compensation if it can prove that the delay was caused by extraordinary circumstances such as extreme weather conditions or major natural disasters endangering the safe operation of the service. Any such event should have the character of an exceptional natural catastrophe, as distinct from normal seasonal weather conditions such as autumnal storms or regularly-occurring urban flooding caused by tides or snowmelt. In addition, a railway undertaking should not be obliged to pay compensation if it can prove that the delay was caused by a major public health crisis, such as a pandemic. Furthermore, where the delay is caused by the passenger or by certain acts of third parties, the railway undertaking should not be obliged to provide compensation for the delay. Railway undertakings should prove that they could neither foresee nor avoid such events, nor could they prevent the delay, even if all reasonable measures had been taken, including appropriate preventive maintenance of their rolling stock. Strikes by the personnel of the railway undertaking, and actions or omissions by other railway operators using the same infrastructure, infrastructure manager or station manager, should not affect the liability for delays. The circumstances in which railway undertakings are not obliged to pay compensation should be objectively justified. Where a communication or a document of the railway infrastructure manager, a public authority or other body independent from the railway undertakings, indicating the circumstances on which the railway undertaking relies in order to be exempt from the obligation to pay compensation, is available to railway undertakings, they should bring such communications or documents to the attention of passengers and, where relevant, to that of the authorities concerned.

(38)

Railway undertakings should be encouraged to simplify the procedure for passengers to apply for compensation or reimbursement. In particular, Member States should have the possibility to require that railway undertakings accept applications by certain means of communication, such as on websites or by using mobile applications, provided that such requirements are not discriminatory.

(39)

In order to make it easier for passengers to request reimbursement or compensation in accordance with this Regulation, forms that are valid throughout the Union should be established for such requests. Passengers should have the possibility to submit their requests by using such a form.

(40)

In cooperation with infrastructure managers and station managers, railway undertakings should prepare contingency plans to minimise the impact of major disruptions by providing stranded passengers with adequate information and care.

(41)

It is also desirable to relieve accident victims and their dependants of short-term financial concerns in the period immediately after an accident.

(42)

It is in the interests of rail passengers that adequate measures be taken, in agreement with public authorities, to ensure their personal security at stations as well as on board trains.

(43)

Rail passengers should be able to submit a complaint to any railway undertaking involved, to the station managers of certain stations or, where appropriate, to ticket vendors and tour operators regarding their respective fields of responsibilities on the rights and obligations conferred by this Regulation. Rail passengers should be entitled to receive a response within a reasonable period of time.

(44)

In the interest of efficient handling of complaints, railway undertakings and station managers should have the right to establish joint customer services and complaint-handling mechanisms. Information on the complaint-handling procedures should be publicly available and easily accessible to all passengers.

(45)

This Regulation should not affect the rights of passengers to file a complaint with a national body or to seek legal redress through national procedures.

(46)

Railway undertakings and station managers should define, manage and monitor service quality standards for rail passenger services. Railway undertakings should also make information on their service quality performance publicly available.

(47)

In order to maintain a high level of consumer protection in rail transport, Member States should be required to designate national enforcement bodies to monitor closely the application of this Regulation and to enforce it at national level. Those bodies should be able to take a variety of enforcement measures. Passengers should be able to complain to those bodies about alleged infringements of the Regulation. To ensure the satisfactory handling of such complaints, the bodies should also cooperate with the national enforcement bodies of other Member States.

(48)

Member States which have no railway system, and no immediate prospect of having one, would bear a disproportionate and pointless burden if they were subject to the enforcement obligations as regards station managers and infrastructure managers provided for by this Regulation. The same applies to enforcement obligations as regards railway undertakings for as long as a Member State has not licensed any railway undertaking. Therefore, such Member States should be exempted from those obligations.

(49)

Processing of personal data should be carried out in accordance with Union law on the protection of personal data, in particular with Regulation (EU) 2016/679 of the European Parliament and of the Council (7).

(50)

Member States should lay down penalties applicable to infringements of this Regulation and ensure that these penalties are applied. The penalties, which might include the payment of compensation to the person in question, should be effective, proportionate and dissuasive.

(51)

Since the objectives of this Regulation, namely the development of the Union’s railways and the strengthening of rail passengers’ rights, cannot be sufficiently achieved by the Member States, and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(52)

In order to ensure a high level of passenger protection, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to amend Annex I in respect of the CIV Uniform Rules and to adjust the minimum amount of the advance payment in the event of death of a passenger in view of changes in the EU-wide Harmonised Index of Consumer Prices. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (8). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(53)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (9).

(54)

This Regulation respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union, in particular Articles 21, 26, 38 and 47 concerning, respectively, the prohibition of any form of discrimination, the integration of persons with disabilities, the ensuring of a high level of consumer protection, and the right to an effective remedy and to a fair trial. The Member States’ courts must apply this Regulation in a manner consistent with these rights and principles,

(1)

Environmental, climate and relevant energy legislation and policy of the Union have delivered substantial improvements to the state of the environment. However, major environmental and climate challenges remain, which, if left unaddressed, will have significant negative consequences for the Union and the well-being of its citizens.

(2)

The Programme for the Environment and Climate Action (LIFE), established by Regulation (EU) No 1293/2013 of the European Parliament and of the Council (4), for the period 2014 to 2020, is the latest in a series of Union programmes since 1992 which support the implementation of environmental and climate legislation and policy priorities. LIFE was assessed positively in a recent mid-term evaluation as being on track to be effective, efficient and relevant. The 2014-2020 LIFE Programme should, therefore, be continued with certain modifications identified in the mid-term evaluation and subsequent assessments. Accordingly, the Programme for the Environment and Climate Action (LIFE) (the 'LIFE Programme') should be established for a period of seven years to align its duration with that of the multiannual financial framework laid down in Council Regulation (EU, Euratom) 2020/2093 (5).

(3)

In pursuing the achievement of the objectives and targets set by environmental, climate and relevant energy legislation, policy and plans, in particular the objectives set out in the communication of the Commission of 11 December 2019 on the European Green Deal (the 'European Green Deal'), and international commitments of the Union, the LIFE Programme should contribute to a just transition towards a sustainable, circular, energy-efficient, renewable energy-based, climate-neutral and -resilient economy, to the protection, restoration and improvement of the quality of the environment, including the air, water and soil, and of health, and to halting and reversing biodiversity loss, including by supporting the implementation and management of the Natura 2000 network and tackling the degradation of ecosystems, either through direct interventions or by supporting the integration of those objectives in other policies. The LIFE Programme should also support the implementation of the general action programmes adopted in accordance with Article 192(3) Treaty on the Functioning of the European Union (TFEU), such as the 7th Environment Action Programme (6) and any subsequent Union environment action programme.

(4)

The Union is committed to developing a comprehensive response to the Sustainable Development Goals of the United Nations 2030 Agenda for Sustainable Development, which highlight the intrinsic connection between the management of natural resources to ensure their long-term availability and ecosystem services, and the link of both to human health and sustainable and socially inclusive economic growth. In this spirit, the LIFE Programme should reflect the principles of solidarity, while making a material contribution to both economic development and social cohesion.

(5)

With a view to promoting sustainable development, environmental and climate protection requirements should be integrated into the definition and implementation of all Union policies and activities. Synergies and complementarity with other Union funding programmes should, therefore, be promoted, including by facilitating the funding of activities that complement strategic integrated projects and strategic nature projects and support the uptake and replication of solutions developed under the LIFE Programme. Coordination is required to prevent double funding. The Commission and Member States should take steps to prevent administrative overlap and an administrative burden on project beneficiaries, arising from reporting obligations from different financial instruments.

