(1)

On 7 May 2015, the Council adopted Regulation (EU) 2015/735.

(2)

In accordance with Article 22(4) of Regulation (EU) 2015/735, the Council has reviewed the list of persons subject to restrictive measures set out in Annex II to that Regulation.

(3)

The Council has concluded that restrictive measures against one person listed in Annex II to Regulation (EU) 2015/735 should be maintained and that the entry for that person should be updated and renumbered.

(4)

Regulation (EU) 2015/735 should therefore be amended accordingly,

(1)

Commission Delegated Regulation (EU) 2017/2417 (2) specifies, among others, the classes of over-the-counter (OTC) derivatives denominated in EURO (EUR), the Pound Sterling (GBP) and US dollar (USD) that are subject to the derivatives trading obligation referred to in Article 28 of Regulation (EU) No 600/2014. The classes denominated in GBP and USD reference the London Inter-Bank Offered Rate (LIBOR) benchmarks.

(2)

ICE Benchmark Administration (IBA), the administrator for LIBOR, announced that GBP and JPY LIBOR settings will cease publication at the end of 2021, whereas the publication of certain settings of USD LIBOR will cease in June 2023. On 5 March 2021, the United Kingdom Financial Conduct Authority confirmed that all LIBOR settings will either cease to be provided by any administrator or no longer be representative. In addition, the Commission, the European Central Bank in its banking supervisory capacity (ECB Banking Supervision), the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA) issued a joint statement to strongly encourage counterparties to stop using any of the LIBOR settings, including USD LIBOR, as a reference rate in new contracts as soon as practicable and in any event by 31 December 2021.

(3)

After 31 December 2021, counterparties will hence no longer be able to enter into OTC interest rate derivatives contracts referencing GBP LIBOR as that benchmark will have ceased and counterparties are expected to no longer enter into OTC interest rate derivatives contracts referencing USD LIBOR. As a result, the remaining traded volumes in those derivatives are expected to be non-existent to very low, as is their liquidity. The same holds for the volume of trades in those derivatives that will be cleared by central counterparties (CCPs) or traded on trading venues and decreasing volume or liquidity is expected for derivatives referencing USD LIBOR. Those events warrant a change in the scope of the clearing obligation and a subsequent amendment in Commission Delegated Regulation (EU) 2015/2205 (3), whereby derivatives referencing GBP LIBOR and USD LIBOR are to be removed from the scope of the clearing obligation. As a consequence, the classes of derivatives currently in scope of the derivatives trading obligation that reference GBP LIBOR or USD LIBOR will no longer meet the condition laid down in Article 32(1) of Regulation (EU) No 600/2014 for making derivatives subject to the derivatives trading obligation as of 3 January 2022. Those classes of derivatives therefore need to be removed from the scope of the trading obligation.

(4)

As the planned cessation of GBP LIBOR is scheduled for the end of 2021, and regulatory expectations expressed by the Commission, ECB Banking Supervision, ESMA and EBA are for counterparties to stop using any of the LIBOR settings as a reference rate in new contracts as soon as practicable and in any event by 31 December 2021, the move away from LIBOR-based interest rate derivatives is expected to take place swiftly. Instead, after 31 December 2021, counterparties are expected to trade or clear other OTC interest rate derivatives, in particular OTC interest rate derivatives, referencing the risk-free rates for GBP or USD. This Regulation should thus enter into force without delay after its publication.

(5)

Delegated Regulation (EU) 2017/2417 should therefore be amended accordingly.

(6)

This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Securities and Markets Authority (ESMA).

(7)

ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Security and Markets Stakeholder Group established by Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (4),

(1)

Commission Delegated Regulation (EU) 2015/2205 (2) specifies, among others, the classes of over-the-counter (OTC) interest rate derivatives denominated in Euro (EUR), Pound Sterling (GBP), Japanese Yen (JPY) and US Dollar (USD) that are subject to the clearing obligation. Those classes include one class denominated in EUR that references the Euro Overnight Index Average (EONIA) rate as well as several classes denominated in GBP, JPY or USD that reference the London Inter-Bank Offered Rate (LIBOR), whereas EONIA and LIBOR are two benchmarks that are due to cease.

(2)

The European Money Markets Institute, the administrator for EONIA, communicated that the cessation of EONIA will take place at the end of 2021. Similarly, the ICE Benchmark Administrator, the administrator for LIBOR, communicated that the cessation of GBP LIBOR, JPY LIBOR and certain fixings of USD LIBOR will also take place at the end of 2021, whereas the publication of all remaining settings of USD LIBOR will cease in June 2023. On 5 March 2021, the Financial Conduct Authority from the United Kingdom confirmed that all LIBOR settings will indeed either cease to be provided by any administrator or no longer be representative. In addition, the Commission, the European Central Bank in its banking supervisory capacity (ECB Banking Supervision), the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA) issued a joint statement to strongly encourage counterparties to stop using any of the LIBOR settings, including USD LIBOR, as a reference rate in new contracts as soon as practicable and in any event by 31 December 2021.

(3)

After 31 December 2021, counterparties will hence no longer be able to enter into OTC interest rate derivatives referencing EONIA, GBP LIBOR or JPY LIBOR as those benchmarks will have ceased or are expected to no longer enter into OTC interest rate derivatives referencing USD LIBOR. On that date, there will thus be no volume nor liquidity in derivatives referencing EONIA, GBP LIBOR or JPY LIBOR and that those trades will also not be cleared by central counterparties (CCPs). On that same date, there should also not be any material liquidity in derivatives referencing USD LIBOR. Therefore, the classes of derivatives currently in scope of the clearing obligation and that are referencing EONIA, GBP LIBOR or JPY LIBOR will no longer meet two of the conditions to be subject to the clearing obligation set out in Regulation (EU) No 648/2012, i.e. to have a sufficient level of liquidity and to be cleared by an authorised or recognised CCP, while the classes of derivatives currently in scope of the clearing obligation and that are referencing USD LIBOR will no longer meet one of the conditions to be subject to the clearing obligation set out in Regulation (EU) No 648/2012, i.e. to have a sufficient level of liquidity. It follows that those classes should be removed from the scope of the clearing obligation.

(4)

Regulators and market participants have been working on replacement rates for those currencies, and in particular on the development of new risk-free rates, which are now being used as benchmarks in financial instruments and financial contracts. In particular, the euro short-term rate (€STR), the Secured Overnight Financing Rate (SOFR), the Sterling Over Night Index Average (SONIA) and the Tokyo Overnight Average Rate (TONA) risk-free rates are produced for EUR, USD, GBP and JPY respectively. More specifically with respect to the OTC derivative market, it now means that OTC interest rate derivative contracts referencing €STR, SOFR, SONIA and TONA are being traded by counterparties and are being cleared at certain CCPs.

(5)

ESMA has been notified of the classes of OTC interest rate derivatives referencing €STR, SOFR, SONIA or TONA that certain CCPs have been authorised to clear. For each of those classes ESMA has assessed the criteria that are essential for subjecting them to the clearing obligation, including the level of standardisation, the volume and liquidity, and the availability of pricing information. With the overarching objective of reducing systemic risk, ESMA has determined the classes of OTC interest rate derivatives referencing some of those risk-free rates that should be subject to the clearing obligation in accordance with the procedure set out in Regulation (EU) No 648/2012. Those classes should be therefore included in the scope of the clearing obligation.

(6)

In general, different counterparties need different periods of time for putting in place the necessary arrangements to start clearing their OTC interest rate derivatives subject to the clearing obligation. However, in this case, counterparties have had time to prepare for the benchmark transition and for the planned cessation of EONIA, EUR LIBOR, GBP LIBOR or JPY LIBOR taking place at the end of 2021, including with respect to their clearing arrangements. For counterparties already subject to the clearing obligation and clearing OTC interest rate derivatives denominated in EUR or GBP, clearing the classes referencing the new risk-free rates in those currencies does not require significant changes, if any at all, to their clearing contracts or processes. Indeed, when counterparties have clearing arrangements in place to clear OTC interest rate derivatives denominated in EUR or GBP, then clearing OTC interest rate derivatives referencing the risk-free rates in those currencies does not require establishing and implementing brand new clearing arrangements as was the case when they first started clearing OTC interest rate derivatives denominated in those currencies. Because clearing derivatives referencing the new risk-free rates is part of a bigger implementation preparation to transition away from EONIA and LIBOR and on to new benchmarks, there is no need to introduce an additional phase-in in order to ensure an orderly and timely implementation of that obligation. The changes made to introduce the new classes of OTC interest rate derivatives referencing the risk-free rates and denominated in EUR and GBP should start to apply on the date of entry into force of this Regulation.

