30.4.2004   

EN

Official Journal of the European Union

C 108/1

1.1

The Commission's main purpose in presenting the Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation [COM(2002) 654 final of 14 January 2003], henceforth referred to as the ‘green paper’, was ‘to launch a wide-ranging consultation of interested parties on a number of legal questions’ concerning conversion and modernisation, formally declaring that it ‘has neither taken a decision in respect of the necessary to modernise the Rome Convention nor in respect of its conversion into a Community instrument’.

1.2

In contrast the Committee, acting within the scope of its consultative powers, wishes at this stage to express its approval of the principle of converting the Rome Convention into a Community instrument, and of the modernisation of its provisions. In so doing, it is aware that it is fulfilling its consultative role in an area which is vital not only to the regulation of key aspects of the completion of the internal market, but also to the creation of a European civil society with regard to an essential aspect of an area of freedom, security and justice (1).

1.3

In a number of earlier opinions, the Committee called for a debate on the relevance of the provisions of the Rome Convention and on the various difficulties encountered in its implementation concerning several general or sectoral aspects (2).

1.4

By the same token, with regard to conversion into a Community instrument by virtue of the new possibilities provided by the Treaty of Amsterdam for the creation of an area of freedom, security and justice, which were set out in the Vienna action plan, adopted by the Council in 1998 (3) and fleshed out at the Tampere European Council in October 1999, the Committee can only repeat the views it expressed in its earlier opinions on conversion into a Community instrument, on the current Regulation 44/2001 of 22 January 2000 (4), and on the Communication from the Commission on European contract law (5).

1.4.1

In the first of these opinions, the Committee welcomed the Commission's decision to convert the Convention into a draft regulation, as ‘a regulation with direct application’ representing ‘significant progress, in particular insofar as it will create greater legal certainty’ and since ‘the Court of Justice will be able to ensure uniform application of the provisions set out in the regulation in all Member States’.

1.4.2

In the second opinion, the Committee argued that ‘it is undeniable that international traders feel the need for a universal, workable, stable, predictable framework to promote secure and fair transactions and compliance with the relevant provisions and principles of international public law contained in major international conventions and common law’.

1.4.3

With regard to the present initiative, therefore, the Committee would repeat the support it expressed for converting the Brussels Convention into a Community regulation. It would also draw attention to the need for legal consistency, which in turn suggests that a similar approach would be appropriate.

1.5

The Committee also considers that the Commission already has sufficient data compiled from a number of sources (6), including the above-mentioned EESC opinions, to enable it to press ahead with a fully-justified initiative which should not be delayed in view of the forthcoming accession of ten more Member States.

1.6

In view of the advances in substantive and procedural areas already made or in the pipeline, such as, amongst others (7), the Communication from the Commission on European contract law (8) and the Rome II instrument on the law applicable to non-contractual obligations (9), it would be advisable, as a minimum, for all aspects of private international law contained in the various above instruments and documents mentioned to be systematically linked in a single instrument, directly applicable in all Member States, as a means of ensuring uniform application of standardised rules of conflict of laws in all the Member States.

1.7

In addition to the highly technical and legal aspects relating to the modernisation and conversion of the Rome Convention into a Community instrument, the Commission is quite rightly concerned about the socio-economic impact of the initiative and a number of questions are raised in relation to the application of various provisions of the instrument.

1.8

The Committee shares the Commission's concern and, in assessing the proposals to modernise the Convention's content, takes account of available data on the impact of the measures, particularly concerning sectors and areas such as insurance, leasing arrangements, labour law, businesses – especially SMEs – and consumers.

1.9

The Committee wishes, from the outset, to express its general belief that modernisation of private international law arrangements, by consolidation into a single Community instrument, will have a highly beneficial effect on economic and social relations within the EC area, since it will help to standardise conflict rules and thereby generate certainty and confidence.

1.10

If the internal market is to function properly, and particularly freedom of movement and of establishment for natural or legal persons, legal certainty must be increased. Since this involves stability of legal relations, such relations must receive equal treatment in all the EU Member States (although, of course, subject to the constraints of public policy in each country).

1.10.1

This aim will be reflected in the protection of the legitimate expectations of parties to contractual relations involving multiple locations, which will also entail ensuring that there is certainty as to which law is applicable to such relations. Such stability will always be valuable when uniformity is achieved in evaluating legal situations and contractual relations in the various EU Member States. Progress towards such uniformity is without question facilitated by unifying the conflict rules, rules which prevent or resolve territorial conflicts of law.

1.10.2

This provides a single vision of such relations, increasing legal certainty regarding the way in which they should be governed, with clear benefits for the planning of commercial life and its geographical extension, freed from concern about shifts in the rules governing contractual relations (10). This also avoids ‘forum shopping’ (11).

1.10.3

Moreover, unification of the conflict rules will provide greater predictability as to which system governs contractual relations between natural persons, in turn facilitating and boosting commercial life, since the players involved will be more ambitious if less concerned about the future of their relations (12).

1.11

The Green Paper is intended primarily for legal specialists, especially universities and judges, companies and associations protecting and upholding the interests of citizens, especially consumers. The questions were drawn up with this in mind, covering almost exhaustively the issues raised by the application of the Rome Convention.

1.12

The Committee, for its part, plans to group the issues raised into major themes, making a distinction between general and specific questions, and to organise the present opinion accordingly.

1.13

In view of the ample academic and case-law information provided by the Green Paper in support of the questions the Rome Convention may raise and the alternative solutions put forward, in the interests of brevity the Committee does not reproduce all the possible arguments, sometimes simply listing the advantages of the solutions proposed.

1.14

However, in a concluding synthesis, the Committee attempts to provide a specific answer to each of the questions asked by the Commission and also raising further questions and making recommendations concerning the future work of the Commission, with the aim of contributing to the formulation and adoption of an instrument meeting current needs in this area.

2.1

The Committee agrees with the Commission's suggestion that the legal basis for the present initiative should be Articles 61(c) and 65(b) of the Treaty, and with its reasons for doing so, since the initiative is not in conflict, but rather in full keeping, with the principles of subsidiarity and proportionality.

2.2

The Committee's preference for the Community instrument to be used is, unambiguously, for a regulation, since this more closely matches the nature of the rules in question and the objective of ensuring certainty of interpretation and implementation by both the different national courts and businesses and private individuals in their transactions.

3.1

The Rome Convention is based on a number of fundamental principles and values which form the historical foundation and shared heritage of the legal systems embodying the rule of law. These include:

3.2

Since at substantive level national legal systems lay down rules to protect consumers or the party considered to be weaker (workers, insured persons or policy-holders) – not so much in order to favour them with increased benefits beyond what would in fairness be due to them, but rather to restore the balance and proportion inherent in the obligation-related aim of all contractual relations – the objective of the approach to protection of the weaker party may, also in the field of private international law, has been strictly limited to ensuring real adherence to the purpose of the conflict rules in this area, thereby preventing the distortion of conflict law which could arise from choice of the applicable law where such choice, under the guise of freedom of choice in the area, serves to conceal what is actually a unilateral choice of lex contractus made by the stronger partner (e.g. business operator, employer, etc.).

3.3

By invoking the rules of necessary and immediate implementation, it is intended to ensure not only the implementation of the commutative justice inherent to contracts, but also that certain substantive public objectives, which may conflict with European countries' economic and social organisation, are not put aside; aims deriving from distributive justice may also be achieved.

3.4

These approaches, which are more or less deeply rooted in private international law, reflect a desire for legal certainty, and in general do not stand in the way of harmony of judgments, even in relation to third countries, as well as the desire for a general trend toward the universality of the connections chosen. In spite of the reservation consisting of the need to ensure compliance with certain public policy interests, or to apply certain protective rules whether or not arising from the incorporation of Community law (13), the Committee considers that the new Community regulation on this matter should still be essentially based on these principles and values.

4.1

The questions raised with regard to the application of the Rome Convention and its future may be divided into those generated internally and those of external origin. The former result from the Rome Convention's own rules and their underlying value-based choices, and from the methodologies followed; the latter from, for example, the Convention's relation with Community law and other public international law instruments, particularly those intended to unify the conflict rules or substantive law in the field of contracts (whether already concluded or in preparation) (14), and the future relation between the Convention of Rome and the Brussels I Regulation (15).

4.2.1

The structure of the Rome Convention fits within the traditional mould of conventions for the unification of conflict rules. Following a definition of its scope and a declaration of its application to non-contracting states – continuing to apply when its rules indicate that the law of a non-contracting state has jurisdiction – the conflict rules are set out. However, the systematic inclusion of certain provisions raises some reservations.

4.2.2

Thus firstly, after Article 3, the general rule set out in Article 4 already contains a number of special rules concerning contracts for immovable property and for carriage of goods. Since certain contracts merit treatment in separate articles, this dual criterion for distribution of special rules, at least regarding carriage of goods (in deciding to maintain this rule – cf. below), should be reviewed in recognition of the different level of specialisation involved.

4.2.3

Secondly, general rules on transitory law and uniform interpretation appear among rules closer to questions more narrowly related to private international law. The systematic inclusion of these rules should be reconsidered.

4.3.1

The Convention did not seek to extend unification to all conflict-related areas in the field of contracts. Thus contractual obligations arising from family relations and succession, from credit instruments, company matters, activities of representatives or agents, trusts and insurance contracts covering risks situated in Community territory are excluded from its scope.

4.3.1.1

Some of these exclusions resulted from the existence of other regulatory instruments already providing international unification, or from current preparations for specific measures to bring about unification.

4.3.1.2

Work in progress should therefore be outlined and a new assessment made of the regulation's scope.

4.3.2

In view of the unifying purpose and the general character of the rules contained in the future regulation, it is recommended that the scope is extended as far as possible, for example to all insurance contracts, and consequently deleting Article 1(3) and (4), leaving it to Community law and national systems to match these rules with any mandatory provisions regarding transposition, in the field of insurance (16).

4.4.1

The regulation sees fit to adopt the universal character of the Rome Convention, providing that its conflict rules are applicable, even when specifying a law of a third country. A different choice could entail altering the scope of the regulation, for example by limiting it to the resolution of conflicts of laws in certain contracts, which would make it difficult to determine what constitutes a Community contract or a contract influencing or possibly having an effect on the legal and economic life of the Community or on Community territory.

4.4.2

Neither would it suffice, from the point of view of the objectives of Community legislative policy, to apply only the unified conflict rules if these should specify the applicable law as being that of a Member State, and refraining in other cases, even if the contract may have strong effects on the territory or in the life of the Community, leaving the task of ensuring the pursuit of certain Community objectives regarding protection to the internal laws of the Member States and to other Community rules.

4.5.1

Regarding the possibility of choosing a non-state set of rules, whether the general principles of law or, in the field of lex mercatoria, customary commercial practices or usages, whether or not written down and whether or not systematically arranged by international collective entities, and given the complexity involved in studying such sets of rules, the reluctance to accept a description of this type, as well as practice as established in case-law together with the general sense of national laws and the current state of development of such sets of rules and their fragmentary nature, it would be advisable to retain the approach adopted by the Rome Convention to the effect that freedom of choice must relate to a set of laws of state origin (18).

4.5.2

With regard to the possibility of choosing the system contained in an international convention, it should be made clear that it is acceptable for this choice to be a valid resolution of a conflict of laws provided that the convention in question stipulates that the agreement of both parties is a precondition for its application (19). Such a choice would be subject to the usual constraints imposed by other international obligations upon the forum, by its rules of necessary and immediate implementation, and by international public policy (20).

When a convention to which the forum is a party is chosen and which provides that it shall be applicable by virtue of the choice of the parties, the question will be different: the regulation must ensure that it does not prejudice the application of special conventions to which the states may be, or become, bound at international level (cf. Articles 21 and 24).

4.5.3

Turning to agreements on the choice of court and arbitration clauses, the close link between procedural questions (to be governed by lex fori and, provided that the case falls within the scope of the Brussels I Regulation, by its rules, and possibly by other international rules) and contractual questions means that the continued exclusion of this matter is acceptable, at the cost of some erosion of the ambition of uniformity.

4.5.3.1

However, if it is decided to adopt a rule on this matter, care will have to be taken to safeguard the existing provisions of Community law or international treaties, whether general or specific, and the specifically contractual aspects which are to be submitted to such a conflict rule will have to be carefully defined, leaving the regulation of procedural aspects and effects to the individual states, since these aspects invariably affect their judicial systems.

4.5.3.2

Provided that the scope of any such rule is clearly defined, its choice of law in the event of conflict of laws could indicate the lex contractus, the law which would be applicable in governing the contract, provided the contract exists and is valid.

4.5.4

Given the specific nature of the problems involved in determining the tacit choice of the parties and their dependence on the particular circumstances, it would seem appropriate to leave such determination in the hands of the judge and evidential procedures within the terms of the procedural rules.

4.5.5

Although subsequent choice or subsequent variation of the law chosen by the parties (Article 3(2)) is based on the interpretation of the rules and objectives of the conflict rule of the Rome Convention, it should be made clear that making such a choice at a later stage may have ex tunc effects, since the position of third parties is safeguarded.

4.7.1.1

It is broadly recognised that it was not the fundamental concern of the constant provisions of the Rome Convention to protect consumers or other ‘weak parties’ in contractual relations and that, in consequence, the ensuing system is not overall best suited to provide effective consumer protection (25).

4.7.1.2

A number of questions must therefore be resolved in order for the system resulting from the new regulation to take proper account of the particularly disadvantageous position of individual consumers in international contracts, especially when confronted with pre-established, standard-form contracts, most particularly in highly specialist fields, such as financial services or contracts for electronic services. Prominent among these questions is the concept of consumers and of consumer contracts which may be covered by the provisions of Article 5 (the current exclusion of certain ‘movable’ or ‘active’ consumers; the non-inclusion of certain contracts concerning immovable property and possible services relating to the use of such property – timesharing; the problem of its application to contracts concluded by means of the same new electronic media through which the relevant advertising and/or provisional offer was communicated); the appropriateness of the suppletive connection chosen in the current Rome Convention; the need to ensure compatibility between the provisions of Article 4, 5 and 9; the present exclusion of straightforward contracts of carriage; the relation with the Brussels I Regulation; without, at the same time, overlooking the need to ensure that the regulation is not weighted in turn against the position of a seller entering into a contract with a consumer, given that in private international law the expectations and security of the former must also be protected.

4.7.2.1

Article 5(1) and (2). It is recommended that ‘mobile’ or ‘active’ consumers also be covered by this special rule governing consumer contracts.

4.7.2.1.1

In view of the important issue of electronic media, there should be a single rule of conflicts for consumer contracts, whether or not electronic commerce is involved, in order to avoid possibly discouraging the use of electronic media.

4.7.2.1.2

Consequently, in order to achieve these two objectives, no account should be taken in defining the scope of Article 5 of the location of certain elements at present considered to be significant, such as the provisional offer and advertising for the product or service, or the issuing of a declaration of negotiations or, in general, the steps required for the conclusion of a contract.

4.7.2.1.3

Therefore cases where the consumer, without being so advised or encouraged by the supplier, travels to the latter's country or should or actually does take receipt of the product or service in that country, should nevertheless remain outside the scope of the provision.

4.7.2.2

Article 5(1). This provision should be extended to contracts the object of which is immovable property – right in rem of periodic occupation or time-share contract.

4.7.2.3

Article 5(3). Consideration should be given to applying the suppletive rule of Article 4 and replacing the present suppletive criterion for application of the law of the place of residence of the consumer. This approach would continue to safeguard the security and the expectations of both parties; moreover, it is far from certain that the law of the place of residence of the consumer is in fact more favourable to him.

4.7.2.4

Article 5(2) and (3). The substantive minimum level of protection of the consumer must continue to be assured by the mandatory provisions of the law of the consumer's habitual place of residence, which would prevail over the system dictated by the competent law in the light of Articles 3, 4 and 9, unless the supplier were to provide sufficient evidence that in spite of having been reasonably diligent, he was unaware of the place of residence of the consumer.

4.7.2.5

Article 5(2). With regard to contracts entered into remotely through electronic media and the inclusion of mobile consumers vis-à-vis the protection of the legitimate expectations of the business operator, it must be established that the minimum level of protection under the lex domicilii cannot be invoked if the supplier proves that he was unaware of the place of residence of the consumer, or that he was unaware of it without such unawareness being attributable to his negligence, or that it was a consequence of a holding back of information on the part of the consumer, i.e. if such unawareness is attributable to the consumer (which would not be the case, for example, if the supplier had not given the consumer the opportunity, in a contract concluded by electronic means, to send him data concerning his place of residence).

4.7.2.6

Article 5(2) and (3). It is not considered necessary to maximise the substantive protection of the consumer, for example by means of a rule of alternative multiple connection, as this would run counter to what has been said with regard to the present understanding of the principle of protection of the weaker party. It is enough that a minimum level of protection be guaranteed. It is equally important not to unnecessarily jeopardise the value of the security and certainty of both parties or to entirely negate the importance of the wishes of the parties, even in this field.

Consumer contracts could therefore be subject to the general rules of conflict of laws (present Articles 3, 4 and 9), with the proviso that the protection afforded to a consumer by the mandatory provisions of their country of residence may not be reduced, unless the supplier was, in good faith, unaware of the consumer's place of residence; it always being incumbent upon the supplier to prove unawareness in spite of reasonable diligence.

4.7.2.7

Article 5(4) and (5). The exclusion of simple contracts of carriage from the scope of Article 5 is unjustified, although this entails invoking different laws for different credits (it would seem more reasonable for such an exclusion to be retained in Article 15 of the Brussels I Regulation in order to bring proceedings under a single jurisdiction).

4.7.2.8

There is perhaps no need for this article to include inevitable recourse to certain mandatory provisions of a Member State, provided that the contract contains a close connection with that Member State which is not the Member State in which the consumer is resident (the connection could be the place of publication of an offer or of advertising – cf. German legislation of 27 June 2000 (26)), having regard to both current proposals for ‘intra-Community’ contracts and the provisions of Article 7(1), although, in this case, the decision to apply such rules may always lie with the judge (quite apart from the well-known doubts concerning the type of rules under this provision).

4.7.2.9

Since the reasons justifying the favor personae under the Rome Convention and the Brussels I Regulation are the same – in spite of the fact that rules of conflict contain differing stipulations on account of the differing objectives of these two legal texts – the extension which may be made to consumer contracts under Article 5 should be brought into line with Article 15 of the Brussels I Regulation, especially if account is no longer taken of the location of certain steps prior to the contract or which are necessary for it to be concluded (cf. Article 15(1)(c) of the regulation).

4.8.2.1

Without prejudice to the free choice of applicable law under the terms set out in the current Article 6, the Committee believes that the competence of the law of the place in which the work is habitually carried out should be confirmed, provided that a temporary placement is involved, it being made clear that the conclusion, in the host country, of a contract with an employer belonging to the same group as the original employer does not prevent continuation of the placement.

4.8.2.2

Thought should however also be given to whether it is necessary to include a rule ensuring implementation in the host country of the transposal provisions of Directive 96/71 (28).