(6)

The LIFE Programme should contribute to sustainable development and to the achievement of the objectives and targets of the environmental, climate and relevant energy legislation, strategies, plans and international commitments of the Union, in particular as regards the United Nations 2030 Agenda for Sustainable Development, the Convention on Biological Diversity (7) and the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (8) (the 'Paris Agreement on Climate Change'), and, inter alia, the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, public participation in decision-making and access to justice in environmental matters (9) (the 'Aarhus Convention'), the UNECE Convention on Long-Range Transboundary Air Pollution, the UN Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the UN Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and the UN Stockholm Convention on Persistent Organic Pollutants.

(7)

The Union attaches great importance to the long-term sustainability of the results of projects funded by the LIFE Programme, and to the capacity to secure and maintain those results after project implementation, inter alia by project continuation or by replication or transfer of results.

(8)

Complying with the Union's commitments under the Paris Agreement on Climate Change requires the transformation of the Union into a sustainable, circular, energy-efficient, renewable energy-based, climate-neutral and -resilient society. Such transformation in turn requires action, with a special focus on sectors that contribute most to the current levels of greenhouse gas emissions and pollution, promoting energy efficiency and renewable energy, as well as contributing to the implementation of the 2030 energy and climate policy framework and the Member States' Integrated National Energy and Climate Plans and to the implementation of the Union's long-term climate and energy strategy, in line with the long-term objectives of the Paris Agreement on Climate Change. The LIFE Programme should also include measures that contribute to the implementation of the Union's climate adaptation policy for decreasing vulnerability to the adverse effects of climate change.

(9)

Projects under the new 'Clean Energy Transition' subprogramme of the LIFE Programme should focus on the creation of capacity building and diffusion of knowledge, skills, innovative techniques, methods and solutions for reaching the objectives of Union legislation and policy on the transition to renewable energy and to increased energy efficiency. Such capacity building and diffusion are typically coordination and support actions of high added-value at Union level that are aimed at breaking market barriers that hamper the socio-economic transition to sustainable energy, and mainly involve small and medium-sized entities as well as multiple actors, including local and regional public authorities and non-profit organisations. Such actions bring multiple co-benefits, such as tackling energy poverty, improved indoor air quality, reducing local pollutants thanks to energy efficiency improvements and increased distributed renewable energies, and contributing to positive local economic effects and more socially inclusive growth.

(10)

In order to contribute to the mitigation of climate change and to the Union's international commitments as regards decarbonisation, the transformation of the energy sector needs to be accelerated. Actions for capacity-building that support energy efficiency and renewable energy, funded until 2020 under Horizon 2020 (10), should be integrated into the new 'Clean Energy Transition' subprogramme of the LIFE Programme, since their objective is not to fund excellence and generate innovation, but to facilitate the uptake of already available technology for renewable energy and energy efficiency, which will contribute to climate mitigation. The LIFE Programme should involve all stakeholders and sectors involved in clean energy transition. The inclusion of such capacity-building actions in the LIFE Programme offers potential for synergies between the subprogrammes and increases the overall coherence of Union funding. Data should, therefore, be collected and disseminated on the uptake of existing research and innovation solutions in the projects of the LIFE Programme, including from the Horizon Europe programme established under Regulation (EU) 2021/695 of the European Parliament and of the Council (11) ('Horizon Europe') and its predecessors.

(11)

The impact assessment accompanying the Commission proposal for Directive (EU) 2018/2002 of the European Parliament and of the Council (12), which amended Directive 2012/27/EU of the European Parliament and of the Council (13), estimates that meeting the Union's 2030 energy targets will require additional investment of EUR 177 billion annually in the period 2021to 2030. The biggest gaps relate to investment in the decarbonisation of buildings to increase energy efficiency and the use of small-scale renewable energy sources, where capital needs to be channelled towards projects of a highly distributed nature. One of the objectives of the 'Clean Energy Transition' subprogramme, which covers energy efficiency and rapid deployment of renewable energy, is to build capacity for the development and aggregation of such projects, thereby also helping to absorb funds from the European Structural and Investment Funds and act as a catalyst for investments in renewable energy and energy efficiency, also using the financial instruments provided under Regulation (EU) 2021/523 of the European Parliament and of the Council (14).

(12)

The LIFE programme is the only programme dedicated specifically to the environment and climate action, and therefore plays a crucial role in supporting the implementation of Union legislation and policies in those areas.

(13)

Synergies with Horizon Europe should facilitate identifying and establishing research and innovation needs as regards tackling environmental, climate and energy challenges within the Union during Horizon Europe's strategic research and innovation planning process. The LIFE Programme should continue to act as a catalyst for implementing environmental, climate and relevant energy legislation and policy of the Union, including by taking up and applying research and innovation results from Horizon Europe and helping to deploy them on a larger scale if this can help address environmental, climate or energy transition issues. Horizon Europe's European Innovation Council can provide support to scale up and commercialise new breakthrough ideas that could result from the implementation of LIFE projects. Similarly, synergies with the Innovation Fund under the Emission Trading System, established under Directive 2003/87/EC of the European Parliament and of the Council (15), should also be taken into account.

(14)

An action that has received a contribution from the LIFE Programme should also be able to receive a contribution from other Union programmes, provided that such contributions do not cover the same costs. Actions that receive cumulative financing from different Union programmes should be audited only once and in a manner that covers all Union programmes involved and their respective applicable rules.

(15)

The communication of the Commission of 3 February 2017 on the EU Environmental Implementation Review: Common challenges and how to combine efforts to deliver better results (EIR) indicates that significant progress is required to accelerate the implementation of the Union environment acquis and to enhance the integration and mainstreaming of environmental and climate objectives into other policies. The LIFE Programme should, therefore, act as a catalyst for the tackling of horizontal, systemic challenges, as well as the root causes of implementation deficiencies identified in the EIR, and for achieving the requisite progress by developing, testing and replicating new approaches; supporting policy development, monitoring and review; improving governance on environmental, climate change and related energy transition matters, including by enhancing stakeholder involvement at all levels, capacity-building, communication and awareness; mobilising investments from Union investment programmes or other financial sources, and by supporting actions to overcome the various obstacles to the effective implementation of key plans required by environmental legislation.

(16)

Halting and reversing biodiversity loss and the degradation of ecosystems, including in marine ecosystems, requires support for the development, implementation, enforcement and assessment of relevant Union legislation and policy, including communication of the Commission of 20 May 2020 on the EU Biodiversity Strategy for 2030 – Bringing nature back into our lives, Council Directive 92/43/EEC (16), Directive 2009/147/EC of the European Parliament and of the Council (17) and Regulation (EU) No 1143/2014 of the European Parliament and of the Council (18), in particular by developing the knowledge base for policy development and implementation and by developing, testing, demonstrating and applying best practice and solutions, such as effective management, on a small scale or tailored to specific local, regional or national contexts, including integrated approaches for the implementation of the prioritized action frameworks adopted pursuant to Directive 92/43/EEC. This Regulation should contribute to mainstreaming biodiversity action in the Union's policies and to the achievement of the overall ambition of providing 7,5 % of annual spending under the multiannual financial framework to biodiversity objectives in 2024 and 10 % of annual spending under the multiannual financial framework to biodiversity objectives in 2026 and in 2027, while considering the existing overlaps between climate and biodiversity goals.

The Union and Member States should track their biodiversity-related expenditure to fulfil their reporting obligations under the Convention on Biological Diversity. Requirements for tracking provided for in other relevant Union legislation should also be met. Biodiversity-related Union expenditure should be tracked in accordance with an effective, transparent and comprehensive methodology to be set out by the Commission, in cooperation with the European Parliament and the Council, as referred to in the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (19)

(17)

Recent evaluations and assessments, including the mid-term review of the EU Biodiversity Strategy to 2020 and the Fitness Check of Nature legislation, indicate that one of the main underlying causes for insufficient implementation of Union legislation on nature and of the biodiversity strategy is the lack of adequate financing.