(7)

Following the joint statement from the Commission, ESMA, ECB Banking Supervision and EBA to strongly encourage counterparties to stop using any of the LIBOR settings as a reference rate in new contracts as soon as practicable and in any event by 31 December 2021, counterparties have had to plan for the end of when they could reference USD LIBOR, including with respect to their clearing arrangements. The same considerations with regards to the ability of counterparties having clearing arrangements in place to clear OTC interest rate derivatives denominated in a certain currency to adapt them rather with a rather short turnaround time in order to clear OTC interest rate derivatives referencing the risk-free rates in that same currency also apply to USD, but some additional elements mean that their preparations are less advanced for USD. In particular, CCPs have not yet communicated when they will convert the currently cleared OTC interest rate derivatives referencing USD LIBOR into OTC interest rate derivatives referencing SOFR and it is not yet clear either how mandatory clearing will be adapted in the domestic market for these derivatives. This additional complexity means that counterparties need more time to prepare for the clearing obligation of OTC interest rate derivatives referencing the USD risk-free rate and thus that there is a need to introduce an additional phase-in in order to ensure an orderly and timely implementation of that obligation. The changes made to introduce the new class of OTC interest rate derivatives referencing the risk-free rate denominated in USD should start to apply three months after the date of entry into force of this Regulation.

(8)

The planned cessation of EONIA, GBP LIBOR and JPY LIBOR is scheduled for the end of 2021 such that it will not be possible to trade or clear OTC interest rate derivatives referencing those benchmarks as of 3 January 2022 onwards. Similarly, following the joint statement from the Commission, ESMA, ECB Banking Supervision and EBA to strongly encourage counterparties to stop using any of the LIBOR settings as a reference rate in new contracts as soon as practicable and in any event by 31 December 2021, counterparties will be expected to not trade or clear OTC interest rate derivatives referencing USD LIBOR as of 3 January 2022 onwards. Instead, from 3 January 2022, counterparties will trade or clear other OTC interest rate derivatives, in particular OTC interest rate derivatives referencing the risk-free rates. This Regulation should thus enter into force without delay after its publication.

(9)

Delegated Regulation (EU) 2015/2205 should therefore be amended accordingly.

(10)

This Regulation is based on the draft regulatory technical standards submitted to the Commission by ESMA.

(11)

ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits, requested the advice of the Security and Markets Stakeholder Group established by Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (3), and consulted the European Systemic Risk Board,

(1)

On 21 December 2014, European Chloropicrin Group (ECG) submitted to the United Kingdom (‘the rapporteur Member State’) an application for the approval of the active substance chloropicrin pursuant to Article 7(1) of Regulation (EC) No 1107/2009.

(2)

Pursuant to Article 9(3) of Regulation (EC) No 1107/2009, the rapporteur Member State notified the applicant, the other Member States, the Commission and the European Food Safety Authority (‘the Authority’) of the admissibility of the application on 18 June 2014.

(3)

For that active substance, the effects on human and animal health and the environment have been assessed, pursuant to Article 11(2) and (3) of Regulation (EC) No 1107/2009, for the use proposed by the applicant. The rapporteur Member State submitted a draft assessment report to the Commission and the Authority on 12 December 2017.

(4)

Pursuant to Article 12(1) of that Regulation, the Authority circulated the draft assessment report received from the rapporteur Member State to the applicant and the other Member States and organised a public consultation on it.

(5)

Pursuant to Article 12(3) of Regulation (EC) No 1107/2009, the Authority requested that the applicant supply additional information to the Member States, the Commission and the Authority.

(6)

During the peer review process, following the United Kingdom’s notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union, Italy took over the responsibility for this active substance as the rapporteur Member State in June 2019.

(7)

The assessment of the additional information by the rapporteur Member State was submitted to the Authority in the form of an updated draft assessment report.

(8)

The draft assessment report was reviewed by the Member States and the Authority. The Authority presented to the Commission its conclusion (2) on the risk assessment of the active substance chloropicrin on 30 January 2020.

(9)

In its conclusion, the Authority indicated that, based on the available information, it could not finalise the risk assessment for consumers, operators, workers, bystanders and residents and identified potential concerns for groundwater, soil macro-organisms and micro-organisms and soil dwelling non-target arthropods.

(10)

In addition, the assessment of the risks to aquatic organisms, to bees, to foliar-dwelling non-target arthropods, to earthworms and non-target terrestrial plants could not be finalised.

(11)

The Commission invited the applicant to submit its comments on the conclusion of the Authority and, in accordance with Article 13(1) of Regulation (EC) No 1107/2009, on the draft review report. The applicant submitted its comments, which have been carefully examined.

(12)

The Commission presented a review report and a draft Regulation regarding the non-approval of the active substance chloropicrin to the Standing Committee on Plants, Animals, Food and Feed on 22 October 2021. The Commission observed that concerns identified by the Authority could not be eliminated and that consequently it could not be concluded that the approval criteria are satisfied.

(13)

By letter of 18 January 2022, the applicant withdrew its application for the approval of chloropicrin. Therefore, chloropicrin should not be approved.

(14)

This Regulation does not prevent the submission of a further application for the approval of chloropicrin pursuant to Article 7 of Regulation (EC) No 1107/2009.

(15)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

(1)

The accounts of the European Central Bank (ECB) and of the national central banks of the Member States whose currency is the euro are to be audited by independent external auditors recommended by the Governing Council of the ECB and approved by the Council of the European Union.

(2)

The mandate of the current external auditors of the Bank of Greece, Deloitte Certified Public Accountants S.A., will end following the audit for the financial year 2021. It is therefore necessary to appoint external auditors from the financial year 2022.

(3)

The Bank of Greece has selected Ernst & Young (Hellas) Certified Auditors Accountants S.A. as its external auditors for the financial years 2022 to 2026, with the option to extend the mandate to the financial years 2027 and 2028.

(4)

The Governing Council of the ECB recommended that Ernst & Young (Hellas) Certified Auditors Accountants S.A. be appointed as the external auditors of the Bank of Greece for the financial years 2022 to 2026, with the option to extend the mandate to the financial years 2027 and 2028.

(5)

Following the recommendation of the Governing Council of the ECB, Council Decision 1999/70/EC (2) should be amended accordingly,

(1)

On 6 June 2019, the Council adopted Decision (CFSP) 2019/938 (1).

(2)

Decision (CFSP) 2019/938 provided for a 36-month implementation period for the activities referred to in Article 1 thereof from the date of the conclusion of the financing agreement referred to in Article 3(3) thereof.

(3)

The implementing Partner, the United Nations Institute for Disarmament Research, requested a 12-month extension of that implementation period until 10 July 2023, considering the delay in the implementation of project activities under Decision (CFSP) 2019/938 due to the impact of the COVID-19 pandemic.

(4)

The continuation of the activities referred to in Article 1 of Decision (CFSP) 2019/938 until 10 July 2023 does not have any implication as regards financial resources until 10 July 2023.

(5)

Decision (CFSP) 2019/938 should be amended accordingly,

(1)

On 17 May 2019, the Council adopted Decision (CFSP) 2019/797 (1).

(2)

Decision (CFSP) 2019/797 applies until 18 May 2022. On the basis of a review of that Decision, the validity of that Decision should be extended until 18 May 2025 and the restrictive measures set out therein should be extended until 18 May 2023.

(3)

Decision (CFSP) 2019/797 should therefore be amended accordingly,

(1)

On 7 May 2015, the Council adopted Decision (CFSP) 2015/740.

(2)

In accordance with Article 12(2) of Decision (CFSP) 2015/740, the Council has reviewed the list of persons subject to restrictive measures set out in Annex II to that Decision.