4.8.2.3

Regarding temporary postings, in spite of attempts at definition, and in view of the wide range of possible scenarios and circumstances in the business world, it might be better to continue without a rigid definition of the concept (either ex ante or ex post), leaving the judge to decide on the existence of a temporary posting in each specific case.

4.8.2.4

Notwithstanding the contribution made by the Report on the Rome Convention, mentioned above, and the trend towards agreement within international legal theory, this opportunity could be taken to provide an explicit solution for work carried out on board vessels or aircraft regularly making international journeys, and on maritime platforms. They could be covered by the suppletive criterion contained in Article 6(2)(b), with the exception clause in Article 6(2) in fine being permanently retained.

4.8.2.4.1

This would also go some way to countering the temptation to grant a degree of extraterritoriality to these modes of transport and to apply the law of the flag state which, as is known, does not always have the most substantial connection, particularly in light of the use of flags of convenience.

4.8.2.4.2

Thus, without prejudice to the present Article 6(1), the law of the place of the body having hired the worker would be applicable, if the worker did not habitually carry out his work in that country, or if he carried it out on board a means of transport subject to registration and not travelling in the same country, on a maritime platform, or in a territory not subject to state sovereignty, unless another law displayed a closer connection, the specific circumstances of the case having been considered.

4.8.2.5

It should be remembered, concerning collective agreements in force in countries in contact with a given multi-location employment relation that, in keeping with consistent international legal theory, and in spite of the debate on the authoritative nature of such agreements, the provisions of collective agreements are applicable provided they have the nature of mandatory rules in the field of one of the relevant laws, in the light of either Article 6 (involving an agreement in the country of the law chosen, lex loci laboris or the law of the place of the body hiring the worker) or Article 7.

4.8.2.6

On the other hand, the opportunity should be taken to make clear whether the regulation applies to international collective agreements. The particular nature of this approach, even if not developed in international practice, together with the theoretical argument over the nature of collective agreements, is enough to justify it.

4.8.2.6.1

The approximation of regulatory solutions in the field of employment would be best carried out within the framework of Community steps to unify or align the substantive laws of the Member States. Such steps may or may not entail drafting international or Community collective agreements and defining the conditions for doing so. This work therefore will focus not so much on the strictly-defined field of rules of conflict, the subject of the regulation, but rather on approximation of substantive law.

4.10.2.1

The present Article 3(3), concerning an objectively internal contract (since, even in the absence of an explicit rule, the approach will necessarily be maintained), should be replaced, because a rule of conflicts should not be brought to bear on a purely internal situation. No referral by the parties to a foreign law in connection with an objectively internal contract can ever override the application of the mandatory rules of the legal system within which all the objective connections exist.

4.10.2.1.1

In consequence, this referral should not be seen as conflict-related (kollisionsrechtliche Verweisung); it is bound to have a purely substantive value or that of a substantive transposal (materiellrechtliche Verweisung). In other words, it should be seen as the expression of private free choice in the field of internal substantive law, not as an expression of free choice of law by the parties, who can only choose which law is competent when they are parties to a contract presenting connections with more than one state.

4.10.2.1.2

The gap created by the abolition of this rule could be filled by a provision encompassing the concept of an objectively ‘intra-Community’ contract to which, regardless of any choice of the law of a third country, the mandatory rules of Community law or of transposal of Community law in force in the legal system which is competent in a suppletive quality must always be applied, also because this gap (matching Article 3(3)) is appropriate from the point of view of consolidation.

4.10.2.1.3

The Committee believes that this restriction should only be effective when all the objective connections set out in the contract tie it to Member States. However, particularly in the view of the possibility of a choice or change of choice of competent law after the contract was signed, conjunction of all the connections of the contract within Community territory should perhaps relate to the moment at which the law was chosen and not, as proposed in the current version of the Green Paper, the moment when the contract was signed.

4.10.2.1.4

In this way compliance with a minimum level of efficacy of Community secondary law will immediately be ensured, provided that the parties invest professio iuris in an ‘intra-Community’ contract.

4.10.2.2

Consideration must be given to the question of whether it is appropriate or advisable to insert a general provision governing the implementation of mandatory protective rules arising from the transposal of Community law, where the contract displays a close connection with a Member State (that Member State's transposal rules being applicable in this case), as in the example of the German law of 2000.

4.10.2.2.1

However, it may suffice to recognise that the provisions of Article 7 (which always leave the judge with some margin of appreciation), together with the primacy of Community law and Articles 3(3) and 5, even with the adjustments to be made (cf. above, enabling the competent law in a suppletive capacity to be the law indicated in Article 4, subject only to the minimum level of protection) and Article 6 (compelling the application of certain transposal rules of certain legal systems and particularly that which would be objectively competent, or that of the host country of a worker on placement) are enough to lead to such implementation (30).

4.10.2.3

On the other hand, in addition to the comments concerning Article 3(3), it is worth restating that disparities in the transposal of directives by Member States and the issue of non-transposal do not appear to be relevant to the specific field of rules of conflict, but rather to the drive for harmonisation; it is up to the Member States, in their internal law, to ensure that the objectives of Community law in this area are achieved in those cases covered by directives.

4.10.2.4

In spite of the possibly ambiguous nature of the title, evoking a certain historical background to the concept of ‘mandatory rules’, the definition of the rules covered by the provisions of Article 7 should be maintained at formal level, i.e. by reference to the immediate character of their application, regardless of the law applicable by virtue of the rules of conflict, rather than opting for a substantive interpretation of these rules based on their object or content.

4.10.2.4.1

In reality, the provisions of Article 7 are another effort to harmonise judgments, but with the aim of promoting the application of certain rules for the transposal of Community law which might not be applied because of other Rome Convention rules (or possibly on account of imperfect transposal into a national legal system to be taken into account in the light of a rule of conflicts, or simply because such transposal has not occurred at all) – although this latter does not appear to be the underlying legal objective, particularly since Article 7(1) is of universal character.

4.10.2.5

With regard to the mandatory rules or of necessary and immediate implementation of third countries, it must be decided which is the best means: either the principle of international harmony of judgments, at which private international law aims, or the unifying approach underpinning the Rome Convention and the future regulation (31).

4.10.2.5.1

Assuming that it is preferable to take account of, or apply, such rules from third-country legal systems, in order to put the values of private international law into practice, the Committee deems it sufficient to grant a margin of appreciation to the judge, as is the case at present, bearing in mind that a decision on such consideration or application will, provided it tallies with the objectives of private international law, entail careful analysis of the circumstances of the case and the overall content of such third-country legal systems (the current text, moreover, calls for the judge to take careful account of the nature, purpose and possible consequences of not invoking these rules, which must be compared with the effects of application or consideration).

4.10.2.5.2

This margin of appreciation may be enough, especially considering that the risks to certainty and predictability have already been allowed for when consideration of the rules was first accepted. Imposing excessive detail on the conditions for application or consideration of the rules may not only prove difficult, if done in an abstract manner, but may influence the judge to the extent that he may not be able to make a proper assessment of the requirements of legal certainty in each individual case: the final result being that the details provisions would undermine their own purpose.

4.10.2.6

In view of the established primacy of Community law, it may be decided – in spite of the instructive interest of such an exercise – that it would be unnecessary to enshrine explicitly the approach taken in the Arblade case, i.e. Article 7 should contain a reminder that the application of rules of necessary and immediate implementation cannot constitute an unjustified obstacle to the freedom of movement embodied in the original law.

4.13.1

Comparative question of clarification of conceptual frameworks (e.g. case of factoring). The question is whether to introduce clarifications which, by contributing to the drive for unification, will come into conflict with the differing nuances of national legislation. Account will also have to be taken of the proximity of the two rules (Articles 12 and 13) with regard to the judgment concerning conflict of laws underpinning them, and of the connections chosen, which reflect the trilateral nature of these relations.

4.13.1.1

Since this is in reality a question of qualification, it should be left in the hands of the judge, particularly since legal certainty does not seem to be subject to an unacceptable level of risk in the light of the similar structure of the two rules of conflicts, which both eventually trigger the distributive application of different laws.

4.13.2

Question of the invocation of assignment against third parties (possible holders of rights which may be assigned to the original assignor/creditor). The problem arises of whether the regulation should expressly state which law is most appropriate to regulate this question, given the risks of forum shopping. The aim of unification would suggest unifying the rule applicable to this question, therefore deterring those involved from forum shopping. Due consideration must be given to the value of certainty and predictability, and to the risks of invoking different laws. Since predictability would not be jeopardised, and uniform treatment would be guaranteed for third parties with claims competing with those of the assignee vis-à-vis the assignor, the Committee considers that preference should be given to application of the law governing the assignment.

4.13.3

Question of conflict between assignees and their resolution. The considerations set out in the point above would, mutatis mutandis, be valid here. Possible recourse to the law governing the assignment is suggested in the event of a contradiction between the legal systems governing the various assignment relations (although the primacy of this law could lead to different laws being applied to the assignees and to third parties intending to press their claims on the original assignor/creditor – cf. the previous paragraph).

4.13.4.1

The very helpful Report on the Convention of Rome explained that there was no intention to exclude subrogation resulting from payment not based on an obligation, but rather on simple ‘economic interest recognised by law’ (35), from the scope of Article 13, although the subrogation may then be ex lege.

4.13.4.2

The text should perhaps now be amended to make it clear that this hypothesis should also cover this rule, indicating which connection will prevail.

4.13.4.3

It might also be advisable to flesh out this rule by specifying, similarly, which law should govern the existence or extension of subrogation in the event that satisfaction of the credit is based on a well-founded economic interest, and which law should govern or which situation should provide the grounds for this economic interest – although the judge must be given an adequate margin of appreciation, safeguarded inter alia by the inclusion of an exception clause.

5.1

As mentioned above (point 1.14), although the Committee has touched upon other matters in order to make the fullest possible contribution to the issues raised by the Commission, it sets out below a summary reply to each of the questions contained in the Commission's questionnaire.

5.2.1

The experiences gathered by EESC members in their places of origin point to an overall feeling that judges in general have little, and purely theoretical, knowledge of the Rome Convention: very few judges, particularly in the lower courts, possess a sound knowledge of its tenor and potential.

5.2.2

The same broadly applies to economic actors, especially consumers and SMEs. Only large companies, principally multinationals, have the specialist legal know-how to derive benefit from the Rome Convention in the wording of their contracts, especially standard-form contracts.

5.2.3

On the basis of their personal experience in their places of origin, EESC members are also convinced that this state of affairs is damaging to smooth contractual negotiating, and underlies the increasing conflicts in cross-border transactions.

5.5.1

The EESC would welcome the introduction of a clause as described by the Commission in point 3.1.2.2 of the green paper, particularly insofar as it counters abuse of freedom of choice, as a means of blocking application of the rules providing greatest protection to the rights of certain weaker parties to contracts.

5.5.2

The reply is given in point 4.10.2.1 of the present opinion, where an amendment to the proposed wording of the green paper is suggested, since rules which, although grounded in Community legislation, would be of internal origin, are involved.

5.22

It is pointed out that, in addition to these questions, the present opinion has touched upon other matters not specifically included in the questionnaire, such as issues concerning the structure of the Rome Convention (point 4.2.2 and 4.2.3), the effects of subsequent choice of competent law by the parties (4.5.5), contracts for carriage of goods (4.6.4.2) and the law applicable to the capacity of legal persons (4.12.2).

6.1

The Committee supports the two main objectives of the Green Paper, to convert the Rome Convention into a Community instrument and to modernise its content, and urges that this be done as quickly as the complex nature of the subject allows.

6.2

It is the Committee's view that the Community instrument should take the form of a regulation, and agrees that the legal basis should be Articles 61(c) and 65(b) of the Treaty, as suggested by the Commission.

6.3

The Committee reaffirms the main principles underpinning the convention, and believes that they should be carried over into the regulation.

6.4

The Committee's proposals, which are set out in detail above, are based on the need not only to update some of the provisions of the Rome Convention in line with intra-Community commercial transactions and new contractual instruments, especially distance selling, but also to settle a number of questions of interpretation raised in the study of law and in the courts during the period in which the Rome Convention has been in force.

6.5

In its opinion and its replies to the Commission's twenty questions, as well as in its own questions, the Committee has striven to put forward solutions which preserve a balance between the interests of the parties concerned, in compliance with the established principles of law constituting the common heritage of the legal systems of the Member States.

6.6

The Committee is however aware that the issue has not been exhaustively examined and therefore urges the Commission to take proper account, in the final draft of the text it is to submit, of all the contributions it receives in response to its highly positive initiative represented by the Green Paper.

30.4.2004   

EN

Official Journal of the European Union

C 108/23

1.1

The Committee is supportive of the ‘Adapting e-business Policies in a changing environment: The lessons of the Go Digital initiative and the challenges ahead’ Communication from the Commission, whilst drawing attention to some policy areas that deserve more emphasis.

1.2

It believes that the European Commission has produced an excellent proposal document on the need for Member States and regions to re-orient e-business policies from simply promoting e-commerce to helping Small and Medium Sized Enterprises (SMEs) take full advantage of Information and Communication Technology (ICT) to re-engineer automate and streamline business processes.

1.3

The Committee welcomes the highly practical approach proposed in the Communication to engender this policy support for SMEs – with the inclusion of a framework for SME-specific e-business policies, and the setting-up of the European E-business Support Network for SMEs (EEBSN) to provide focused collaboration between e-business policy makers at national and regional levels across the EU.

1.4

It also welcomes the insistence in the Communication on the need for policy makers to set quantitative as well as qualitative targets, using the SMART [specific, measurable, achievable, realistic and timely] principle. Measurement of progress against realistic and appropriate goals is a key requirement for effective management of policy initiatives and the evaluation of their practical impact.

1.5

The Committee believes that there is still significant progress to be made with providing a favourable e-business environment in many parts of the European Union and thinks that the Commission's framework for SME-specific e-business policies should reflect these fundamental requirements. The EESC calls on the Commission to coordinate the efforts of national governments in implementing open and transparent policies in the area of public sector contracts so as to ensure that SMEs can participate on equal terms.

1.6

The Committee also thinks that a fourth main policy area/challenge could be included – to improve the environment for e-business, for instance through ensuring that commercially essential Internet access is available, through on-going targeted awareness programmes to build trust and confidence in e-business process among SMEs, and through recommendations and technological initiatives at EU level to reduce the harmful effects of Spam on e-business.

2.1

The Committee believes that the European Commission has produced an excellent proposal document on the need for Member States and regions to re-orient e-business policies from simply promoting e-commerce to helping Small and Medium Sized Enterprises (SMEs) take full advantage of Information and Communication Technology (ICT) to re-engineer automate and streamline business processes.

2.2

At the same time, the proposals will favour the consumer. A fair, reliable market, fair competition and the right use of ICT, together will increase confidence in e-commerce, which is so necessary in the development of this market.

2.3

It is recognised that SMEs, which account for more than 99 % of all businesses in Europe, play a central role in stimulating innovation, growth and employment. Furthermore, efficient use of ICT increases productivity and improves competitiveness. Thus, the realistic approach advocated by the Commission strongly encourages active support for the Lisbon strategy to make the EU the world's most competitive and dynamic knowledge-based economy by 2010. The highly practical approach proposed in the Communication includes a framework for SME-specific e-business policies and the setting-up of the European E-business Support Network for SMEs (EEBSN) to provide focused collaboration between e-business policy makers at national and regional levels across the EU.

2.4

The development of this dynamic, knowledge-based economy will impose significant changes on the business environment facing SMEs – the business processes, business relationships, technology, knowledge and skills required to succeed in this new economy will be different to what small firms have been used to, and they will have to embrace substantial transformation.

2.4.1

To survive and thrive, SMEs, particularly the micro-firms (with less than 10 employees), need an integrated and well organised support mechanism at local, national and European level and within their specific sector, to provide support for each other as they go through this transformation and acquire the knowledge they need to succeed.

2.5

Unless SMEs are assisted in this transformation to a knowledge economy, by tangible support from policy makers, there will be negative effects on business, employment levels and society across the Union.

2.5.1

The Committee welcomes the highly practical approach proposed in the Communication to engender this policy support for SMEs – with the inclusion of a framework for SME-specific e-business policies, and the setting-up of the European E-business Support Network for SMEs (EEBSN) to provide focused collaboration between e-business policy makers at national and regional levels across the EU.

2.6

By calling for Member States to define sector-specific and region-specific e-business policy objectives and by encouraging them to identify appropriate quantitative and qualitative targets, the Commission is forcefully campaigning for specific, measurable, achievable, realistic and timely (SMART) action that will significantly accelerate the efficient adoption of ICT and e-business processes by SMEs throughout the Union.

2.6.1

The Commission is backing its initiative by providing a forum to discuss, support and co-ordinate policy development across the EU (the EEBSN – European E-Business Support Network) and by suggesting a framework for such policies and targets.

2.6.2

In addition to identifying most of the critical policy issues, the Commission has correctly acknowledged the importance of channelling many SME e-business policy initiatives through trusted intermediaries and multipliers. This campaign to help SMEs deserves the Committee's full support.

2.7

The Committee welcomes the insistence in the Communication on the need for policy makers to set quantitative as well as qualitative targets, using the SMART principle. Measurement of progress against realistic and appropriate goals is a key requirement for effective management of policy initiatives and the evaluation of their practical impact.

2.8

SMEs have taken the first steps towards adoption of e-business with computer usage and access to the Internet almost ubiquitous. However, beyond this basic level of ICT the digital divide opens-up: there are substantial differences in the degrees of digital integration between the larger SMEs and the smaller firms (especially the micro-firms with less than 10 employees), and among SMEs there are also significant differences on a regional and sectoral basis. In particular, the early adopters of ICT have made significant progress with e-business, while the late adopters need significant assistance to catch-up.

2.8.1

Hence the requirement for specific policy initiatives to address the particular needs of SMEs and of specific regions and sectors, especially the late adopters of ICT. Unless the digital divide is bridged, the competitive advantage of the large firms and of the firms with a higher-level of ICT integration over SMEs will grow, with the direct risk that SMEs are squeezed out of the market, creating explosive economic and social problems. The Committee is pleased to see that the Commission has noted these differences and has advocated that special attention be given to closing the digital divide.

2.9

When considering e-business and the greater use of ICT, issues concerning trust and security are of particular concern to SMEs, particularly micro-firms. The Committee wants to stress in these general remarks that policy makers must take these concerns into account when developing policies.

2.10

The Communication states that the role of public authorities in promoting e-business is mainly to ensure a favourable e-business environment for enterprises which would lower market access barriers and lower the costs and risks of ICT investment, thus facilitating access to new international markets.

2.10.1

Such an e-business friendly environment would include a stable legal and regulatory framework, full liberalisation of the telecommunications market with concomitant reduction in costs and increased availability of services and service quality, and the widespread introduction of e-government services. The EESC calls on the Commission to continue its efforts to establish an acceptable regulatory framework at global level which will prevent the creation of national barriers and will ensure the necessary security for electronic transactions.