The main Union funding instruments, including the European Regional Development Fund established under Regulation (EU) No 1301/2013 of the European Parliament and of the Council (20) (the 'European Regional Development Fund') and the Cohesion Fund established under Regulation (EU) No 1300/2013 of the European Parliament and of the Council (21) (the 'Cohesion Fund'), the European Agricultural Fund for Rural Development established under Regulation (EU) No 1305/2013 of the European Parliament and of the Council (22) (the 'European Agricultural Fund for Rural Development') and the European Maritime, Fisheries and Aquaculture Fund established under a Regulation of the European Parliament and of the Council on the European Maritime, Fisheries and Aquaculture Fund and repealing Regulation (EU) No 508/2014 (the 'European Maritime, Fisheries and Aquaculture Fund'), could make a significant contribution towards meeting those needs, on a complementary basis. The LIFE Programme could further improve the efficiency of such mainstreaming through strategic nature projects dedicated to acting as a catalyst for the implementation of Union nature and biodiversity legislation and policy, including the actions set out in the prioritized action frameworks adopted pursuant to Directive 92/43/EEC. The strategic nature projects should support programmes of actions in Member States aimed at the mainstreaming of relevant nature and biodiversity objectives into other policies and funding programmes, thus ensuring that appropriate funds are mobilised for implementing those policies.

Member States should be allowed to decide, within their Strategic Plan for the Common Agricultural Policy, to use a certain share of the European Agricultural Fund for Rural Development allocation in order to leverage support for actions that complement strategic nature projects as defined under this Regulation.

(18)

Promoting the circular economy and resource efficiency requires a shift in the manner materials and products, including plastics, are designed, produced, consumed, repaired, reused, recycled and disposed of and a focus on the whole lifecycle of products. The LIFE Programme should contribute to the transition to a circular economy model through financial support that targets a variety of actors such as businesses, public authorities and consumers, in particular by applying, developing, and replicating best technology, practice and solutions tailored to specific local, regional or national contexts, including through integrated approaches for the application of the waste hierarchy and the implementation of waste management and prevention plans. By supporting the implementation of the communication of the Commission of 16 January 2018 on a European Strategy for Plastics in a Circular Economy, action could be taken to address the problem of marine litter in particular.

(19)

A high level of environmental protection is of fundamental importance for the health and well-being of Union citizens. The LIFE Programme should support the Union's objectives as regards producing and using chemicals in ways that lead to the minimisation of significant adverse effects on human health and the environment, with a view to reaching the objective of a non-toxic environment in the Union. The LIFE Programme should also support activities to facilitate the implementation of Directive 2002/49/EC of the Parliament and of the Council (23) in order to achieve noise levels that do not give rise to significant negative impacts on and risks to human health.

(20)

The Union's long-term objective as regards air policy is to achieve levels of air quality that do not cause significant negative impacts on and risks to human health and the environment, while reinforcing the synergies between air quality improvements and greenhouse gas emissions reduction. Public awareness about air pollution is high and citizens expect authorities to act, in particular in areas where the population and ecosystems are exposed to high levels of air pollutants. Directive (EU) 2016/2284 of the European Parliament and of the Council (24) stresses the role Union funding can play in achieving clean air objectives. The LIFE Programme should, therefore, support projects, including strategic integrated projects, which have the potential to leverage public and private funds, to showcase best practice, and to act as a catalyst for the implementation of air quality plans and legislation at local, regional, multi-regional, national and trans-national level.

(21)

Directive 2000/60/EC of the European Parliament and of the Council (25) established a framework for the protection of the Union's surface waters, coastal waters, transitional waters and groundwater. The objectives of that Directive would be supported by better implementation and integration of water policy objectives into other policy areas. The LIFE Programme should, therefore, support projects that contribute to the effective implementation of Directive 2000/60/EC and of other relevant Union water legislation that contributes to the achievement of good status of the Union's water bodies by applying, developing and replicating best practice, as well as by mobilising complementary actions under other Union programmes or financial sources.

(22)

The protection and restoration of the marine environment is one of the overall aims of the Union's environment policy. The LIFE Programme should support the following: the management, conservation, restoration and monitoring of biodiversity and marine ecosystems, in particular in Natura 2000 marine sites, and the protection of species in accordance with the prioritized action frameworks adopted pursuant to Directive 92/43/EEC; the achievement of Good Environmental Status in line with Directive 2008/56/EC of the European Parliament and of the Council (26); the promotion of clean and healthy seas; the implementation of the communication of the Commission of 16 January 2018 on a European Strategy for Plastics in a Circular Economy, addressing in particular the problem of lost fishing gear and marine litter; and the promotion of the Union's involvement in international ocean governance, which is essential for achieving the goals of the United Nations 2030 Agenda for Sustainable Development and to guarantee healthy oceans for future generations. The LIFE Programme's strategic integrated projects and strategic nature projects should include relevant actions aimed at the protection of the marine environment.

(23)

The improvement of governance on environmental, climate change and related energy transition matters requires the involvement of civil society by raising public awareness, including through a communication strategy that takes into account new media and social networks, consumer engagement, and the broadening of stakeholder involvement, including non-governmental organisations (NGOs), in consultations on and implementation of related policies at all levels. It is, therefore, appropriate that the LIFE Programme support a broad range of NGOs as well as networks of non-profit-making entities that pursue an aim which is of general Union interest, and that are primarily active in the area of the environment or climate action, by awarding, in a competitive and transparent manner, operating grants, in order to help such NGOs, networks and entities, to make effective contributions to Union policy, and to build and strengthen their capacity to become more efficient partners.

(24)

Whilst improving governance at all levels should be a cross-cutting objective for all subprogrammes of the LIFE Programme, the LIFE Programme should support the development, implementation and enforcement of, and compliance with, the environment and climate acquis, in particular the horizontal legislation on environmental governance, including the legislation implementing the Aarhus Convention.

(25)

The LIFE Programme should prepare market players for, and support them in, the shift towards a sustainable, circular, energy-efficient, renewable energy-based, climate-neutral and -resilient economy by testing new business opportunities, upgrading professional skills, facilitating consumers' access to sustainable products and services, engaging and empowering influencers, and testing novel methods of adapting existing processes and the business landscape. To support a broader market uptake of sustainable solutions, general public acceptance and consumer engagement should be promoted.

(26)

The LIFE Programme is designed to support the demonstration of techniques, approaches and best practices that can be replicated and upscaled. Innovative solutions would contribute to the improvement of environmental performance and sustainability, in particular for the development of sustainable farming practices in the areas active in the fields of climate, water, soil, biodiversity and waste. Synergies with other programmes and policies, such as the European Innovation Partnership for Agricultural Productivity and Sustainability and the EU Eco-Management and Audit Scheme, should be emphasised in this regard.

(27)

At Union level, large investments in environment and climate actions are primarily funded by major Union funding programmes. It is therefore imperative to step up mainstreaming efforts to ensure sustainability, biodiversity proofing and climate proofing of activities under other Union funding programmes and the integration of sustainability safeguards in all Union instruments. In the context of their role as a catalyst, strategic integrated projects and strategic nature projects to be developed under the LIFE Programme should leverage financing opportunities under those funding programmes and other sources of funding, such as national funds, and create synergies.

(28)

The success of strategic nature projects and strategic integrated projects depends on close cooperation between national, regional and local authorities and the non-State actors affected by the objectives of the LIFE Programme. The principles of transparency and disclosure regarding decisions on the development, implementation, assessment and monitoring of projects should, therefore, be applied, in particular in the case of mainstreaming or when multiple funding sources are involved.

(29)

Reflecting the importance of tackling climate change in a coordinated and ambitious manner, in line with the Union's commitments to implement the Paris Agreement on Climate Change and the United Nations Sustainable Development Goals, the LIFE Programme will contribute to mainstreaming climate actions and to the achievement of an overall target of at least 30 % of the EU budget expenditure supporting climate objectives. Actions under the LIFE Programme are expected to contribute 61 % of the overall financial envelope of the LIFE Programme to climate objectives. Relevant actions will be identified during the LIFE Programme's preparation and implementation, and reassessed in the context of the relevant evaluations and review processes. In line with the European Green Deal, actions under the LIFE programme should respect the 'do no harm' principle.