(3)

The Council has concluded that restrictive measures against one person listed in Annex II to Decision (CFSP) 2015/740 should be maintained and that the entry for that person should be updated and renumbered.

(4)

Decision (CFSP) 2015/740 should therefore be amended accordingly,

(1)

On 6 August 1999, the Commission decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘TFEU’) in respect of aid paid on the basis of the initial public service contracts (‘the initial Conventions’) to the six companies that formed the Tirrenia Group at the time (2).

(2)

During the investigation phase, the Italian authorities requested the Tirrenia Group case to be divided, so that priority could be given to reaching a final decision concerning only Tirrenia di Navigazione (‘Tirrenia’). This request was motivated by the Italian authorities’ plan to privatise the Group, beginning with Tirrenia, and their intention to speed up the process in relation to that company.

(3)

The Commission acceded to the Italian authorities’ request, and by Commission Decision 2001/851/EC (3) it closed the procedure initiated in respect of the aid awarded to Tirrenia. The aid was declared compatible subject to certain commitments by the Italian authorities.

(4)

By Commission Decision 2005/163/EC (4) (‘the 2004 Decision’), the Commission declared the compensation granted to the Tirrenia Group companies other than Tirrenia (5) to be partially compatible with the internal market, partially compatible conditional upon the respect of certain commitments by the Italian authorities, and partially incompatible with the internal market. The 2004 Decision was based on accounting data spanning from 1992 to 2001 and included conditions to ensure the compatibility of the compensation throughout the entire duration of the initial Conventions (i.e., until 2008).

(5)

By Judgment of 4 March 2009 in cases T-265/04, T-292/04 and T-504/04 (6) the General Court annulled the 2004 Decision.

(6)

On 5 October 2011, by Commission Decision C(2011)6961 (the ‘2011 Decision’) (7), the Commission opened the formal investigation procedure in respect of various measures adopted by Italy in favour of the companies of the former Tirrenia Group. The investigation concerned, inter alia, the compensations granted to Saremar – Sardegna Regionale Marittima (‘Saremar’) for the operation of a number of maritime routes as of 1 January 2009 and a number of other measures granted to that company.

(7)

The 2011 Decision was published in the Official Journal of the European Union. The Commission invited interested parties to submit their comments on the measures under investigation.

(8)

On 7 November 2012, the Commission extended the investigation procedure, inter alia, in respect of certain support measures granted by the Region of Sardinia to Saremar. On 19 December 2012, the Commission adopted an amended version (8) of that Decision (Commission Decision C(2012) 9452, ‘the 2012 Decision’).

(9)

The 2012 Decision was published in the Official Journal of the European Union (9). The Commission invited interested parties to submit their comments on the measures under investigation.

(10)

By letter of 14 May 2013, the Region of Sardinia asked the Commission to separate the measures concerning Saremar from the formal investigation procedure opened by the 2011 and 2012 Decisions and to give priority to those measures, notably in view of the imminent privatisation of the company.

(11)

The Commission acceded to the Sardinian authorities’ request and, by Commission Decision (EU) 2018/261 (10) (‘the 2014 Decision’), it closed the formal investigation procedure in respect of certain measures granted by the Region of Sardinia in favour of Saremar. Of the five measures adopted by the Region of Sardinia in favour of Saremar, four were assessed in the 2014 Decision, with the exception being the ‘Bonus Sardo – Vacanza’ project (see recital 29 of this Decision).

(12)

Saremar and the Region of Sardinia launched actions for annulment of the 2014 Decision at the General Court. The General Court dismissed these actions by its Judgments of 6 April 2017 in cases T-219/14 (11) and T-220/14 (12). Neither Saremar nor the Region of Sardinia lodged any appeals to those judgments, which are now final.

(13)

By Commission Decision (EU) 2020/1411 (13), the Commission concluded the investigation on the Tirrenia Group companies other than Tirrenia for the period 1992-2008. The Commission concluded that the aid granted for the provision of maritime cabotage transport services constituted existing aid, while the aid granted for the provision of international maritime transport services was compatible with the 2011 services of general economic interest (‘SGEI’) Framework (the ‘2011 SGEI Framework’) (14).

(14)

By Commission Decision (EU) 2020/1412 (15), the Commission closed the formal investigation procedure as concerns the measures granted to Tirrenia and its acquirer CIN, for the period 2009-2020.

(15)

By Commission Decision (EU) 2021/4268 (16) and Commission Decision (EU) 2021/4271 (17), the Commission closed the formal investigation procedure as concerns the measures granted to Siremar and Toremar and their acquirers, for the period from 2009 onwards.

(16)

This Decision only concerns measures in favour of Saremar identified in the 2011 Decision and the 2012 Decision that were not covered by the 2014 Decision, as explained in recitals 28 and 29. The Commission will address all the remaining measures subject to the 2011 Decision and the 2012 Decision, under the case numbers SA.32014, SA.32015 and SA.32016, in separate decisions. In particular, those remaining measures all concern other companies of the former Tirrenia Group (i.e. Caremar and Laziomar).

(17)

The Tirrenia Group was originally owned by the Italian State through the company Finanziaria per i Settori Industriale e dei Servizi S.p.A (‘Fintecna’) (18) and included six companies, namely Tirrenia, Adriatica, Caremar, Saremar, Siremar and Toremar. These companies provided maritime transport services under separate public service contracts concluded in 1991 with the Italian State, in force for 20 years between January 1989 and December 2008. Fintecna held 100 % of Tirrenia’s share capital. Tirrenia wholly owned Adriatica, Caremar, Siremar, Saremar and Toremar (together, ‘the regional companies’). Adriatica, which used to operate a number of routes between Italy and Albania, Croatia, Greece and Montenegro, merged with Tirrenia in 2004.

(18)

The purpose of the initial Conventions was to guarantee the regularity and reliability of a large number of maritime transport services, chiefly connecting mainland Italy with Sicily, Sardinia and other smaller Italian islands. To that effect, the Italian State granted financial support in the form of subsidies paid directly to each of the companies of the Tirrenia Group.

(19)

Saremar operated certain purely local cabotage connections between Sardinia and the islands to its north-east and south-west, and an international connection with Corsica, under the initial Convention with the State.

(20)

The initial Conventions, including the one applicable to Saremar, were prolonged three times.

(21)

Firstly, Article 26 of Decree Law No 207 of 30 December 2008, converted into Law No 14 of 27 February 2009, laid down the prolongation of the initial Conventions, which were initially due to expire on 31 December 2008, until 31 December 2009.

(22)

Secondly, Article 19ter of Decree Law No 135 of 25 September 2009 (‘Decree Law 135/2009’), converted into Law No 166 of 20 November 2009 (‘the 2009 Law’), laid down that, in view of the privatisation of the Tirrenia Group companies, the shareholding of the regional companies, excluding Siremar, would be transferred from the parent company Tirrenia as follows:

(23)

The 2009 Law also specified that new Conventions would be agreed between the Italian State and Tirrenia and Siremar by 31 December 2009. Likewise, the regional services would be enshrined in new Public Service Contracts, to be agreed between Saremar, Toremar, and Caremar and the respective regional authorities by 31 December 2009 (Sardinia and Tuscany) and 28 February 2010 (Campania and Lazio). The new Conventions or Public Service Contracts would be put up for tender jointly with the companies themselves. The new owners of each of these companies would then sign the respective Convention or Public Service Contract (20).

(24)

To that end, the 2009 Law further prolonged the initial Conventions, including the one applicable to Saremar, from 1 January 2010 until 30 September 2010.

(25)

Finally, Law No 163 of 1 October 2010 converting Decree-Law No 125 of 5 August 2010 (the ‘2010 Law’) laid down the further prolongation of the initial Conventions, including the one applicable to Saremar, from 1 October 2010 until the completion of the privatisation processes of Tirrenia and Siremar.