2.10.2

The document goes-on to state that at both European and national levels, many of the necessary steps have already been taken to provide this favourable e-business environment. With these ‘horizontal’ policy elements being taken care of under the eEurope framework and under the aegis of other initiatives the purpose of this Communication is to advocate specific SME policies aiming to promote the use of ICT and e-business processes by SMEs.

2.10.3

However, the Committee believes that there is still significant progress to be made with providing a favourable e-business environment in many parts of the European Union and thinks that the Commission's framework for SME-specific e-business policies should reflect these fundamental requirements. The EESC calls on the Commission to coordinate the efforts of national governments in implementing open and transparent policies in the area of public sector contracts so as to ensure that SMEs can participate on equal terms.

2.11

In the Commission's policy framework the overall objective is to stimulate and support SMEs in the adoption of e-business. The framework as proposed then includes three main policy areas or challenges under which specific policies are grouped. The EESC agrees with the Commission's working framework and broad lines of policy and will be monitoring their implementation with particular interest.

2.11.1

The development of this framework and the specific policies is a matter for the Commission and the policy makers. However, the Committee fully endorses the detailed list of activities contained in the Communication and is impressed by the list of possible targets proposed. In this opinion the Committee also highlights some additional areas of policy that it believes should be included in the framework.

2.12

As mentioned in 2.10.3 above, a fourth main policy area/challenge could be included – to improve the environment for e-business. The Committee might also quibble with the combining into a single policy area of both the development of managerial understanding and the acquisition of e-business skills: perhaps greater clarity would be achieved by separating these two distinct challenges. The following section of the opinion includes comments on these issues and on other areas of the policy recommendations which the Committee believes deserves a special mention. In giving these comments the Committee is in line with its earlier opinions in this field (1).

3.1.1

Pressure should be maintained on Member States to ensure that commercially essential Internet access (whether that is deemed to be always-on broadband access, or simply flat-rate high-speed access) is available to a high percentage of SMEs, particularly at regional level, and that the cost of access is in line with competitive EU norms.

3.1.2

All the technology and regulations are in place to provide a secure environment for e-business. However, there is a need for on-going targeted awareness programmes to build trust and confidence in e-business process among SMEs.

3.1.3

Spam or unsolicited commercial e-mail (UCE) can impose great nuisance and cost on recipients, particularly on the scarce resources of SMEs trying to conduct business on the Internet. It also undermines their confidence in the security of the process. Recommendations and technological initiatives are needed at EU level to reduce the harmful effects of this menace on e-business adoption.

3.1.4

While the involvement in e-markets is to be encouraged, the particular problems surrounding reverse auctions need to be considered for policy attention at EU, national and regional levels. Through the reverse auction procurement process, large companies can put undue pressure on SMEs to drastically reduce their profit margin. In extreme cases the viability of the SME can be put in jeopardy. Bad experiences with reverse auctions can adversely affect SME sentiment towards e-business. The Commission should ensure that codes of good conduct are implemented across the EU.

3.1.5

As more SMEs take part in the digital economy, the registration and ownership of domain names becomes an issue. The Committee would urge the Commission to ensure policies are in place that prevent cyber-squatting (hoarding of dormant domain names by companies and individuals which prevents established firms from owning a domain name that fits their registered business name).

3.1.6

Governments should be encouraged to implement e-government services as widely as possible and to implement their public e-procurement processes in a manner that is sensitive to the limited competencies of some SMEs.

3.1.6.1

Such G2B (government-to-business) and B2G (business-to-government) transactions encourage SMEs to make wider use of ICT and e-business. They also demonstrate the effectiveness and usefulness of e-business to SMEs, familiarising them with the technology and the benefits.

3.1.6.2

However, in some countries, government procurement of goods and services is greater than 50 % of all business purchases in the State. Thus, government implementation of e-procurement systems will have a major impact on the adoption of e-business processes by SMEs, and on the ability of all SMEs to share, on an equitable basis, in the economy for government consumption of products and services. It is critical that government e-procurement systems are implemented in a way that is sensitive to the special needs of SMEs. Unless governments make special efforts in this regard, many SMEs will suffer.

3.1.7

To facilitate greater SME participation in e-procurement processes, efforts should be made to reduce the complexity and cost of compliance with EU procurement rules.

3.1.8

Consideration might be given to the development of national or regional portal trading sites – similar to the Singaporean model – to make it easy and efficient for SMEs to participate in the new economy, and to maximise the general economic benefits accruing from the widespread implementation of e-commerce processes.

3.2.1

Businesses ultimately depend on their management and leadership to adopt significant new technology and to change business processes. This is especially true in the case of SMEs. However, most managers in SMEs have a very limited understanding of ICT and its potential benefits and the lack of understanding among SME managers is a major barrier to the adoption of ICT and e-business.

3.2.1.1

The Committee supports the Commission's proposal that policy initiatives should target the improvement of knowledge transfer to SMEs through SME support networks and workshops.

3.2.1.2

It also wholeheartedly agrees with the Commission on the need to develop case studies examples that can demonstrate the benefits and ease of implementation of e-business processes to SMEs. The case studies need to be specific and local enough to the target SMEs to be relevant. It would also be useful to include financial benefit analysis in the case studies. Ultimately, it is the long-term financial benefits of using ICT to implement e-business processes that will convince most managers to re-engineer their businesses.

3.2.2

Besides education in ICT and e-business, which is a long-term policy requirement, SME managers need advice and guidance on the e-business possibilities open to them today. This advice is best got through informed advisors in their support networks, in particular through business representative organisations and industrial representative organisations. Special efforts should be made to ensure the number and quality of such advisors is sufficient for the task. Also, appropriate training and consultative initiatives need to be undertaken to reach SME managers and give them the level of understanding they need.

3.2.3

Fiscal incentives, linked to specific measurable initiatives, should be considered to make it easier for managers to take e-business initiatives in their firms. The tax relief measures could provide support at set-up and for on-going operating expenses, thus helping to make the financial case for greater use of ICT within the SME.

3.2.3.1

The Committee agrees that special care should be taken to harmonise such incentives on an equitable basis across the Union so that fair competition is maintained. Also, it is vital that tax incentives be rigorously monitored to ensure that they are used only for their intended purpose.

3.2.4

Coping with the substantial transformation required of SMEs to succeed in the rapidly emerging new economy will require accelerated and continuous learning. All consideration of policy initiatives to promote learning among SMEs – managerial understanding, technology skills and strategic options – should take cognisance of the need to promote social networks and continuous dialogue among SMEs.

3.3.1

SMEs are at a significant disadvantage when it comes to the issue of ICT and e-business skills:

3.3.1.1

So ICT and e-business skills are difficult to secure and very expensive for SMEs. This is a major barrier to greater adoption of e-business processes by SMEs.

3.3.1.2

The knowledge transfer initiatives mentioned above will be useful in helping managers to come-to-terms with some of the strategic decisions to be made. However, there will always be a need for specialised expert advice and support on the implementation and on-going maintenance and management of significant e-business projects.

3.3.1.3

SMEs can get some of this expertise from their support network. Tax incentives and grants can also help with the hiring of expertise and the training of employees - however, any fiscal incentives must be rigorously monitored to ensure that they are used only for the purposes intended. Networking and sharing of expertise among e-business competence centres could be encouraged as well.

3.3.2

As the need for ICT consultants increases, it would be desirable to have controls on the quality of practicing consultants to protect SMEs from unscrupulous and incompetent ICT professionals. It would be useful to have a quality certification process and a code of conduct for ICT and e-business consultants working with SMEs on approved schemes. Policy supports (e.g. fiscal aid) could be limited to the use by SMEs of qualified consultants.

3.3.3

Policy makers have got to come to terms with the need for more widespread and extensive education of the workforce to cope with demands of a 21st Century knowledge economy, heavily dependent on ICT and e-business processes. Existing programmes need to be extended to reach more people in the economy and expanded to include the depth and breadth of education required. This education needs to begin in schools and continue through life-long-learning initiatives, supported by appropriate social networks. The Committee agrees with the Commission's enthusiasm for using e-learning techniques and applications within SMEs as a complement to traditional ways of learning for their staff.

3.3.4

The social dimension to e-business adoption must be considered by policy makers. Society at large has got to be engaged and stimulated to support e-business adoption and to see the benefits of e-business for all.

3.4.1

SMEs need access to affordable and relevant e-business solutions. Despite the fact that SMEs account for more than 99 % of businesses, most e-business applications such as Customer Relationship Management (CRM) systems are tailored for the needs of large businesses. SMEs need cost effective solutions that can be implemented quickly and easily and are tailored for their particular needs. Such solutions are scarce today.

3.4.1.1

Policy initiatives are required to facilitate the development of reliable and appropriate options with existing ICTs and SME-friendly e-business solutions which go far enough towards meeting their specific needs (1). The Committee approves of the suggestion in the Communication that SMEs could team-up with large ICT firms to create solutions that meet the actual needs of the SME sector, but awaits the concrete results of these proposals, which will be judged in the course of time (2). The Committee welcomes the importance attached to the participation of SMEs in the 6th RTD Framework Programme and the support under that programme for the development of open source software and interoperable e-business solutions, which are useful and technically complete enough to be worthwhile and serious solutions for SMEs (3).

3.4.1.2

Despite the announcements and existing programming, there has been no noticeable direct involvement of SMEs in programmes in the course of the 6th RTD Framework Programme to date because the vast majority of SMEs do not have the necessary infrastructure, know-how, technical expertise and fully trained staff to have any credible participation or to reap any real benefit from them.

3.4.2

A simplification of the European-wide patenting process would facilitate the commercialisation of new applications and technology for SMEs. At present the onerous and expensive patenting procedures create a barrier to small-scale and low-cost innovation.

3.4.3

The Commission's idea about promoting e-business interoperability through national test-beds is stimulating. It is an idea that deserves promotion. It would be a valuable asset to SMEs if the idea was implemented as outlined in the Commission's vision. However, the Committee is not sure that the private sector, as proposed by the Commission, would be sufficiently motivated to implement the plan on a wide-enough basis.

3.4.4

To provide a stimulus to innovation and entrepreneurship in the area of SME participation in ICT application development, perhaps policy makers might consider mandating that a certain percentage of government spending on ICT should be placed with SME firms.

3.5.1

E-marketplaces are growing in relevance for SMEs in certain sectors, but many SMEs in those sectors don't properly understand how those Business-to-Business (B2B) e-marketplaces operate nor do they have the ICT infrastructure to take advantage of the opportunity. Policy initiatives are needed to educate the relevant SMEs and to help them overcome the technical, economic and legal barriers to entry. The EESC also calls on the owners and managers of SMEs to be aware of the extremely complex conditions which are taking shape on a global level with the abolition of trade barriers and the use of new technologies and to have the courage to undertake the necessary modernisation of their businesses so that they can face up to the new and particularly demanding conditions of international competition.

3.5.2

The Committee calls on the Commission to consider a quality certification process for e-marketplaces to identify sites that operate best-practice in running their operations.

3.5.3

The Committee calls on the Member States to pay particular attention to the special needs of SMEs when implementing their public e-procurement systems, and on the Commission to continue with its initiatives to ensure real coordination at European level.

3.5.4

Collaborative e-business networks offer many potential benefits to SMEs and the Committee fully supports policy initiatives that encourage them to develop. Besides the direct commercial benefits of combining the strengths of a number of SMEs to bid for contracts more complex or bigger than they could bid for on their own, such networks facilitate the transfer of knowledge and can help bridge the knowledge and skills gaps referred to previously. They can also collaborate to develop e-business applications that meet their particular needs. Policies, including financial support, should be considered to propagate such networks.

3.5.5

SMEs are concerned about privacy and Intellectual Property protection when they get involved in e-markets and collaborative networks. Any security and reassurances that the Commission and policy makers could provide in this regard would facilitate greater involvement.

3.6.1

The EESC calls on the Commission to review the three lines of action and progress on implementation at national and European level of the individual actions outlined in the Communication entitled ‘Helping SMEs to Go Digital’ and to draw the necessary conclusions regarding any delays.

30.4.2004   

EN

Official Journal of the European Union

C 108/29

1.1.1

The draft directive is a recasting of Council Directive 70/156/EEC on the approximation of the laws of the Member States relating to the approval of motor vehicles and their trailers.

1.1.2

Directive 70/156/EEC is the main legal instrument for implementing the single market in the automotive sector. Agricultural tractors will also be included in this process following the adoption of a new directive amending the framework Directive 74/150/EEC of 4 March 19974. The Committee issued an opinion on this subject on 16 April 1969 (1).

1.1.3

The Commission believes that the time has come to extend to commercial vehicles the principles already established for other categories of vehicles.

1.1.4

The technical annexes of Directive 70/156/EEC were consolidated into a single document in the first stage of the recasting. The current proposal is the second stage in this process, involving the recasting of the legislative provisions of the directive. This means that an approval procedure covering all categories of commercial vehicles could come into force as early as 2007. It should be noted that Community type-approval has been compulsory for passenger cars since 1 January 1998 and for motorcycles and mopeds since 17 June 1999.

1.1.5

The Commission believes that the adoption of the draft directive repealing Directive 70/156/EEC, which has been 18 amended times, will result in a more consistent, better-structured text, to the benefit of manufacturers, Member States and candidate countries.

1.2.1

The Commission notes that Member States were informed about the proposal's content by the Commission's Consultative Group and the Motor Vehicle Working Group (MVWG). In addition, the Commission took account of the work done by the OTA (Operationality of Type-Approval) working party and, to large extent, also the work of the TAAM (Type-Approval Authorities Meeting) working party. The majority of government experts support the proposal, although some have expressed reservations as to whether the type-approval of commercial vehicles should be optional or compulsory.

1.2.2

The Commission stresses that the draft directive will have an enormous impact. In the table in point 5.2 of the explanatory memorandum (Appendix 1 of the present opinion) the Commission compares the annual production of passenger cars, light trucks and heavy commercial vehicles in the USA, Japan and the EU-15. Production in the EU-15 is stagnant. It is therefore regrettable that the Commission did not include an extra column, in advance, for the 12 candidate countries, where national production has been boosted as a result of heavy investment by Western manufacturers (2). The Commission also notes that the number of commercial vehicles in the EU-15 will increase from 24,829,000 in 2000 to 32,867,000 in 2014. While the Committee appreciates that the draft directive will cover many millions of vehicles, it would like the Commission to clarify its figures, given that the EU-15 will become the EU-27 by 2014 and that the 12 new Member States are making very rapid progress in this area.

1.2.3

The Commission points out that the automotive industry was involved from the outset in the preparation of the proposal and made an important contribution to developing the concept of multi-stage type-approval procedures. The Commission further notes that the industry is generally supportive of the proposal, provided a sufficiently long lead-time is built in to allow all manufacturers, including body-builders, to comply with the requirements on type-approval.

1.3.1

The following are some of the key concepts:

1.3.2

The draft directive forms a coherent whole, which will significantly simplify type-approval operations for manufacturers:

2.1

In a recent opinion on the draft Directive relating to the protection of pedestrians and amending Directive 70/156/EEC (CESE 919/2003) (3), the Committee made a number of suggestions, some of which must be restated in the present opinion.

2.2

The Committee endorses the Commission's initiative to recast a directive which has been amended 18 times and to harmonise the applicable rules, thus simplifying procedures and at the same time promoting the development of the single market.

2.3

On the other hand, this recast version of Directive 70/156/EEC contains another, broader objective concerning the improvement of road safety and environmental protection which the Committee feels has not been elaborated sufficiently.

2.4

Therefore the Committee would reiterate that the main objective of introducing compulsory Community type-approval is ‘to increase the safety of vehicles in use and to protect vehicle occupants in collisions, while at the same time respecting the environment’. This objective must be part of an overall approach which goes beyond the simple application of measures aimed at minimising the consequences of an accidental collision or a failure of a component, system or constituent unit of a vehicle.

2.5

In its opinion on the protection of pedestrians, the Committee singles out three aspects of pedestrian protection, which should also be mentioned in the explanatory memorandum:

2.6

Thus, although this is a technical directive, the Committee would once again ask the Commission to amend and supplement its explanatory memorandum in line with the above-mentioned suggestions so as to better develop ‘the content of an overall policy on accident prevention for road and street users’.

3.1

As concerns the impact of the draft directive and its consequences for the European automotive industry, the Committee agrees with professionals from the sector that there must be sufficiently long time-limits for the application of the directive. It understands this request and considers it justified, particularly for body-builders. Although the Committee does not possess all the necessary information, it considers that the planned schedule for the enforcement of the directive, which extends from 1 January 2007 to 1 January 2012 (Article 40 and Annex XVI ), is reasonable.

3.2

On the other hand, the Committee does not understand the reservations expressed by some government experts. It would like to know the reasoning behind the assertion by some of them that ‘that only minimal benefit for road safety or the environment could be expected from compulsory enforcement but that there would be an increased cost to manufacturers’. The Committee does not share this view. On the contrary, the Committee is convinced that the directive will have a positive impact on safety and the environment, provided that the proposals concerning the development of an overall approach are implemented within an acceptable timeframe.

3.3

Clearly, the cost to manufactures will be considerable, but acceptable if spread over 10 or 20 years. Consequently, the Committee would like an alternative evaluation of the cost of the draft directive to be carried out with all the interested parties to check whether the automotive industry could bear the cost over these long time horizons. The Committee thinks that it would be better to extend the time limits for application of the directive, rather than set impossible dates with repercussions for employment, costs and even the very survival of companies, including equipment manufacturers. In the current context of enlargement and the economic difficulties faced by Europe, a provisional check of this kind is consistent with the application of the principles of precaution and expediency.

3.4

As regards end-of-series vehicles (Article 26(3)), the time-limit set for Member States to respond to requests from manufacturers should be shortened from 3 months to 1 month so as to reduce stock holding costs

3.5

In its opinion on the type-approval of agricultural tractors and related equipment (4), the Committee drew the Commission's attention to the growing market for motor quadricyles (Quads). These are not mentioned in the draft directive or in the directive on agricultural tractors and related equipment. The Committee would emphasise the urgency of harmonising EU type-approval procedures for Quads.

4.1

The Committee welcomes the simplification and transparency that will result from recasting Directive 70/156/EEC.

4.2

Although this is a technical directive, the Committee suggests that the Commission emphasise in point 3 (‘Background’) of the explanatory memorandum that the main objective is to improve ‘safety’ in the use of vehicles with a view to not only protecting vehicle occupants but also to preventing collisions with other road users, pedestrians, cyclists and other vehicles.

30.4.2004   

EN

Official Journal of the European Union

C 108/32

1.1

The European Commission's intention, with draft directive COM(2003) 522, is to consolidate Directive 88/77/EEC on exhaust emissions from commercial vehicles, and all subsequent amendments to it adopted by the European Parliament and the Council, into a single text.

1.2

As requested in Articles 4 to 7 of Directive 1999/96/EC, the Commission also proposes three new provisions concerning, respectively, the introduction of on-board diagnostic (OBD) systems, procedures for confirming the durability of emission control systems, and procedures for checking the in-service conformity of such systems.