(30)

In the implementation of the LIFE Programme, due consideration should be given to the strategy for outermost regions, contained in the communication of the Commission of 24 October 2017 on a stronger and renewed strategic partnership with the EU's outermost regions, in view of Article 349 TFEU and the specific needs and vulnerabilities of those regions. Union policies other than environmental, climate and relevant energy policies should also be taken into account.

(31)

In support of the implementation of the LIFE Programme, the Commission should collaborate with the LIFE Programme's National Contact Points network to stimulate cooperation aimed at improving and making National Contact Point services across the Union more effective, in order to increase the overall quality of submitted proposals, organise seminars and workshops, publish lists of projects funded under the LIFE Programme or undertake other activities, such as media campaigns, so as to better disseminate project results and to facilitate exchange of experience, knowledge and best practice and the replication of project results across the Union, thus promoting cooperation and communication. Such activities should in particular target Member States in which there is a low uptake of funds and should facilitate communication and cooperation between beneficiaries, applicants and stakeholders of completed or ongoing projects in the same field. It is essential that such communication and cooperation activities be addressed to regional and local authorities and to stakeholders.

(32)

Quality should be the criterion governing the project evaluation and award process in the LIFE Programme. In order to facilitate the implementation of the objectives of the LIFE Programme across the Union and to promote high quality in project proposals, funding for technical assistance projects that are aimed at effective participation in the LIFE Programme should be made available. The Commission should pursue effective, quality-based geographical coverage across the Union, including by supporting Member States to increase the quality of projects through capacity building. Low effective participation, eligible activities and award criteria of the LIFE Programme should be specified in the Multiannual Work Programme guided by the participation and success rate of applicants from the relevant Member States, taking into account, inter alia, population and population density, the total area of Natura 2000 sites for each Member State expressed as a proportion of the total area of Natura 2000, and the proportion of a Member State's territory covered by Natura 2000 sites. Eligible activities should be of a nature such that they are aimed at improving the quality of project applications.

(33)

In accordance with the communication of the Commission of 18 January 2018 on EU actions to improve environmental compliance and governance, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), the European Network of Prosecutors for the Environment (ENPE), and the European Union Forum of Judges for the Environment (EUFJE) have been created to facilitate collaboration between Member States and to play a unique role in the enforcement of Union environmental legislation. They provide a substantial contribution to reinforcing consistency in the implementation and enforcement of Union environmental legislation across the Union, to avoiding distortions of competition and to improving the quality of the environmental inspection and the law enforcement mechanisms through a networking system at both, Union and Member State level, and provide for the exchange of information and experience at different administrative levels, through training and in-depth discussions on environmental issues and enforcement aspects, including monitoring and permitting processes. In view of their contribution to the objectives of the LIFE Programme, it is appropriate to authorise the award of grants to IMPEL, ENPE and EUFJE without a call for proposals so as to continue to provide support to the activities of those bodies. In addition, in other cases, a call might not be required pursuant to the general requirements of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (27) (the 'Financial Regulation'), for example for bodies designated by Member States and operating under their responsibility, where those Member States are identified as beneficiaries of a grant by a legislative act of the Union.

(34)

It is appropriate to lay down a financial envelope for the LIFE Programme which is to constitute the prime reference amount, within the meaning of point 18 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources, for the European Parliament and the Council during the annual budgetary procedure.

(35)

The maximum co-financing rates of grants financed under the LIFE Programme should be set at levels such as are necessary to maintain the effective level of support provided by the LIFE Programme. In order to take into account the necessary adaptability that is needed to respond to the existing range of actions and entities, specific co-financing rates should facilitate certainty, while maintaining a degree of flexibility commensurate to specific needs or requirements. The specific co-financing rates should always be subject to the established relevant maximum co-financing rates.

(36)

The Financial Regulation adopted by the European Parliament and the Council on the basis of Article 322 TFEU applies to this Regulation. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts, and provides for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget.

(37)

In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (28), Council Regulations (EC, Euratom) No 2988/95 (29), (Euratom, EC) No 2185/96 (30) and (EU) 2017/1939 (31), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used, and, where appropriate, the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union.

The European Public Prosecutor's Office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute offences against the Union's financial interests as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (32). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors, and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and to ensure that any third parties involved in the implementation of Union funds grant equivalent rights.

(38)

The types of financing and the methods of implementation of the budget of the LIFE Programme should be chosen on the basis of their ability to achieve the specific objectives of the actions and to deliver results, taking into account, in particular, the costs of controls, the administrative burden, and the expected risk of non-compliance. For grants, the use of lump sums, flat rates and scales of unit costs should be considered. The Commission should ensure that implementation is easy to understand, and should promote genuine simplification for project developers.

(39)

Where appropriate, the policy objectives of the LIFE Programme should be addressed through financial instruments and budgetary guarantees under Regulation (EU) 2021/523, including through the allocated amount from the LIFE Programme, as specified in the multiannual work programmes under that Programme.

(40)

Pursuant to Article 94 of Council Decision 2013/755/EU (33), entities established in overseas countries and territories are eligible for funding subject to the rules and objectives of the LIFE Programme and to possible arrangements applicable to the Member State to which the relevant overseas country or territory is linked. The participation of such entities in the LIFE Programme should focus primarily on projects that fall under the subprogramme 'Nature and Biodiversity'.

(41)

The voluntary scheme for Biodiversity and Ecosystem Services in Territories of European Overseas (BEST) promotes the conservation of biodiversity, including marine biodiversity, and sustainable use of ecosystem services, including ecosystem-based approaches to climate change adaptation and mitigation, in the Union's Outermost Regions and Overseas Countries and Territories. Through the BEST preparatory action adopted in 2011 and the subsequent BEST 2.0 Programme and BEST RUP project, BEST has helped to raise awareness of the ecological importance of the Outermost Regions and Overseas Countries and Territories and their key role in conserving global biodiversity. The Commission estimates that the need for financial support for projects on the ground in those territories is EUR 8 million per year. In their Ministerial Declarations in 2017 and 2018, Overseas Countries and Territories expressed their appreciation for this small-grant scheme for biodiversity. It is therefore appropriate for the LIFE Programme to finance small grants for biodiversity, including capacity building and actions that have a catalytic effect, in both the Outermost Regions and the Overseas Countries and Territories.

(42)

The LIFE Programme should be open to third countries in accordance with the agreements between the Union and those countries establishing the specific conditions for their participation.

(43)

Third countries which are members of the European Economic Area (EEA) may participate in Union programmes in the framework of the cooperation established under Agreement on the European Economic Area (34), which provides for the implementation of the programmes on the basis of a decision adopted under that Agreement. Third countries may also participate on the basis of other legal instruments. A specific provision should be introduced in this Regulation requiring third countries to grant the necessary rights for and access required for the authorising officer responsible, OLAF and the Court of Auditors to comprehensively exercise their respective competences.

(44)

Pursuant to paragraphs 22 and 23 of the Inter-institutional agreement of 13 April 2016 on Better Law-Making (35), the LIFE Programme should be evaluated on the basis of information collected through specific monitoring requirements, while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating the effects of the LIFE Programme on the ground. The full impact of the LIFE Programme accrues through indirect, long-term and difficult-to-measure contributions towards achieving the full range of Union environment and climate objectives. For monitoring of the LIFE Programme, direct output indicators and tracking requirements set out in this Regulation should be complemented by aggregation of specific project level indicators to be described in multiannual work programmes or calls for proposals, inter alia regarding Natura 2000 and emissions of certain atmospheric pollutants.

(45)

In order to ensure uniform conditions for the implementation of this Regulation relating to the adoption of the multiannual work programmes, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (36).