(26)

By its 2014 Decision, the Commission declared two aid measures granted to Saremar incompatible with the internal market, while two other measures were found not to constitute State aid within the meaning of Article 107(1) TFEU. In this context, the Commission ordered the recovery of:

(27)

Italy has implemented the 2014 Decision, even if certain procedures remain pending at the time of adoption of this decision. In particular:

(28)

The following measures have been subject to assessment in the formal investigation procedure opened by the 2011 and 2012 Decisions:

(29)

By its 2014 Decision, the Commission closed the formal investigation procedure as concerns four of the five measures adopted by the Region of Sardinia in favour of Saremar, referred to above as measure 7. However, it did not conclude on a fifth measure: the Bonus Sardo – Vacanza project (23). Therefore, for Saremar, the Commission has not yet taken a position on the compatibility of measures 1, 3, 4, 5, 6 and the Bonus Sardo – Vacanza project with the internal market.

(30)

The Commission recalls that the system of ex ante scrutiny of new aid measures by the Commission provided in Article 108(3) TFEU is designed to avoid the granting of aid that is incompatible with the internal market (24). As far as recovery of incompatible aid is concerned, the Court has consistently held that the Commission’s power to order Member States to recover aid regarded by the Commission as being incompatible with the internal market is aimed at removing the distortion of competition caused by the competitive advantage which the recipient of the aid has enjoyed, thereby re-establishing the situation that existed before that aid was paid (25). If a company cannot repay the aid, then the implementation of recovery requires the Member State concerned to bring about the liquidation of that company (26), i.e. the cessation of its activities and the sale of its assets under market conditions.

(31)

In other words, the main goal of the system of State aid control is to prevent the granting of incompatible State aid. As a consequence, if competition in the internal market is distorted by the disbursement of unlawful and incompatible State aid, it needs to be ensured that the situation prior to that distortion of competition is restored, if necessary, through the liquidation of the beneficiary.

(32)

Against this background, the Commission notes that the still pending measures identified in recitals 28 and 29 refer to either Saremar, now in liquidation (measures 1 and the Bonus Sardo Vacanza), or to Saremar’s successors after its privatisation (measures 3 and 4), or to both (measures 5 and 6). However, the privatisation of Saremar did not take place as it was described and preliminarily assessed in recitals 149 and 150, 238-246 and 305 and 306 of the 2012 Decision. Instead, Saremar was liquidated and its assets and the public service contract were tendered out under separate tenders.

(33)

Under Italian law (27), once a company enters liquidation, its assets are sold and the proceeds from the sale are transferred to its creditors, according to the ranking of their claims in the schedule of liabilities. Against this background, the Commission must first establish whether continuing the investigation with respect to Saremar still serves any purpose. If this is not the case, then it must establish whether there may be economic continuity between Saremar and any other companies, based on the case law by the Court of Justice.

(34)

Regarding Saremar, the Commission first notes that, on 15 January 2015, following the 2014 Decision, Saremar entered into concordato preventivo and a liquidator was appointed. Under Italian law, the concordato preventivo is a procedure normally aiming at ensuring continuation of business activities. However, the Commission notes that in this case the company was admitted to a concordato preventivo con cessione dei beni, i.e. a liquidation procedure, agreed with the creditors, for the sale of the company’s assets and the termination of its business, with only temporary continuation of activities. This procedure is supervised by a judge, who has to validate the agreement between the creditors. In this case, the Commission notes that on 22 July 2015, the Tribunale di Cagliari validated the agreement between the creditors of Saremar, with continuation of activities until 31 December 2015 (see recital 27). Therefore, the Commission considers that the chosen procedure already implied that, at the end of it, Saremar would exit the market.

(35)

Indeed, the Commission notes that Saremar ceased all its economic activities on 31 March 2016 (see recital 27), including its ferry services on routes operated on the basis of a public service contract. The public service contract was from then on entrusted to Delcomar. In parallel, its vessels were sold to the company Delcoservizi. After the sale of Saremar’s assets, on 22 April 2016, the Regional Council of Sardinia ordered the liquidation of Saremar by its Decision No 24/23.

(36)

Additionally, Italy implemented the 2014 Decision correctly, albeit with a delay. The State aid claim of EUR 10 824 309,69, plus recovery interest, was duly registered in the schedule of liabilities of the company. Out of that amount, only approximately EUR 4,4 million could be paid to Italy after the sale of Saremar’s assets. However, as the insolvency proceedings of Saremar lead to its liquidation and the company is no longer operating any activities (28), the Commission provisionally closed the recovery procedure by letter of 13 September 2017, sent to Italy.

(37)

Based on the above, the Commission notes that Saremar has not operated any economic activity for over five years now, its assets have been sold, its staff laid off, and it will be erased from the company register once the liquidation procedure has been finalised. Any possible distortion of competition or effect on trade of the measures referred to in recitals 28 and 29 ended once Saremar ceased its activities. Moreover, already the recovery claim from the 2014 Decision was only partially satisfied (for approximately 40 % of the amount due, see recitals 27 and 36).

(38)

Against this background, the Commission notes that both objectives of State aid control and of recovery referred to above, i.e. to prevent the granting of incompatible State aid and to ensure that the situation prior to the distortion of competition caused by State aid incompatible with the internal market is restored, are already met. Indeed, Saremar is no longer an economic operator active on the market and is already in liquidation, and State aid claims could be satisfied only partially following the sale of Saremar’s assets, due to insufficient funds. Therefore, continuing the investigation with respect to Saremar does not serve any purpose.

(39)

Regarding the question of potential economic continuity between Saremar and its successors, according to the case-law, the following factors may be taken into account: the scope of the transfer (assets and liabilities, continuity of the workforce, bundled assets), the transfer price, the identity of the owners of the acquiring undertaking and of the original undertaking, the moment at which the transfer was carried out (after the start of the investigation, the initiation of the procedure or the final decision) and the economic logic of the transaction (29).

(40)

Against this background, the Commission notes that, as part of the recovery procedure for the implementation of the 2014 Decision, it has already assessed whether the obligation to repay the aid granted to Saremar ought to be extended to other undertakings to which the beneficiary’s assets or business may have been transferred. Indeed, in that recovery procedure the Commission accepted that the recovery obligation would be targeted at Saremar only, ruling out the existence of economic continuity with Delcomar or Delcoservizi (together, ‘the successors’), for the following reasons:

(41)

Since the provisional closure of the recovery case, no information has reached the Commission that could make it change its view on this matter. Therefore, based on the available information, economic continuity between Saremar and either Delcomar or Delcoservizi, or both, can be ruled out. The Commission will still follow up the liquidation of Saremar until its erasure from the trade registry. Only this will allow it to definitively close the recovery procedure for the 2014 Decision (31).

(42)

In this context, given the liquidation of Saremar and the absence of economic continuity with its successors, the formal investigation procedure on the still outstanding measures granted in favour of Saremar or its successors, initiated under the first subparagraph of Article 108(2) TFEU, no longer serves any purpose.

(43)

This Decision does not concern or prejudge any other issues covered by the 2011 Decision and the 2012 Decision (32) or brought to the attention of the Commission by interested parties in the course of the investigation opened under those Decisions,

(1)

In accordance with Article 8(1) of Regulation (EU) 2017/745 of the European Parliament and of the Council (2), devices that are in conformity with the relevant harmonised standards, or the relevant parts of those standards, the references of which have been published in the Official Journal of the European Union, are to be presumed to be in conformity with the requirements of that Regulation covered by those standards or parts thereof.

(2)

Regulation (EU) 2017/745 replaced Council Directives 90/385/EEC (3) and 93/42/EEC (4) from 26 May 2021.

(3)

By Implementing Decision C(2021) 2406 (5), the Commission made a request to the European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (Cenelec) for the revision of existing harmonised standards on medical devices developed in support of Directives 90/385/EEC and 93/42/EEC and the drafting of new harmonised standards in support of Regulation (EU) 2017/745.

(4)

On the basis of the request set out in Implementing Decision C(2021) 2406, CEN and Cenelec revised harmonised standards EN 285:2015 and EN ISO 14971:2019, the references of which are not published in the Official Journal of the European Union, in order to take into account the latest technical and scientific progress and to adapt them to the requirements of Regulation (EU) 2017/745. This resulted in the adoption of the revised harmonised standard EN 285:2015+A1:2021 on sterilisation and of the amendment EN ISO 14971:2019/A11:2021 to harmonised standard EN ISO 14971:2019 on application of risk management to medical devices.