1.3

The Commission's proposal for these three new provisions is structured differently compared to existing directives concerning the type-approval of motor vehicles. This reflects the aim of making the decision-making process more efficient, and simplifying the proposed legislation so that the European Parliament and the Council can focus more on the content and political direction, leaving the Commission with the task of adopting the requirements needed to implement such direction and content.

1.4

The Commission has adopted a ‘split-level’ approach with two different, but parallel routes for drafting and adopting the legislation. Under this approach:

1.4.1

the fundamental provisions are laid down by the European Parliament and the Council in a directive based on Article 251 of the Treaty under the co-decision procedure, which establishes the basic principles of the new measures (co-decision proposal);

1.4.2

the technical specifications implementing the fundamental provisions are laid down in a directive adopted by the Commission with the assistance of a regulatory committee for adaptation to technical progress (comitology proposal).

1.5

Document COM(2003) 522 corresponds to the draft directive under the co-decision procedure (see 1.4.1 above); the draft directive under the comitology procedure (see 1.4.2 above) is not yet available.

2.1

In drafting its proposal, the Commission has made a clear distinction between the content concerning the introduction of new measures and content relating to consolidation of the text of the directive arising from the amendments previously adopted by the European Parliament and the Council.

2.2

The Commission proposes to introduce new provisions concerning OBD systems to the measures confirming the durability of emission control systems and to the measures to check the in-service conformity of such systems, on the same dates as planned for the entry into force of the Euro 4 and Euro 5 standards.

2.3

On-board diagnostic systems (OBD): the Commission proposes that these be introduced in two successive stages, with the following deadlines for entry into force:

2.3.1

In the first stage, the OBD system is required to detect failures in the engine control system, where such failures are caused by an increase in emissions above predefined threshold limits. The system must also be able to detect ‘major functional failures’ in any emission after treatment systems, such as particulate filters and/or catalysts.

2.3.2

In the second stage, the OBD system is required to detect not only failures in the engine control system, but also any deterioration of the efficiency of emission after treatment systems which could cause an increase in exhaust emissions above predefined threshold limits.

2.4.1

The Commission proposes the following definitions of the ‘useful life’ of the vehicles (1) to which the engines covered by the directive are to be fitted:

2.4.2

With effect from October 2005, manufacturers seeking type-approval for new engines will have to demonstrate emission compliance for the entire useful life of the type of vehicle to which they are to be fitted.

2.4.3

With effect from October 2006, all engines fitted to new vehicles must comply with this provision.

2.5

Checking in-service conformity: the above definitions of useful life for commercial vehicles as set out above will also apply to checks on the conformity of engines in service.

3.1

EU enlargement means that consolidated versions of the main directives are needed in the interests of greater clarity and transparency. The adoption of a consolidated version of Directive 88/77/EC is therefore required, and the Committee acknowledges the work done by the Commission to this end.

3.2

The Committee agrees that a specific debate on the content relating to the consolidation of the directive is not necessary, since it is in line with decisions already adopted by the Committee (2) itself, the European Parliament, and the Council.

3.3

The proposal to follow a split-level approach entails two different but parallel routes for drafting and adopting technical and legislative provisions.

3.3.1

Separating the fundamental provisions underpinning the definition of the proposed measures from the technical details required to implement them can play a key part in simplifying and speeding up the legislative process.

3.3.2

The Committee supports the approach adopted by the Commission in proposing new provisions regarding the introduction of OBD systems and measures regarding the durability of emission control systems and in-service conformity.

3.3.3

The technical details for implementation can be discussed and defined by experts made available by the Member States to the Commission through the committee on adaptation to technical progress.

3.3.4

The Committee urges the Commission also to take note of the contributions that the industry and other interested parties may wish to make to the definition of these technical details.

3.4

The Committee must however point to the significant delay in presenting the Commission's proposals on OBD systems, durability and in-service compliance in relation to the dates set out in Articles 4 and 7 of Directive 1999/96/EC mentioned in point 1.2 above.

3.5

The Committee also feels it must warn that the dates for the entry into force of the proposed new measures are dangerously close.

3.5.1

Any delays in adopting the two parallel directives, i.e. one under the co-decision procedure and the other under the comitology procedure, would leave the industry with no time to seek type-approval for engines which are scheduled for entry onto the market in 2005.

4.1

OBD systems for commercial vehicles will be introduced in Europe considerably earlier than on other markets, including the American and Japanese ones. As a result the kind of prior experience which, in contrast, was available in the previous phase when OBD systems were introduced for cars, will be absent.

4.2

In order to be ready in 2005, European engine manufacturers had to launch the design and preparation programmes for OBD systems years ago, on the basis of proposals they had put forward and of discussions within the MVEG (3) forum, on which Member State experts as well as the Commission are represented.

4.2.1

The point of no return, after which the basic system strategies can no longer be modified, was reached some time ago; system span values are now being defined.

4.2.2

The delay before the two parallel directives are published in final form is however a serious problem. The introduction of any unexpected modifications would make it impossible to meet the deadlines for entry into force of the measures.

4.3

The need to demonstrate the efficiency of emission control systems entails tests which require sufficient advance notification. Once again, the delay before the final versions of the parallel directives are presented could give rise to significant problems.

5.1

The Committee warmly welcomes the new split-level approach which the Commission intends to try out with the draft directive under examination. Separating the fundamental principles and policy objectives of the legislation from the technical details for implementation will simplify and speed up the legislative process.

5.2

The Committee considers that the European Parliament and the Council must adopt the Commission's proposal as a matter of the utmost urgency.

5.3

The Committee therefore hopes that the Council and the European Parliament will make every possible effort to reach a common position in good time, so that the proposal for a directive can be adopted before next April. Any further delay would seriously jeopardise the chances of meeting the deadlines for the entry into force of the new measures concerning durability and OBD systems.

30.4.2004   

EN

Official Journal of the European Union

C 108/35

—

the development of trans-European transport networks is essential for economic and social cohesion in the new Europe; and

—

coherent and sustainable development of European mobility must be guaranteed so as to permit the balanced growth of the continent's economic and social fabric.

1.1

One of the priorities of the Italian presidency has been to give new impetus to European transport infrastructure policy. Although Germany and France went on to point out that the priority of this growth initiative for Europe could not be transport infrastructure alone, but should also include energy networks, telecommunications and R&D, the focus on transport infrastructure is entirely warranted. A review of implementation of trans-European transport networks (TEN-T) over the last ten years makes for very sobering reading. Nevertheless, the European Commission responded in October with a communication of its own taking appropriate account of the broader approach and attempting to convert it into a strategy for increasing employment (2).

1.2

Faced with the forthcoming enlargement of the EU and the changes to Europe's geostrategic situation, the forecasts for transport trends as a whole and for individual modes, the increasing sensitivity about the environmental impact and the poor prospects for growth in the EU with their implications for employment, the question must be whether we can meet the challenges if we do not make a clear move towards a joint European initiative on transport infrastructure development. This cannot involve simply perpetuating old solutions; we must have the courage to develop new instruments.

1.3

On 4 September 2003 in Rome, the EESC's TEN section adopted a joint resolution with Commission V of the Italian Economic and Labour Council (CNEL) on large-scale infrastructure projects and networks. Together they stressed the urgency of developing the pan-European transport corridors in southern and eastern Europe, thereby improving the conditions for managing transport trends in the Mediterranean region, which, as pointed out in the ‘Naples Charter’, will take on a new economic, social and strategic role following EU enlargement. The network of existing corridors must be supplemented with important links, such as the Adriatic link between corridors V and VIII. At the same time, care must be taken to ensure balance in addressing the interests of all regions, including depressed areas in the current Member States and Northern Europe. The development of this pan-European network requires more technical and organisational support, as well as financial backing.

1.4

Ten years after the first ground-breaking moves to develop the TEN-T, the European Commission appointed a group of experts headed by Karel van Miert to carry out a review (3). It has emerged that not only is implementation of planned projects way behind the deadlines set, but also total public investment in transport has dwindled from 1.8 % of GDP in 1980 to 1 % of GDP in the nineties. On 1 October 2003, the European Commission then submitted a proposal to adapt the guidelines for the trans-European transport network to the situation post-enlargement (4). The aim is to create a coherent network between new and old Member States and to speed up implementation of priority projects. The EESC wishes to make a further contribution to these revamped TEN-T with the following comments.

1.5

Trans-European transport routes are an essential prerequisite for economic and social cohesion in the enlarged EU and beyond. The new and old EU neighbours must become partners in this project, which embraces the whole European continent and extends beyond.

1.6

The three Pan-European Transport Conferences in Prague (1991), Crete (1994) and Helsinki (1997) (5) both paved the way for a network of trunk routes (corridors) and saw agreement on transport policy objectives integrating principles of energy, environment, social and economic policy so as to create fair and balanced competition conditions. This principle of transport policy cooperation beyond the EU will also be needed in future and the European Commission should take account of it and support it in its work.

1.7

Infrastructure projects with European implications only fulfil their function if they respond to economic, political and social interests. This requires more than just cooperation between transport ministers; it requires the involvement of business associations, transport companies, trade unions, and environmental and consumer organisations working across borders. And EU accession alone is not enough to achieve this. Rather, the reality of TEN implementation shows that the impetus for implementing ‘European’ transport routes can only be sustained by a socially-rooted appreciation of ‘Europe’ and a consensus which takes account of economic and social realities. The EESC proposes applying the experience gained with the corridor concept to the TEN-T so as to utilise this potential.

1.8

This implies the following concrete requirements for the revision of the TEN guidelines, which includes further work in the corridors:

1.8.1

TEN trunk routes and corridors must bind the internal market together, reinforcing economic and social relations with neighbouring countries. First and foremost, they must provide optimum connections between economic centres and must also be assessed on those criteria. This has rarely been done to date, if at all, and not in a very clear way. In some cases, individual scientific studies are cited as evidence, but controversial findings and opinions are rarely mentioned. A realistic picture only emerges when the opinions and experience of associations are added to the equation. To date, this recourse has been much underused by the Commission.

1.8.2

The intermodality of TENs and corridors must be ensured, which requires comprehensible quality criteria. Each trunk route/each corridor will have to develop and implement this in its own way, so it is important to introduce a requirement for intermodality blueprints and action plans.

1.8.3

The environmentally friendly use of inland waterways (cf. also 2.3.8) should be emphasised to a greater extent; this also involves ports, promoting the inland waterway corridor VII (6), the Danube, links to rail routes and appropriate technical and social regulations governing cross-border inland waterways transport.

1.8.4

Enough is still not being done to promote short sea shipping and its appropriate integration into the planning of TENs and corridors. The greater prominence given to shipping links in the new Commission proposal is therefore very welcome. For these transport services and their promotion in particular, it is once again important to maintain safety standards and social conditions. Environmental implications should also be borne in mind in the case of busy shipping links (e.g. in the approaches to the Baltic) and coastal transport.

1.8.5

Ambitious, but feasible objectives must be defined for developing rail transport, with particular attention to cross-border cooperation projects and connections to seaports. The implementation of these should also be evaluated. With new toll arrangements for roads under discussion (7), it is essential to create alternatives. There are good examples of major rail transport cooperation initiatives in corridors IV (8) and X (9).

1.8.6

We need growing investment for the acquisition and development of transport infrastructure and improved EU funding, as well as a stricter obligation to keep to ‘European’ project planning. At the same time, budget resources are limited and care must be taken to ensure balanced development overall. This means that developing existing infrastructure should be given precedence over new building projects and investment in the main transport routes must not be at the expense of regional and local transport facilities to too great an extent. Overall an assessment should be made of how effectively regional transport networks are linked in along the TENs/corridors.

1.8.7

The success of TENs/corridors depends on environmental, safety and consumer protection concerns being seen to be addressed. Transport, safety and sustainability are inextricably linked. For this reason, social concerns must be given equal importance – not just those relating to transport employees – in addition to economic necessities. This also involves organising road transport in an environmentally friendly way and promoting public transport. These qualitative criteria, such as service quality, safety, environmental impact, and the working conditions and skills of transport workers, should be appended to the TEN guidelines as originally intended. This requires the creation of viable assessment mechanisms, such as a specific TEN/corridor environmental report or similar.

1.8.8

When integrating the corridors into the TEN guidelines, positive elements of cooperation in the corridors should be carried over and preserved. Corridors will continue to function as conduits to neighbouring countries and continents beyond the territory of the EU. After enlargement there must be no winding down of the remaining corridors; there must be serious and geographically far-reaching cooperation opportunities. Careful thought must be given to the repercussions of decisions taken now concerning the TENs in the EU on the cooperation which has grown up in the corridors.

The Commission's new proposal to appoint individual coordinators to promote priority TEN projects is worth highlighting as it shows the Commission is drawing on experience in the corridors in a commendable way. The intention to conduct joint cross-border planning procedures and environmental impact assessments is also a step in the right direction. Up-to-date reviews of progress are essential, so the proposed annual reports are also a positive step. The monitoring function laid down in the 1997 Helsinki Declaration has never been fulfilled, although individual reports, such as that by the ECMT, the regular status reports from the corridor steering committees or the 1999 TINA report were available. The coordinators should also work towards realising the above-mentioned political objectives, and in this sense, the remit described in the new Article 17a provides a good basis, especially for promoting dialogue between operators, users, regional and local authorities and the representatives of civil society with a view to the optimum use of infrastructure and possible obstacles (10). The EESC calls on the Commission to draw on its experience and support in terms of consulting socio-economic interest groups, creating transparency and holding hearings and dialogue conferences. This was also endorsed in an exchange of correspondence between the TEN section and Commissioner Loyola de Palacio in Spring 2003 and could now be put into effect.

2.1.1

Mobility is an indispensable benefit of our modern world. A wide range of leisure activities and the desire to travel, as well as the world of work, which demands ever greater flexibility, have made us into a society which sets great store by mobility. For many, mobility is synonymous with freedom, which is supposed to be as unrestricted as possible, both literally and figuratively.

2.1.2

Mobility is also a crucial and fundamental prerequisite for the functioning of major sectors of our economy. Investment in new transport routes, and the maintenance and modernisation of existing ones, helps to boost the economy and to create jobs.

2.1.3

But being mobile does not mean necessarily having to travel long distances. High transport performance is by no means synonymous with high mobility in the positive sense. On the contrary, excessive transport performance levels are at their limit: traffic jams on our roads are turning mobility into paralysis. To solve this problem, there are frequent calls for transport infrastructure to be expanded further. At the same time, ‘disconnected’ regions are to be opened up so as to provide a prospect of economic development in outlying areas too.

2.1.4

Yet it has not escaped the EESC's notice that there is an ever-growing chorus of critical voices. For transport undoubtedly has its downsides, affecting both man and nature:

2.1.5

Critics of transport policy to date are increasingly asking at what point the process of opening up a country with roads and other transport infrastructure can be considered to be either at an optimum level or complete. There is also uniform criticism of the fact that the economy is often faltering and unemployment high in regions which are well served by transport, giving many critics increasing cause to question the often cited causal link between transport infrastructure and economic development.

2.1.6

It is clear to the EESC that, when assessing development plans for European infrastructure, a fine distinction must be made between the purely investment phase (building as such) and the subsequent impact caused by operating or using the infrastructure. This involves not only the environmental and social implications, but also the knock-on effects on existing national or regional transport infrastructure. The Maastricht Treaty states that trans-European networks are intended to reinforce the economic and social cohesion of the European Union. However, there are an increasing number of empirical studies which attest to the fact that, contrary to the goals of the Treaty, while the development of TENs does improve links between Europe's economic centres, thereby enhancing Europe's global competitiveness, the existing disparities in accessibility and economic potential between central and peripheral regions of Europe are exacerbated by giving priority to centre-to-centre links.

2.2.1

The European Commission gives a very precise outline of the apparent problem on its website: ‘Open frontiers and affordable transport have given Europeans unprecedented levels of personal mobility. Goods are shipped rapidly and efficiently from factory to customer, often in different countries. The European Union has contributed by opening national markets to competition and by removing physical and technical barriers to free movement. But today's transport patterns and growth rates are unsustainable’ (11).

2.2.2

In the sustainability strategy decided on by the European Commission in Gothenburg in 2001, it is rightly explained that ‘The Common Transport Policy should tackle rising levels of congestion and pollution and encourage use of more environmentally-friendly modes of transport’. The Commission announced that it would ‘give priority to infrastructure investment for public transport and for railways …’. The EESC has endorsed the goals of the Gothenburg strategy in a number of opinions (12).

2.2.3

Transport is thus of great importance not only for current economic policy. The decisions taken as part of the growth initiative should not be evaluated only on short-term criteria. The EU's transport policy must certainly be one of the key areas of action in future as part of the EU's sustainability and climate protection policy, and as the Commission describes, changes are needed for this to be possible. For example, transport currently contributes to climate change, accounting for 28 % of greenhouse gases, with road transport alone responsible for 84 % of this total. If nothing is done to reverse the trend of traffic growth, CO2 emissions are expected to rise by 50 % to 1.113 billion tonnes between 1990 and 2010 (1990: 739 million tonnes).

2.2.4

The cause of the environmental and social problems is the sharp increase in road and air transport while less environmentally harmful transport modes are losing out (13). Transport infrastructure policy has contributed to this trend. According to Eurostat, the length of the motorway network in the EU grew by more than 25 % between 1990 and 1999 while the rail network contracted by 4 % over the same period (14).

2.2.5

The EESC points out that under virtually all environmental headings (energy and land use, emissions etc.) rail has proven to be the most environmentally friendly mode of transport ahead of inland waterways navigation, while private cars and planes (for passenger transport) and lorries (for goods transport) have the worst environmental performance by far. Further details are given in the appendix to this opinion.

2.2.6

During the deliberations involved in drawing up this opinion, there was some discussion of the impact on jobs arising from the building of different transport modes. Studies from Germany, some of quite long standing, indicate that investment in railways has a more positive effect on jobs than road building measures. The EESC recommends that the Commission have separate studies drawn up on this question, along the lines of those on external costs, to provide objective evidence for the debate.

2.2.7

In many cases, large-scale projects have triggered public protest and it has not been possible to carry out some projects at all, or at least not within the planned timeframe. In the EESC's view, this experience must now be borne in mind, especially with the growth initiative and EU enlargement and the resulting increase in transport links. The Commission statements quoted in 2.2.1 must at last be acted upon so that the same negative impact on man and environment does not recur in the accession countries. The EU could make a decisive contribution towards preserving the still high, but now rapidly falling proportion of transport carried by environmentally friendly means in those countries.

2.2.8

The aim of European transport infrastructure policy must not only be to help achieve the target of reducing CO2 emissions by 50 % by 2030. Rather, it must make a positive contribution in all sectors of sustainability (economic, environmental and social), which add up to sustainable mobility.

2.2.9

In the EESC's view, ‘sustainable mobility’ should be understood to mean mobility which

2.2.10

The EESC associates the following sustainability objectives with a new, durable transport policy.

2.2.11

In the economic field, investment should be used to help create jobs, improve regional net value added, develop an all-round efficient transport system and establish financial sustainability.