(46)

In order to ensure that support from and implementation of the LIFE Programme is consistent with the policies and priorities of the Union, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission, in order to amend this Regulation by reviewing or complementing the indicators or to supplement this Regulation by defining specific indicators for each subprogramme and type of project and by establishing a monitoring and evaluation framework. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(47)

Since the objectives of this Regulation, namely to contribute to a high level of environmental protection and ambitious climate action, to sustainable development and to the achievement of the objectives and targets of environmental, biodiversity, climate, circular economy, relevant renewable energy and energy efficiency legislation, strategies, plans and international commitments of the Union, through good governance and a multi-stakeholder approach, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of this Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(48)

Regulation (EU) No 1293/2013 should therefore be repealed.

(49)

It is appropriate to ensure a smooth transition without interruption between the previous Programme for the Environment and Climate Action (LIFE) and the LIFE Programme, and to align the start of the LIFE Programme with that of the multiannual financial framework as laid down in Regulation (EU, Euratom) 2020/2093. Therefore, this Regulation should enter into force as a matter of urgency and should apply with retroactive effect from 1 January 2021,

(1)

This Regulation aims to ensure the smooth functioning of the digital single market in an open and democratic society, by addressing the misuse of hosting services for terrorist purposes and contributing to public security across the Union. The functioning of the digital single market should be improved by reinforcing legal certainty for hosting service providers and users’ trust in the online environment, as well as by strengthening safeguards to the freedom of expression, including the freedom to receive and impart information and ideas in an open and democratic society and the freedom and pluralism of the media.

(2)

Regulatory measures to address the dissemination of terrorist content online should be complemented by Member State strategies to address terrorism, including the strengthening of media literacy and critical thinking, the development of alternative and counter narratives, and other initiatives to reduce the impact of and vulnerability to terrorist content online, as well as investment in social work, deradicalisation initiatives and engagement with affected communities, in order to achieve the sustained prevention of radicalisation in society.

(3)

Addressing terrorist content online, which is part of a broader problem of illegal content online, requires a combination of legislative, non-legislative and voluntary measures based on collaboration between authorities and hosting service providers, in a manner that fully respects fundamental rights.

(4)

Hosting service providers active on the internet play an essential role in the digital economy by connecting business and citizens and by facilitating public debate and the distribution and receipt of information, opinions and ideas, contributing significantly to innovation, economic growth and job creation in the Union. However, the services of hosting service providers are in certain cases abused by third parties for the purpose of carrying out illegal activities online. Of particular concern is the misuse of those services by terrorist groups and their supporters to disseminate terrorist content online in order to spread their message, to radicalise and recruit followers, and to facilitate and direct terrorist activity.

(5)

While not the only factor, the presence of terrorist content online has proven to be a catalyst for the radicalisation of individuals which can lead to terrorist acts, and therefore has serious negative consequences for users, citizens and society at large as well as for the online service providers hosting such content, since it undermines the trust of their users and damages their business models. In light of their central role and the technological means and capabilities associated with the services they provide, hosting service providers have particular societal responsibilities to protect their services from misuse by terrorists and to help address terrorist content disseminated through their services online, while taking into account the fundamental importance of the freedom of expression, including the freedom to receive and impart information and ideas in an open and democratic society.

(6)

Efforts at Union level to counter terrorist content online commenced in 2015 through a framework of voluntary cooperation between Member States and hosting service providers. Those efforts need to be complemented by a clear legislative framework in order to further reduce the accessibility of terrorist content online and adequately address a rapidly evolving problem. The legislative framework seeks to build on voluntary efforts, which were reinforced by Commission Recommendation (EU) 2018/334 (3), and responds to calls made by the European Parliament to strengthen measures to address illegal and harmful content online in line with the horizontal framework established by Directive 2000/31/EC of the European Parliament and of the Council (4), as well as by the European Council to improve the detection and removal of content online that incites terrorist acts.

(7)

This Regulation should not affect the application of Directive 2000/31/EC. In particular, any measures taken by a hosting service provider in compliance with this Regulation, including any specific measures, should not in themselves lead to that hosting service provider losing the benefit of the liability exemption provided for in that Directive. Moreover, this Regulation does not affect the powers of national authorities and courts to establish the liability of hosting service providers where the conditions set out in that Directive for liability exemption are not met.

(8)

In the event of a conflict between this Regulation and Directive 2010/13/EU of the European Parliament and of the Council (5) in relation to provisions governing audiovisual media services as defined in point (a) of Article 1(1) of that Directive, Directive 2010/13/EU should prevail. This should leave the obligations under this Regulation, in particular with regard to video-sharing platform providers, unaffected.

(9)

This Regulation should set out rules to address the misuse of hosting services for the dissemination of terrorist content online in order to guarantee the smooth functioning of the internal market. Those rules should fully respect the fundamental rights protected in the Union and, in particular, those guaranteed by the Charter of Fundamental Rights of the European Union (the ‘Charter’).

(10)

This Regulation seeks to contribute to the protection of public security while establishing appropriate and robust safeguards to ensure the protection of fundamental rights, including the right to respect for private life, to the protection of personal data, to freedom of expression, including the freedom to receive and impart information, the freedom to conduct a business, and to an effective remedy. Moreover, any discrimination is prohibited. Competent authorities and hosting service providers should only adopt measures which are necessary, appropriate and proportionate within a democratic society, taking into account the particular importance accorded to the freedom of expression and information and the freedom and pluralism of the media, which constitute the essential foundations of a pluralist and democratic society and are values on which the Union is founded. Measures affecting the freedom of expression and information should be strictly targeted to address the dissemination of terrorist content online, while respecting the right to lawfully receive and impart information, taking into account the central role of hosting service providers in facilitating public debate and the distribution and receipt of facts, opinions and ideas, in accordance with the law. Effective online measures to address terrorist content online and the protection of freedom of expression and information are not conflicting but complementary and mutually reinforcing goals.

(11)

In order to provide clarity about the actions that both hosting service providers and competent authorities are to take to address the dissemination of terrorist content online, this Regulation should establish a definition of ‘terrorist content’ for preventative purposes, consistent with the definitions of relevant offences under Directive (EU) 2017/541 of the European Parliament and of the Council (6). Given the need to address the most harmful terrorist propaganda online, that definition should cover material that incites or solicits someone to commit, or to contribute to the commission of, terrorist offences, solicits someone to participate in activities of a terrorist group, or glorifies terrorist activities including by disseminating material depicting a terrorist attack. The definition should also include material that provides instruction on the making or use of explosives, firearms or other weapons or noxious or hazardous substances, as well as chemical, biological, radiological and nuclear (CBRN) substances, or on other specific methods or techniques, including the selection of targets, for the purpose of committing or contributing to the commission of terrorist offences. Such material includes text, images, sound recordings and videos, as well as live transmissions of terrorist offences, that cause a danger of further such offences being committed. When assessing whether material constitutes terrorist content within the meaning of this Regulation, competent authorities and hosting service providers should take into account factors such as the nature and wording of statements, the context in which the statements were made and their potential to lead to harmful consequences in respect of the security and safety of persons. The fact that the material was produced by, is attributable to or is disseminated on behalf of a person, group or entity included in the Union list of persons, groups and entities involved in terrorist acts and subject to restrictive measures should constitute an important factor in the assessment.

(12)

Material disseminated for educational, journalistic, artistic or research purposes or for awareness-raising purposes against terrorist activity should not be considered to be terrorist content. When determining whether the material provided by a content provider constitutes ‘terrorist content’ as defined in this Regulation, account should be taken, in particular, of the right to freedom of expression and information, including the freedom and pluralism of the media, and the freedom of the arts and sciences. Especially in cases where the content provider holds editorial responsibility, any decision as to the removal of the disseminated material should take into account the journalistic standards established by press or media regulation in accordance with Union law, including the Charter. Furthermore, the expression of radical, polemic or controversial views in the public debate on sensitive political questions should not be considered to be terrorist content.

(13)

In order to effectively address the dissemination of terrorist content online, while ensuring respect for the private life of individuals, this Regulation should apply to providers of information society services which store and disseminate to the public information and material provided by a user of the service on request, irrespective of whether the storing and dissemination to the public of such information and material is of a mere technical, automatic and passive nature. The concept of ‘storage’ should be understood as holding data in the memory of a physical or virtual server. Providers of ‘mere conduit’ or ‘caching’ services, as well as of other services provided in other layers of the internet infrastructure, which do not involve storage, such as registries and registrars, as well as providers of domain name systems (DNS), payment or distributed denial of service (DdoS) protection services, should therefore fall outside the scope of this Regulation.

(14)

The concept of ‘dissemination to the public’ should entail the making available of information to a potentially unlimited number of persons, namely making the information easily accessible to users in general, without requiring further action by the content provider, irrespective of whether those persons actually access the information in question. Accordingly, where access to information requires registration or admittance to a group of users, that information should be considered to be disseminated to the public only where users seeking to access the information are automatically registered or admitted without a human decision or selection of whom to grant access. Interpersonal communication services, as defined in point (5) of Article 2 of Directive (EU) 2018/1972 of the European Parliament and of the Council (7), such as emails or private messaging services, should fall outside the scope of this Regulation. Information should be considered to be stored and disseminated to the public within the meaning of this Regulation only where such activities are performed upon direct request of the content provider. Consequently, providers of services, such as cloud infrastructure, which are provided at the request of parties other than the content providers and only indirectly benefit the latter, should not be covered by this Regulation. This Regulation should cover, for example, providers of social media, video, image and audio-sharing services, as well as file-sharing services and other cloud services, insofar as those services are used to make the stored information available to the public at the direct request of the content provider. Where a hosting service provider offers several services, this Regulation should apply only to the services that fall within its scope.

(15)

Terrorist content is often disseminated to the public through services provided by hosting service providers established in third countries. In order to protect users in the Union and to ensure that all hosting service providers operating in the digital single market are subject to the same requirements, this Regulation should apply to all providers of relevant services offered in the Union, irrespective of the country of their main establishment. A hosting service provider should be considered offering services in the Union if it enables natural or legal persons in one or more Member States to use its services and has a substantial connection to that Member State or those Member States.

(16)

A substantial connection to the Union should exist where the hosting service provider has an establishment in the Union, its services are used by a significant number of users in one or more Member States, or its activities are targeted towards one or more Member States. The targeting of activities towards one or more Member States should be determined on the basis of all relevant circumstances, including factors such as the use of a language or a currency generally used in the Member State concerned, or the possibility of ordering goods or services from such Member State. Such targeting could also be derived from the availability of an application in the relevant national application store, from providing local advertising or advertising in a language generally used in the Member State concerned, or from the handling of customer relations such as by providing customer service in a language generally used in that Member State. A substantial connection should also be assumed where a hosting service provider directs its activities towards one or more Member States as set out in point (c) of Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (8). The mere accessibility of a hosting service provider’s website, of an email address or of other contact details in one or more Member States, taken in isolation, should not be sufficient to constitute a substantial connection. Moreover, the provision of a service with a view to mere compliance with the prohibition of discrimination laid down in Regulation (EU) 2018/302 of the European Parliament and of the Council (9) should not, on that ground alone, be considered to constitute a substantial connection to the Union.

(17)

The procedure and obligations resulting from removal orders requiring hosting service providers to remove or disable access to terrorist content, following an assessment by the competent authorities, should be harmonised. Given the speed at which terrorist content is disseminated across online services, an obligation should be imposed on hosting service providers to ensure that the terrorist content identified in the removal order is removed or access to it is disabled in all Member States within one hour of receipt of the removal order. Except for in duly justified cases of emergency, the competent authority should provide the hosting service provider with information on procedures and applicable deadlines at least 12 hours in advance of issuing for the first time a removal order to that hosting service provider. Duly justified cases of emergency occur where the removal of or disabling of access to the terrorist content later than one hour after receipt of the removal order would result in serious harm, such as in situations of an imminent threat to the life or physical integrity of a person, or when such content depicts ongoing events resulting in harm to the life or physical integrity of a person. The competent authority should determine whether cases constitute emergency cases and duly justify its decision in the removal order. Where the hosting service provider cannot comply with the removal order within one hour of its receipt, on grounds of force majeure or de facto impossibility, including for objectively justifiable technical or operational reasons, it should inform the issuing competent authority as soon as possible and comply with the removal order as soon as the situation is resolved.

(18)

The removal order should contain a statement of reasons qualifying the material to be removed or access to which is to be disabled as terrorist content and provide sufficient information for the location of that content, by indicating the exact URL and, where necessary, any other additional information, such as a screenshot of the content in question. That statement of reasons should allow the hosting service provider and, ultimately, the content provider to effectively exercise their right to judicial redress. The reasons provided should not imply the disclosure of sensitive information which could jeopardise ongoing investigations.

(19)

The competent authority should submit the removal order directly to the contact point designated or established by the hosting service provider for the purposes of this Regulation by any electronic means capable of producing a written record under conditions that allow the hosting service provider to establish the authenticity of the order, including the accuracy of the date and the time of sending and receipt thereof, such as by secured email or platforms or other secured channels, including those made available by the hosting service provider, in accordance with Union law on the protection of personal data. It should be possible for that requirement to be met through the use of, inter alia, qualified electronic registered delivery services as provided for by Regulation (EU) No 910/2014 of the European Parliament and of the Council (10). Where the hosting service provider’s main establishment is or its legal representative resides or is established in a Member State other than that of the issuing competent authority, a copy of the removal order should be submitted simultaneously to the competent authority of that Member State.

(20)

It should be possible for the competent authority of the Member State where the hosting service provider has its main establishment or where its legal representative resides or is established to scrutinise the removal order issued by competent authorities of another Member State to determine whether it seriously or manifestly infringes this Regulation or the fundamental rights enshrined in the Charter. Both the content provider and the hosting service provider should have the right to request such scrutiny by the competent authority in the Member State where the hosting service provider has its main establishment or where its legal representative resides or is established. Where such a request is made, that competent authority should adopt a decision on whether the removal order comprises such an infringement. Where that decision finds such an infringement, the removal order should cease to have legal effects. The scrutiny should be carried out swiftly so as to ensure that erroneously removed or disabled content is reinstated as soon as possible.

(21)

Hosting service providers that are exposed to terrorist content should, where they have terms and conditions, include therein provisions to address the misuse of their services for the dissemination to the public of terrorist content. They should apply those provisions in a diligent, transparent, proportionate and non-discriminatory manner.

(22)

Given the scale of the problem and the speed necessary to effectively identify and remove terrorist content, effective and proportionate specific measures are an essential element in addressing terrorist content online. With a view to reducing the accessibility of terrorist content on their services, hosting service providers exposed to terrorist content should put in place specific measures taking into account the risks and level of exposure to terrorist content as well as the effects on the rights of third parties and the public interest to information. Hosting service providers should determine what appropriate, effective and proportionate specific measure should be put in place to identify and remove terrorist content. Specific measures could include appropriate technical or operational measures or capacities such as staffing or technical means to identify and expeditiously remove or disable access to terrorist content, mechanisms for users to report or flag alleged terrorist content, or any other measures the hosting service provider considers appropriate and effective to address the availability of terrorist content on its services.

(23)

When putting in place specific measures, hosting service providers should ensure that users’ right to freedom of expression and information as well as the freedom and pluralism of the media as protected under the Charter are preserved. In addition to any requirement laid down in the law, including legislation on the protection of personal data, hosting service providers should act with due diligence and implement safeguards, where appropriate, including human oversight and verifications, to avoid any unintended or erroneous decision leading to the removal of or disabling of access to content that is not terrorist content.

(24)

The hosting service provider should report to the competent authority on the specific measures in place in order to allow that authority to determine whether the measures are effective and proportionate and whether, if automated means are used, the hosting service provider has the necessary capacity for human oversight and verification. In assessing the effectiveness and proportionality of the measures, competent authorities should take into account relevant parameters, including the number of removal orders issued to the hosting service provider, the size and economic capacity of the hosting service provider and the impact of its services in disseminating terrorist content, for example on the basis of the number of users in the Union, as well as the safeguards put in place to address the misuse of its services for the dissemination of terrorist content online.

(25)

Where the competent authority considers that the specific measures put in place are insufficient to address the risks, it should be able to require the adoption of additional appropriate, effective and proportionate specific measures. The requirement to implement such additional specific measures should not lead to a general obligation to monitor or to engage in active fact-finding within the meaning of Article 15(1) of Directive 2000/31/EC or to an obligation to use automated tools. However, it should be possible for hosting service providers to use automated tools if they consider this to be appropriate and necessary to effectively address the misuse of their services for the dissemination of terrorist content.

(26)

The obligation on hosting service providers to preserve removed content and related data should be laid down for specific purposes and limited to the period necessary. There is a need to extend the preservation requirement to related data to the extent that any such data would otherwise be lost as a consequence of the removal of the terrorist content in question. Related data can include data such as subscriber data, in particular data pertaining to the identity of the content provider, as well as access data, including data about the date and time of use by the content provider and the log-in to and log-off from the service, together with the IP address allocated by the internet access service provider to the content provider.

(27)

The obligation to preserve the content for administrative or judicial review proceedings is necessary and justified in view of the need to ensure that effective remedies are in place for content providers whose content has been removed or access to which has been disabled, as well as to ensure the reinstatement of that content, depending on the outcome of those proceedings. The obligation to preserve material for investigative or prosecutorial purposes is justified and necessary in view of the value the material could have for the purpose of disrupting or preventing terrorist activity. Therefore, the preservation of removed terrorist content for the purposes of prevention, detection, investigation and prosecution of terrorist offences should also be considered to be justified. The terrorist content and the related data should be stored only for the period necessary to allow the law enforcement authorities to check that terrorist content and decide whether it would be needed for those purposes. For the purposes of the prevention, detection, investigation and prosecution of terrorist offences, the required preservation of data should be limited to data that are likely to have a link with terrorist offences, and could therefore contribute to prosecuting terrorist offences or to preventing serious risks to public security. Where hosting service providers remove or disable access to material, in particular through their own specific measures, they should inform the competent authorities promptly of content that contains information involving an imminent threat to life or a suspected terrorist offence.

(28)

To ensure proportionality, the period of preservation should be limited to six months to allow content providers sufficient time to initiate administrative or judicial review proceedings and to enable access by law enforcement authorities to relevant data for the investigation and prosecution of terrorist offences. However, upon the request of the competent authority or court, it should be possible to extend that period for as long as necessary in cases where those proceedings are initiated but not finalised within that six-month period. The duration of the period of preservation should be sufficient to allow law enforcement authorities to preserve the necessary material in relation to investigations and prosecutions, while ensuring the balance with the fundamental rights.

(29)

This Regulation should not affect the procedural guarantees or procedural investigation measures related to access to content and related data preserved for the purposes of the investigation and prosecution of terrorist offences, as regulated under Union or national law.

(30)

The transparency of hosting service providers’ policies in relation to terrorist content is essential to enhance their accountability towards their users and to reinforce trust of citizens in the digital single market. Hosting service providers that have taken action or were required to take action pursuant to this Regulation in a given calendar year should make publicly available annual transparency reports containing information about action taken in relation to the identification and removal of terrorist content.

(31)

The competent authorities should publish annual transparency reports containing information on the number of removal orders, the number of cases where an order was not executed, the number of decisions concerning specific measures, the number of cases subject to administrative or judicial review proceedings and the number of decisions imposing penalties.

(32)

The right to an effective remedy is enshrined in Article 19 of the Treaty on European Union (TEU) and in Article 47 of the Charter. Each natural or legal person has the right to an effective remedy before the competent national court against any of the measures taken pursuant to this Regulation which can adversely affect the rights of that person. That right should include, in particular, the possibility for hosting service providers and content providers to effectively challenge the removal orders or any decisions resulting from the scrutiny of removal orders under this Regulation before a court of the Member State whose competent authority issued the removal order or took the decision, as well as for hosting service providers to effectively challenge a decision relating to specific measures or penalties before a court of the Member State whose competent authority took that decision.

(33)

Complaint procedures constitute a necessary safeguard against the erroneous removal of or disabling of access to content online where such content is protected under the freedom of expression and information. Hosting service providers should therefore establish user-friendly complaint mechanisms and ensure that complaints are dealt with expeditiously and in full transparency towards the content provider. The requirement for the hosting service provider to reinstate content that has been removed or access to which has been disabled in error should not affect the possibility for the hosting service provider to enforce its own terms and conditions.

(34)

Effective legal protection in accordance with Article 19 TEU and Article 47 of the Charter requires that content providers are able to ascertain the reasons upon which the content they provide has been removed or access to which has been disabled. For that purpose, the hosting service provider should make available to the content provider information for challenging the removal or the disabling. Depending on the circumstances, hosting service providers could replace content which has been removed or access to which has been disabled with a message indicating that the content has been removed or access to it has been disabled in accordance with this Regulation. Further information about the reasons for the removal or disabling as well as the remedies for the removal or disabling should be provided upon request of the content provider. Where the competent authorities decide that for reasons of public security, including in the context of an investigation, it is inappropriate or counterproductive to directly notify the content provider of the removal or disabling, they should inform the hosting service provider accordingly.

(35)

For the purposes of this Regulation, Member States should designate competent authorities. This should not necessarily imply the establishment of a new authority and it should be possible to entrust an existing body with the functions provided for in this Regulation. This Regulation should require the designation of authorities competent for issuing removal orders, scrutinising removal orders, overseeing specific measures and imposing penalties, while it should be possible for each Member State to decide on the number of competent authorities to be designated and whether they are administrative, law enforcement or judicial. Member States should ensure that the competent authorities fulfil their tasks in an objective and non-discriminatory manner and do not seek or take instructions from any other body in relation to the exercise of the tasks under this Regulation. This should not prevent supervision in accordance with national constitutional law. Member States should communicate the competent authorities designated under this Regulation to the Commission, which should publish online a register listing the competent authorities. That online register should be easily accessible to facilitate the swift verification of the authenticity of removal orders by the hosting service providers.

(36)

In order to avoid duplication of effort and possible interferences with investigations and to minimise the burden to the hosting service providers affected, the competent authorities should exchange information, coordinate and cooperate with each other and, where appropriate, with Europol, before issuing removal orders. When deciding whether to issue a removal order, the competent authority should give due consideration to any notification of an interference with an investigative interest (deconfliction). Where a competent authority is informed by a competent authority of another Member State of an existing removal order, it should not issue a removal order concerning the same subject matter. In implementing the provisions of this Regulation, Europol could provide support in line with its current mandate and existing legal framework.

(37)

In order to ensure the effective and sufficiently coherent implementation of specific measures taken by hosting service providers, competent authorities should coordinate and cooperate with each other with regard to the exchanges with hosting service providers as to removal orders and the identification, implementation and assessment of specific measures. Coordination and cooperation are also needed in relation to other measures to implement this Regulation, including with respect to the adoption of rules on penalties and the imposition of penalties. The Commission should facilitate such coordination and cooperation.

(38)

It is essential that the competent authority of the Member State responsible for imposing penalties is fully informed of the issuing of removal orders and of the subsequent exchanges between the hosting service provider and the competent authorities in other Member States. For that purpose, Member States should ensure appropriate and secure communication channels and mechanisms allowing the sharing of relevant information in a timely manner.