(5)

The Commission together with CEN and Cenelec has assessed whether harmonised standards EN 285:2015+A1:2021 and EN ISO 14971:2019, as amended by EN ISO 14971:2019/A11:2021, comply with the request set out in Implementing Decision C(2021) 2406.

(6)

Harmonised standards EN 285:2015+A1:2021 and EN ISO 14971:2019, as amended by EN ISO 14971:2019/A11:2021, satisfy the requirements which they aim to cover and which are set out in Regulation (EU) 2017/745. It is therefore appropriate to publish the references of harmonised standards EN 285:2015+A1:2021 and EN ISO 14971:2019 and of its amendment in the Official Journal of the European Union.

(7)

The Annex to Commission Implementing Decision (EU) 2021/1182 (6) lists the references of harmonised standards drafted in support of Regulation (EU) 2017/745.

(8)

In order to ensure that the references of harmonised standards drafted in support of Regulation (EU) 2017/745 are listed in one act, the references of harmonised standards EN 285:2015+A1:2021 and EN ISO 14971:2019 and of its amendment should be included in Implementing Decision (EU) 2021/1182.

(9)

The references of harmonised standard EN ISO 13485:2016 on quality management systems and its amendment EN ISO 13485:2016/A11:2021 are published by Implementing Decision (EU) 2021/1182. However, that publication does not include the reference of the corrigendum to that standard – EN ISO 13485:2016/AC:2018. The corrigendum corrects only formal aspects of the European foreword and of the informative annexes, without affecting the substance of the harmonised standard. Harmonised standard EN ISO 13485:2016 as amended by EN ISO 13485:2016/A11:2021 and corrected by EN ISO 13485:2016/AC:2018 satisfies the requirements which it aims to cover and which are set out in Regulation (EU) 2017/745. In order to ensure that corrections made by EN ISO 13485:2016/AC:2018 apply for the purposes of the presumption of conformity with the relevant requirements of Regulation (EU) 2017/745, it is necessary to include the reference of that corrigendum in Implementing Decision (EU) 2021/1182. For reasons of legal certainty, the reference of corrigendum EN ISO 13485:2016/AC:2018 should be published in the Official Journal of the European Union with retroactive effect.

(10)

Implementing Decision (EU) 2021/1182 should therefore be amended accordingly.

(11)

Compliance with a harmonised standard confers a presumption of conformity with the corresponding essential requirements set out in Union harmonisation legislation from the date of publication of the reference of such standard in the Official Journal of the European Union. This Decision should therefore enter into force on the day of its publication,

(1)

Article 2 of the Treaty on European Union states that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

(2)

Article 10(3) of the Treaty on European Union states that every Union citizen has the right to participate in the democratic life of the Union. The Charter of Fundamental Rights of the European Union (the ‘Charter’) provides, inter alia, for the rights to respect for private and family life (Article 7), the protection of personal data (Article 8), freedom of expression and information, which includes respect for the freedom and pluralism of the media (Article 11), and to an effective remedy and to a fair trial (Article 47).

(3)

The right to freedom of expression and information as set forth in Article 11 of the Charter includes the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. While it is not an absolute right, any limitations thereto must be provided for by law, respect the essence of the right and be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others (Article 52(1) of the Charter).

(4)

In line with Article 52(3) of the Charter and with the Explanations relating to the Charter, Article 11 of the Charter should be given the meaning and scope of Article 10 on freedom of expression and information of the European Convention on Human Rights as interpreted by the European Court of Human Rights. Article 10 of the European Convention on Human Rights protects freedom of expression and information. Within the scope of application of the European Convention on Human Rights, any restriction must be prescribed by law, must be necessary in a democratic society, and be made in pursuit of the legitimate aims set out in Article 10(2) of the European Convention on Human Rights.

(5)

The European Convention of Human Rights also imposes a positive obligation on contracting states to safeguard the freedom and pluralism of the media and to create a favourable environment for participation in the public debate (1). The case law of the European Court on Human Rights further specifies that the freedom of expression constitutes one of the essential foundations of a democratic society and is applicable not only to information or to ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any group in the population (2). It has further clarified that ‘in a democratic society even small and informal campaign groups (…) must be able to carry on their activities effectively’ and that ‘there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest’ (3).

(6)

Journalists play an important role in facilitating public debate and in the imparting and the reception of information, opinions and ideas (4). It is essential that they are afforded the necessary space to contribute to an open, free and fair debate and to counter disinformation and other manipulative interference, including from actors from third countries. Journalists should be able to conduct their activities effectively to ensure that citizens have access to a plurality of views in European democracies.

(7)

Human rights defenders also play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection and the rule of law. They should be able to participate actively in public life and make their voices heard on policy matters and in decision-making processes without fear of intimidation. Human rights defenders refer to individuals or organisations engaged in defending fundamental rights and a variety of other rights, including environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms.

(8)

A healthy and thriving democracy requires that people are able to participate actively in public debate. In order to secure meaningful participation, people should be able to access reliable information, which enables them to form their own opinions and exercise their own judgement in a public space in which different views can be expressed freely.

(9)

To foster this environment, it is important to protect journalists and human rights defenders from manifestly unfounded and abusive court proceedings against public participation (commonly known as ‘SLAPPs’). These court proceedings are either manifestly unfounded or fully or partially unfounded proceedings which contain elements of abuse justifying the assumption that the main purpose of the court proceedings is to prevent, restrict or penalise public participation. Indications of such abuse are the disproportionate, excessive or unreasonable nature of the claim or part thereof, the existence of multiple claims asserted by the claimant in relation to similar matters, or intimidation, harassment or threats on the part of the claimant or their representatives prior to the initiation of manifestly unfounded or abusive court proceeding. These proceedings constitute an abuse of court proceedings and put unnecessary burdens on courts as their aim is not to access justice but to harass and silence defendants. Long proceedings create burdens on national court systems.

(10)

Manifestly unfounded and abusive court proceedings against public participation can take the form of a wide array of legal abuses, mainly in civil or criminal matters, but also in administrative law matters and may be based on various grounds.

(11)

Such court proceedings are often initiated by powerful individuals or entities (for example lobby groups, corporations and state organs) in an attempt to silence public debate. They often involve imbalance of power between the parties with the claimant having a more powerful position than the defendant for example financially or politically. Although not being an indispensable component of manifestly unfounded or abusive court proceedings, where present an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation.

(12)

Manifestly unfounded or abusive court proceedings against public participation may have an adverse impact on the credibility and reputation of journalists and human rights defenders in particular and exhaust their financial and other resources. They may have adverse psychological consequences for their targets and their family members. Manifestly unfounded or abusive court proceedings against public participation endanger journalists and human rights defenders’ ability to conduct their activities. As a result of such proceedings, the publication of information on a matter of public interest may be delayed or altogether prevented. The existence of such proceedings may have more broadly a deterrent effect on the work of journalists and human rights defenders in particular, by contributing to self-censorship in anticipation of possible future court proceedings, leading to the impoverishment of the public debate to the detriment of society as a whole. The length of procedures, the financial pressure and the threat of criminal sanctions constitute powerful tools to intimidate and silence critical voices.

(13)

Those targeted by manifestly unfounded or abusive court proceedings against public participation often face multiple court proceedings simultaneously and in several jurisdictions. Court proceedings initiated in the jurisdiction of one Member State against a person resident in another Member State are usually more complex and costly for the defendant. Claimants in manifestly unfounded or abusive court proceedings against public participation may also use procedural tools to drive up the length and cost of the litigation, and bring cases in a jurisdiction they perceive to be favourable for their case, rather than to the court best placed to hear the claim.

(14)

The use of manifestly unfounded or abusive court proceedings against public participation is on the rise in the European Union. According to recent studies (5), such proceedings are increasingly used across Member States.

(15)

The European Parliament, in its Resolution of 25 November 2020 (6), condemned the use of SLAPPs to silence or intimidate investigative journalists and media outlets and create a climate of fear around their reporting of certain topics, calling on the Commission to present a proposal to prevent them. In its Resolution (7) of 11 November 2021 on Strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, Non-Governmental Organisations (NGOs) and civil society, the European Parliament highlighted again the prevalence of the phenomenon and the need for effective safeguards for its victims across the Union.