2.2.12

In the social field, investment also takes care of the protection of physical integrity, including effective noise reduction. The working conditions of transport workers should be improved and investment conform to the principle of social justice (epitomised in ‘mobility for all’). Towns and cities must be designed for people, not for traffic, and account taken of the mobility needs of all those who live in rural areas (and not just car owners).

2.2.13

In the environmental field, investment decisions are already made on the basis of the EU's climate protection objectives. Land use must be reduced; the protection of nature, cultural landscapes and the areas people use for recreation is of greater concern than ever. The reduction of harmful substances and lower resource consumption are becoming an integral part of infrastructure policy.

2.3.1

The EESC is well aware that, in accordance with the subsidiarity principle, transport policy falls largely within the decision-making and funding remit of the Member States. However, every year, billions are paid out of the EU budget specifically for transport infrastructure development via the Structural Funds (including the Cohesion Fund). These funds should be deployed in accordance with the principles of sustainability.

2.3.2

Transport policy must become an integral part of a spatial development policy aimed at minimising the generation of new, additional traffic and managing existing traffic with the most environmentally friendly transport modes possible.

2.3.3

This also means that particular attention should be paid to the fact that developing European transport infrastructure (TENs/TINA) may have direct and indirect repercussions on national and regional infrastructure. The EESC points to the danger that, with the budgetary situation in the Member States and accession countries, concentrating investment on TEN or TINA projects may result in regional and local infrastructure being neglected. The EESC has pointed out in other opinions that countries like Poland or Hungary currently spend well below 1 % of their GDP on maintaining and rebuilding their whole transport infrastructure; but the implementation of TINA projects by 2015 as scheduled requires annual investment of the order of some 1.5 % of GDP in the corridors alone. The EESC calls on the Commission, Member States and accession countries not to ignore the regional economic problems which may arise from this.

2.3.4

The EESC welcomes the fact that links with local transport infrastructure now also come in for support in the context of TEN-T planning, but doubts that the high-speed maglev link between Munich airport and Munich city centre, which has been selected for such support, can be seen as a suitable project.

2.3.5

The EESC therefore expects the EU to deploy funds in a considerably more strategic manner in future. Precedence for co-funding should be given to projects which comply with the following principles:

2.3.6

The guidelines for trans-European networks (TENs and TINA) should thus be revised (cf. point 1.8) and improved to comply with the principles of a transport infrastructure policy which is sustainable both in environmental and financial terms.

2.3.7

The EESC is pleased to note in this respect that rail links predominate in the selection of new priority TEN projects. But, here again (as with all new building projects), the principle applies that appropriate options should be sought which gain greater acceptance from the public, thereby also preventing stalled investment.

2.3.8

One example of a potentially imminent conflict as a result of development standards proposed as part of TEN revision without taking account of national circumstances is the development of the Danube between Straubing and Vilshofen. Care must be taken to prevent the compromise hammered out at national level between the federal government and environmentalists to improve navigation conditions while taking account of conservation issues, which also guarantees compliance with the FFH directive, being scuppered because of the requirement for a year-round draught of 2.5 metres.

2.3.9

We can no longer afford to set different transport modes against each other in sometimes cut-throat competition through parallel investment. This means managing the economically and ecologically limited financial resources according to the EESC's sustainability criteria (cf. 2.2.9 to 2.2.13) and putting them to optimum use. What is needed in future are integrated global transport concepts derived from a sustainable policy of land use and urban planning. Implementing an integrated global transport plan means not just planning infrastructure projects, but also first examining alternative forms of spatial and transport development, including large-scale options. Innovation information and communications technologies are needed for these.

2.3.10

This also means that a balanced relationship between transport modes must be established following careful consideration of detailed impact assessments. Preference should be given to rail or water-borne transport where possible, particularly over long distances.

2.3.11

The EESC would like to stress that a new, sustainable transport policy of this order requires a huge investment programme and will therefore help to kick-start the economy. But changes are needed in the pattern of investment: less large-scale new building projects, more tailored development programmes, more renovation work (e.g. to make the railways more attractive).

2.3.12

As far as TENs are concerned, this means that the available financial resources should be concentrated primarily on the rehabilitation, modernisation and maintenance of the rail and road networks, as well as ecologically acceptable parts of the waterways network. The EESC assumes that existing TEN and TINA projects will also be reviewed to ensure they meet the standards and requirements outlined in this opinion. Needless to say, all new building projects must also be in line with the EU's sustainability objectives.

2.3.13

In the case of environmentally friendly modes (rail and some inland waterways), there is considerable reserve capacity available which could be put to use in the short term by means of technical and organisational measures, particularly on the railways. The ‘railways of the future’ must win back lost ground and be an attractive mobility provider. This should be one of the priority areas for EU investment.

2.3.14

In the case of investment in the construction of waterways which involve interference with the natural flows of rivers and river estuaries, a new approach is needed; the floods of recent years have demonstrated that the greatest care is needed in such cases. If inland waterways navigation is to be developed further as an environmentally friendly mode of transport, the principle must apply that ships are adapted to rivers and not rivers to outsized ships.

2.3.15

With all new building plans it must be borne in mind that satisfying man's desire for mobility can come into conflict with that of wild (migratory) animals. Few people realise that animals need ‘highways’ and ‘rest stops’ in all sectors of sustainability (economic, environmental and social) just as drivers do. For instance, the planned Via Baltica will cut across important migration routes for wolves and lynx, ruining a unique opportunity to facilitate a natural resettlement in Western Europe. In other words, the environmental impact assessments of detailed plans should involve a far more complex analysis than is the case today and allowance made for the relevant extra costs, e.g. wildlife overpasses.

2.3.16

In future, EU resources should only be used for projects which the EU can convincingly demonstrate contribute to the objective of creating a sustainable system of mobility. A sustainable system of mobility requires appropriate framework conditions, which the EESC has discussed in a number of opinions. These include:

3.1.1

The free movement of people and goods within the European area, which is the prime condition for fostering exchanges, can only be guaranteed if there are suitable, effective and reliable means of transport available.

3.1.2

Initially, the development of the networks focused mainly on roads. Subsequently, a policy which was more economical in the use energy resources, combined with increased consideration for the environment, necessitated the search for alternative forms of transport. Today there is a clear desire to shift the predicted increase in road haulage over the coming decades to other modes of transport (rail, inland waterways and sea routes etc.). At the same time, the development of collective passenger transport by bus or coach should be encouraged.

3.1.3

More recently, enlargement of the European area, with the transition in 2004 from 15 to 25 Member States, and subsequently to 27, makes it necessary to interconnect the networks and to develop them in the countries joining the EU.

3.1.4

The intentions, prospects and constraints are well-known and shared. Over the last two decades they have given rise to ambitious European-scale projects submitted by the Commission in the form of master plans and White Papers, followed by some concrete projects which constitute the beginnings of a European web of efficient transport networks.

3.1.5

Against this background, it could be said that the action initiated with these master plans in conjunction with objectives reiterated in the White Papers is sufficient. The deadlines set are reasonable and, depending on the case, extend as far as 2010, 2020 or beyond, incorporating as they do new constraints and developments as they emerge. Pragmatism, adaptability and flexibility are the qualities needed to succeed provided that these objectives are met within the scheduled timeframes. Unfortunately this is not the case, as deadlines are very often put back.

3.2.1

Although global decisions are taken at the level of the European master plans, the subsidiarity principle leaves implementation on the ground to the initiative of each Member State, as well as the bulk of the financing (except for infrastructure supported by the Structural and Cohesion Funds).

3.2.2

Thus, for every European government, long-term ambitions are conditional upon electoral commitments to be realised within a short term of office (four to seven years, depending on the case). Unfortunately, budget resources are redeployed every year.

3.2.3

Under these conditions, the implementation of formative and continuous European transport networks remains largely impossible to manage despite the good intentions of political decision-makers and the EU's financial incentives.

3.3.1

In order to improve the current situation, it is necessary to examine the conditions under which transport infrastructure is currently implemented as regards financing.

3.3.2

When any state builds European network infrastructure on its territory, the EU gives it a very limited financial contribution, i.e. 10 % of the total investment cost in the case of subsidies granted under the Transport heading of the EU budget. This contribution, which is made up of subsidies direct from the EU budget, is insufficient to allow an immediate and irreversible commitment to the actual work. Only projects receiving Structural or Cohesion Fund support are subsidised to a higher level (30 to 50 %).

3.3.3

Increasing the EU's contribution to TEN projects to 30 to 50 % in the form of subsidies, or even very long-term loans, assumes that the EU has sufficient resources at its disposal. But the EU budget must not grow unchecked because:

3.3.4

In the light of these criteria, the EESC has examined a number of proposed financing solutions and will present its various proposals thereafter.

3.4.1.1

In its White Paper on European transport policy for 2010 (16), the Commission tackled the question of funding head-on in the section entitled ‘The headache of funding’, pointing out that it ‘raised the alarm’ as early as 1993, suggesting that the EU be authorised to raise a loan, a suggestion rejected by the Council. The Commission has since asked for the proportion of Community funding to be raised from 10 to 30 % so as to provide a greater incentive for the Member States and a degree of leverage. But 30 % is a maximum rate applicable to certain priority and cross-border projects, and to date the Council has still not ratified the list of TEN-T projects eligible for this more attractive rate.

3.4.1.2

Against this background, for TEN or TEN-T projects where the proportion of trans-European traffic is greater than the proportion of national traffic, the Community contribution to the project under consideration should be higher so as to act as an incentive and, above all, fair (cf. the examples of the Brenner tunnel in Austria and the high-speed line between Lyon and Turin in France and Italy). The EESC feels that raising the level of subsidy from 10 to 30 % for such projects is unfair on the countries concerned, provides insufficient incentive and will only go part way towards removing the obstacles cited by those countries.

3.4.2.1

In the same White Paper, the Commission proposed developing ‘public-private partnerships’ to implement projects. The EESC gave its view on this subject in its opinion on the Revision of the list of trans-European network (TEN) projects for 2004 (17):

‘As regards the public-private partnership (PPP), the Committee agrees with the Commission's analysis of the limits of entirely private funding of large-scale infrastructures. However, mixed financing cannot provide the sole solution, insofar as private investors quite legitimately require certain guarantees and profitability from their investments. As a consequence, costs go up. Moreover, other aspects should be taken into consideration:

3.4.2.2

To avoid having to finance road infrastructure from their own budgets, some countries have resorted to a financial arrangement whereby the state concerned pays a private concession-holder the sum of the ‘virtual’ tolls paid by vehicles using the route. This innovative form of funding allows the necessary loans to be raised within the private sector. Although the cost is slightly higher, the work is carried out more promptly.

3.4.3.1

On 23 April 2003 the Commission also submitted a Communication entitled ‘Developing the trans-European transport network: Innovative funding solutions: Interoperability of electronic toll collection systems’ (18). In the above-mentioned opinion, the EESC endorses the Commission's approach pointing out that improving coordination of public funding will facilitate optimum use of resources and prevent delays, but will not create a new source of funding.

3.4.3.2

The creation of a European transport infrastructure agency would facilitate the better coordination, optimisation and flexibility of regional, national and Community public funding for every project while ensuring that the criteria of sustainable mobility are respected. As a result, the financial resources available for transport should be put to better use in the long run.

3.4.4.1

On the interoperability of electronic toll systems, the Committee wonders what the technical objectives presented by the Commission as part of a communication seeking to establish innovative funding solutions for the development of trans-European transport networks actually are (19). Existing and future electronic toll systems are a service provided for users to facilitate toll payment and to keep traffic flowing, but they are by no means a new source of funding for TEN-Ts. They merely offer a better tool for collecting tolls.

3.4.4.2

However, unlike the tolls paid to a route concession-holder which are mentioned in the concession contract, the introduction of an automatic tonne/km toll only for heavy goods vehicles on certain motorways which are currently free (in Germany) will indeed bring in new funds. But since the Commission has not adopted a position on the allocation of these new funds, it will probably be the case that, in accordance with the subsidiarity principle and the budget deficit criteria laid down in Maastricht, each state or region (owning the road for which the toll is charged) will use the proceeds to improve its network (road widening, maintenance). Therefore it cannot be considered to be an innovative form of funding for the new rail, road or waterway links planned in the TEN-Ts.

3.4.5.1

The Committee noted the proposal by the European Commissioner for regional policy and institutional reform, Michel Barnier, stating that the EU budget, which often showed a surplus, represented 1 % of Community GDP and could provide European economies with some room for manoeuvre, for example by means of a ‘major works fund’ set aside during buoyant periods and used for priority investments in less favourable times. The Commissioner also called for greater flexibility in the use of funds, particularly the Structural Funds, so that they could be redirected.

3.4.5.2

As regards the financing of such a fund, the Committee obviously favours the Commissioner's proposal to use part of the EU's budget surplus, systematically allocating it to a ‘major works fund’. However, although this surplus could serve as a back-up allowing a more effective approach to the issues involved in implementing European transport networks, the bulk of funding for these should come from permanent resources not dependent on the underuse of the EU budget in certain years.

3.4.5.3

The Committee feels that the transport heading of the EU budget at only IJ700 million per year (2000/2006) is woefully inadequate to achieve the objectives laid down and confirmed by numerous European summits and should be greatly increased.

3.4.5.4

Lastly, the Committee is pleased to see the principle of creating a ‘dedicated’ fund fed by proceeds not initially budgeted for being proposed by the Commissioner responsible for institutional reform, which proves the feasibility of such a project, thereafter making it dependent only on the political will of the Member States.

3.4.6.1

Recently, the Committee pointed out that the implementation of European transport infrastructure is a matter of crucial importance for the EU. The EESC feels that the very future of the EU is at stake and that the moment in history has come to take the decisions which will ensure that future generations have effective means of interaction. The methods used up till now, especially for funding infrastructure, are proving to be ineffective and inadequate, depending on the project, and are the cause of delays which will soon be impossible to make up in the face of international competition. It is therefore essential to put in place a truly innovative funding mechanism which is unaffected by national political and economic fluctuations.

3.4.6.2

The Committee points out that it proposed the creation of such a fund three times in 2003 (20), the features of which would be:

3.4.6.3

This European transport infrastructure fund would thus be drawn from a solidarity levy of one cent per litre on all fuels consumed on EU roads by all private, public or commercial vehicles carrying cargo or passengers.

3.4.6.4

The obvious advantages of such a levy would be:

Nevertheless, there could be strong objections to the principle of such a tax. The EESC will therefore examine this means of financing TEN-T projects in more detail, and calls on the Commission to carry out a concrete and exhaustive study on this subject.

30.4.2004   

EN

Official Journal of the European Union

C 108/45

1.1

Europe, as the rest of the industrialised world, is highly dependent on fossil fuels. Transports are almost totally and energy generation to a high and still growing rate dependent on oil, coal and increasingly natural gas. In the EU their of energy generation is around half and is forecasted to grow to 70 % by 2020. Also governments finances are substantially tied up to fossil fuels through, in particular, high taxes on transport fuels.

1.1.1

The high dependence on fossil fuels is linked with some problems. The future running-out of reserves of fossil fuels will probably somewhat exacerbate the supply situation in the long term. At the moment, however, this is not yet beyond the power of the markets to deal with. But fossil fuels are constantly in the focus of international politics. Most of the reserves of oil and gas are in politically unstable regions or otherwise not in the reach of normal market rules and competition. The most pressing challenge presently is, however, climate change, as fossil fuels emit carbon dioxide when combusted.

1.2

A central piece of energy policy in Europe is to increase the use of renewable energy sources. The Green Paper on security of energy supply in Europe identifies renewable energy sources as one cornerstone of a European energy strategy, aiming at sustainable development.

1.3

The Green Paper presented two main objectives for the strategies it outlined:

The third simultaneous objective for energy policies is the competitiveness of Europe, in the spirit of the Lisbon strategy.

1.4

The main proposals on renewables by the Commission are the White Paper on renewable energy from 1997, the Directive on promotion of electricity from renewable energy sources (‘RES-E’), which was adopted in 2001, and a Directive on biofuels adopted in 2003.

1.4.1

The EESC has adopted opinions on each of these proposals, and in addition produced an own-initiative opinion on Renewable energy from agriculture in 2000. In all these opinions the Committee gave its strong support to the objective of increasing the use of renewable energy sources. The proposed policy measures were also largely supported, but some detailed comments given. In its opinion on the RES-E Directive the Committee expressed its concern that leaving the choice of support measures and their level freely to the Member States could lead to distortions of competition in the internal market.

1.5

Support measures to renewable energy sources are necessary because many of the sources and technologies are not always competitive in relation to traditional energy production, but may have a potential to be so. Support can also be seen as compensation to renewables for the public support traditional energy sources and production methods have received over time and the external costs caused but not carried by traditional energy production and use. Many studies support these arguments, but all do not, at least not fully.

1.6

The aim of this own-initiative opinion is to give an input of facts, analysis and recommendations to the continuing vivid discussion on renewable energy at a time when the Commission is starting to prepare its review of the RES-E Directive. A lot has happened in the Member States, even if this Directive's implementation deadline is still only approaching.

2.1

On the European level targets are set to increase the use of renewable energy sources. A definition of RES is given in the Directive on renewable electricity production. The directive states that renewable energy sources shall mean renewable non-fossil energy sources: Wind, solar, geothermal, wave, tidal, hydropower, biomass, land-fill gas, sewage-treatment plant gas and biogas. The directive specifies biomass further to mean the biodegradable fraction of products, waste and residues from agriculture (including vegetal and animal substances), forestry and related industries, as well as the biodegradable fraction of industrial and municipal waste.

2.2

The White Paper for a Community Strategy and Action Plan – Energy for the Future: renewable Sources of Energy aims at doubling the share of renewable in the total energy supply for EU. This means increasing the use of renewable energy sources (RES) to an amount that is equal to 12 % of the European Union's final energy consumption by 2010.

2.3

To kick-start the implementation of the strategy set out in the White Paper a campaign for Take-off started in 1999, aimed to go on until 2003. For a couple of renewable energy sources indicative targets were set for additions in the period 1999-2003.

2.4

The Directive on the promotion of electricity from renewable energy sources (RES-E) sets an overall target for the share of electricity from renewable sources at 22 % of total EU electricity consumption in 2010. The directive holds indicative targets for the share of renewable electricity production for each Member State.

2.5

The aim of the Directive on biofuels is to increase the consumption of biofuels to 2 % of the consumption of diesel and gasoline in 2005 and 5.75 % in 2010. In couple with this directive the Directive on tax deductions for biofuels has been approved, providing for a key instrument for Member States in promoting biofuels.

2.6

The RES-E directive does not set any clear rules on support measures to renewable electricity. It states, however, that the Commission will make an overview of the implementation and results in 2005 and then possibly decide on one common support method to be implemented throughout the Union.

2.7

Meanwhile the Commission has in 2001 set Community guidelines for State aid for environmental protection. These apply in principle to aid for RES. The main thrust of the guidelines are that renewable energy sources may receive state support. Aid schemes must be notified to the Commission. Four different, alternative types of aid are allowed. Only a given, but in some circumstances high, share of costs can be covered by aid and it must not lead to over-compensation. Aid schemes must be limited in time and the aid intensity have a declining trend.