(39)

To facilitate the swift exchanges between competent authorities as well as with hosting service providers, and to avoid duplication of effort, Member States should be encouraged to make use of the dedicated tools developed by Europol, such as the current internet Referral Management application or its successors.

(40)

Referrals by Member States and Europol have proven to be an effective and swift means of increasing hosting service providers’ awareness of specific content available through their services and enabling them to take swift action. Such referrals, which are a mechanism for alerting hosting service providers of information that could be considered to be terrorist content for the provider’s voluntary consideration of the compatibility of that content with its own terms and conditions, should remain available in addition to removal orders. The final decision on whether to remove the content because it is incompatible with its terms and conditions remains with the hosting service provider. This Regulation should not affect the mandate of Europol as laid down in Regulation (EU) 2016/794 of the European Parliament and of the Council (11). Therefore, nothing in this Regulation should be understood as precluding the Member States and Europol from using referrals as an instrument to address terrorist content online.

(41)

Given the particular serious consequences of certain terrorist content online, hosting service providers should promptly inform the relevant authorities in the Member State concerned or the competent authorities of the Member State where they are established or have a legal representative of terrorist content involving an imminent threat to life or a suspected terrorist offence. In order to ensure proportionality, that obligation should be limited to terrorist offences as defined in Article 3(1) of Directive (EU) 2017/541. That obligation to inform should not imply an obligation on hosting service providers to actively seek any evidence of such imminent threat to life or a suspected terrorist offence. The Member State concerned should be understood to be the Member State with jurisdiction over the investigation and prosecution of those terrorist offences based on the nationality of the offender or of the potential victim of the offence or the target location of the terrorist act. In the case of doubt, hosting service providers should submit the information to Europol, which should provide the relevant follow-up action in accordance with its mandate, including by forwarding that information to the relevant national authorities. The competent authorities of the Member States should be allowed to use such information to take investigatory measures available under Union or national law.

(42)

Hosting service providers should designate or establish contact points to facilitate the expeditious handling of removal orders. The contact point should serve only for operational purposes. The contact point should consist of any dedicated means, in-house or outsourced, allowing for the electronic submission of removal orders and of technical or personal means allowing for the expeditious processing thereof. It is not necessary that the contact point be located in the Union. The hosting service provider should be free to make use of an existing contact point for the purpose of this Regulation, provided that the contact point is able to fulfil the functions provided for in this Regulation. With a view to ensuring that terrorist content is removed or that access thereto is disabled within one hour of receipt of a removal order, the contact points of hosting service providers exposed to terrorist content should be accessible at any time. The information on the contact point should include information about the language in which it can be addressed. In order to facilitate the communication between the hosting service providers and the competent authorities, hosting service providers are encouraged to allow for communication in one of the official languages of the Union institutions in which their terms and conditions are available.

(43)

In the absence of a general requirement for hosting service providers to ensure a physical presence within the territory of the Union, there is a need to ensure clarity under which Member State’s jurisdiction the hosting service provider offering services within the Union falls. As a general rule, the hosting service provider falls under the jurisdiction of the Member State in which it has its main establishment or in which its legal representative resides or is established. That should be without prejudice to the rules on competence established for the purpose of removal orders and decisions resulting from the scrutiny of removal orders under this Regulation. With regard to a hosting service provider which has no establishment in the Union and does not designate a legal representative, any Member State should, nevertheless, have jurisdiction and therefore be able to impose penalties, provided that the principle of ne bis in idem is respected.

(44)

Hosting service providers that are not established in the Union should designate in writing a legal representative in order to ensure compliance with and the enforcement of the obligations under this Regulation. It should be possible for hosting service providers to designate, for the purposes of this Regulation, a legal representative already designated for other purposes, provided that that legal representative is able to fulfil the functions provided for in this Regulation. The legal representative should be empowered to act on behalf of the hosting service provider.

(45)

Penalties are necessary to ensure the effective implementation of this Regulation by hosting service providers. Member States should adopt rules on penalties, which can be of an administrative or criminal nature, as well as, where appropriate, fining guidelines. Non-compliance in individual cases could be subject to penalties while respecting the principles of ne bis in idem and of proportionality and ensuring that such penalties take account of systematic failure. Penalties could take different forms, including formal warnings in the case of minor infringements or financial penalties in relation to more severe or systematic infringements. Particularly severe penalties should be imposed in the event that the hosting service provider systematically or persistently fails to remove or disable access to terrorist content within one hour of receipt of a removal order. In order to ensure legal certainty, this Regulation should set out which infringements are subject to penalties and which circumstances are relevant for assessing the type and level of such penalties. When determining whether to impose financial penalties, due account should be taken of the financial resources of the hosting service provider. Moreover, the competent authority should take into account whether the hosting service provider is a start-up or a micro, small or medium-sized enterprise as defined in Commission Recommendation 2003/361/EC (12). Additional circumstances, such as whether the conduct of the hosting service provider was objectively imprudent or reprehensible or whether the infringement has been committed negligently or intentionally, should be taken into account. Member States should ensure that penalties imposed for the infringement of this Regulation do not encourage the removal of material which is not terrorist content.

(46)

The use of standardised templates facilitates cooperation and the exchange of information between competent authorities and hosting service providers, allowing them to communicate more quickly and effectively. It is particularly important to ensure expeditious action following the receipt of a removal order. Templates reduce translation costs and contribute to a higher standard of the process. Feedback templates allow for a standardised exchange of information and are particularly important where hosting service providers are unable to comply with removal orders. Authenticated submission channels can guarantee the authenticity of the removal order, including the accuracy of the date and the time of sending and receipt of the order.

(47)

In order to allow for a swift amendment, where necessary, of the content of the templates to be used for the purposes of this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amending the annexes to this Regulation. In order to be able to take into account the development of technology and of the related legal framework, the Commission should also be empowered to adopt delegated acts to supplement this Regulation with technical requirements for the electronic means to be used by competent authorities for the transmission of removal orders. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (13). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(48)

Member States should collect information on the implementation of this Regulation. It should be possible for Member States to make use of the hosting service providers’ transparency reports and complement them, where necessary, with more detailed information, such as their own transparency reports pursuant to this Regulation. A detailed programme for monitoring the outputs, results and impacts of this Regulation should be established in order to inform an evaluation of the implementation of this Regulation.

(49)

Based on the findings and conclusions in the implementation report and the outcome of the monitoring exercise, the Commission should carry out an evaluation of this Regulation within three years of the date of its entry into force. The evaluation should be based on the criteria of efficiency, necessity, effectiveness, proportionality, relevance, coherence and Union added value. It should assess the functioning of the different operational and technical measures provided for by this Regulation, including the effectiveness of measures to enhance the detection, identification and removal of terrorist content online, the effectiveness of safeguard mechanisms as well as the impacts on potentially affected fundamental rights, such as the freedom of expression and information, including the freedom and pluralism of the media, the freedom to conduct a business, the right to private life and the protection of personal data. The Commission should also assess the impact on potentially affected interests of third parties.

(50)

Since the objective of this Regulation, namely ensuring the smooth functioning of the digital single market by addressing the dissemination of terrorist content online, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,

(1)

Article 325 of the Treaty on the Functioning of the European Union (TFEU) requires the Union and the Member States to counter fraud and any other illegal activities affecting the financial interests of the Union. The Union should support activities in those fields.

(2)

Support previously given for such activities through Decision No 804/2004/EC of the European Parliament and of the Council (3) (Hercule programme), amended and extended by Decision No 878/2007/EC of the European Parliament and of the Council (4) (Hercule II programme), repealed and replaced by Regulation (EU) No 250/2014 of the European Parliament and of the Council (5) (Hercule III programme), has made it possible to enhance the activities undertaken by the Union and the Member States in countering fraud, corruption and any other illegal activities affecting the financial interests of the Union.

(3)