(16)

The Council of Europe’s Platform to Promote the Protection of Journalism and Safety of Journalists (8) also reports an increasing number of alerts of serious threats to the safety of journalists and media freedom in Europe, including multiple cases of judicial intimidation. The 2021 annual Report of the partner associations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists underlines the notable increase of SLAPP-related alerts reported in 2020 over the previous year, both in numbers of alerts and jurisdictions of Council of Europe Member States concerned (9). In its Recommendation on the protection of journalism and safety of journalists and other media actors (10) of 13 April 2016, the Council of Europe recommended its Member States to take the necessary legislative and/or other measures to prevent the frivolous, vexatious or malicious use of the law and legal process to intimidate and silence journalists and other media actors.

(17)

The Commission’s 2020 (11) and 2021 (12) Rule of Law Reports underline that in a number of Member States, journalists and others involved in protecting the public interest increasingly face threats and attacks in relation to their publications and their work, in various forms including the deployment of SLAPPs.

(18)

A stark example of the use of court proceedings against public participation in the Union is that of the journalist Daphne Caruana Galizia who, at the time of her assassination, was facing over 40 civil and criminal libel and defamation court proceedings related to her investigate work.

(19)

The European Democracy Action Plan (13) presented by the Commission on 3 December 2020 underlines the fundamental role of free and pluralistic media in democracies as well as the importance of civil society. It highlights among others the important role that independent and pluralistic media play in enabling citizens to make informed decisions, as well as in the fight against information manipulation and interference in the information space, including disinformation. In that context, the Commission already adopted Recommendation (EU) 2021/1534 on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union (14). That Recommendation aims to ensure safer working conditions for all media professionals, free from fear and intimidation, whether online or offline. In view of the increasing threat posed by manifestly unfounded or abusive court proceedings against public participation to media freedom and public participation, the Union should develop a coherent and effective approach to counter such proceedings. This Recommendation complements Recommendation (EU) 2021/1534 by providing specific recommendations on manifestly unfounded or abusive court proceedings against public participation. It goes beyond the protection of journalists and other media professionals and includes human rights defenders in its scope. This Recommendation should address the specific threat posed by manifestly unfounded or abusive court proceedings against public participation and by doing so, support the proper functioning of the checks and balances in a healthy democracy. It should provide guidance for Member States to take effective, appropriate and proportionate measures to address such proceedings and to ensure in this context in particular the protection of journalists and human rights defenders. The recommended measures should include raising awareness and developing expertise, in particular among legal professionals and the targets of manifestly unfounded or abusive court proceedings against public participation, to ensure that support is available for those targeted by such proceedings and to support enhanced monitoring.

(20)

In order to provide for efficient protection against manifestly unfounded or abusive court proceedings against public participation and prevent the phenomenon from taking root in the Union, Member States should ensure that their respective legal frameworks governing civil, criminal, commercial and administrative proceedings, provide for the necessary safeguards to address such court proceedings, in full respect of democratic values and fundamental rights, including the right to a fair trial and the right to freedom of expression. To provide consistent and efficient protection against manifestly unfounded court proceedings against public participation, Member States should aim to ensure that an early dismissal is available. They should also aim to provide other remedies against abusive court proceedings, namely the award of costs so that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, the compensation of damages for any natural or legal person who has suffered harm as a result of abusive court proceedings against public participation, and the possibility to impose effective, proportionate and dissuasive penalties on the party who brought abusive court proceedings against public participation. The main objective of giving courts the possibility to impose penalties is to deter potential claimants from initiating abusive court proceedings against public participation. Such penalties should be proportionate to the elements of abuse identified. When establishing amounts for penalties, courts could take into account the potential for a harmful or chilling effect of the proceedings on public participation, including as related to the nature of the claim, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threat the defendant.

(21)

Member States should aim to include in their national laws similar safeguards for domestic cases as those included in Union instruments that seek to address manifestly unfounded and abusive court proceedings against public participation for civil matters with cross-border implications. This would provide a consistent and efficient protection against such court proceedings and would contribute to prevent the phenomenon from growing roots in the Union.

(22)

Member States should specifically review their legal frameworks applicable to defamation to ensure that existing concepts and definitions cannot be used by plaintiffs against journalists or human rights defenders in the context of manifestly unfounded or abusive court proceedings against public participation.

(23)

In order to prevent a chilling effect on the public debate, Member States should ensure that penalties against defamation are not excessive and disproportionate. They should pay particular attention to the Council of Europe’s guidelines and recommendations (15) addressing the legal framework for defamation, in particular criminal law. In this context, Member States are encouraged to remove prison sentences for defamation from their legal framework. The Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) (16) has called on its Member States, which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay. Member States are also encouraged to favour the use of administrative or civil law to deal with defamation cases, provided that such provisions have a less punitive effect than those of criminal law (17).

(24)

Dealing with defamation cases from a criminal law angle should only be used as a last resort and responses through administrative or civil law should be favoured instead, in line with guidance from international organisations. The United Nations’ Human Rights Committee (18) and the Organization for Security and Cooperation in Europe (19) have recommended the removal of defamation from criminal law statutes. Similarly, the Council of Europe has expressed reservations in this context (20).

(25)

The right to the protection of personal data is further concretised in Regulation (EU) 2016/679 of the European Parliament and of the Council (21). The right to the protection of personal data is not an absolute right. Article 85 of the GDPR provides that Member States shall by law reconcile the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.

(26)

Member States should encourage self-regulatory bodies and associations of legal professionals to align, where necessary, their deontological standards, including codes of conduct, with this Recommendation. Member States should also ensure, as relevant, that the deontological standards which seek to discourage or prohibit legal professionals from engaging in conduct which might constitute an abuse of process or an abuse of their other professional responsibilities towards the integrity of the legal process, and their corresponding disciplinary sanctions, cover manifestly unfounded or abusive court proceedings against public participation. This should be accompanied by appropriate awareness raising and training activities in order to increase knowledge and efficacy of existing deontological standards that are relevant to manifestly unfounded or abusive court proceedings against public participation.

(27)

Legal professionals are key actors in manifestly unfounded or abusive court proceedings against public participation, either by representing litigants, prosecuting individuals or adjudicating disputes. Therefore, it is crucial that they have the necessary knowledge and skills to do so. Member States should support and offer training opportunities to these legal professionals. Training could substantively contribute to building their knowledge and capacity in how to detect manifestly unfounded or abusive court proceedings against public participation, including those with a third-country element, and react appropriately. Such training should address the judiciary and the judicial staff at all court levels including judges, prosecutors, court and prosecutors’ office staff, as well as any other justice professionals associated with the judiciary or otherwise participating in the administration of justice, irrespective of the definition in national law, legal status or internal organisation, at the regional and local levels, where manifestly unfounded or abusive court proceedings against public participation may appear in the first instance. Such training should also address other legal professionals such as qualified lawyers. Developing local training capacity can contribute to the long-term sustainability of the training.

(28)

Extending such training to journalists, press council members, media professionals and human rights defenders would help them to recognise when they are confronted with such court proceedings and provide them with critical legal skills to reduce their risks of being exposed to manifestly unfounded or abusive court proceedings against public participation or equip them with better knowledge to better address it. It could also enable them to engage in robust reporting on SLAPPs. Training for journalists should also refer to the ethical standards and guidelines set out by national press or media councils. To contribute to overall capacity building and strengthen the institutional response to manifestly unfounded or abusive court proceedings against public participation, such training could also involve data protection authorities, National Human Rights Institutions, ombudsman institutions and media state regulatory bodies.

(29)

Providers of legal training and associations of legal professionals are very well positioned to impart training on manifestly unfounded or abusive court proceedings against public participation, as well as to determine the objectives of such training and to assess the most suitable training methodology. Training delivered by legal professionals to other legal professionals allows all to learn as a group, to better share experiences and to foster mutual trust. Exchanges of relevant practices at the European level should be encouraged, including with the support of the Commission, with the involvement of the European Judicial Training Network (EJTN). Involvement of legal practitioner’s and their professional associations, from preparing needs analyses to the evaluation of results, is of paramount importance to ensuring the effectiveness and sustainability of training activities.

(30)

Training should address freedom of expression and information and other fundamental rights, under the EU Charter of Fundamental rights of the European Union and the European Convention on Human rights and national law and include practical guidance on how to apply relevant case-law, restrictions to and articulation between fundamental rights, including freedom of expression, procedural safeguards as well as other relevant provisions under national law. Due account should be taken of Council of Europe’s handbook for legal practitioners on protecting the right to freedom of expression under the ECHR (22).

(31)

Training should, among other things, address the protection of personal data which may be used to initiate manifestly unfounded or abusive court proceedings against public participation. It should also address information manipulation and interference, including disinformation.

(32)

Training should consider the national legal framework and context. Combining these with the guidance developed by the Council of Europe, testimonials from targets of manifestly unfounded or abusive court proceedings against public participation and best practices from other Member States in a structured and coherent manner could contribute to the successful learning objectives associated with training on manifestly unfounded or abusive court proceedings. Training may also be used to foster exchange of best practices between Member States.

(33)

To reach a wider audience and to foster support, training on manifestly unfounded or abusive court proceedings against public participation should also make best use of new technologies, including online training. Access to e-resources, up-to-date material, and stand-alone learning tools on relevant legislation and guidance would complement the benefits of such training activities.

(34)

In order to foster synergies with similar initiatives on the training of legal professionals, training modules on manifestly unfounded or abusive court proceedings on public participation could be included in training on related topics, such as freedom of expression and legal ethics. The use of existing materials and training practices such as those promoted on the European e-Justice Portal, the Unesco Global Toolkit for Judicial Actors (23) and the Council of Europe’s HELP (Human Rights Education for Legal Professionals) (24) online courses should be encouraged.

(35)

Including manifestly unfounded or abusive court proceedings against public participation in the law and journalism curricula would help equip legal professionals and journalists with better knowledge to recognise such proceedings and equip them with specific knowledge to respond accordingly, and support the development of expertise and professional competencies among lecturers. Such knowledge could be provided by higher education institutions in complementary courses or seminars during the final years of a degree programme, for instance to law students of law and journalism.

(36)

Member States should support awareness raising campaigns on manifestly unfounded or abusive court proceedings against public participation organised among others by national entities, including National Human Rights Institutions and civil society organisations.

(37)

Communication activities on manifestly unfounded or abusive court proceedings against public participation could take the form of publications, messages, public meetings, conferences, workshops and webinars.

(38)

The targets of manifestly unfounded or abusive court proceedings against public participation often have difficulties finding information on available support resources. To facilitate the identification of entities or bodies able to provide assistance on manifestly unfounded or abusive court proceedings and to ensure the effectiveness of support against such proceedings, information should be collected and made available at a single point, be free of charge and easily accessible. To that end, each Member State should establish one national focal point that gathers and shares information on available resources.

(39)

An underlying goal of awareness raising activities on manifestly unfounded or abusive court proceedings against public participation should be to promote awareness of the importance of a public space that enables democratic participation and allows citizens to have access to a plurality of views and reliable information, free from bias.

(40)

Awareness raising campaigns should be coordinated with national focal points and other competent authorities to ensure their effectiveness. They should also seek synergies with awareness raising campaigns on compatible topics such as those focusing on fostering of open, free and fair debate and the protection of the right to freedom of expression and should be integrated with awareness raising activities that promote active civic participation, pluralism of views and access to reliable information. They should also seek synergies, as relevant, with resilience building on media, information literacy, journalistic standards and fact-checking in the context of measures addressing disinformation, information manipulation, and interference including from abroad. The target audience could include, inter alia, specific groups, such as media professionals, legal professionals and members of civil society organisations, communication professionals, academics, think tanks, politicians, civil servants, public authorities and private corporations.

(41)

Member States should aim to ensure, by any means they consider appropriate, the availability of information on the procedural safeguards and other safeguards under their national legal frameworks, including information on the entities or bodies which can be contacted to provide assistance against manifestly unfounded or abusive court proceedings against public participation.

(42)

Such support resources may include law firms that defend pro bono the targets of manifestly unfounded or abusive court proceedings against public participation, the legal clinics of universities which provide such support, organisations that register and report on SLAPPs, and organisations that provide financial and other assistance to the targets of manifestly unfounded or abusive court proceedings.

(43)

The targets of manifestly unfounded or abusive court proceedings against public participation need to be adequately equipped to face such proceedings. It is therefore necessary to develop capacities in Member States in order to provide support to those targeted by such proceedings. Member States should offer funding and promote funding available at Union level to organisations that provide guidance and support for targets of manifestly unfounded or abusive court proceedings.

(44)

A more systematic monitoring of manifestly unfounded or abusive court proceedings against public participation is necessary to better tackle the phenomenon. Data collected should include sufficient information for authorities and other relevant stakeholders to quantify and better understand it including in view of providing the necessary support to targets. Member States should entrust, taking into account their institutional arrangements on judicial statistics (25), one or more authorities with collecting and aggregating data on manifestly unfounded or abusive court proceedings against public participation initiated in national courts. These authorities may collect the data from several stakeholders. To ease the collection of data, the authorities entrusted to collect data may establish contact points so that judicial authorities, professional organisations, non-governmental organisations, human rights defenders, journalists and other stakeholders can share data on manifestly unfounded or abusive court proceedings. Member States should entrust one of these authorities with coordinating the information and reporting the aggregated data collected at national level to the Commission on a yearly basis starting by the end of 2023. Member States should ensure the accountability of the data collected. For this purpose, they should ensure that the data collection process follows professional standards and that the authorities entrusted with data collection and statistics enjoy sufficient autonomy. Data protection requirements should be complied with.

(45)

When entrusting authorities with data collection and reporting, Member States could consider establishing synergies with relevant instruments in the area of the rule of law and the protection of fundamental rights. National Human Rights Institutions, where established, may play an important role as well as other entities such as ombudspersons’ offices, equality bodies, or competent authorities such as those designated under the Directive (EU) 2019/1937 of the European Parliament and of the Council (26) may also be relevant. National focal points providing an overview of support resources and the entities or authorities entrusted to collect and report data could be situated in the same organisation, taking into account the requirements and criteria described in this Recommendation.

(46)

The authorities entrusted to collect data should publish information on manifestly unfounded or abusive court proceedings against public participation, in accessible formats on their websites, and, as relevant via other appropriate tools. When doing so, they should ensure that fundamental rights including the right to privacy and to the protection of personal data of those individuals involved in manifestly unfounded or abusive court proceedings against public participation are fully respected.

(47)

To delineate the duration of proceedings concerning manifestly unfounded or abusive court proceedings, precise information on the events, acts or actions that started and closed such proceedings and the dates on which they occurred should be collected whenever possible. The collected data should also include, as relevant, information about the background of a case, for example, where there have been repetitive preceding court proceedings against the same defendant or by the same plaintiff.

(48)

As necessary, the EU expert group against SLAPP established by the Commission (27) could support the development across Member States of comparable criteria that can be easily applied by the authorities entrusted to collect and report data on manifestly unfounded or abusive court proceedings against public participation.

(49)

The EU expert group against SLAPP supports the exchange and dissemination of practice and knowledge among practitioners on SLAPP related issues. It could provide among others technical assistance to authorities in setting up focal points, developing training material and organising legal assistance.

(50)

The Citizens, Equality, Rights and Values (CERV) Programme, established by Regulation (EU) 2021/692 of the European Parliament and of the Council (28), aims to protect and promote the rights and values enshrined in the Treaties and the Charter. In order to sustain and further develop democratic societies based on the rule of law, the CERV programme provides, inter alia, for the possibility to fund activities linked to capacity building and awareness on the Charter including on freedom of expression. The Justice Programme, established by Regulation (EU) 2021/692 (29) provides, inter alia, for the possibility to fund activities linked to judicial training, with a view to fostering a common legal and judicial culture based on the rule of law, and to support and promote the consistent and effective implementation of Union legal instruments that are relevant in the context of the Programme,

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(1)

The European Border and Coast Guard Agency (‘Agency’) is empowered to conduct administrative inquiries, pre-disciplinary, disciplinary and suspension proceedings, in accordance with the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (3) (‘Staff Regulations’), and with Management Board Decision 26/2018 of 25 October 2018 adopting implementing provisions regarding the conduct of administrative inquiries and disciplinary proceedings. If required, it also notifies cases to OLAF.

(2)

The Agency’s staff members are under an obligation to report potentially illegal activities, including fraud and corruption, which are detrimental to the interests of the Union. Staff members are also obliged to report conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union. This is regulated by Management Board Decision 17/2019 of 18 July 2019 adopting the Frontex Guidelines on Whistleblowing.

(3)

The Agency has put in place a policy to prevent and deal effectively with actual or potential cases of psychological or sexual harassment in the workplace, as provided for in its Management Board Decision 16/2019 of 18 July 2019 adopting implementing measures pursuant to the Staff Regulations. The Decision establishes an informal procedure whereby the alleged victim of the harassment can contact the Agency’s ‘confidential’ counsellors.

(4)

The Agency can also conduct investigations into potential breaches of security rules for European Union classified information (‘EUCI’), based on its security rules for protecting EUCI.

(5)

The Agency is subject to both internal and external audits concerning its activities including by the European Court of Auditors. The internal audits are conducted by the Internal Audit Capability of the Agency set up by Management Board Decision 43/2020 of 9 December 2020 adopting the Agency’s amended organisational structure and relevant Decision of the Executive Director in accordance with Article 80 of the Management Board Decision 19/2019 of 23 July 2019 adopting Frontex Financial Regulation.

(6)

The Agency handles external complaints in particular those received in the context of the complaints mechanism set up in accordance with Article 111 of the EBCG Regulation to monitor and ensure respect for fundamental rights in all the activities of the Agency.

(7)

Participants in Frontex activities are under the obligation to report serious incidents in accordance with Article 38(3)(h) of the EBCG Regulation and Decision of the Executive Director of 19 April 2021 on Standard Operating Procedure (SOP) – Serious Incident Reporting (4). The Agency has also established a supervisory mechanism to monitor the application of the provisions of the EBCG Regulation on use of force by statutory staff, including rules on reporting and specific measures, such as those of a disciplinary nature, with regard to the use of force during deployments. This is regulated by Management Board Decision 7/2021 of 20 January 2021 establishing a supervisory mechanism to monitor the application of the provisions on the use of force by statutory staff of the European Border and Coast Guard Standing Corps. The Agency also monitors use of force by staff seconded to the Agency by the Member States for a long term, staff provided by Member States for short-term deployments and staff forming part of the reserve for rapid reaction for rapid border interventions while applying force in Frontex operational activities in accordance with the relevant Decision of the Executive Director.

(8)

In the context of such administrative inquiries, audits, examination of complaints and investigations, reporting of serious incidents and monitoring activities the Agency cooperates with Member States’ (5) competent authorities, other Union institutions, bodies, offices and agencies.

(9)

The Agency can cooperate with third countries’ competent authorities and international organisations, either at their request or on its own initiative.

(10)

The Agency is involved in cases before the Court of Justice of the European Union and national courts when it either refers a matter to the Court, defends a decision it has taken and which has been challenged before the Court, or intervenes in cases relevant to its tasks. In this context, the Agency might need to preserve the confidentiality of personal data contained in documents obtained by the parties or the interveners.

(11)

To fulfil its tasks, the Agency collects and processes information and several categories of personal data, including identification data of natural persons, contact information, professional roles and tasks, information on private and professional conduct and performance, and financial data. Hence, the Agency acts as data controller.

(12)

Under the Regulation, the Agency is therefore obliged to provide information to data subjects on those processing activities and to respect their rights as data subjects.

(13)

The Agency might be required to reconcile those rights with the objectives of administrative inquiries, audits, investigations, reporting of serious incidents and monitoring of the application of the provisions of the EBCG Regulation on the use of force, and court proceedings. It might also be required to balance a data subject’s rights against the fundamental rights and freedoms of other data subjects. To that end, Article 25 of the Regulation and Article 86(2) of the EBCG Regulation give the Agency the possibility to restrict, under strict conditions, the application of Articles 14 to 22, 35 and 36 of the Regulation, as well as Article 4 thereof in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 20. Unless restrictions are provided for in a legal act adopted on the basis of the Treaties, it is necessary to adopt internal rules under which the Agency is entitled to restrict those rights.

(14)

The Agency might, for instance, need to restrict the information it provides to a data subject about the processing of his or her personal data during the preliminary assessment phase of an administrative inquiry or during the inquiry itself, prior to a possible dismissal of case or at the pre-disciplinary stage or where the data subject may potentially be subject to specific measures, such as those of a disciplinary nature, with regard to the use of force during deployments. In certain circumstances, providing such information might seriously affect the Agency’s capacity to conduct the inquiry or exercise its monitoring of the use of force function in an effective way, whenever, for example, there is a risk that the person concerned might destroy evidence or interfere with potential witnesses before they are interviewed.

(15)

The Agency might also need to protect the rights and freedoms of witnesses as well as those of other persons involved. Similarly, the Agency might need to restrict the information it provides to a data subject about the processing of his or her personal data where providing this information might seriously affect the assessment and validation steps of reporting serious incidents process in accordance with Article 38(3)(h) of the EBCG Regulation.

(16)

It might be necessary to protect the anonymity of a witness or whistle-blower who has asked not to be identified. In such a case, the Agency might decide to restrict access to the identity, statements and other personal data of such persons, in order to protect their rights and freedoms. In particular, the Agency might need to protect the anonymity of witnesses or other persons reporting incidents involving the use of force in accordance with supervisory mechanism to monitor the application of the provisions of the EBCG Regulation on the use of force. Similarly, in the context of reporting of serious incidents in accordance with Article 38(3)(h) of the EBCG Regulation, the Agency might need to protect the anonymity of participants in a Frontex activity who reported such an incident.

(17)

It might be necessary to protect confidential information concerning a staff member who has contacted the Agency’s confidential counsellors. In such cases, the Agency might need to restrict access to the identity, statements and other personal data of the alleged victim, the alleged harasser and other persons involved, in order to protect the rights and freedoms of all concerned.

(18)

The Agency processes personal data of its statutory staff on medical and psychological fitness, including where necessary for the authorisation to carry and use weapons in accordance with Article 82(7) of the EBCG Regulation and Management Board Decision 3/2021 of 15 January 2021 (6). Considering the sensitive nature of the medical data and in order to protect the data subject from direct access to files that could be harmful to the health and mental status of the concerned data subject, the Agency shall provide indirect access to the relevant medical information through the Agency’s medical advisor or an external medical provider for the relevant medical information and advice.

(19)

The Agency should apply restrictions only when they respect the essence of fundamental rights and freedoms, are strictly necessary and are a proportionate measure in a democratic society. The Agency should give reasons explaining the justification for those restrictions.

(20)

In application of the principle of accountability, the Agency should keep a record of its application of restrictions.

(21)

When processing personal data exchanged with other organisations in the context of its tasks, the Agency and those organisations should consult each other on potential grounds for imposing restrictions and the necessity and proportionality of those restrictions, unless this would jeopardise the activities of the Agency.

(22)

Article 25(6) of the Regulation obliges the controller to inform data subjects of the principal reasons on which the application of the restriction is based and of their right to lodge a complaint with the EDPS.

(23)

Pursuant to Article 25(8) of the Regulation, the Agency is entitled to defer, omit or deny the provision of information on the reasons for the application of a restriction to the data subject if this would in any way cancel the effect of the restriction. The Agency should assess on a case-by-case basis whether the communication of the restriction would cancel its effect.

(24)

The Agency should lift the restriction as soon as the conditions that justify the restriction no longer apply and assess those conditions on a regular basis.

(25)

To guarantee utmost protection of the rights and freedoms of data subjects and in accordance with Article 44(1) of the Regulation, the Agency’s Data Protection Officer (‘DPO’) should be consulted in due time of any restrictions that may be applied and verify their compliance with this Decision.

(26)

The Agency has laid down separate rules regarding the processing of operational personal data, in accordance with Article 90 of the EBCG Regulation, including specific internal rules on data retention of operational personal data and rules on restrictions applied to the relevant data subject rights (7),