2.8

At the World Summit on Sustainable Development in 2002 it was agreed to work towards increasing the use of renewable energy sources worldwide, but no target was set. The EU, however, committed itself by forming a coalition of likeminded states to work towards a global target for the share of renewables in line with the EU target. The Commission is preparing a communication on this issue.

3.1

Promoting energy efficiency is another pillar of energy policy with the same objectives as promoting renewables, i.e. security of supply and combating climate change. A key technology is combined heat and power generation, CHP. A directive on CHP will be adopted soon. Other measures for energy efficiency are efficiency standards for appliances, labelling, a draft Directive on design of electricity-using equipment and one on demand-side management (DSM).

3.1.1

Member States have also put into place own measures for promoting energy efficiency. In some cases Voluntary Agreements have been successful. The general appreciation is that there is still much potential in this area.

3.1.2

Measures for better energy efficiency do usually not overlap or intervene with measures to promote renewables. In the case of CHP there is, however, an overlap, because one source in CHP generation is biomass. This overlap should not cause any problems on the market or vis-a-vis fulfilling obligations under the different directives.

3.2

The EU scheme for emissions trading, as designed in the recently adopted directive, covers energy generation causing CO2 emissions. This directive does not directly cover renewable energy or other emissions-free energy sources, like nuclear - that is, under the scheme no credits are given for cutting CO2 emissions by investing in emissions-free generation. The cap-and-trading system is, however, a very forceful instrument and will, indirectly enhance renewables, as the system will increase energy prices and the cost of using fossil fuels, rendering non-emitting sources more competitive.

3.2.1

The ET Directive and in particular the RES-E Directives overlap, and are in some parts probably not coherent. The ET Directive can also be seen to cover the climate change aspect of promoting renewable energy sources. One question is, whether the goal of decreasing CO2 emissions should be left to emissions trading solely. Possibly redesigning measures related RES to promote the objective of security of supply only. The EU emissions trading will, according to several studies, increase the market price of electricity considerably (conclusions vary from 20 % to over 100 %). Is it economically and politically feasible to add to this cost burden by also applying any direct support scheme for RES that additionally increases the user's electricity bill?

3.3

EU agricultural policy has a major influence on the provision of biomass for energy use. In this respect, reform of the common agricultural policy (CAP) is bringing changes. Energy crops can now also be planted on normal agricultural land and promoted with a EUR 45/ha subsidy.

3.4

The Intelligent Energy-Europe, a Community support programme for non-technological actions in the field of energy efficiency and renewable energy sources, was adopted in June 2003. It runs for 2003-2006 and support is granted to projects committed to remove market barriers to energy efficiency and renewable energy sources. The programme is structured in four fields with ALTENER directed to new and renewable energy sources. The others are SAVE for energy efficiency, STEER for energy relating to transports and COOPENER cooperation with developing countries.

3.5

R&D policies are key to both developing new renewables solutions and further refining those technologies, which already are on the marketplace or close to it. Some form of renewables that fall under the definition of the RES-E Directive are, as a matter of fact, still in a stage of early development and will require substantive R&D efforts before their potential can be fully developed.

3.5.1

Hydrogen technology attracts much attention and expectations. In some applications it seems to be close to market entry. Used as a transport fuel and in fuel cells, the big potential of hydrogen lies in the fact that its use does not emit greenhouse gases, it can offer a means of storing electricity and substitute oil. Hydrogen is produced either from natural gas (the primary fossil energy source), from water (through energy consumption) with electricity or from biomass. These sources, or either of them, need to be sufficiently available. Since the known reserves of natural gas are limited, it would be preferable to direct them towards use as transport fuel. Nuclear and in the future hopefully photovoltaic are best suited to supply the electricity needed to produce hydrogen from water. Also the production techniques need to be further developed to cut costs, including technologies to handle this very explosive fuel safely.

4.1

Transposition of the Directives promoting use of renewable energy and the biofuels directive are still under way in the Member States. It is too early to say whether all Member States will meet the target dates, but it is probable that all will not. All Member States have already notified their national targets.

4.2

Most Member States have meanwhile introduced national support schemes for renewable energy sources. Some have intensified schemes which were taken into use already before EU-level policy declarations. Support systems in Member States differ considerably from each other, and so do the levels of compensation they provide.

4.2.1

Five main forms of support methods can be identified:

4.2.2

Feed-in tariffs are in use in at least Austria, France, Germany and Greece. Certificate systems are in use Belgium, in Denmark, the Netherlands, Sweden and the United Kingdom and planned in Italy. Support is built into the energy/carbon tax system in Finland, the Netherlands and the United Kingdom.

4.2.3

An example of a feed-in tariff/buy back regime is the German Law on Renewable Energies. The system provides for guaranteed feed-in tariffs for generators of electricity from renewable energy sources over 20 years. There are different tariff groups for different technologies and different efficiency levels within a group, normally over EUR 80/MWh. The tariffs are usually guaranteed for some years, then gradually decreasing over time. The costs are allocated to all consumers at the same rate. The German Law has been tried for its compatibility with State aid rule of the Treaty, and the judgement was that it does not constitute State aid as it does not involve State resources.

4.2.4

An example of a system built into the tax system is the Regulating Energy Taxation system of the Netherlands. Electricity not generated from renewable energy sources is taxed in order to support the generation of ‘green’ electricity. Industrial electricity users are widely exempted from the tax in consideration of an alternative instrument established for industry, i.e. the industry's obligation to meet world top energy efficiency targets.

4.2.5

The UK Renewables Obligation is an example on a system of certificates and obligations. An obligation is imposed on suppliers (3 % in 2002, 10.4 % in 2010). The costs thereof, including a possible cost of a penalty (about EUR 45/MWh) is allocated to the consumers.

4.3

Systems are mostly purely national, imports are usually excluded. Even so, in some cases operators may achieve double benefits. An example is wind energy produced in Germany and exported to the Netherlands, which may get both the guaranteed feed-in tariff price in Germany and the support in receiving Netherlands.

4.4

Wind energy is expected to contribute most to the overall targets, and support programmes are set accordingly. Remuneration for wind power is presently over EUR 100 per MWh in Italy and Belgium, and over EUR 50 in addition in France, Austria, Portugal, Germany and the United Kingdom. In some Member States the remuneration levels will fall after between five and 15 years.

5.1

The share of RES in the national electricity generation in 1997 is in only three of the ten new EU member countries higher than the current EU average in the same year (12.9 %). These three countries are:

All of them use mainly hydro power resulting from a good availability of this energy source. In all of the other seven countries the share of RES in electricity generation is quite low, i.e. about 2 % in the average.

5.2

The national objectives of the new member countries amount to an increase of their RES electricity generation which in 2010 shall be more than double as high as 1997. This increase rate is thus nearly the same as the objective of the countries of EU. One of the problems will be that these ten countries do not have very much wind potential. Insofar the use of wind power does not promise an efficient way of electricity generation. Therefore, the use of bio mass seems to get a growing importance in most of the new member states.

5.3

As to the provision of heat, the new member states are largely covered by extended district heating networks, which have however partly suffered from lack of maintenance. The potential for use of biomass and CHP for district heating can be considerable, but details are not known.

5.4

There seems to be a big potential for increased energy efficiency in the new member states, still considerably bigger than in the EU. This must be enhanced in parallel with RES. In particular information campaigns to citizens should be initiated on how to save energy in households.

5.5

One benefit might result from the fact, that they have started their efforts to use RES at a later stage. Therefore, they can profit from experiences of success and failures in the EU concerning RES use. To enable both the new as well as the current EU Member States to do so, it seems necessary that positive and negative results of RES use in all EU countries should be monitored thoroughly each year. Thus, successful developments can be further improved, whereas mistakes could be reduced. Generating costs can become optimised.

5.6

To support the new members in this respect seems very important, as their experience in using RES seems to be rather restricted according to the statistical figures, which show that most of RES-electricity generation is based on hydro.

5.7

An additional aspect in this context relates to the costs of RES electricity. All new members suffer from scarcity concerning financial sources. Therefore any new technology which needs much capital and only few manpower is a heavy burden and reduces the possibility of the new EU members to reach the EU-levels within a certain number of years. Expensive energy consumption could result in reduced rates of growth and bad competitiveness.

5.8

Therefore, the development of competitive prices for RES electricity production is vital especially for this group of countries, since they will, of course, soon be obliged to accept the same obligations and targets as the current EU Member States.

6.1

The potential of renewable energy sources is big, but in most cases still limited, even when disregarding costs. The potential differs both between sources, and in particular, over time. The forms of RES, which have the biggest potential in the short and medium term, mainly wind, hydro and biomass, also have obvious limitations. Other forms of renewables, like photovoltaic and tidal, are still in early stages of development and will show their potential only after 20-30 years, perhaps even more. They still need much effort of research and development. This means very different approaches and solutions than those directed to helping almost fully developed technologies be more efficient and thread the last steps to full competitiveness.

6.2

The use of wind power is limited by the need for back-up power and related grid capacity. The production of biomass is enhanced by agricultural and forestry policy. The use of biomass for energy generation is, however, influenced by other uses with higher value added. Any market-driven preference granted to such uses could, however, put the production of biomass at a competitive disadvantage. Building more hydropower is more difficult in Europe for reasons of natural protection; even forward-looking plans for small plants encounter resistance.

6.3

A growing, serious obstacle for increased use of renewables is public resistance. Resistance can be caused by insufficient insight in the importance of increasing the use of RES as well as misinformation about the qualities of the technologies. In order to deal with this information and educational campaigns should be set up, including taking the importance and features of RES up on school curricula. Location decisions must naturally always take account of local acceptance. Technological development can also provide for good solutions, like off-shore wind generation instead of on-shore.

6.3.1

Technologies for renewables attracts a lot of inventiveness and entrepreneurship. This should be encouraged and fostered. Also should possibilities for involvement of and investment by local people be encouraged. In spite of support systems, sometimes fairly open handed, one should however not ignore the risks involved.

6.4

Cumbersome and prolonged permit processes make investments in RES often too risky and costly. A time limit should be introduced and respected by authorities. Still, appeals to court on decisions by authorities can extend the permit process unpredictably, even to years.

6.5

In many cases the increased use of renewables requires development of infrastructures, which can take time. Also, increased use of RES leads to additional requirements on and sometimes problems for grids, in particular if location parameters are not carefully taken into consideration. Therefore the pace of increase in use may be somewhat slower than targets indicate, or costs can be higher.

6.6

In practical terms, the goal for promoting renewable energy is to substitute fossil fuels, as these emit greenhouse gases and are, to a large extent, imported from outside the EU. Taking into account efficiency rates for the use of primary energy, direct electricity generation from renewables, like wind, has the best substitution effect. Substituting primary fossil fuel use with renewable fuels is less effective. Combined heat and power production from biomass increases this substitution effect considerably. The Commission observed the substitution principle in its overall planning, but it has often not been taken into account when designing promotion measures and calculating results.

6.7

High expectations are put on renewable energy sources. Taking into account the above mentioned limitations and the long time span needed in many cases, it is obvious that renewables will not solve all of Europe's energy problems. They can make an important contribution in covering increased demand. In the short or medium term they cannot, even in the most positive but still realistic scenario, substitute coal or nuclear, let alone both. For the longer run scenarios and visions need to be developed, in order to inspire and direct R&D and other actions at an early stage.

7.1

The effectiveness of the instruments vis-a-vis increasing the use of renewables depends much on their detailed design. But it seems that feed-in tariff regimes are particularly effective. Cost effectiveness, adverse impacts on markets and other implications of the systems must, however, also be taken into account.

7.2

Most support schemes do not open for competition between different forms of renewables nor between renewables and traditional generation. Most promotion schemes lack also otherwise any element of enhancing technology and efficiency development. Also a barrier mechanism for over-compensation is often lacking.

7.3

Markets structures for heat, electricity and transport fuels are fundamentally different. Heat has a purely local market, with the extension of district heating networks. Transport fuels markets are competitive, distorted to some extent by differing taxation within the EU. Electricity is starting to open up, but still has a lot of obstacles for transborder trade. Unbundling of infrastructure and ensured third party access are key issues.

7.3.1

Any measure to promote electricity and transport fuels from renewables should take careful consideration of not distorting competition in the internal market. A level playing field for all in the EU, which is presently not the case, should be put as a central goal.

7.3.2

In the case of electricity, EU-wide optimal use of natural and climatic circumstances as well as existing grid capacity should be taken into account when planning promotion measures. Otherwise solutions will be all but cost efficient, leading to much higher costs of investments and use for the same end result. One example is the positioning of wind power parks – they should be optimised in relation to beneficial wind conditions and, on the other hand, grid capacity and use. Today this is not the case, when driving factors are national targets.

7.4

The RES-E Directive sets criteria on national support schemes. They must be compatible with the internal market, take into account the different characteristics of RES, be efficient and simple and include sufficient transitional regimes to maintain investors' confidence. In its opinion on the RES-E Directive the Committee proposed additional principles to be taken into consideration. These include an affordable cost burden on users and public funds, decreasing compensation levels, no long term continuing support, full transparency and, as far as possible, leaving the final decision to the market, including normal market risks.

7.4.1

These principles are still fully valid. Unfortunately it seems that many national support schemes in place are not in line with them, usually differing on several points. When compared with these principles, the feed-in-tariff/buy-back system seems to contradict several of them.

7.5

Some studies have already been made on how support systems have worked and forecasts have been made on the resulting increases in the production and use of renewables. Some of the studies take into account that the EU instruments are mostly not yet in force. Some include the effects of policies and instruments to be taken into use in the near future. Results vary substantially, but it seems that most Member States will have big difficulties reaching their targets for increasing RES by 2010, as will the EU as a whole.

7.6

In some cases substantial increase in renewables has, however, been achieved. The most obvious example is the increase of wind power in Denmark, Germany and Spain. This indicates that increases are possible, even in by natural circumstances less favourable areas, like inland Germany for wind. If every Member State would follow the example of those with the best achievements, the total EU target would be reached.

7.7

Reaching the EU target is thus not impossible, the question is whether politicians and voters are willing to put up the resources needed. Costs must be tolerable for consumers and the global competitiveness of European industries must not be jeopardised.

7.8

Many Member States, in particular the three mentioned above, have opted for substantially high remuneration levels for renewables. Evaluating acceptability of costs for meeting RES targets are political decisions. The impression is, however, that cost levels are in many cases very high, when one compares remuneration levels up to over EUR 100 per MWh with the present market price for electricity (excl. transmission and taxes), which on average is about EUR 25-30 per MWh.

7.9

As long as the amounts of renewables receiving support are fairly small, so is the total cost. But when the amounts increase, in accordance with objectives, the cost burden starts to have an impact of users' economy. This may cause reactions amongst voters, like in Denmark, or affect the competitiveness of, in particular, big energy users in industry, which hardly is in line with the objectives of the Lisbon strategy and other economic goals.

8.1

At the moment it seems that neither most Member States nor the EU as a whole will reach their targets for increasing the use of renewable energy sources by 2010. Achievements in some Member States indicate, that it would not be impossible to reach the EU target. It is, however, uncertain whether the political willpower and the resources needed can be fully mobilised.

8.2

As there are no EU-wide guidelines for support systems for RES, Member States have applied national systems, varying much in approach, design and intensity. It seems that many of the present schemes need, in particular, to be critically reviewed vis-à-vis their cost effectiveness.

8.3

The present situation creates obstacles in the internal market when schemes are purely national and imports are excluded. The court's view on this concerning electricity is that this is not the case, because the internal electricity market is not fully open until 2007. Cross-boarder trade of electricity is, however, already everyday and growing all over the EU.

8.4

There is also no level playing field among market actors in different parts of the EU. There are several reasons for this: for instance the European Court of Justice decision (1) that the German feed-in-tariff system does not constitute state aid because state funds are not involved. In economic terms, however, there is hardly any difference between support flowing from consumers directly or the same money flowing from the taxpayer via the state pocket.

8.5

As to the different forms of support schemes, no-one meets fully the requirements of being effective, not distorting the market and enhancing competition and innovation. For feed-in-tariffs prices are set by authorities and amounts by the market. For certificate trading it is vice versa. Feed-in schemes can take into account efficiency, if properly used. Certificates may not give enough security for investment, while prices may be volatile.

8.6

The cost of RES promotion schemes is in some cases already very high. This is starting to raise concern and this can develop into a political backlash for the goal and policies of increasing renewables.

8.7

The Commission is, according to the RES-E Directive, in 2005 to review the developments of use of electricity from renewable sources and can propose one single support system. It will take until 2012 to reach full harmonisation. It is to be expected that most Member States will strongly resist if they have to change a system they have run for several years.

8.8

The introduction of a single support system for RES-E is not by many seen as necessary at this stage. Also there is no perfect choice for such a system. The Committee's view is that a common system should be developed and introduced in due course, and that developments towards further fragmentation of national systems should be counteracted already now. A common system should by its design particularly enhance innovation and competitiveness.

8.9

The Commission has responsibility for the execution of policies it has proposed. Even if it is an early stage in implementing EU policies for renewable energy, the Commission should pay serious attention to the above-mentioned problems before they worsen over time.

8.10

The EESC recommends that DG TREN:

30.4.2004   

EN

Official Journal of the European Union

C 108/52

1.1

The European Maritime Safety Agency (EMSA) was set up under Regulation (EC) No. 1406/2002 (1) following the ‘Erika’ oil tanker disaster in late 1999, with the purpose of ensuring ‘a high, uniform and effective level of maritime safety and prevention of pollution by ships within the Community’. The Agency will provide Member States with technical and scientific assistance in order to ensure that Community legislation on maritime safety and the prevention of pollution by ships is properly applied.

1.2

The Agency is also responsible for collecting information and exploiting databases on maritime safety; evaluating and auditing classification societies; and organising inspection missions in the Member States to monitor the conditions for ship inspections by the port State.

1.3

In particular, the Commission proposes:

2.1

Given the scope of its responsibilities, the European Maritime Safety Agency clearly plays an essential role in ensuring that Community and international rules on maritime safety and the prevention of accidental or unlawful pollution by ships are applied in an effective and uniform manner.

2.2

For this reason, and in particular following the Prestige disaster in late 2002, the Commission decided in December of that year to speed up the creation of the EMSA and not wait for the Council decision on the future location of the Agency, which was finally taken by the European Summit in December 2003.

2.3

This has speeded up the entire administrative process of recruiting staff (still underway), appointing an Administrative Board and gradually getting all of its services up and running.

2.4

As regards the proposed amendments to the EMSA Regulation, the EESC supports the Commission proposal, subject to the comments made below.

2.5

It is a known fact that not all the Member States implement Community legislation in the same way and at the same time, in particular that relating to the safety of Community shipping. However, the Commission's efforts to constantly improve the harmonisation of procedures and implementation, and thereby improve the safety of people and goods, as well as environmental protection, are acknowledged. The EESC therefore welcomes these amendments, as they strengthen and clarify the EMSA's role in assisting the Commission in the following areas: drafting and updating Community legislation and monitoring its implementation; organising training actions; compiling and maintaining information databases on maritime safety, maritime security, prevention of pollution and response to pollution; cooperation with third countries in these areas; improving the quality of state port control; and evaluating and recognising the certification and implementation of relevant legislation by third parties.

2.6

It is nonetheless important to recall the EESC's opinion on establishing the EMSA (3), in which it pointed to the need to make a clear distinction between the remit of the EMSA (which has no legislative or regulatory powers) and that of the Committee on Safe Seas (which has a regulatory role).

2.7

The EESC therefore calls on the Member States to speed up the process of drawing up contingency plans, reviewing and updating existing national plans (including regularly conducting practical exercises), and acquiring the equipment needed to respond properly to major accidents.

2.8

The EESC also believes that the Agency should play a role that supplements actions by the Member States, i.e. by providing technical and scientific assistance in the event of accidental or deliberate pollution by ships. However, each Member State will continue to be responsible for drawing up pollution prevention and response plans and for providing appropriate resources for this task. The EESC regrets that, despite the fact that the Member States are already responsible in this area, some are still not properly prepared to respond to accidents such as the Erika and Prestige disasters.

2.9

The EMSA must cooperate with the Member States in drawing up consistent and coordinated maritime pollution prevention and response plans, as well as managing the technical resources available (specialised ships or other equipment). It would therefore be advisable for the EMSA to be able to play an active role in emergency situations, without this in any way diminishing the responsibility of the Member States. This is the logic behind the introduction of a new point c) iii) in Article 2.

2.10

The EESC also believes that, when ships are chartered to carry out these tasks, it must be ensured that the owner(s) in question respect(s) the relevant Community and international legislation, in particular that governing safety conditions on ships and the living and working conditions (and certification) of crew members.

2.10.1

It would be useful to clarify who will be responsible for the operational management of the ships and equipment provided for pollution response assistance. The EESC is of the view that the competent national authorities should manage the resources available during the intervention.

2.11

Given that some of the States joining the EU in May 2004 are coastal States and that, according to the monitoring reports on the progress towards accession published in November 2003, all fall seriously short in terms of administrative and technical capacity, the EESC recommends drawing up special plans to help equip these countries. This would help prevent certain areas not being covered by any plan or not having the resources needed to provide assistance in the event of an accident. Consideration should also be given to possible forms of cooperation in this area with third countries bordering Member States.

2.12

As regards including maritime security among the Agency's responsibilities, the EESC acknowledges that in this area too it is necessary to ensure that the national plans drawn up by the Member States are effective. This is an area in which the EMSA could assist the Commission. It must be noted, however, that these national plans sometimes include military components to which even the EMSA inevitably has only limited access. In order to prevent some Member States blocking such access, it is important to find flexible solutions that ensure national plans – both individually and as a whole – are effective, and which take account of restrictions that some Member States may introduce.

2.13

Above all, it is important to ensure that rules on improving ship and port facility security are transposed and implemented in a harmonised and consistent manner, without jeopardising their objectives.

2.14

The EESC would like to point out that the Council of Transport Ministers already agreed in principle on this proposal at its meeting in December, without taking account of either the EESC's opinion or the European Parliament's report, both of which are still being drafted. Given that this situation frequently arises, the EESC calls for referrals submitted to it to be given sufficiently long deadlines to allow its opinions to be adopted in good time.

2.15

The Committee also believes that the idea of setting up an EU Coastguard should be discussed further. Although this is a delicate matter owing to the fact that it raises questions of sovereignty and maritime authority, such a coastguard could supplement the EMSA's role in the areas of prevention and monitoring.

3.1

The EESC welcomes the Commission proposal and stresses the EMSA's key role in improving maritime safety in the Member States. It nevertheless points to the need to make a clear distinction between the remit of the EMSA and that of the Committee on Safe Seas.

3.2

The EMSA's role in pollution response must supplement and not replace actions by the Member States.

3.3

The EESC profoundly regrets that, in spite of the Erika I and II packages, several Member States still do not have the equipment and human resources necessary to respond to major accidents. Priority must be given to this.

3.3.1

Moreover, the Member States are still behind in drawing up contingency plans. The EESC therefore calls for this process to be speeded up so that a comprehensive network covering all Community waters can swiftly be set up.

3.4

Particular attention must be given to helping equip the future Member States in human resources and equipment for pollution prevention and response.

3.5

The EESC recommends discussing further the idea of setting up an EU coastguard, which could supplement the EMSA's role in the areas of prevention and monitoring.

30.4.2004   

EN

Official Journal of the European Union

C 108/55

1.1

On 1 April 1987, the European Commission instructed its staff that all legislative acts should be codified after a maximum of ten amendments, or at even shorter intervals, to ensure that the Community rules are clear and readily understandable.

1.2

Given that no changes of substance may be made to the instruments affected by codification, an interinstitutional agreement was concluded on 20 December 1994 between the European Parliament, the Council and the Commission under which an accelerated procedure may be used for the fast-track adoption of codified instruments.

2.1

This proposal seeks to codify Directive 92/14/EEC, which governs the use of aircraft in line with the rules laid down at international level. The new directive will supersede the various instruments incorporated in it. Their content is fully preserved, and only such formal amendments are made as are required by the codification exercise.

2.2

The directive deals with noise-emission standards for civil subsonic jet aeroplanes.

3.1

The European Economic and Social Committee fundamentally endorses the Commission proposal which seeks to make Community law clear and transparent.

30.4.2004   

EN

Official Journal of the European Union

C 108/56

30.4.2004   

EN

Official Journal of the European Union

C 108/57

1.

The EESC considers it appropriate to permit the application of equivalent levels of security than those explicitly prescribed in the legislation at airports used only by small aircraft, general aviation or airports used infrequently, on the grounds that investment in expensive security equipment would be inappropriate. The proposal also corrects some minor errors of little substantial importance. The EESC therefore supports the proposal.

2.

Furthermore, it would underline the importance of Article 4, new paragraph 3a) stating that: ‘Each flight originating from a demarcated area of an airport shall indicate this fact to the destination airport in advance of the arrival of the flight’. This information is essential for ensuring appropriate security measures can be taken to receive air passengers and baggage from ‘demarcated’ areas of ‘origin’ airports who are transferring flights or entering a terminal building where there is no physical separation of arriving and departing passengers. The aircraft operator is best placed to provide this information.

3.

Finally, the Committee underlines that the national security measures (as referred to in Article 4, paragraph 3 of Regulation 2320/2002) must be applied to ‘demarcated areas’ and not to individual general aviation flights or individual small aircraft (with less than 10 tonnes of Maximum Take Off Weight or less than 20 seats) which arrive at a destination airport where no ‘demarcated area’ exists.

30.4.2004   

EN

Official Journal of the European Union

C 108/58

a)

to transpose into Community legislation: the revised OECD Council decision of 14 June 2001; the revised Basle Convention;

b)

to address the difficulties encountered in applying, administering and enforcing the 1993 Regulation and establish greater legal clarity;

c)

to pursue global harmonisation with regard to transboundary shipments of waste; and

d)

to reorganise and simplify the structure of the Articles of the Regulation in order to make it clearer and more logical.

a)

The scope of the Regulation has been clarified.

b)

The definitions of ‘notifier’, ‘consignee’, ‘dispatch’ and ‘destination’ have not been harmonised with the terminology used in the Basle Convention and the 2001 OECD Decision.

c)

Several new definitions have been added.

d)

It is proposed that the definition of ‘competent authority’ be amended and aligned with the Basle Convention.

e)

A definition of ‘environmentally sound management’ has been added.

f)

The definition of ‘notifier’ has been clarified.

a)

The number of waste lists is to be reduced from three to two, and at the same time it is proposed that the number of procedures be reduced to two.

Thus, it is proposed that semi-hazardous waste (Annex III) and hazardous waste (Annex IV) be put together in one list, which becomes Annex IV. The list of non-hazardous waste (currently Annex II) would then become Annex III.

In concrete terms, this means that:

b)

It is also proposed that the competent authorities give their consent individually within 30 days and that certain procedural safeguards for the notifier be added.

c)

Interim recovery and disposal facilities are to be bound by the same obligations as final recovery and disposal facilities (see comments below).

d)

It is proposed to extend and clarify the list of information and documentation which must accompany shipments of non-hazardous waste.

e)

In line with the 2001 OECD Decision, shipments of waste destined for laboratory analysis are not to be subject to the prior written notification and consent procedure.

f)

Waste containing POP chemicals is to be subject to the same provisions as shipments of waste destined for disposal.

g)

It is proposed to establish a procedural rule to deal with cases where the competent authorities disagree about the classification of waste.

h)

The notifier's financial guarantee or equivalent insurance should be established and legally binding at the time of notification.

i)

It is proposed that the obligation to take back waste (in cases where the shipment cannot be completed or is illegal) also apply to non-hazardous waste destined for recovery.

a)

These changes and additions primarily concern the implementation of the Basle Convention's procedural rules, which differ from those applicable to intra-Community shipments.

b)

According to the European Commission, this proposal will not place additional economic burdens on industry. However, it could entail extra costs for certain Member States.

c)

It should promote a more uniform application of the Regulation and reduce distortions of competition on the internal market.

3.1

The European Economic and Social Committee considers that the Commission proposal will improve the ‘traceability’ of waste shipment operations. The proposal should help to do away with certain practices and provide the uniform standards needed to effectively implement good practice with the aim of improving environmental protection and sustainable development.

3.2

The proposal should help to make the activities of waste professionals more transparent, and to enhance traceability and accountability, particularly by introducing declaration mechanisms and financial guarantees and requiring that waste be taken back if a contract is not completed. It will also make authorities more answerable, since they will have to give written consent for planned shipments (classification of operations, authorisations to operate treatment facilities, compliance, etc.), which is a much-needed improvement. Authorities will also have to respect deadlines so that operations are not delayed.

3.3

The streamlining of the text should make it easy to apply, which in turn should reduce distortions of competition within the Union. It should be noted that the proposal has already been examined both by the European Parliament Committee on the Environment and at the EP plenary session. (1) It is unfortunate that the EESC was not consulted earlier so that its opinion was available for the parliamentary debate, during which improvements were made to the text.

3.4

However, the EESC notes that the approach adopted seems to be based on a procedure for individual shipments involving a single loading operation, whereas in practice multiple shipments take place under a general notification procedure. The related costs and paperwork and the fact that the volume of waste transported requires several loading operations explain why individual shipments are the exception.

4.1

Articles 175 and 133 of the Treaty establishing the European Community are given as the legal basis. Obviously Article 175, i.e. environmental protection, must be kept. But it is probably premature to invoke Article 133, since at the moment there are still too many disparities within Europe which must be eliminated before a real European market in waste can be considered to exist.

Definitions are inconsistent, there is a lack of clarity and precision, and therefore too many disparities of interpretation between countries and too frequent appeals to the Court of Justice. In other words, this is a long way from being a market in the European sense.

The Commission must certainly make efforts to open up this market, but many steps still have to be taken first:

30.4.2004   

EN

Official Journal of the European Union

C 108/62

1.1

The earth is surrounded by gases, some of which absorb and reflect heat, causing temperatures at ground level to rise. This is the greenhouse effect. Concentrations of the gases causing this (carbon dioxide, methane, water vapour, nitrous oxide, ozone and some deliberately made substances including fluorinated gases) have increased as a result of human activity.

1.2

If these trends, and the associated global warming, cannot be restrained or reversed, they will lead to permanent and potentially harmful climate change. Balancing this with the needs of peoples at all levels of development around the globe is the greatest challenge currently facing humanity.

1.3

The international response was defined in the United Nations Framework Convention on Climate Change (UNFCCC), adopted in 1992, and by the Kyoto Protocol of 1997. The EU has made climate change a priority for its 6th Environment Action Programme 2001-2010.

1.4

In June 2000 the EU established the European Climate Change Programme (ECCP) as a multi-stakeholder consultative process to determine how the EU could best meet its Kyoto targets. In its first report in June 2001, the ECCP identified 42 cost-effective options to reduce greenhouse emissions by 664-765 million tonnes carbon dioxide equivalent (MT CO2 eq.). These included actions to restrict the use and emissions of certain fluorinated gases.

2.1

The proposal seeks to limit emissions of hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6), used widely as refrigerants, cleaning solvents and foam blowing agents, and in medical and specialty applications, including fire-fighting, semi-conductor and switch gear manufacture and the production of magnesium.

2.2

These substances are powerful greenhouse gases covered by the Kyoto Protocol. The actions proposed are expected to reduce their emissions by 23 million tonnes to 75 MT CO2 eq. by 2010, with the possibility of further reductions as the measures take full effect.

2.3

The proposal is based on Article 95 of the Treaty. Measures to harmonise requirements on monitoring, containment and use will assist Member States in meeting their obligations under the Kyoto Protocol, whilst providing essential protection for the internal market.

2.4

Article 3 provides for the monitoring and containment of leaks from stationary refrigeration, air-conditioning, heat pump and fire protection systems. Article 4 refers to the servicing and end-of-use recovery of the gases for recycle, reclamation or destruction. Article 6 requires producers, importers and exporters to maintain records of production, trade in and use of these fluorinated gases, and to report these data to the Commission. Articles 7 and 8 prohibit the placing on the market and subsequent use of certain fluorinated gases in specific applications.

2.5

Articles 9 and 10 deal specifically with the use of fluorinated gases in Mobile Air-Conditioning systems (MACs) in cars and light goods vehicles. A transferable quota system is proposed to allow manufacturers time to introduce the necessary changes in a cost-effective manner. Other than as provided for in Article 10, the use of fluorinated gases with a Global Warming Potential (GWP, after 100 years, v CO2 taken as 1) >150 to fill new vehicles placed on the market from 1 January 2009 is prohibited.

3.1

The EESC recognises the continuing and urgent need to reduce global greenhouse gas emissions and strongly supports the Commission in its drive for full ratification of the Kyoto Protocol. It therefore welcomes this proposal on the control and use of certain fluorinated gases. The actions proposed have been developed in conjunction with affected stakeholders to provide Member states with cost-effective measures to meet their emissions reduction targets. The EESC hopes that these will in turn provide models for countries outside the EU to follow.

3.2

The activities covered by the proposal (refrigeration, air conditioning, medical and specialty applications) are increasingly regarded as essential to the continuation of human life. Without them, the daily provision of fresh food would become impossible, and the undertaking of safe and productive activity at home, at work or during travel would become increasingly difficult.

3.3

However activities to mitigate these effects of heat can also contribute to global warming, by the leakage of the refrigerants used (direct effects) and by the increased use of power to drive the cooling system (indirect effects). Indirect effects normally outweigh direct effects. For a domestic refrigerator the power usage accounts for 96 % of total emissions. The use of a MAC unit in a car increases fuel use and emissions by up to 20 %.

3.4

The choice of refrigerant is largely restricted to ammonia, carbon dioxide, water, hydrocarbons or fluorocarbons (HFCs). Each has advantages and disadvantages; no new molecules are expected to be identified for this use in the short term. Chlorofluorocarbons (CFCs), introduced in the 1930s as safe and cheap alternatives to ammonia, sulphur dioxide or hydrocarbons, are already being phased out under the Montreal Protocol due to their high Ozone Depleting Potentials (ODPs); they also tend to have high GWPs.

3.5

For domestic refrigeration, the problem of flammability of the preferred replacement, iso-butane, has been overcome, with low initial charges (30-60gms) and leakage rates, and the use of explosion proof electrical systems.

3.6

Commercial systems depend on ammonia on remote sites or where there are trained personnel used to working in potentially hazardous conditions, or on mixtures of HFCs, e.g., in supermarkets, where safety is paramount due to the presence of the public. In these cases, improved design, monitoring and containment are essential.

3.7

The growth in demand for MACS in private cars follows falling costs and growing awareness of the effects of local climate change. However, the initial charge (750gms) of refrigerant, typically HFC 134a with low flammability but a GWP of 1300, is far larger than in a domestic refrigerator. Lifetime use is much greater (1200-2400gms). Indirect effects are greater still.

3.8

Under these conditions, redesign and better containment are imperative, to permit the safe use of either HFC 152a, which is mildly flammable but with a GWP of only 140; butane, which is extremely flammable but with a GWP of only 3; or of carbon dioxide which is non-flammable but which requires higher pressures, may result in higher fuel use and which could lead to asphyxiation of those inside the vehicle in the event of an accident. The implications for engine and body design, servicing and end of life venting or recycling are all important.

3.9

The EESC believes that greater urgency is required so that MACs can be incorporated within the type approval process for all new models placed on the European market. The development by the Commission of EU standards for the measurement of leakages and of total emissions and their impact on air pollution and climate change, with and without MACs in use, are key steps towards this.

3.10

The EESC agrees with the Commission that, in order to safeguard the global environment, the Treaty base for this proposal should be Article 95, to provide direction and protection to the internal market in the sectors most affected. For full impact, it is essential to establish long term sustainable trends in consumer preferences and in associated manufacturing innovation in these globally supplied industries. The EU needs to maintain its leadership role, continuing the process of consultation with stakeholders and providing incentives for positive actions and a framework in which they can be undertaken in a timely and cost-effective manner.

3.11

National governments have important roles to play in this via exchange of best practice, e.g., monitoring systems in place in Sweden (reducing leaks from commercial and retail installations from 30-40 % to 5-8 %) and the Netherlands (the STEK system for leak-free refrigeration equipment) and in the provision of systems to inform and reward consumer choice on decisions affecting the global environment. Energy labelling, already having a major impact on domestic systems, should be extended to commercial and mobile systems as quickly as possible.

3.12

As a number of countries already subject to the Montreal and Kyoto Protocols but in different stages and with different rates of internal development accede to the EU, the EESC encourages the Commission to continue to work for sustainable and realistic reductions in the emission of greenhouse gases, protecting the widened internal market and providing a level playing field for manufacturers and importers. The EESC agrees that a Regulation is the appropriate legal instrument for this proposal.

4.1

The recital must include considerations of the safety and health of all those involved throughout the life cycle of the products concerned.

4.2

Some definitions are missing. Clarity is required over 'operator'/'owner' of stationary systems. The Commission should work with the affected parties to ensure that real-life situations are fully covered.

4.3

The recommendations with respect to containment are weak, with little requirement for action or for focused monitoring of unreliable and leaky installations. The Swedish and Dutch systems should be followed more closely. As incentives grow to reduce leaks at the design stage, so the frequency of monitoring of new energy-efficient installations with demonstrated low leakage rates should be allowed to decrease. This should be irrespective of the refrigerant used. Users should see leak reduction both as a cost benefit and as a contribution to their environmental performance. Voluntary agreements, labelling and award schemes, information via trade journals, and consumer recognition of progress made, can all be utilised to bring about the desired changes to existing practices.

4.4

Article 5 provides for training for personnel involved in containment and recovery, but not for installation, maintenance and inspection. This will be essential if the changes are to be effective.

4.5

The EESC supports the reporting processes outlined in Article 6. National reporting against EU air standards is of variable quality: without a consistent and robust database, it will be hard to determine what progress has been made or what further actions are required.

4.6

Given the need to balance hazards and benefits in refrigeration and air conditioning, it would be preferable for these specific activities to be the subject of future legislative action, including type approval for MACs, rather than, as here, focusing on only one set of refrigerants.

4.7

The quota system for emissions from MACs is complex and it is hard to see that it is strictly necessary. Provided the time-scale is realistic, type approvals for new models based on all aspects of energy efficiency and emissions limitation and applying equally to manufacturers and importer from, say, 2012, would be the preferred course. A cut-off date should also be set, e.g. 2020, by which time all new cars, whether new or existing models, should be fully compliant with the new standards. Schemes to increase the replacement rate for existing non-compliant models should also be encouraged.

4.8

Finally the role and responsibility of the consumer is critical. Where activities are regarded as essential, the consumer should be aware of the choices available and of the consequences of each choice. Where there are special costs, for instance for servicing or at disposal, these should be identified and passed on. Labelling schemes have played an important role in increasing the energy efficiency of domestic refrigerators; this, with the Commission's help, should be extended to other aspects of refrigeration and air conditioning as quickly as possible.

4.9

For other applications which are optional but relatively trivial or for which safer alternatives are readily available, then the Commission's approach as set out in Articles 7, 8 and in Annex II seems appropriate and is supported by the EESC. Voluntary agreements, accompanied by steady progress and the exchange of best practice, are preferred in complex and essential areas such as drug delivery via Measured Dose Inhalers (MDIs).

4.10

Other uses of fluorinated gases, e.g., in heavy goods vehicles, and in road, rail and sea-borne refrigeration systems, not covered by this proposal should be included in later proposals when the necessary data become available.

30.4.2004   

EN

Official Journal of the European Union

C 108/65

1.1

Under the proposal for a regulation submitted as document 2003/0193, the existing and, from 1 May 2004, the new Member States that have a common land border with a neighbouring third country may, if desired, elaborate further on the rules on local border traffic set out below through bilateral, reciprocal agreements.

1.2

Under the proposal for a regulation submitted as document 2003/194, an existing and a new Member State, or two new Member States, that have a common border may, if desired, also elaborate further on the rules set out below through agreements of this kind.

1.2.1

These are temporary rules that may be applied from 1 May 2004 but which will cease to be operative once the new Member States concerned implement the Schengen acquis in full and controls at the common borders are lifted.

1.3

The Commission's purpose in submitting these two proposals is to facilitate border crossing for bona fide border residents having legitimate reasons to frequently cross the external land borders, and also to take account of the need to prevent illegal immigration and potential threats to security posed by criminal activities.

1.4

The European Commission is thus proposing that third-country nationals who regularly reside in an area bordering a neighbouring Member State for a minimum of one year be allowed to cross the external land borders frequently for family, social, cultural, economic or other reasons, outside authorised border crossing points and hours, and be allowed to remain for a maximum of seven consecutive days provided the total duration of the successive visits does not exceed three months within any half-year period.

1.5

Those concerned must have the requisite travel documents. Third-country nationals not requiring a visa will be granted entry on production of their identity card or a specific permit.

1.5.1

Third-country nationals requiring a visa will have to have a specific ‘L’ visa which will be valid for a minimum of one, and a maximum of five years, and will have a uniform format (standard model).

1.6

Those affected by these measures are given access only to the border area, which does not extend more than 50 km and within which zones or towns may be specified as subject to the local border traffic regime.

2.1

The Committee endorses the proposals' objective but wonders about arrangements for establishing that the maximum authorised duration of stay has not been exceeded, especially as, for practical and other reasons, the travel documents concerned cannot or need not be stamped upon entry and exit.

2.2

The European Commission clearly assumes that the checks made for granting the ‘L’ visa are sufficient for the party concerned to be considered bona fide after the visa has been issued. However, as this visa may be valid for anything up to five years, it will be difficult to check that the parties crossing the border – at any rate if they do so outside authorised border crossing points and hours – continue to meet the visa requirements and, for instance, are not in the meantime subject to an alert refusing them entry.

2.3

In any case, this approach is not a satisfactory way to monitor the stays of third-country nationals not requiring a visa who, in this instance, may enter simply on production of their identity card.

2.4

If any parties covered by these measures are nonetheless discovered outside the border area on the territory of another Member State, their stay is considered to be unlawful and they must be expelled from that territory. It would be expedient to lay down that the appropriate Schengen provisions for such expulsions are to apply in cases where no return or readmission agreement is in place with the countries concerned.

3.1.1.1

The definition of ‘transfrontier workers’ under point (h) of this article is taken from a proposal for a Council Directive that is still to be adopted on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities.

3.1.1.2

This raises the question, therefore, of whether the provisions laid down for transfrontier workers in the present regulation are, in fact, to apply, or whether they will be replaced by the appropriate provisions of the above-mentioned directive once it has been adopted and transposed into national law.

3.1.2.1

Given that all Member States have endorsed the Charter of Fundamental Rights of the European Union, it is clear that they will also comply with the provisions of Article 4.

3.1.2.2

While, in matters of readmission or asylum, it is worthwhile pointing out that third-country nationals may not be expelled to or via a third country, and that Member States may recognise them as refugees if they run a genuine risk of persecution in the third country concerned for the reasons set out in Article 4, it seems superfluous to include this clause in provisions relating to local border traffic.

3.1.3.1

This article stipulates that the visa is to be issued in a uniform format and marked with the distinctive letter ‘L’. This implies that the Schengen area inspection officials must be given clear instructions on this matter, particularly since the letter ‘L’ is also used as the country code for Luxembourg on visas limited to the territory of that country.

3.1.4.1

These instructions set out the visa-issuing rules for the visa-issuing bodies. Hence, it is necessary to amend not only Part I, point 2 (definition and types of visa) but also Part V (examination of applications and decisions taken), point 3, and Part VI (how to fill in visa-stickers). The bodies concerned can hardly be expected to have to read an annex to the instructions, before they are able to issue a visa.

3.1.4.2

The Committee would also ask why the second paragraph of point (a) stipulates the minimum, but not the maximum period of validity.

3.1.4.3

Lastly, border inspection officials will also have to be briefed about the rules for local border traffic. The Common Manual of External Borders will thus also have to be modified, but no amendments have been incorporated into the final provisions.

3.1.5.1

The Commission's purpose in including this article is to delete Article 136(3) of the Convention.

3.1.5.2

A regulation may render certain provisions of the convention inapplicable, but it cannot delete them.

3.2.1

The above comments on the proposal on the establishment of a regime of local border traffic at the external borders of the Member States (document 2003/0193) also apply, as appropriate, to the provisions of this proposal on local border traffic at the temporary external borders between Member States.

4.1

The Committee endorses the aims of both proposals on local border traffic – notably to facilitate border crossing for bona fide border residents and, at the same time, to take account of the need to prevent illegal immigration and potential threats to security posed by criminal activities.

4.2

To the extent that this twofold objective cannot be achieved under existing Community law (including the Schengen acquis), the Committee would recommend the following in relation to the proposal for a Council regulation submitted as document 2003/0193:

4.2.1

In order to be able to monitor the maximum authorised duration of stay, the possibility of crossing the border outside authorised crossing points and fixed hours should not be offered (cf. Article 18).

4.2.2

In order to regularly check the bona fide credentials of those concerned by these measures, specific visas should be valid for not more than one year (cf. Article 12).

4.2.3

A reference might be inserted in Article 2 of document 2003/0193 to indicate that Article 23 of the Schengen agreement also applies in cases of expulsion of any third-country nationals discovered outside the border area and thus illegally present elsewhere in the Schengen zone.

4.2.4

As the status of transfrontier workers is not yet settled at Community level, and the Council deliberations on a directive to be adopted on this issue are not yet complete, the definition contained in Article 3(h) (and Article 15 which also refers to transfrontier workers) must be deleted, or at any rate included conditionally, subject to the adoption of that directive.

4.2.5

Article 4 is unnecessary as Member States have to comply with the principle of non-discrimination in the application not just of this regulation, but of all Community and national law. Moreover, to include such an article gives the impression that, in the case of local border traffic, Member States do not intend to comply with this principle at all times. If desired, reference may be made to this fundamental right in the recitals.

4.2.6

As the letter ‘L’ is used as the country code for Luxembourg in visas limited to the territory of that country and thus may confuse inspection officials, care must be taken to ensure that none of the letters used in the specific visa under Article 9 are the same as EU country codes.

4.2.7

To help visa-issuing bodies and border inspection officials, appropriate, more detailed instructions must be set out in the final provisions, both in Article 20 and in a new article.

4.2.8

Article 21 must be omitted or, if necessary, reworded, as an article of the Convention implementing the Schengen agreement cannot be deleted by virtue of a regulation.

30.4.2004   

EN

Official Journal of the European Union

C 108/68

1.1.1

On 9 April 2003, Commissioner Viviane Reding wrote to the President of the Committee to request that an exploratory opinion be drawn up on Europe's creative industries.

The Commissioner felt that the EESC, with its roots firmly planted in civil society and representing the interests of industry and workers, is particularly well placed amongst other things, to:

The Commission intends in principle to propose new Community instruments in the areas of culture and the audio-visual media early in 2004.

1.1.2

According to the Commission, the major challenges facing these industries are:

1.1.3

The Commission feels that this situation calls for a detailed examination of the following aspects:

1.1.4

At its meeting held on 4 September 2003, the European Parliament approved the Resolution on Cultural Industries. The rapporteur was MEP Myrsini Zorba.

1.1.4.1

This comprehensive text was drafted using the same rigorous methodology as that adopted by the European Parliament when drawing up a draft resolution containing practical suggestions for methods that could be adopted by the responsible European institutions and the Member States.

1.1.4.2

At the public hearing held on 22 April 2003, the results of a questionnaire sent out to two hundred professional associations, federations of specific sectors, companies and experts in this field were presented. The following were cited as the major problems faced by the European creative industries:

1.1.4.3

According to the document presented at the hearing, operators in this sector are dissatisfied with cultural policy at both national and European level.

1.2.1

In its opinion, the European Economic and Social Committee focuses on specific issues which together are considered to be of particular relevance for future Community action.

1.2.2

The Committee will be asked to respond to two basic questions:

2.1.1

The definitions given in different dictionaries for the overall notion of ‘culture’ are generally very similar. Culture could be described as the set of knowledge, customs and levels of artistic and scientific development that defines an era or social group.

2.1.1.1

The peoples of Europe share similar knowledge, customs, levels of development and values, to varying extents, such that, with all due respect to much more local identity markers, we could claim the existence of a European culture or ‘European Cultural Area’.

2.1.1.2

In line with the focus of the opinion presented here, culture can equally be defined as a set of cultural and artistic products and productions from the fields of music, theatre, cinema, television, literature and so on. This description of culture takes much greater account of its economic dimension and recognises the important role played by the creative industries.

2.1.2

However, culture is not an abstract concept; it is born out of the very lives of those who make it possible. Culture cannot exist without artists, performers and other creative minds who take their inspiration and turn it into works to be considered and enjoyed by all citizens and which form the cultural wealth of all humanity.

2.1.3

Indeed, what would be the purpose of a cultural work if it were entirely inaccessible? Access to culture enhances the possibilities of the human mind. But it should not be forgotten that any abuse of culture can turn it into an element of power and control. Strengthening culture and promoting free and open access to culture for all citizens can help counter forms of hegemony that attempt to use culture as a means to becoming established.

2.2.1

Prior to the entry into force of the Maastricht Treaty, the European Union had no legal basis on which to create a cultural policy. Now, with a solid legal basis and through the launch of programmes specific to this area of Community policy, the European Union no longer appears solely as a geographical, political, social or economic entity on the world scene, rather the more essential aspects of the shared cultural heritage of the European Community are taking on increasing importance.

2.2.2

In the light of this, the Committee agrees that culture constitutes an essential and unifying element in the everyday lives and identities of the citizens of Europe. (1)

2.2.3

Although the EU does not have a common policy to deal with the various cultural sectors and despite the restrictions laid down by Article 151 of the EC Treaty, the Member States and the Union with its institutions must help draw up a joint vision for the future that will enable the Union as a whole to take more decisive action in the field of culture.

2.2.3.1

A cultural policy developed at European level would need to promote access for the citizens of the Union to the cultural identity which unites them as well as awareness of the cultural diversity of the different regions of Europe and of the people who make up in that diversity.

2.2.4

In its resolution of 5 September 2001, the European Parliament indicated that it felt that the cultural dimension of the Union should be strengthened for the future, both in political and budgetary terms, boosting cooperation between the Member States in order to create a ‘European Cultural Area’.

2.2.4.1

The creation of a European Cultural Area would benefit the Union on two counts: firstly it would enhance the cultural wealth of Europe, and secondly it would bring economic advantages through the development of the creative industries. The creative industries are what provide the citizens of the Union with access to culture and it is through these industries that our culture is exported beyond the Community borders.

2.2.5

While the purpose of this opinion is not to provoke a debate concerning European cultural policy, the Committee does feel that this is a crucial issue that has a bearing on the creative industries and should be looked at in depth.

3.1.1

Prior to the ratification of the Maastricht Treaty, the European Union had no legal framework within which to develop a cultural policy at Community level. None of the articles or sections of the Rome Treaty made any specific reference to this issue; only the preamble alluded to the role played by culture in unifying peoples and promoting socio-economic development.

3.1.1.1

Article 151 of the EC Treaty sets down a basis on which to promote, support and supplement action undertaken by the Member States, while respecting national and regional diversity, placing particular emphasis on the common cultural heritage of the citizens of the Union. However, harmonisation of any sort is expressly excluded from the sphere of application of this article.

3.1.2

One of the tasks that falls to the European Union is to ensure that the conditions necessary for the competitiveness of the Community's industry exist. Article 157 of the EC Treaty stipulates that Community action shall be aimed, amongst other things, at speeding up the adjustment of industry to structural changes and encouraging an environment favourable to initiative and cooperation between undertakings.

3.1.2.1

The European Union must contribute to the creation of an environment that is favourable to the development of the creative industries, enabling them to benefit from the findings of research, technological progress, better access to funding and the advantages of cooperation within a European Cultural Area.

3.2.1

Under the appropriate legal framework provided by Article 151 of the EC Treaty, the European Union launched three programmes in 1996 and 1997 aimed specifically at the field of culture: Kaleidoscope (2), set up to promote artistic creation and promote awareness and the dissemination of the art of the peoples of Europe; Ariane (3), designed to develop cooperation between the Member States in the field of literature and reading and to promote better knowledge of the literary and historical works of the countries of Europe through translation; and Raphael (4), intended to boost cooperation between the Member States in relation to cultural heritage with a European dimension.

3.2.2

In February 2000, the first European Community framework programme for culture (5) was approved. This programme simplifies Community action by establishing a single financing and programming instrument for cultural cooperation. The resulting cooperation between the players in the cultural field is contributing to the creation of a European Cultural Area, the development of artistic and literary creation, raising awareness of European history and culture, boosting the dissemination of culture worldwide, and increasing the value of heritage which has a European dimension and promoting intercultural dialogue.

3.2.2.1

Culture 2000 aims to create a common cultural area characterised by cultural diversity and the shared cultural heritage of the peoples of Europe. The countries of the European Economic Area and the candidate countries have also been invited to participate in this programme. It supports artistic and cultural projects which have a European dimension in terms of their conception, organisation and realisation. The majority of the projects involved also have a multimedia element seen through the creation of websites and discussion forums.

3.2.2.2

Culture 2000, which covers the period 2000 – 2004, is set to be extended via a new Proposal for a Decision of the European Parliament and the Council amending Decision No. 508/2000/CE (6), which suggests that the programme should be continued unchanged until the year 2006.

3.3.1

The aim of MEDIA, (the French acronym for ‘Measures to Encourage the Development of the Audiovisual Industry’), is to minimise the weaknesses of the European audiovisual and multimedia content industries, characterised above all by insufficient dissemination of European productions and a chronic deficit in investment in the development of new projects, ongoing training and the promotion and distribution of productions. The significance of these shortfalls becomes all the more apparent when compared with productions of North American origin.

3.3.1.1

The MEDIA programmes, therefore, support culture via projects involving the audiovisual industries that provide this type of cultural production. More precisely, the aims of the MEDIA Training (7) and MEDIA Plus (8) programmes, previously MEDIA I and MEDIA II, are, respectively, to train professionals in the European audiovisual production industry and to boost the development, distribution and promotion of audiovisual programmes.

3.3.1.2

The Commission has conducted a public consultation exercise with a view to proposing a new generation of programmes for the European audiovisual industry, based also on the outcome of the evaluation of the current programmes.

3.3.2

Furthermore, the EU runs various programmes and actions, which are not directly linked to support for culture itself, but which comprise approaches and back individual projects that touch on a host of aspects related to culture in general and cultural heritage in particular.

3.3.2.1

The following can be listed as some of the most significant of these programmes, complete with a description of the cultural activities to which they relate:

3.3.3

In the Committee's view, this list of programmes reflects the growing interest of the Community institutions in the promotion of culture. However, it also indicates the spread of initiatives and projects which are individually achieving considerable progress, but which could create synergies, achieve even better results and show greater effectiveness in reaching the culture targets set were they coordinated.

3.3.3.1

Several of the programmes listed fall under the aegis of the same Directorate General, in particular those most directly linked to culture, the creative industries and the audiovisual sector. However, other initiatives and programmes do not fall into this category. It would perhaps be advisable to consider whether there should be more coordination between these programmes.

4.1.1

The Committee does not wish to provide a narrow and restricted definition of what it means by the term ‘the creative industries’, as the definition should aim to establish which sectors fall within the cultural and creative industries.

4.1.1.1

Furthermore, depending on which source is consulted, some quite different sectors of activity are labelled creative industries. These include the performing arts, such as theatre, music, dance and others, the plastic arts, covering both painting and sculpture etc., cultural craftsmanship, book publishing, music publishing, the audiovisual media and the cinema, the communication media, cultural and above all architectural heritage, the conservation and restoration of our cultural heritage and cultural works and even tourism where this aims at raising awareness of a specific cultural asset, whether urban or rural, not to forget museums, libraries and other centres of culture.

4.1.2

According to UNESCO, creativity, an important part of people's cultural identity, is expressed in different ways. These means of expression are copied and boosted by industrial processes and worldwide distribution. Cultural industries consist of books, magazines, music records, film and videos, multimedia products and other new industries that are being created. (9)

4.1.2.1

This definition does indeed cover the concept of the creative industries very accurately. Some further sectors containing cultural works that cannot be reproduced on a large scale, but which attract interest, invite direct or indirect study or which are visited by citizens should be added to this list. These are industries that, through tourism, bring millions of citizens closer to cultural heritage that cannot be reproduced.

4.1.2.2

In view of the above and in order to guarantee the effectiveness of a European cultural policy in supporting the creative industries, the Committee seconds the request for a clear definition submitted by the European Parliament in its Resolution of 4 September 2003, and contributes towards this definition by listing a series of criteria in points 4.1.2 and 4.1.2.1 of this document.

4.2.1

For merely didactic purposes, and without excluding other forms of classification, the creative industries can be placed into the following categories: