ISSN 1725-2423

Official Journal

of the European Union

C 221

European flag  

English edition

Information and Notices

Volume 48
8 September 2005


Notice No

Contents

page

 

II   Preparatory Acts

 

European Economic and Social Committee

 

414th plenary session, held on 9 and 10 February 2005

2005/C 221/1

Opinion of the European Economic and Social Committee on the XXXIIIrd Report on Competition Policy — 2003 (SEC(2004) 658 final)

1

2005/C 221/2

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on international rail passengers' rights and obligations (COM(2004) 143 final — 2004/0049 (COD))

8

2005/C 221/3

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on compensation in cases of non-compliance with contractual quality requirements for rail freight services (COM(2004) 144 final — 2004/0050 (COD))

13

2005/C 221/4

Opinion of the European Economic and Social Committee on the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the White Paper on services of general interest (COM(2004) 374 final)

17

2005/C 221/5

Opinion of the European Economic and Social Committee on The use of geothermal energy

22

2005/C 221/6

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and the Council on the implementation of the deployment and commercial operating phases of the European programme of satellite radionavigation (COM(2004) 477 final — 2004/0156 (COD))

28

2005/C 221/7

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council establishing an infrastructure for spatial information in the Community (INSPIRE) (COM(2004) 516 final — 2004/0175 (COD))

33

2005/C 221/8

Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions — Flood risk management — Flood prevention, protection and mitigation (COM(2004) 472 final)

35

2005/C 221/9

Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation on the financing of the Common Agricultural Policy (COM(2004) 489 final — 2004/0164 (CNS))

40

2005/C 221/0

Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation amending Regulations (EEC) No 2759/75, (EEC) No 2771/75, (EEC) No 2777/75, (EC) No 1254/1999, (EC) No 1255/1999 and (EC) No 2529/2001 as regards exceptional market support measures (COM(2004) 712 final — 2004/0254 (CNS))

44

2005/C 221/1

Opinion of the European Economic and Social Committee on Beijing +10: Review of progress achieved in the field of gender equality in Europe and in developing countries

46

2005/C 221/2

Opinion of the European Economic and Social Committee on the Green Paper — Defence procurement (COM(2004) 608 final)

52

2005/C 221/3

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways (COM(2004) 139 final — 2004/0047 (COD))

56

2005/C 221/4

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on the certification of train crews operating locomotives and trains on the Community's rail network (COM(2004) 142 final — 2004/0048 (COD))

64

2005/C 221/5

Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation applying a scheme of generalised tariff preferences (COM(2004) 699 final — 2004/0242 (CNS))

71

2005/C 221/6

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure (COM(2004) 173 final/3 — 2004/0055 COD)

77

2005/C 221/7

Opinion of the European Economic and Social Committee on the Proposal for a European Parliament and Council recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry (COM(2004) 341 final — 2004/0117 (COD))

87

2005/C 221/8

Opinion of the European Economic and Social Committee on Employment policy: the role of the EESC following the enlargement of the EU and from the point of view of the Lisbon Process

94

2005/C 221/9

Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council and the European Parliament: Financing Natura 2000 (COM(2004) 431 final)

108

2005/C 221/0

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on services in the internal market (COM(2004) 2 final — 2004/0001 (COD))

113

2005/C 221/1

Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council and the European Parliament: Clearing and Settlement in the European Union — The way forward (COM(2004) 312 final)

126

2005/C 221/2

Opinion of the European Economic and Social Committee on the Proposal for a Decision of the European Parliament and of the Council establishing an integrated action programme in the field of lifelong learning (COM(2004) 474 final — 2004/0153 (COD))

134

2005/C 221/3

Opinion of the European Economic and Social Committee on How to achieve better integration of regions suffering from permanent natural and structural handicaps

141

2005/C 221/4

Opinion of the European Economic and Social Committee on Consumer policy post-enlargement

153

EN

 


II Preparatory Acts

European Economic and Social Committee

414th plenary session, held on 9 and 10 February 2005

8.9.2005   

EN

Official Journal of the European Union

C 221/1


Opinion of the European Economic and Social Committee on the XXXIIIrd Report on Competition Policy — 2003

(SEC(2004) 658 final)

(2005/C 221/01)

On 4 June 2004, the European Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the XXXIIIrd Report on Competition Policy — 2003

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 11 January 2005. The rapporteur was Mr Chiriaco.

At its 414th plenary session, held on 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion with 75 votes in favour and one abstention:

1.   Introduction

1.1

The 2003 annual report highlights changes to the internal organisation of the sector and to the working methods of the Commission, and documents the way the Commission secures coherence within the fabric of European economic governance.

1.2

EU competition policy plays an important role in achieving the competitiveness goals set out in the Lisbon strategy. It encompasses not only antitrust and merger rules, but also the application of an efficient and firm state aid discipline.

1.3

To enable trouble-free accession for the 10 new Member States, the Commission developed a common set of competition rules for all the Member States, to ensure fair application of state aid rules, highlighting the importance of tackling state intervention which distorts competition, with the same commitment as is applied to company law.

1.4

In 2003, 815 new cases of competition law infringements were recorded, and measures included the establishment of the post of consumer liaison officer to ensure a permanent dialogue with European consumers, whose welfare is the prime concern of competition policy, but whose voice is not sufficiently heard when individual cases are handled or policy issues discussed. The role of the consumer liaison officer is not confined to merger control, but also concerns the antitrust field — cartels and abuses of dominant positions — as well as other competition-related policies.

1.5

In October 2003, the European Commission published draft rules and guidelines on technology transfer licensing agreements, on which the EESC has already issued an opinion (1). The proposed reform takes into account developments in this type of agreement in recent years and is aimed at simplifying and broadening the scope of the Community block exemption regulation. The new provisions offer the following advantages:

the block exemption regulation will have only a black list: whatever is not explicitly excluded from the block exemption is now exempted;

a clear distinction is drawn between agreements between competitors and agreements between non-competitors;

there are already plans to adopt a ‘modernisation package’.

1.6

The Commission appointed a chief competition economist to take up office on 1 September 2003, while also giving a positive boost to the role of the hearing officer. The chief economist has three main tasks:

to provide guidance on economics and econometrics in the application of EU competition rules; this may include contributing to the development of general policy instruments;

to provide general guidance in individual competition cases from the early stages;

to provide detailed guidance in the most important competition cases involving complex economic issues, in particular those requiring sophisticated quantitative analysis.

1.7

Hearing officers, meanwhile, have been granted greater powers and autonomy in the role of defending the right to be heard in certain competition proceedings. They are directly answerable to the commissioner responsible and do not take instructions from the Competition DG. They may intervene whenever legitimate due process issues are at stake, must organise and conduct oral hearings objectively, and decide whether third parties should be heard and whether fresh documents may be produced. They refer to the relevant Commissioner on all issues.

2.   Application of antitrust rules — Treaty Articles 81 and 82

2.1

In October 2003, the Commission launched the final phase in the process of reforming the enforcement of EU antitrust rules (known as the modernisation package) to facilitate the application of the enforcement powers vested in the competition authorities and to elaborate on the cooperation mechanisms with national competition authorities (NCAs) and national courts provided for by Regulation 1/2003.

2.2

The modernisation package contains a new implementing regulation, addressing the modalities for hearing the parties concerned and a range of other procedural issues, such as access to files and the treatment of confidential information. The six draft notices concern in part mechanisms for cooperation within the network of European competition authorities and between the Commission and national courts, the concept of effect on trade between Member States, the treatment of complaints, and guidance letters to be issued to assist companies in assessing novel or unresolved questions. For comments on the modernisation package as a whole, the reader is referred to the EESC opinion (1).

2.3

In 2003, the Commission issued five decisions against unlawful horizontal agreements, involving: French beef, sorbates, electrical and mechanical carbon and graphite products, organic peroxides, and industrial copper tubes. The fines imposed totalled EUR 400 million. The level of fines set should act as a deterrent. Investigations involve company inspections. Full immunity is granted to companies that are first to reveal the existence of an agreement and that provide sufficient evidence to carry out an investigation. The Commission will express a favourable opinion in cases where agreements between companies do not restrict competition on the relevant markets, and where consumers benefit from the cooperation. Also in 2003, the Commission ruled on three cases of violations of Article 82, relating to:

the rates imposed by Deutsche Telekom AG on competing companies for access to the local infrastructure of its telecommunications network,

Wanadoo's pricing strategy for ADSL services, and

the abuse of a dominant position by Ferrovie dello Stato SpA in markets for access to the rail network, traction and passenger services.

3.   Competition policy developments at sectoral level

3.1

2003 brought significant, though not entirely satisfactory, progress for the liberalisation process in the energy sector (electricity and gas). In June, a legislative package was passed ensuring that all European consumers will be able to choose their supplier by 1 July 2007. These provisions aim to strike a balance between incentives to build new infrastructure and the completion of the common market.

3.2

Nevertheless, there is still widespread dissatisfaction among consumers and companies in various EU countries regarding the persistently high prices and relative efficiency of these services. In the new Member States in particular, social partners and consumer organisations strongly emphasise the need for national competition authorities and public utility regulators to be guaranteed full independence.

3.2.1

When appropriate and comprehensive competition legislation is in place, it is sometimes the case, in the new Member States in particular, that monitoring and enforcement agencies encounter difficulties in fulfilling their role independently. As a result, competition legislation sometimes fails to promote either consumer interests or market efficiency. The Committee is in favour of a more functional relationship between competition policy and consumer protection policies. A more organised and involved consumer movement could also aid government decision-making, and provide information on markets and anti-competitive practices.

3.3

In the field of postal services, the directive adopted in 2002 is geared towards completion of the internal market, in particular through a progressive reduction of the reserved area and the liberalisation of outgoing cross-border mail. Furthermore, on the basis of an agreement reached by the European Council, the Commission will carry out a study in 2006 to assess the impact of universal services for every Member State. Working from the results of that study, it will adopt a proposal to open up the postal market completely from 2009, including measures to secure the universal nature of the service.

3.4

The deadline for transposing the new regulatory package on electronic communications expired in July 2004. In its report on the subject, the Commission stressed the following principles in particular: markets must be analysed on the basis of the principles of competition; operators can be regulated only if they have a dominant position; all electronic communications services and networks are to be treated in a similar manner (technological neutrality). Development of, and generalised access to, electronic communications are not enough in themselves to secure the relaunch of economic growth. For that it is fundamental to increase the knowledge and skills levels of all those required to use information and communication technologies.

3.5

In the air transport sector, in 2003 the Commission decided to launch a comprehensive and non-case-related dialogue with all the industry stakeholders, in order to prepare transparent guidelines on competition enforcement issues in the field of airline alliances and mergers.

3.5.1

Progress has also been made on defining and implementing common guidelines on the application of antitrust rules in the rail sector for both goods and passenger transport.

3.5.2

In addition, there have been developments in industry dialogue in the maritime transport, motor vehicle distribution and insurance sectors, with a view to adopting or revising block exemption regulations.

3.5.3

This dialogue should also consider comparable forms of tax treatment.

3.6

Media: the Commission believes that media pluralism is fundamental to both the development of the EU and the cultural identity of the Member States, but stresses that responsibility for the control of media concentration rests primarily with the Member States. The application of competition policy instruments is limited to addressing the structure of the underlying market and economic impact of media undertakings' behaviour, and to controlling state aid. They cannot replace national media concentration controls and measures to ensure media pluralism. The function of competition rules is limited to resolving problems raised by the creation or strengthening of dominant positions in the respective markets and the foreclosure of competitors from those markets.

3.6.1

It can be seen that the Commission's approach, though correct in theory, has not been able to prevent or oppose dominant positions and the related anti-competitive practices in certain countries in particular. Different markets are concerned, and the television advertising market, not yet adequately examined, is of increasing importance when it comes to protecting pluralism.

3.6.2

Furthermore, the methods some media groups use to strengthen a dominant position have been overlooked, in particular the use of poison pills and multiple voting rights which permit a minority shareholder to control a company through voting rights in excess of their shareholding.

3.6.3

The Commission will therefore have to be exceptionally vigilant in the application of competition rules and practices.

3.7

Liberal professions: A study carried out for the Commission by the Vienna-based Institute for Advanced Studies (IHS) has been made accessible to the public. The study reveals differing levels of regulation of service provision among Member States and among the various professions. The study concludes that in countries with less regulation and more freedom in the professions, more wealth can be created overall.

3.7.1

The conference on the regulation of professional services held in Brussels in October 2003 brought together 260 representatives of the professions to discuss the effects of rules and regulations on business structure and consumer protection.

3.7.2

At the conference, Commissioner Monti announced the Commission's intention to issue a report on competition in professional services in 2004. This report, which contains some important pointers and guidelines, was published on 9 February 2004.

4.   Reform of the merger control system

4.1

On 27 November 2003, the Council reached a political agreement on a recast Merger Regulation incorporating most of the reforms proposed by the Commission in December 2002. These reforms involved non-legislative measures designed to streamline the decision-making process, strengthen economic analysis and provide better protection for the rights of defence. In addition, a chief competition economist was appointed and panels set up to ensure the conclusions are totally independent. On the subject of merger evaluation, the reader is referred to the EESC opinion on the Proposal for a Directive of the European Parliament and of the Council on cross-border mergers of companies with share capital  (2) .

4.2

Objective: to ensure that the substantive test in the Merger Regulation (dominance test) would cover all anti-competitive mergers effectively while at the same time ensuring continued legal certainty. The substantive test criteria were compared with those of the ‘substantial lessening of competition’ test and the terms of the new test adopted are as follows: ‘a concentration which would significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the common market’.

4.2.1

The new regulation, in stating ‘in particular as a result of the creation or strengthening …’ hints at potential for enlarging the scope of application of the ban, no longer strictly linked to the requirement of a dominant position. Nevertheless, this rule will have to be interpreted in the light of the content of the joint Council and Commission declaration on Article 2 with reference to the 25th recital to the Regulation (3), which states that this concept ‘should be interpreted as extending, beyond the concept of dominance, only to the anti-competitive effects of a concentration resulting from the non-coordinated behaviour of undertakings which would not have a dominant position on the market concerned.’. It follows that the scope will continue to be defined in relation to the concept of dominance.

4.3

Guidelines on assessing horizontal mergers: i.e. mergers between competing, or potentially competing, firms. These mergers will only be unlawful to the extent that they enhance the market power of companies in a manner which is likely to have adverse consequences for consumers, notably in the form of higher prices, poorer quality products, or reduced choice. This is irrespective of whether the anticompetitive effects result from the creation or strengthening of a single dominant market player or from a situation of oligopoly. The impact of a merger will, moreover, be assessed in relation to what would otherwise have occurred in the market. This may mean, for example, that the acquisition of a failing firm would not justify intervention by the Commission.

4.4

New best practices: as part of the 2002 package of reforms, a consultation was held and completed in February 2003. The aim was to provide guidance for interested parties on the day-to-day conduct of EU merger control proceedings.

5.   International cooperation

5.1

The Commission is an active participant in the International Competition Network's Working Group on multi-jurisdictional merger control. The group's activities have been in three sub-groups:

notification and procedures,

investigation techniques,

analytical framework.

5.1.1

The Commission takes part in the work of all three sub-groups. The basic aim is to improve mutual understanding between different jurisdictions so as to make merger control activities more effective.

5.1.2

More generally, the ICN acts as a virtual network between various national competition authorities, with a view to facilitating international cooperation and making proposals to reduce regulatory costs and encourage procedural harmonisation and real convergence.

5.1.3

The Second ICN Conference held in Merida, Mexico in June 2003 highlighted the need to adopt clear and easily accessible language in the area of competition rules and also stressed the strategic nature of activities promoting competition in the field of regulated sectors, with a view to reducing regulatory costs and overcoming obstacles to a mutual understanding of merger policy between jurisdictions.

6.   State aid

6.1

The control of state aid focuses on the effects on competition of aid measures granted by Member States to undertakings. Objective: to ensure that government interventions do not interfere with the smooth functioning of the internal market, to foster competition and competitive markets and to enhance structural reforms. Particular attention is given to ensuring that the beneficial effects of liberalisation are not undermined by state aid measures. Stockholm European Council: Member States are to reduce the general level of state aid and redirect it towards horizontal objectives of Community interest (strengthening of economic and social cohesion, employment, environmental protection, and promotion of SME R&D). The Commission considers the recovery of unlawful aid granted by Member States a priority.

6.1.1

In this context, the failure of a number of Member States to open up their public purchasing to bidders from other Member States is highly regrettable. Public procurement in the EU totals over EUR 1,500 billion annually and certain Member States' practice of favouring ‘national champions’ harms competition and adds to the tax burden on consumers.

6.2

State aid for rescuing and restructuring firms in difficulty: The relevant guidelines, which expired in October 2004, stated that aid may be regarded as compatible only under certain strict conditions. These guidelines have been reviewed, with a special focus on the following issues:

ensuring that rescue aid is limited to reversible, temporary, short-term financial support which is granted only for so long as is necessary to put a comprehensive restructuring plan into effect;

focusing state aid control on large enterprises that trade across the EU;

reinforcing the principle, in particular in the case of large enterprises, that the aid recipient is obliged to finance a large part of the restructuring cost without any state aid;

applying the ‘one time, last time’ principle.

6.3

Multisectoral Framework for large investment projects: strict rules in sectors with structural difficulties. A list of such sectors was to have been established by the end of 2003. Due to methodological and technical difficulties, the Commission has decided to postpone the adoption of the list and to extend the existing transitional rules for large investment projects in ‘sensitive’ sectors until December 2006.

6.4

R&D aid for SMEs: aid for research and development can contribute to economic growth, strengthening competitiveness and boosting employment. For SMEs, this is particularly important.

6.5

Environmental aid, research and development aid, training aid, fiscal aid In the latter field, special attention has been given to alternative taxation methods, such as the cost-plus method (taxable income calculated on a flat-rate basis as a percentage of the amount of operating expenditure and expenses). In the field of sectoral aid (see in particular the application of the temporary defensive mechanism (TDM)), the following sectors have been addressed: steel, telecommunications, coal, rail transport, combined transport, road transport, maritime transport and air transport.

6.6

Agriculture: on 23 December 2003, the Commission adopted a new regulation introducing a block exemption regime for certain categories of state aid, meaning that Member States no longer need to notify them in advance to the Commission for approval. The new regulation, which will apply until the end of 2006, concerns state aid granted to SMEs in the agricultural sector. In view of the definition of an SME (no more than 250 employees, a turnover of no more than EUR 40 million or a balance-sheet total of no more than EUR 27 million), the provisions cover almost all agricultural sector enterprises. Lastly, the Commission is introducing a new transparency standard: a summary of all exempted state aid measures, by Member State, will be published on the Internet five days before the aid is first paid out, so as to ensure all interested parties have all the necessary information.

7.   General assessment

7.1

Having summed up and offered some comments on the Commission's XXXIIIrd report on competition policy in 2003, the Committee will now make a number of general observations on the report as a whole and in particular on its most significant, forward-looking aspects.

7.2   Relationship between competition policy and economic growth policy

7.2.1

The introduction of new procedures for applying antitrust rules, the review of the Merger Regulation and the new organisational set-up in the Commission have made the European Union's competition policy more efficient and more open to a positive relationship with companies and consumers.

7.2.2

Competition policy has enabled the EU to make considerable steps forward in the liberalisation process, by restoring entire economic sectors to the logic and dynamic of the market and thus making a practical contribution to the creation of a single European market. Competition policy is therefore essential and must always be allowed full autonomy.

7.2.3

Working alone, it cannot however meet the particularly acute need throughout the EU for an intense upturn in growth and for a sustainable economic development policy based on innovation and social dialogue. Structural changes in production and world trade, starting with those generated by the new technological system, require the Commission to launch and coordinate other economic policy instruments. The goal is to safeguard and revive the competitiveness of the European economy and to bolster economic and social cohesion, employment and environmental protection while also promoting major, weighty research and development programmes. This is the thrust of the Commission's communication on Fostering structural change: an industrial policy for an enlarged Europe and the relevant EESC opinion (4). The Lisbon agenda outlines the way ahead. Its implementation must however be facilitated and speeded up at both general and sectoral levels.

7.2.3.1

At sectoral level, in confirmation of the points it made in its opinion of 30 June 2004 on LeaderSHIP 2015Defining the Future of the European Shipbuilding and Repair IndustryCompetitiveness through Excellence  (5), the EESC would reiterate the need to push forward with the new fully integrated approach defined by the Competitiveness Council of November 2003 with a view to strengthening industrial competition and encouraging all sectors of research, development and innovation.

7.3   State aid and services of general interest

7.3.1

The reform process designed to streamline and simplify procedures for the control of state aid has made major progress, following the course set by the Stockholm European Council towards reducing the level of state aid and redirecting it towards horizontal objectives of Community interest, including the cohesion objectives. Examples of this are a number of measures adopted by the Commission, such as extending to a degree the scope of aid to research and development; producing guidelines on technology transfer agreements, on restructuring companies in difficulty, and on aid for training and for environmental protection; and establishing multisectoral rules for major investment projects.

7.3.2

With its judgment on the Altmark case in July 2003, the Court of Justice confirmed that compensation to companies responsible for providing services of general interest will be excluded from the definition of state aid, subject to a few conditions. There are still some unresolved issues, however, relating in particular to establishing an optimal link between state aid and services of general interest (SGI). The nature of the conditions imposed by the Court demands an improvement in legal certainty, particularly in the area of assessing costs, defining financing for services (4) and specifying more clearly the public service obligations eligible for compensation. Meanwhile, the Green Paper on services of general interest (SGI), published in May 2003, had already acknowledged the need to assess whether the principles governing SGI should be further consolidated within a general Community framework, and to define optimal rules for the services and measures, in order to increase legal certainty for all operators.

7.3.3

If they are not correctly defined and financed, universal service obligations could cause the companies responsible to suffer increasing losses, owing to the potential entry of competitors into the most profitable areas of their activity.

7.3.4

The EESC would therefore stress the need, already highlighted in its opinion (1) on the Commission's Green Paper, to adopt a clear legal text on SGI in order to secure effective and fair access for all users to high quality services that meet their requirements. Furthermore, it recommends instigating as broad as possible a dialogue with the social partners and NGOs, particularly regarding the reorganisation and functioning of social services.

7.4   Liberal professions

7.4.1

The in-depth analyses carried out by the Commission on the regulatory systems for professional services in the Member States have proved very useful, as they have reinforced the message on the need to carefully review the restrictive regulations in this field and to make the major cultural and knowledge-related resources existing in the professional world more productive and competitive. This clearly brings major benefits, not just for the professionals themselves, but also for firms and consumers.

7.4.2

The principle repeated several times by the Court of Justice is now generally accepted, namely, that suppliers of professional services must also respect competition rules. While it is absolutely true that economic criteria cannot be the only parameter by which professional services are assessed, as they are not simply repetitive technical applications but rather services that apply knowledge to a problem, it is also true that they are an economic activity which, when carried out with respect for competition rules, generate greater welfare and can make an important contribution to the Lisbon agenda.

7.4.2.1

The content of the Commission Communication on Competition in Professional Services  (6) is interesting in this respect. This report in fact underscores the important role the professional services can play in improving the competitiveness of the European economy, inasmuch as they are essential inputs for companies and families. At the same time, it uses empirical research to argue the negative effects that excessive or outdated regulations, such as those regarding pricing, advertising, entry requirements, exclusive rights and business structure, can and do have on consumers.

7.4.3

The priority is therefore to implement and accelerate the reform process. To this end, the EESC urges the Commission to stand by its commitment to publish a new report on ‘progress in eliminating restrictive and unjustified rules’ in 2005. In this context, the Commission has also committed itself to looking more closely at the link between the level of regulation, economic results (prices and quality) and consumer satisfaction.

7.4.4

Meanwhile, the EESC would reiterate the importance of the Court of Justice ruling of 9 October 2003 on the Consorzio Industria Fiammiferi case, which allows the national authorities to ‘disapply’ national rules obliging companies to engage in conduct contrary to Article 81.

7.4.5

Lastly, efforts must be made to promote greater and more informed involvement in the reform process on the part of the sectors concerned.

7.5   Plurality of information and competition law

7.5.1

In its XXXIIIrd report on competition policy, the Commission states that maintaining and developing media pluralism and the freedom to provide and receive information are fundamental objectives of the European Union as values crucial to the democratic process. It also states that responsibility for the control of media concentration rests primarily with the Member States. The application of competition policy instruments in the media sector, it adds, is limited to addressing the problems raised by the creation or strengthening of dominant positions in the respective markets and the control of foreclosure of competitors from those markets. In the EESC's opinion, the distinction between the EU's tasks and those of national governments is somewhat vague, and also leaves a number of important issues unresolved:

It should be noted that in the various Member States there are differing regulations and approaches requiring harmonisation: the Commission began the process in 1989 and then continued in 1997 with the Television without Frontiers directive, whose objectives were not only economic efficiency but also respect for cultural diversity, protection of minors, right of reply, etc.

A distinction must be drawn in the media field between general antitrust rules and rules specifically designed to defend the pluralism of information. Operational competition rules are a basic condition for promoting pluralism, but not enough in themselves. Unlike a competitive system in which the market power of each company must face up to the initiative and activities of competing companies, the promotion and defence of pluralism demands the explicit recognition of the public's right to have effective access to independent sources of information and to alternative and potentially differing information, a right that should be protected at all levels.

Lastly, the process of the gradual convergence between telecommunications, IT, radio, television and publishing makes it difficult to pinpoint the structures of the various markets. The danger of failing to properly understand this process is that the competition rules will be diminished and the principle of pluralism weakened.

7.5.2

The new European Constitution will significantly expand the Commission's brief. The EESC is convinced that the new legal framework will inject additional vigour into the Commission's role in guiding and/or intervening directly to defend and develop the freedom and pluralism of information.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJ C 80 of 30.3.2004

(2)  OJ C 117 of 30.4.2004

(3)  Council Regulation 139/2004, of 20.1.2004

(4)  OJ C 157 of 28.6.2005.

(5)  OJ C 302 of 7.12.2004

(6)  COM(2004) 83 final of 9.2.2004


8.9.2005   

EN

Official Journal of the European Union

C 221/8


Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on international rail passengers' rights and obligations

(COM(2004) 143 final — 2004/0049 (COD))

(2005/C 221/02)

On 28 April 2004 the Council decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Chagas.

At its 414th plenary session (meeting of 9 February 2005), the European Economic and Social Committee adopted the following opinion by 119 votes to one with four abstentions

1.   Introduction

1.1

The current proposal for a Regulation of the European Parliament and of the Council on international rail passengers' rights and obligations (hereinafter ‘Quality Directive on Passenger Transport’) is part of what is known as the third railway package, which the Commission adopted on 3 March 2004. The other elements are:

Amending Directive 91/440/EEC on the development of the Community's railways (COM(2004) 139 final);

Proposal for a Directive on the certification of train crews (COM(2004) 142 final);

Proposal for a Regulation on compensation in cases of non-compliance with contractual quality requirements for rail freight services (COM(2004) 144 final);

and

Communication from the Commission on further integration of the European rail system (COM(2004) 140);

Commission Staff Working Paper on gradually opening up the market for international passenger services by rail (SEC(2004) 236).

1.2

The First Railway Package (also known as the Infrastructure Package) entered into force on 15 March 2001 and was required to be transposed into national law by 15 March 2003. It contains the following elements:

Amendment of Directive 91/440/EEC: among other things, free market access for international rail freight traffic on the Trans-European Rail Freight Network by 15 March 2003 and total liberalisation of international rail freight traffic by 15 March 2008 (1);

Extension of the scope of a European Rail Operators' Licence (Amendment of Directive 95/18/EC) (2);

Harmonisation of the provisions for the allocation of railway infrastructure capacity and the charging of infrastructure fees and safety certification (replaces Directive 95/19/EC) (3).

1.3

In October 2003, the European Commission took nine Member States to the European Court of Justice for failure to notify the transposition of the First Railway Package into national law. In May 2004, five countries still had yet to prove notification, and two Member States had only partially implemented the provisions in national law.

1.4

The Second Railway Package was published in the Official Journal of the European Communities on 30 April 2004, and must be transposed into national law by 30 April 2006. It contains the following elements:

Amendment of Directive 91/440/EEC: Bringing forward free market access for international rail freight traffic to 1 January 2006 and liberalisation of domestic rail freight traffic including cabotage from 1 January 2007 (4);

Directive on safety on the Community's railways (5);

Regulation establishing a European Railway Agency (6);

Amendment of the Directives on the interoperability of the high-speed rail system (Directive 96/48/EC) and of the conventional rail system (Directive 2001/16/EC) (7).

1.5

The first and second railway packages created the legal basis for an internal market in rail freight transport. The measures cover market access, licensing and safety certification of rail operators, access to infrastructure and the calculation of access charges, the creation of a legal framework for railway safety, and measures to ensure technical interoperability of the rail system.

1.6

This legal framework, put in place by the first and second packages, requires, as the EESC stated in its opinion on the second railway package (8), a complete restructuring of the sector and the creation of new authorities and competences.

1.7

In the current proposal, the Commission suggests passing legislation to afford similar protection for international rail passengers to that already enjoyed by air travellers, whose rights in the event of overbooking and delays are better protected.

2.   The Commission proposal

2.1   Liability and compensation

2.1.1

The draft regulation governs liability of rail operators in the event of death or injury of passengers or of loss of, or damage to, their luggage.

2.1.2

Minimum compensation payments are set for delays (Annex III); these payments do not affect the passenger's right to transport.

Annex III

Type of service

Journey time

50% compensation in the event of

100 % compensation in the event of

International journeys in whole or in part by high-speed scheduled rail service

Up to two hours

Delays of between 30 and 60 minutes

Delays of more than 60 minutes

Over two hours

Delays of between 60 and 120 minutes

Delays of more than 120 minutes

International journeys by scheduled trains other than high-speed trains

Up to four hours

Delays of between 60 and 120 minutes

Delays of more than 120 minutes

Over four hours

Delays of between 120 and 240 minutes

Delays of more than 240 minutes

2.1.3

The draft regulation comprehensively governs the rights of passengers who miss their connections or whose trains are cancelled as well as the handling of customers in the event of delays or missed connections.

2.2   Availability of information and sale of tickets

2.2.1

Annex I governs the minimum information to be provided by rail operators before, during and after the journey. Annex II sets out the minimum information to be provided on the ticket.

2.2.2

Rail operators must sell tickets and/or through tickets for hub stations and the surrounding areas. Several rail operators must work together for this purpose and sign contracts in order to provide for the sale of through tickets. These tickets must be offered for sale at ticket counters, ticket machines, by telephone or on the Internet. If the ticket counters are closed or the machines are out of order, international tickets must be available on the train. System vendors must be open to all rail operators for the provision of information and the sale of tickets.

2.2.3

Rail operators must inform the public about plans to suspend international services.

2.3   People with reduced mobility

2.3.1

The proposed regulation governs assistance for people with reduced mobility at the station and on the train, as well as when embarking, disembarking or changing trains. The need for assistance must be notified 24 hours in advance.

2.4   Service quality standards and complaints procedures

2.4.1

Rail operators are required to set service quality standards (defined in Annex IV) and to put a quality management system in place. Quality performance must be published in the annual report.

2.4.2

A complaints procedure is to be set up, according to which a reply must be sent to the customer in the language in which the complaint was made. The complaint may be submitted in any language of any country through which the international train passes. English, French and German are in any case permissible. This also applies to complaints made in person at ticket counters.

3.   Assessment of the proposal

3.1   Basic observations

3.1.1

The Commission's proposal deals with two areas at once. The proposals for operators' liability and compensation in the case of delays, cancellations, injury or damage to property, and assistance to persons with limited mobility have broadly the same scope as the Regulation on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (9). This proposal deals with the rights of passengers in a second transport sector, i.e. the railways.

3.1.2

The second area covers a separate range of matters. This requires operators to cooperate to ensure that passengers can obtain information about timetables and fares and buy tickets at a one-stop shop in a competitive system. This covers both connections between hubs, and the stations in the area surrounding the nearest hub station. This proposal is closely connected with the proposal to amend Directive 91/440/EEC and with the liberalisation of international passenger transport.

3.1.3

The standards for timetable and fares information and with a few exemptions (e.g. Thalys, Eurostar) for the issue of tickets are fulfilled under the current system, in which international transport of passengers by rail is carried out under cooperation agreements between rail operators or by international groups. In the frame of a system of competing undertakings these provisions need to be maintained and improved by regulation or legislation.

3.2   Scope

3.2.1

The proposal applies to the international transport of passengers by rail. However, the provisions also apply to connections from hubs to stations in the surrounding area.

3.2.2

The EESC points out that connecting services may be subject to public service contracts.

3.2.3

However, the scope of the regulation is limited by its definition of ‘railway undertaking’ (Article 2.1). This includes only undertakings whose principal business is to transport passengers. This could be seen to imply that railway undertakings that also carry freight are excluded from the provisions of the regulation. This is not acceptable.

3.3   Liability and compensation

3.3.1

The EESC welcomes the principle of introducing European legislation on compensation of passengers when services are not provided satisfactorily or at all, and on the liability of rail operators.

3.3.2

However, it is important to ensure that binding legislation treats the various competing transport operators equally.

3.3.3

It is conspicuous that compensation for international rail passengers becomes payable earlier than that for air passengers, despite the fact that land-bound rail traffic often involves longer journey times and has more potential for disruption. For example, fare refunds are payable to air passengers only after delays of five hours.

3.3.4

In the event that a train is delayed, free meals and refreshments must be offered to passengers in a reasonable relation to the waiting time. In the case of air transport, the threshold is two hours or more.

3.3.5

In the case of cancelled flights, compensation need not be paid where the cancellation takes place due to ‘extraordinary circumstances.’ This basis for exemption from liability does not exist in the case of transport of passengers by rail.

3.3.6

Similarly, the regulation on air travel does not provide for compensation for consequential damages arising as a result of delays or cancellations, whereas the regulation on rail travel does so. Furthermore, the proposed regulation does not set an upper limit for consequential damages.

3.3.7

The maximum limit for liability is set at different levels for hand luggage and other luggage: EUR 1 800 for hand luggage and EUR 1 300 for other luggage. It appears from the explanatory memorandum that the Commission has drawn on different but comparable agreements (CIV for the rail sector and the Montreal Convention for the air sector). From the passenger's point of view, this difference is incomprehensible.

3.3.8

The proposed regulation contains varying provisions for liability of the operator to the customer depending on whether or not the operator was at fault. Thus, the operator is responsible for loss or damage to a passenger's hand luggage only if the operator is at fault. In other cases, the operator is liable whether or not it is at fault.

3.3.9

The operator is not liable for delays when these were caused by exceptional weather conditions, natural disasters, acts of war or terrorism. The operator is liable for delays due to any other cause, whether or not it was at fault.

3.3.10

As a general principle, the EESC is in favour of liability regardless of fault in the event of delay in any transport sector. This is not a matter of compensation for damages in the narrowest sense, but rather compensation for services that were not provided. To the consumer/customer, it does not matter whether the operator is at fault. The proposed limitations are appropriate.

3.3.11

It is not clear from the proposed regulation that a passenger can cancel his journey in the event of a delay and receive a full refund of his fare. Particularly in the case of business trips, a delay can make the journey pointless.

3.4   Assistance to persons with limited mobility and other passengers

3.4.1

The EESC welcomes the provisions for assistance to people with limited mobility.

3.4.2

Rail operators should provide accessible information to all passengers — including people with reduced mobility as defined in Article 2, paragraph 21; this could be done by locating windows and information stands at an appropriate height and by preparing text in bigger fonts and in an easy-to-read format.

3.5   Information to passengers and on tickets

3.5.1

The EESC welcomes the provisions on passenger information before, during and after the journey (Annex I). In particular, lack of information before and during the journey in the event of a delay regularly causes considerable annoyance to customers.

3.5.2

With regard to minimum information on tickets (Annex II), it should be stated whether and when the ticket can be surrendered and the fare refunded. Because of wide variations in reservation systems, this is often unclear to the passenger.

3.5.3

The Regulation provides (Articles 3, 5 and 6):

that rail operators and/or tour operators must provide information about journey times, fares, carriage of bicycles, etc. for all services, including those offered by other operators, in all sales systems (ticket counters, telephone, Internet or other systems that may become available in the future);

that operators must work together to sell through tickets to customers through all sales systems.

3.5.4

Fundamentally, the EESC considers it desirable that passengers should be offered one-stop-shop booking and information systems for all rail transport and associated services.

3.5.5

However, it draws attention to the peculiarities of rail travel:

the dependency on the network and the interdependency of international long-distance, domestic long-distance and local services, including public service routes that are subject to other contractual obligations;

the advantages of short-term bookings (spontaneous journeys), the ability to board along the route, and, in many cases, the absence of a requirement to reserve a seat;

tickets that are transferable between persons.

3.5.6

A directly applicable regulation cannot make appropriate provision for the complexity that arises from the connection between international passenger rail services and regional services in a network that includes the integration of competing scheduled operators. The number of railway stations affected (hubs and stations in the area surrounding them) is, for example, considerable.

3.5.7

The Committee underlines that for international rail passenger services, these standards are presently fulfilled to a large extent. In a system of competing undertakings however, these provisions need to be maintained and improved by adequate legislation.

3.6   Effects of the regulation on employees

3.6.1

Article 21 of the proposed regulation states that the railway undertaking shall be liable for its staff. Article 22, on the other hand, mentions the possibility of aggregate claims, and includes claims against staff. It must be made absolutely clear that railway staff are not exposed to liability claims by passengers or other third parties but that the employer remains responsible.

3.6.2

High compensation for delays shall not, as a consequence, lead to rail operators to accept higher risks on the safety level in order to avoid compensation claims. Also, it shall be excluded that railway undertakings put excessive pressure on their employees with the risk to neglect working, driving and rest time. Furthermore, it is necessary to ensure that sufficient, well-trained staff are available to fulfil the quality requirements.

3.6.3

Annex IV on minimum service quality standards must therefore cover the skills of the relevant staff. This applies not only to train crews, but also to station staff and staff who process complaints.

4.   Conclusions

4.1

The EESC welcomes the proposal for a Regulation on international rail passengers' rights and obligations. This extends consumer protection provisions that currently apply only to air travel to another mode of transport.

4.2

However, the EESC is against unequal treatment of competing modes of transport. The provisions that apply to the railway sector must not be stricter than those for air travel.

4.3

The EESC sees room for improvement in the regulation with regard to individual provisions for liability for consequential damages, the setting of upper limits for liability, and to exclusions in the event of train cancellations.

4.4

Fundamentally the EESC would be in favour of a refund of fare in the event of a service not being provided or being provided inadequately, whether or not the operator was at fault, as long as this applies to all modes of transport.

4.5

The EESC supports the concept of one-stop-shop information and booking systems that guarantee good service quality for passengers. However, it has reservations about this being dealt with in the same regulation on compensation and liability.

4.6

The EESC points out that establishing one-stop-shop information and booking systems in an interconnected system with network providers in international, national, regional and public service transport, with the added complication of competing scheduled operators, is very complex, particularly if this system is to be available through all sales systems.

4.7

It points out that the presentation of legislation on passenger information and the issue of tickets for the international transport of passengers by rail should be considered in conjunction with the amendment of Directive 91/440/EEC on the liberalisation of international passenger transport by rail.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Directive 2001/12/EC – OJ L 75, 15.3.2001, p. 1 – EESC Opinion – OJ C 209, 22.7.1999, p. 22.

(2)  Directive 2001/13/EC – OJ L 75, 15.3.2001, p. 26 – EESC Opinion – OJ C 209, 22.7.1999, p. 22.

(3)  Directive 2001/14/EC – OJ L 75, 15.3.2001, p. 29 – EESC Opinion – OJ C 209, 22.7.1999, p. 22.

(4)  Directive 2004/51/EC – OJ L 164, 30.4.2004, p. 164 – EESC Opinion – OJ C 61, 14.3.2003, p. 131.

(5)  Directive 2004/49/EC – OJ L 164, 30.4.2004, p. 44 – EESC Opinion – OJ C 61, 14.3.2003, p. 131.

(6)  Directive 2004/881/EC – OJ L 164, 30.4.2004, p. 1 – EESC Opinion – OJ C 61, 14.3.2003, p. 131.

(7)  Directive 2004/50/EC – OJ L 164, 30.4.2004, p. 114 – EESC Opinion – OJ C 61, 14.3.2003, p. 131.

(8)  OJ C 61, 14.3.2003, p. 131.

(9)  Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91.


8.9.2005   

EN

Official Journal of the European Union

C 221/13


Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on compensation in cases of non-compliance with contractual quality requirements for rail freight services

(COM(2004) 144 final — 2004/0050 (COD))

(2005/C 221/03)

On 28 April 2004 the Council decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Chagas.

At its 414th plenary session (meeting of 9 February 2005) the Committee adopted the following opinion by 130 votes with 2 abstentions:

1.   Introduction

1.1

The present proposal forms part of the third railway package, which was adopted by the European Commission on 3 March 2004. The other components are:

Amendment of Directive 91/440/EEC: liberalisation of international rail-passenger transport (COM(2004) 139 final).

Proposal for a Regulation of the European Parliament and of the Council on international rail passengers' rights and obligations (COM(2004) 143 final).

Proposal for a Regulation on compensation and quality requirements for rail-freight services (COM(2004) 144 final),

and

Commission Communication on further integration of the European rail system (COM(2004) 140 final).

Commission staff working paper on gradually opening up the market for international passenger services by rail (SEC(2004) 236).

1.2

The first railway package (also called the infrastructure package) came into force on 15 March 2001 and had to be transposed into national legislation by 15 March 2003. It comprises the following components:

Amendment of Directive 91/440/EEC, including free market access for international rail freight on the trans-European rail freight network by 15 March 2003 and liberalisation of all international rail freight by 15 March 2008 (1).

Extension of the scope of the Directive on a European licence for railway undertakings (amendment of Directive 95/18/EC) (2).

Harmonisation of the provisions governing the allocation of railway-infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (replaces Directive 95/19/EC) (3).

1.3

In October 2003 the European Commission took nine Member States to the European Court of Justice for failing to notify the transposition of the first railway package into national law. By May 2004 five countries' notification had still not been received and two Member States had transposed only some of the provisions into national law.

1.4

The second railway package was published in the Official Journal of the European Community on 30 April 2004 and has to be transposed into national law by 30 April 2006. It comprises the following components:

Amendment of Directive 91/440/EC: bringing forward free market access for international rail freight to 1 January 2006 and liberalisation of national rail freight, including cabotage, from 1 January 2007 (4).

Directive on railway safety in the Community (5).

Regulation establishing a European Railway Agency (6).

Amendment of the Directives on the interoperability of the high-speed rail system (96/48/EC) and the conventional rail system (2001/16/EC) (7).

1.5

The first and second railway packages provided the legal basis for establishing a single rail-freight market. The measures encompass market access, the licensing and safety certification of railway undertakings, access to infrastructure and the calculation of charges for its use, the creation of a legal framework for rail safety, and measures for ensuring the technical interoperability of the rail system.

1.6

This proposal adds to the legal framework already in place to open up the market through measures to improve the quality of freight transport.

2.   The Commission proposal

2.1

The proposal for a regulation on quality in freight transport is intended to improve rail freight transport by means of a contractual agreement on compensation between railway undertakings and freight customers. The Commission considers that the main cause for the modest share of railways in the increase in freight transport levels and its declining market share compared with other modes is the lack of quality and reliability of rail freight transport.

2.2

The Commission expects that the application of the compensation scheme will provide an incentive to railway undertakings to enhance the efficiency of rail freight services. Its premise is that over time competition will exert a strong pressure to improve quality, but, in the Commission's view, a real opening-up of the European rail freight market is not happening quickly enough. New entrant railway undertakings account for only 3 to 4 % of the market, and, in several Member States, there are no competitors.

2.3

The proposed regulation obliges railway undertakings and customers to stipulate quality requirements in the transport contracts and, in the case of non-compliance, to make compensation payments. The contractual parties are obliged to agree on at least the following quality requirements:

times of hand-over of goods, wagons or trains,

arrival time and compensation for delays,

compensation in the event of losses or damage of goods,

compensation in the event of cancellation of a train by the railway undertaking or the freight customer,

a quality monitoring system.

2.4

The proposed regulation stipulates maximum and minimum compensation levels in the event of loss, damage, delay, lack of information about delays, and loss of or damage to goods due to delay. In the case of damage, for example, it stipulates an amount of maximum €75 per kilogramme of gross mass damaged. In the case of delays of block trains, compensation is fixed at no less than 5 % and no more than 25 % of the transport price. In the case of lack of information about delays, compensation is at least 5 % of the transport price.

2.5

The contractual parties are obliged to stipulate compensations for a train cancellation by the railway undertaking or the freight customer. They may agree compensation in the case of a declaration of value of the goods transported or in the case of a declaration of interest in delivery.

2.6

Liability is excluded in the case of fault of one of the contractual parties, fault or any other act of a third person, force majeure or circumstances that could not be avoided and whose consequences could not be prevented. If compensation claim arises due to the fault of the infrastructure manager, the railway undertaking pays and claims the payment back from the infrastructure manager.

2.7

If several railway undertakings are involved, all the undertakings are ‘joint and severally liable’ regardless of the undertaking under which the delay or damage occurred.

3.   Remarks on the Commission proposal

3.1

In order to promote a sustainable transport system and secure a balance between transport modes, as set out in the White Paper on European Transport Policy for 2010, the Community has set itself an objective of increasing the share of freight transport by rail. Improving the quality of service in rail freight transport is one of many approaches to achieving that objective and is in principle to be welcomed.

3.2

The Commission proposes a system of incentives under which the desire to avoid compensation payments is supposed to boost quality and, in particular, improve punctuality. Usually, operators' first reaction to increased financial risk from possible compensation payments is to raise prices.

3.3

The question arises as to whether the Commission's proposed approach is appropriate.

3.4

The scope covers both international and national transport. The Commission itself writes in its explanatory memorandum to the proposed regulation that quality contracts are already in existence mainly in national transport, and less so in international transport. Elsewhere the Commission notes that problems chiefly occur if several railway undertakings are involved, which is the case primarily in international transport.

3.5

The question is whether, given intrusion into the contractual arrangements of commercial partners (this is not a question of consumer protection) a more restricted scope would be more appropriate for international freight transport.

3.6

Consideration should also be given to what positive incentives are available instead of established compensation payments via an EU regulation which would be unique for the railway sector and additional to the already existing international Convention COTIF (CIM). For example, Article 11 of Directive 2001/14/EC provides for bonuses in infrastructure charges if an undertaking takes steps to help minimise disruption and improve the performance of the system.

3.7

In promoting rail freight transport, it is vital to avoid discriminatory treatment of the different competing transport modes.

3.8

This raises the question of what comparable Community provisions are in place for air freight transport and road freight transport. International agreements on compensation for damage or loss provide for substantially lower rates (the Montreal Convention on air transport for one third of the maximum amount provided for in the regulation, the Convention on the Contract for the International Carriage of Goods by Road [CMR] for one sixth of the maximum amount).

3.9

The relationship between the quality monitoring system to be agreed upon by the contractual parties and the technical specification for interoperability (TSI) for freight telematic applications remains unclear. Europe-wide real-time electronic monitoring of freight movements by rail is covered in the TSI for freight telematics applications. The harmonised technical specifications and communication conditions are defined in this provision. However, its application and implementation still require substantial investment and will take many years.

3.10

Under the proposal, a railway undertaking can claim a refund of compensation payments from the infrastructure manager if the latter has been the cause of delay.

3.11

Here again, attempts to circumvent this are likely by raising the route price (risk supplements) and incorporating margins for delay in scheduling. Given limited infrastructure capacities, this would not be a desirable response. It has already been seen in the air transport sector since the entry into force of the directive on passenger compensation. The calculation of risk will be considerably complicated for infrastructure managers as they do not know, and cannot influence, the value of the flow of goods and the resultant compensation.

3.12

It should be borne in mind that the infrastructure in the new Member States in central and eastern Europe is in a poorer condition, requiring substantial investment, and that the compensation obligations in the regulation could cause considerable difficulties.

3.13

The proposal involves considerable effort in determining who is responsible for what, and in compensation claims by the railway undertaking against the infrastructure manager. Allocating responsibility will also be onerous if several railway undertakings are involved.

3.14

The perspective of having to pay high compensations shall not, as a consequence, lead the railway undertakings to compromise safety in order to respect delivery terms. Also, it shall be excluded that railway undertakings put excessive pressure on their employees with the risk to neglect working, driving and rest time.

3.15

In its opinion on the second railway package, the EESC has already pointed out that the social conditions in road transport place rail freight transport at a competitive disadvantage. The consequence of that cannot be to bring working conditions in rail transport into line with those of the roads and to encourage railway undertakings to flout the rules and exert pressure on the workforce.

4.   Conclusions

4.1

The EESC welcomes in principle measures to improve the quality of rail freight transport.

4.2

Positive incentives would be preferable to strict compensation arrangements, leading to attempts to circumvent the rules and spawning a complicated refund system. This applies particularly to the role of the infrastructure manager.

4.3

Measures to improve the quality of rail freight transport must not discriminate against other transport modes.

4.4

The EESC asks the Commission to examine the impact of the measures on undertakings and infrastructure managers in the new Member States.

4.5

The EESC insists that measures to improve freight transport quality must not result in undertakings trying to circumvent the rules at the expense of safety and working conditions.

Brussels, 9 February 2005.

The President of the

European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Directive 2001/12/EC – OJ L 75 of 15.3.2001, p. 1 – EESC opinion – OJ C 209 of 22.7.1999, p. 22

(2)  Directive 2001/13/EC – OJ L 75 of 15.3.2001, p. 26 – EESC opinion – OJ C 209 of 22.7.1999, p. 22

(3)  Directive 2001/14/EC – OJ L 75 of 15.3.2001, p. 29 – EESC opinion – OJ C 209 of 22.7.1999, p. 22

(4)  Directive 2004/51/EC – OJ L 164 of 30.4.2004, p. 164 – EESC opinion – OJ C 61 of 14.3.2003, p. 131

(5)  Directive 2004/49/EC – OJ L 164 of 30.4.2004, p. 44 – EESC opinion – OJ C 61 of 14.3.2003, p. 131

(6)  Regulation (EC) No 881/2004 – OJ L 164 of 30.4.2004, p. 1 – EESC opinion – OJ C 61 of 14.3.2003, p. 131

(7)  Directive 2004/50/EC – OJ L 164 of 30.4.2004, p. 114 – EESC opinion – OJ C 61 of 14.3.2003, p. 131


8.9.2005   

EN

Official Journal of the European Union

C 221/17


Opinion of the European Economic and Social Committee on the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the White Paper on services of general interest

(COM(2004) 374 final)

(2005/C 221/04)

On 13 May 2004, the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned communication.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. (rapporteur: Mr Hencks — co-rapporteur: Mr Hernández Bataller).

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion by 131 votes to 5, with 2 abstentions:

1.   Introduction

1.1

Services of general interest (SGI) today form an area of society that is closely linked to European integration.

1.2

Services of general economic interest (SGEI) are recognised by the current Treaties as being among the shared values of the Union and contributing to its social and territorial cohesion (Article 16); access to SGEI and the rights relating to the specific components of services of general interest (social security and social assistance, health protection, environmental protection, etc.) are laid down in the Charter of Fundamental Rights (Title IV, Articles II-34 to II-36).

1.3

Not only are SGI central to competitiveness and an important element for contributing to the achievement of the Lisbon objectives, they are also fundamental elements of the European social model. They help to guarantee basic human rights, contribute to the knowledge-based economy and to social, economic and territorial cohesion and form elements of sustainable development.

1.4

Although the EESC's request to have promotion of services of general interest included as an objective in Article 3 of the Constitutional Treaty has not been met, a certain step forward was made with regard to SGI in the finalised Constitutional Treaty: under Article III-122 the EU can legislate on services of general economic interest in a horizontal manner concerning the principles and conditions relating to the provision of such services. The Constitutional Treaty also recognises the principle of administrative freedom for local authorities and raises to the level of a constitutional principle the possibility for local authorities to provide services of general economic interest themselves, thereby giving effect to the subsidiarity principle as regards the respective competences of the Union and the Member States in relation to services of general economic interest.

1.5

Nevertheless, in substance secondary legislation continues to be characterised by a general imbalance between, on the one hand, competition law, which is detailed EU legislation and takes direct effect, and, on the other hand, the general interest objectives that fall under exceptions to competition law.

1.6

The European Union still has difficulty in overcoming the contradictions between building a market based solely on competition and the need to ensure a process of public control that economic mechanisms alone will be unable to provide. Services of general interest are not techniques, or instruments, but embody human rights, social links, inclusion and integration.

1.7

Furthermore, we should not ignore the fact that an attitude of incomprehension, criticism and rejection is emerging among Europe's citizens towards policies which seem to aim at achieving a European integration that appears more and more irrelevant to their concerns, that is exacerbating the social divide, endangering social cohesion and jeopardising the social model.

1.8

The European Union must succeed in delivering a balanced combination of market mechanisms and general service missions in areas in which such complementarity is compatible with the objectives of services of general interest and can offer added value to the user or consumer. This means that, subject to the conditions laid down in Article 86(2) of the EC Treaty, the effective performance of a general interest task prevails, in cases of tension, over the application of competition rules, in accordance with EU case law.

1.9

Services of general interest call for a political will to control the management of collective interests and to meet needs and fundamental rights in the context of a European model of society, a model which offers appropriate social protection to everyone, whatever their age or social status or the region they live in, and also ensures good-quality, affordable and easy access to essential goods such as food, housing, water, travel, communication, etc. Services of general interest are clearly, therefore, part of the social market economy, which should not be provided simply by the interplay of competitive forces. In the absence of adequate public intervention a two-speed Union will develop that will accentuate disparities in development, inequalities and social exclusion.

1.10

In the near future many Europeans will be called upon to express their opinion in a referendum on the ratification of the Constitutional Treaty. Without public support there will be no political Europe. And there will be no public support if the Union is unable to provide guarantees for the protection and development of the European model of society and the European social model.

1.11

In this context the White Paper on services of general interest, insofar as it establishes a basis for ensuring high-quality, accessible and affordable services of general interest, is one of a number of important steps in promoting Europe to its citizens and preventing a ‘No’ vote from disrupting the momentum of European integration.

1.12

The debate launched by the White Paper and the results of that debate are inextricably linked with the debate over public-private partnerships, the services market, especially social services, state aid, the report being prepared on the water sector, the review of the Lisbon strategy and the assessment reports.

2.   White Paper on services of general interest

2.1

The White Paper adopted by the European Commission on 12 May 2004 provides an overview of the important European debate following on from the publication of the Green Paper in 2003 and the many contributions it gave rise to, in particular from the European institutions and civil society. It proposes strategic orientations for the years ahead.

2.2

The debate on the Green Paper has revealed differences of views and perspectives. Nevertheless, a consensus has emerged on the need to ensure a harmonious combination between market mechanisms and public service missions.

2.3

While the provision of services of general interest can be organised in cooperation with the private sector or be entrusted to private or public sector commercial or non-commercial firms, the definition of public service obligations and missions remains a task for the public authorities at the appropriate level. The relevant public authorities are also responsible for market regulation and for ensuring that public or private sector operators accomplish the public service missions entrusted to them.

2.4   The Commission's approach is based on nine principles:

2.4.1

Enabling public authorities to operate close to the citizens: services of general interest should be organised and regulated as closely as possible to the citizens and the principle of subsidiarity must be strictly respected.

2.4.2

Achieving public service objectives within competitive open markets: the Commission remains of the view that the objectives of an open and competitive internal market and of developing high-quality, accessible and affordable services of general interest are compatible. Under the EC Treaty and subject to the conditions set out in Article 86(2), the effective performance of a general interest task prevails, in case of tension, over the application of Treaty rules.

2.4.3

Ensuring cohesion and universal access: the access of all citizens and enterprises to affordable high-quality services of general interest throughout the territory of the Member States is essential for the promotion of social and territorial cohesion in the European Union. In this context, universal service is a key concept the Community has developed in order to ensure effective accessibility of essential services.

2.4.4

Maintaining a high level of quality, security and safety: furthermore, the security of service provision, and in particular the security of supply, constitutes an essential requirement which needs to be reflected when defining public service missions. The conditions under which services are supplied also have to provide operators with sufficient incentives to maintain adequate levels of long-term investment.

2.4.5

Ensuring consumer and user rights: these include in particular the access to services, including to cross-border services, throughout the territory of the Union and for all groups of the population, affordability of services, including special schemes for persons with low incomes, physical safety, security and reliability, continuity, high quality, choice, transparency and access to information from providers and regulators. The implementation of these principles generally requires the existence of independent regulators with clearly defined powers and duties. These include powers of sanction (means to monitor the transposition and enforcement of universal service provisions) and should include provisions for the representation and active participation of consumers and users in the definition and the evaluation of services, the availability of appropriate redress and compensation mechanisms and the existence of an evolutionary clause allowing requirements to be adapted in accordance with changing user and consumer needs and concerns, and with changes in the economic and technological environment.

2.4.6

Monitoring and evaluating performance: in line with the prevailing view expressed in the public consultation, the Commission considers that any evaluation should be multi-dimensional and cover all relevant legal, economic, social and environmental aspects.

2.4.7

Respecting the diversity of services and situations: any Community policy in the area of services of general interest must take due account of the diversity that characterises different services of general interest and the situations in which they are provided. However, this does not mean that it is not necessary to ensure the consistency of the Community's approach across different sectors or that the development of common concepts that can be applied in several sectors cannot be useful.

2.4.8

Increasing transparency: this principle should apply to all aspects of the delivery process and cover the definition of public service missions, the organisation, financing and regulation of services, as well as their production and evaluation, including complaint-handling mechanisms.

2.4.9

Providing legal security: the Commission is aware that the application of Community law to services of general interest might raise complex issues. It will therefore make a continuous effort to improve legal certainty regarding the application of Community law to the provision of services of general interest, without prejudice to the case law of the European Court of Justice and the Court of First Instance.

2.5   Based on these principles the White Paper proposes eight new orientations:

2.5.1

Respecting diversity in a coherent framework: the Commission will re-examine the feasibility of and the need for a framework law for services of general interest on the entry into force of the Constitutional Treaty; it will launch a review of the situation of services of general interest and submit a report before the end of 2005.

2.5.2

Clarifying and simplifying the legal framework for the compensation of public service obligations: the Commission will adopt a Decision on the application of Article 86 of the Treaty to state aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest by July 2005; it will adopt a Community framework for state aid in the form of public service compensation by July 2005; it will adopt an amendment of Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings by July 2005; it will further clarify under which conditions public service compensations may constitute state aid within the meaning of Article 87(1) by July 2005.

2.5.3

Providing a clear and transparent framework for the selection of undertakings entrusted with a service of general interest: the Commission will conduct a public consultation on the Green Paper on the procurement aspects of public-private partnerships; where appropriate, it will submit proposals on the basis of the results of the public consultation.

2.5.4

Recognising fully the general interest in social and health services: the Commission will submit a Communication on social and health services of general interest in the course of 2005; it will facilitate cooperation among Member States on health services and medical care in order to contribute to ensuring a high level of health protection throughout the Union.

2.5.5

Assessing the results and evaluating performance: the Commission submitted its first horizontal evaluation on services of general interest on the basis of its evaluation methodology in 2004; it will review its evaluation mechanisms in 2006.

2.5.6

Reviewing sectoral policies: the Commission will encourage the cooperation of national regulatory authorities on the basis of networks of regulators; it will take into account the results of the public consultation on the Green Paper in the reviews already foreseen for the different sectors: the review of the scope of universal service in electronic communications by July 2005; the review of the electronic communications package by July 2006; the review of the postal services directive by the end of 2006; the review of the internal markets for electricity and gas by 1 January 2006; the review of the ‘Television without frontiers’ directive at the beginning of 2005; the assessment of the water sector is ongoing.

2.5.7

Reflecting our internal policies in our international trade policy: the Commission will continue to ensure that the positions taken by the Community in international trade negotiations are fully consistent with the EU's internal regulatory framework regarding services of general interest.

2.5.8

Promoting services of general interest in development cooperation: the Commission will assist developing countries in creating a sound regulatory and institutional framework as a key prerequisite for the promotion of investment in and access to finance for basic services of general interest.

3.   General comments

3.1

The EESC welcomes the publication of the White Paper. It notes the nine principles and eight new orientations proposed in the White Paper for reinforcing the existence of services of general interest. It regrets, however, that its repeated requests in recent years (1) for a framework directive or a framework law to guarantee the existence of SGI, the Member States' freedom to define, organise and choose management methods for SGI, the long-term financing and performance evaluation of SGI, consumers' rights etc. have not yet been taken up, even if the Commission has undertaken to produce a report on this matter by the end of 2005.

3.2

The EESC welcomes in particular the fact that the White Paper sets out a precise timetable of proposals and measures which the European Commission intends to take in order to apply these principles and orientations over the coming years.

3.3

The EESC will follow closely the implementation of these commitments and is prepared to contribute towards ensuring their effectiveness.

4.   Specific comments

4.1

The first principle — enabling public authorities to operate close to the citizens — implies that services of general interest are organised and regulated as closely as possible to the citizens and that ‘the principle of subsidiarity must be strictly respected’. However, footnote 30 refers to the draft regulation on local inland transport, which ‘would require Member States to use public service concessions’ and thus systematic invitations to tender. There can be no subsidiarity unless each authority is free to choose how it manages the services of general interest within its responsibility.

4.2

The third principle — ensuring cohesion and universal access — led the Commission to stress, ‘universal service is a key concept the Community has developed in order to ensure effective accessibility of essential services’. This means allowing ‘requirements to be adapted in accordance with changing user and consumer needs and concerns, and with changes in the economic and technological environment’. In line with this thinking and as part of the e-Europe plan, which recommends general broadband use for electronic communications, the EESC would point out that 20 % of the population of the EU of Fifteen are currently denied access to such services. Now, broadband is a service of general interest that improves living conditions by reducing distances and facilitating access to health care, education and public services, both for geographically isolates citizens and for the worst-off. It therefore follows that unless universal telecommunications service at an affordable price is extended to broadband and mobile telephony, the European Union's delay in setting up and using the new information and communication technologies and the technologies of a knowledge society will grow, while the digital divide will become more pronounced, particularly in the new Member States.

4.3

The sixth principle — monitoring and evaluating performance — is also in line with the focus of the EESC, and of many other actors, on developing a progressive evaluation of the performance of services of general interest in order to improve their effectiveness, make access to them more equal and help them adapt to the changing needs of consumers, citizens and society, as well as to changes in rules. The White Paper rightly emphasises that evaluation must be ‘multi-dimensional and cover all relevant legal, economic, social and environmental aspects’; the EESC would like evaluation to include employment issues. The EESC stresses that the role of the European Union is to establish a common methodology and common criteria, in particular with regard to quality, and to stimulate a process of objective and independent evaluation, which must be conducted in accordance with the principle of subsidiarity. In the EESC's view, the White Paper's proposals to review sectoral policies (see point 2.5.6) must be accompanied by reports assessing the effects of previous measures. Given that it brings together all the interested parties, the EESC reiterates its proposal to help steer the evaluation. In this context, the EESC will examine the possibility of setting up a permanent study group on SGI.

4.4

The seventh principle — respecting diversity of services and situations — ‘does not mean, however, that it is not necessary to ensure the consistency of the Community's approach across different sectors or that the development of common concepts that can be applied in several sectors cannot be useful’. Under the proposed orientation the Commission will re-examine the feasibility of and the need for a framework law for services of general interest on the entry into force of the Constitutional Treaty and submit a report before the end of 2005. The White Paper does not therefore take up the call by the EESC and many other European actors for a framework directive (see the EESC opinion on the Green Paper on Services of General Interest — OJ C 80 of 30 March 2004). However, there is a clear need to consolidate SGI as a whole, including social and health services of general interest, bearing in mind their specific features, as far as they relate to competition law, financing, the implementation of the subsidiarity principle and their role in European integration.

4.5

The ninth principle — providing legal certainty — will lead the Commission to ‘make a continuous effort’, without prejudice to the case law of the European Court of Justice and the Court of First Instance. This principle gives rise to two proposed orientations:

4.5.1

‘to clarify and simplify the legal framework for the compensation of public service obligations by July 2005’, which should help to ensure the security of long-term financing both for the investment needed to provide continuity and sustainability of services as well as for compensation of public service or universal service obligations, without infringing the principles of transparency, non-discrimination and proportionality; to recognise that this compensation may take very different forms and that these forms must be able to adapt to objectives: public subsidies, internal adjustments enabling costs to be financed from profits on commercial activities, whether or not accompanied by exclusive rights, a compensation fund among operators, tax or other exemptions, public-private partnerships, aid for the provision of services to users, etc.

4.5.2

‘providing a clear and transparent framework for the selection of undertakings entrusted with a service of general interest’, based on a public consultation on the Green Paper on public-private partnerships. For the EESC this means recognising that there needs to be scope for diversity in the way services of general interest are managed and freedom of choice for each authority concerned: either direct operation of the SGI by the public authority itself (as a public service or a public corporation), or the handing-over of management tasks to a public undertaking or a joint undertaking over which the public authority exercises a degree of supervision equivalent to that over its own departments or operating in the non-profit, social, cooperative or associative economy, or delegation to an undertaking for a fixed period (concession with a prior competition), without forgetting the possibility of reversibility from one form of management to another.

5.   Conclusions

5.1

The White Paper on services of general interest marks a step forward in the consideration of these services in the Union. It represents a solid basis on which to develop the conceptual elements of a European policy on services of general interest capable of enabling European enterprises and all of Europe's citizens to benefit from accessible, affordable and effective public services using leading technologies.

5.2

Services of general interest are not only central to economic competitiveness but also a key element in the social and environmental fields. They are a major asset in the three-pronged approach of the Lisbon Strategy (economic, social and environmental aspects) and are vital to making the EU the most competitive and dynamic knowledge-based society, founded on sustainable economic growth, the provision of more and better jobs, and improved social cohesion. Services of general interest, bearing in mind their specific features, transcend the single market and are an essential prerequisite for the economic and social well-being of individuals and enterprises.

5.3

The task facing the European Union is to achieve a balanced combination of market mechanisms and public service missions in areas in which such complementarity is compatible with the objectives of services of general interest and can offer added value in terms of improvements in the quality of life of Europe's citizens, bearing in mind economic growth, job creation and sustainable well-being.

5.4

‘The rights of citizens to benefit from services of general interest that are accessible, affordable and efficient must be safeguarded and affirmed in the name of solidarity and economic and social cohesion, which are recognised as basic principles of the Treaty. Any liberalisation of services of general interest decided by a Member State must be carried out while respecting the above-mentioned criteria. Consequently, there is a need to establish a body of universal principles for different services that are delivered in different ways from one Member State to another, while fully respecting the principle of subsidiarity.’

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  EESC opinions on Services of general interest, OJ C 241 of 7.10.2002, and on the Green Paper on Services of General Interest, OJ C 80 of 30.3.2004.


8.9.2005   

EN

Official Journal of the European Union

C 221/22


Opinion of the European Economic and Social Committee on The use of geothermal energy

(2005/C 221/05)

On 1 July 2004, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on the use of geothermal energy.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Wolf.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February 2005), the Committee adopted the following opinion by 132 votes, with 2 abstentions:

This opinion supplements earlier Committee opinions on energy and research policy. It describes the development and use of geothermal energy, as an energy source which, given the extent of reserves, meets the criterion of sustainability, does not contribute to global warming through CO2 emissions, and can therefore be considered as a renewable energy source. The opinion includes a brief overview and evaluation, set in the context of the global energy issue, of current development and use of geothermal energy, its potential, and the problems connected with launching it commercially.

Table of contents:

1.

The energy issue

2.

Geothermal energy

3.

Current situation

4.

Future development and recommendations

5.

Summary

1.   The energy issue

1.1

Usable energy (1) is the mainstay of our contemporary way of life and culture. Its ready availability opened the door to our present-day standard of living. Unprecedented strides have been made in the major and emerging industrialised countries in terms of life expectancy, food supply, overall prosperity and personal freedom. Insufficient energy supply would severely jeopardise these achievements.

1.2

The need for a secure, inexpensive, environmentally sound and sustainable supply of usable energy is at the heart of the Lisbon, Gothenburg and Barcelona European Council decisions. EU energy policy is thus pursuing three closely related and equally important objectives, namely to safeguard and enhance (1) competitiveness, (2) security of supply and (3) the environment — all of them linked by the common thread of sustainable development.

1.3

In several opinions (2), the Committee has noted that supplying and using energy puts a strain on the environment, presents risks, depletes resources and involves the problem of external dependence and imponderables, as in the case of current crude oil prices. The Committee has also pointed out that the most important measure for reducing the risks associated with the security of energy supply, economic crises, and other risks is to ensure the most diverse and balanced possible use of all types and forms of energy, including all efforts to conserve energy and use it rationally.

1.4

In technical terms, however, none of the potential future energy supply options and technologies is perfect. None is wholly free of damaging environmental impacts. None is sufficient to cover all needs, and it is difficult to adequately gauge their long-term potential. Moreover, current trends and the rising costs of both conventional and alternative energy sources clearly indicate that future energy supply costs are unlikely to be as advantageous as current costs of using fossil fuels (3), such as crude oil, coal, and natural gas.

1.5

Nor, therefore, can a forward-looking, responsible European energy policy bank on being able to secure an adequate energy supply along the lines of the objectives set out above by using only a small number of energy sources.

1.6

Thus, no secure, long-term, environmentally sound and economically viable energy supply exists — either in Europe or elsewhere in the world (4). The key to potential solutions can lie only in further intensive research and development, which should include setting up pilot plants and evaluating them from both a technical and an economic perspective, gradually working towards commercial launches of new energy sources.

1.7

The Committee has also made the point that, given the slow pace of change in the energy industry, the fact that climate (greenhouse) gas emissions are a global, not a regional issue, and the expectation that the problem will further worsen, particularly in the second half of the century, the approach to the energy issue should be more global in scale and cover a substantially longer time period.

1.8

The problems of finite resources and emissions are compounded by the forecast two- or even three-fold increase in global energy requirements by 2060 as a result of population growth and the need for less developed countries to catch up. On the basis of current knowledge, increased efficiency and energy savings alone will not be enough to offset these very substantial additional requirements.

1.9

Any strategy (5) and prospects for development must therefore look beyond the timeframe of 2060.

1.10

As the Committee has also noted, public perceptions and open debate in this area reflect a broad range of opinions that veer between over- and underestimating the risks and opportunities involved.

1.11

There is therefore still no sufficiently consistent global energy policy. An additional problem is the fact that the EU needs to compete on a level playing field in the global economy.

1.12

Even within the EU Member States, there are considerable differences of approach to the energy issue. However, both at national and European levels, there is broad consensus as to the need to continue developing all possible energy sources (with the exception, in some Member States, of nuclear energy). To this end, numerous R&D programmes and other support programmes, some of which are funded from multiple sources, have been launched both by individual Member States and at European level.

1.13

One of the EU's main objectives in this field is to achieve a significant medium- to long-term increase in the use of renewable energy sources, which can also help protect the climate. In this context, geothermal energy can make a significant contribution.

2.   Geothermal energy

2.1

Technologies for tapping into and using thermal energy flows from the earth's interior, which is very hot, to the surface, are referred to as geothermal energy production. Water (in liquid form or as steam) is used as the heat carrier.

2.1.1

However, the density of such thermal energy flows is very low, and temperatures rise only slowly as distance below the earth's surface increases, at an average rate of around 3oC per 100 m. Geological zones in which the temperature gradient is steeper are referred to as geothermal anomalies.

2.1.2

The heat balance of geological layers close to the earth's surface can also be affected by solar radiation; however, in the following paragraphs this energy is included in the category of geothermal energy.

2.2

There are two options for using geothermal energy.

2.2.1

The first of these is using geothermal energy for heating purposes. Currently, about 40 % of the total energy supply in the EU is used for heating purposes; this generally requires relatively low (water) temperatures (e.g. as low as < 100° C).

2.2.1.1

For heating purposes alone, so-called geothermal probes are used among other things. (These involve a coaxial tube, the lower end of which is sealed, and through which water flows down to a depth of 2.5-3 km, then up and out again, thereby absorbing useable heat of up to approximately 500 kWth.

2.2.1.2

One option for tapping energy very close to the earth's surface is to use geothermal pumps (‘reverse cycle chillers’) to heat buildings (from around 2 kWth to 2 MWth); these also require a refrigerant (6). There are several types, tapping energy from depths of as little as 1 metre up to several hundred metres, depending on which technology is used.

2.2.2

The second option is to generate electrical energy. This requires higher (water) temperatures (e.g. > 120° C): usually, there are two boreholes, some distance apart; the water to be heated is fed underground through one borehole and flows out from the other. A greater amount of heat — 5 to 30 MWth — can be achieved in this way.

2.2.2.1

However, even these (water) temperatures are still insufficient to achieve the requisite thermodynamic efficiency (to transform heat energy to electricity), and in view of the temperatures required to reach boiling point within the turbine circuit.

2.2.2.2

For this reason, substances with a lower boiling point than water such as perfluorpentane (C5F12) are used for preference as the working fluid in turbine circuits. Special turbine circuits such as the Organic Rankine Cycle (ORC process) or the Kalina process are being developed for that purpose.

2.2.3

One particularly advantageous arrangement is to combine both applications (heat and electricity) and to use the residual heat arising during or in connection with electricity generation for heating purposes, thus providing heat and power at the same time.

2.3

However, in order to supply energy which is technically useable for electricity generation in particular, geothermal reservoirs have to be located sufficiently deep, usually several kilometres below the earth's surface, requiring costly deep drilling.

2.3.1

At the same time, the costs of tapping and using such reservoirs increase significantly with depth, and therefore, depending on how the energy is to be used, a balance must be struck between bore depth, efficiency and heat output.

2.4

For this reason, earlier stages of the search for useable heat reservoirs concentrated on geological areas with geothermal anomalies.

2.4.1

High geothermal gradient anomalies (so-called high-enthalpy (7) reservoirs) are mostly located in areas of intensive volcanic activity (Iceland, Italy, Greece, Turkey). The therapeutic properties of thermal water heated by high-enthalpy reservoirs have been known since ancient times, and they were first used to generate electricity about one hundred years ago (Larderello, Italy, 1904).

2.4.2

By contrast, low geothermal gradient anomalies (so-called low-enthalpy reservoirs), i.e. areas in which the temperature gradient is only slightly higher than usual, are located in areas of intensive tectonic activity (Rhine Graben, Tirennian Sea, Aegean Sea, etc.), and more generally in sedimentary aquifers (Pannonian Basin in Hungary and Romania, North German — Polish Basin).

2.5

Due to the limited number of areas with geothermal anomalies, since the mid-1980s efforts have increasingly concentrated on tapping the heat stored in ‘normal’ geological formations, in order to cope with the rising demand for energy and to be able to match the supply of heat or power more closely to demand in the surrounding areas.

2.5.1

As a result, geothermal reservoirs in areas without geothermal anomalies began being used for energy production in the 1990s, mainly in German-speaking countries. Electricity generation only began in Altheim and Bad Blumau (Austria) and in Neustadt-Glewe (Germany) during the last 4 years.

2.5.2

As this takes place at depths of at least 2

Formula

km, but preferably 4-5 km or more, deep drilling is necessary.

2.6

Technologies for producing geothermal energy have the following advantages:

unlike wind or solar energy, geothermal energy does not depend on the weather, time of day, or season, enabling it to contribute to all-important baseload capacity;

pre-existing heat only needs to be brought from the reservoir at a depth of several kilometres to the surface, eliminating the processes involved in primary heat production (such as combustion or nuclear processes) and the concomitant economic and environmental costs involved;

thermal reservoirs are an almost inexhaustible and renewable source of heat, which could in theory make a substantial contribution to energy production.

2.7

However, they also have the following disadvantages:

the temperatures are too low to achieve a satisfactory level of thermodynamic efficiency for electricity generation;

to ensure that heat exchange takes place and that the reheating capacity of the underground reservoir is not exceeded, very large volumes need to be tapped and used so that, at high heat extraction rates, the reservoir does not display signs of exhaustion that could force it to be abandoned earlier than planned;

when reservoirs are used, it is essential to prevent any potential impact from or release of environmentally harmful and/or corrosive substances (such as CO2, CH4, H2S and salts) and to keep equipment corrosion in check;

the costs and economic imponderables (such as prospecting risks and the possibility of exhaustion) associated with tapping and using geothermal reservoirs are still relatively high.

3.   Current situation

3.1

Basically, there are three technologies, with variations, for tapping and using deep geothermal energy; these usually require at least two boreholes (a doublette) (8):

hydrothermal reservoirs are used as a source of underground, non-artesian (i.e. not pressurised) water, which is brought to the surface, and up till now has generally been used for heating. At present, this technique is being extended to electricity generation using water at higher temperatures. The medium for heat transfer is the underground water from the reservoir;

the hot dry rock (HDR) process involves deep boreholes being sunk into suitable geological formations and extensive stimulation. Surface water is injected underground and used to extract stored heat by cooling the heat exchange surfaces, which are artificially created by stimulation of deep layers of rock;

pressurised hot water reservoirs, with a water/steam mixture at temperatures of up to 250oC or more (however, such high temperatures are of rare occurrence) which can be used to generate electricity or for heating.

In addition, ground-level technologies (9) are being developed to improve heat exchange and efficiency.

3.2

In the EU, geothermal capacity for generating electricity, most of which is located in Italy, and which generally uses geothermal anomalies, is currently about 1 GWel, or about 2 % of total EU electricity generating capacity. Geothermal capacity for direct heating is about 4 GWth, but is forecast to rise to 8 GWth or more by 2010.

3.3

Therefore, neither form of geothermal energy use has yet made a substantial contribution to EU energy supply, and they represent a negligible proportion even of renewable energy use.

3.4

However, thanks to support from both Member States and the EU, use of geothermal energy has increased substantially over the last few years. Provided the heat output ranges from just a few to several tens of MWth geothermal energy still makes a contribution to decentralised energy supply.

3.5

In the view of the Committee, this development is positive and well worth supporting. In many such cases, pilot plants are needed in which various methods can be tested and developed.

3.6

Comparing the costs per 1 KWel of electricity generated from various renewable sources, geothermal energy (even if heat and power generation can be combined) currently costs about twice as much to use as wind energy, and half as much as solar energy.

3.6.1

However (see above) geothermal energy supplies can be largely matched to demand. This advantage will become increasingly significant as renewable energy takes a larger share of the energy market: using the fluctuating output from wind and solar energy will increasingly require technologies for buffering and regulating energy, and it is likely that energy-consuming and costly storage media such as hydrogen will be needed.

4.   Future development and recommendations

4.1

Provided that it is no longer restricted to geothermically anomalous areas (see also points 2.4 and 2.5), geothermal energy has the potential to make a significant contribution to environmentally sound and sustainable energy supplies (see also point 4.13).

4.2

In order to use and develop this potential for economically viable electricity generation, boreholes need to be sunk to a depth of at least 4 or 5 km, to reach rock layers in which temperatures are at the threshold of about 150° C. In addition, rock at this level needs to be treated (stimulated) so as to enable a sufficient quantity of water to circulate and sufficient heat exchange to take place between the hot rock and the water which is naturally present or pumped through.

4.2.1

However (see also point 2.2.1.1), lesser bore depths of e.g. 2-3 km are sufficient if the energy is to be used solely for heating purposes.

4.3

Appropriate technological solutions are already being developed and tested at several locations in Europe (e.g. Soultz-sous-Forêts, Gross Schönebeck) with varying geological formations. The development of geothermal technologies which are as independent as possible of location and are therefore suitable for export offers the main scope for progress, but this still requires considerable R&D work.

4.4

On the one hand, development of the various technologies which already exist in a rudimentary form needs to continue in order to make them viable, at the same time as checking compliance with the previously mentioned criteria for sustainable use of geothermal energy.

4.4.1

One particularly important question is whether the hydraulic and thermodynamic criteria for adequate sustainability of a stimulated reservoir can actually be met.

4.5

On the other hand, the individual stages of the process need to be gradually improved and made more efficient in order to bring costs down to a competitive level (see below). At the same time, research and development (see point 1.6), as well as work on preparing the market are needed, in order to bring down production-related costs.

4.6

In the medium term, making geothermal energy competitive means enabling it to compete with wind energy in terms of costs. There is a high probability of this happening, given that the disadvantages of wind energy are becoming increasingly apparent: wide fluctuations in output result in major additional costs and emissions from other sources, wind farms can be unsightly, and the noise can disturb people living in the vicinity; in addition, they increasingly require repair and maintenance. The costs borne by consumers or the public purse must also be included in any overall assessment.

4.7

In the long term, given that prices of crude oil and natural gas are likely to continue rising, and reserves may possibly begin running out, general competitiveness will become an issue for geothermal energy. The question to be answered is when, if ever — taking into account external costs of all energy production technologies — geothermal energy will achieve long-term competitiveness, without any form of subsidy or market-distorting preferential treatment.

4.8

In the meantime, the following measures are needed (10):

effective R&D programmes at national and European levels to bring scientific and technological development in the field to the point where technologies and individual stages of the various processes can be developed and tested at an adequate number of test sites,

legislation to promote private investment (e.g. laws on the sale of electricity to the grid, heating and air-conditioning systems) designed to provide initial, tapered support for commercial launches so as to make energy sales during the launch stage attractive for a limited period, not least in order to test, enhance and evaluate economic potential. In particular, this also applies to contractual arrangements between energy supply companies and consumers,

action to offset the risks associated with prospecting and tapping geothermal reservoirs, e.g. in sinking boreholes and locating viable sources.

4.9

The Committee is pleased to note that considerable progress has already been made in this field. It fully endorses the Commission's existing and planned R&D projects, and also its intention to again substantially increase its activity in this area in its next R&D framework programme. It also endorses the relevant R&D programmes of Member States and their efforts, by adopting appropriate support measures, to facilitate and encourage the commercial launch of geothermal energy on a trial basis.

4.10

In this connection, the Committee reiterates its earlier recommendation that the opportunities offered by the European Research Area should be utilised through a comprehensive, transparent and coordinated energy research strategy, supported by all the players involved. This strategy should be made a key element of the seventh R&D framework programme and the Euratom programme.

4.11

This strategy should give appropriate emphasis to the R&D measures which are required to develop geothermal energy, until it becomes possible, in the context of a changing energy market, to provide a more accurate estimate and evaluation of the long-term costs and the achievable potential of such technology.

4.12

The Committee also recommends that all geothermal energy R&D programmes, i.e. including those which until now have been solely supported at a national level, be integrated as far as possible into a European energy research programme, to operate on the basis of open coordination. This would have the benefit of promoting European cooperation in the field.

4.13

In this context, the Committee sees the participation of new Member States in the EU R&D framework programme as an opportunity. Demonstration plants and pilot plants should be set up in these countries also, in the course of the forthcoming renewal of their existing energy systems.

4.14

In addition, the Committee recommends that the Commission sufficiently harmonise the effective measures taken within the EU to promote commercial launches (e.g. legislation on the sale of electricity to the grid) to enable EU-wide competition, at least in regard to actual geothermal technology, to take place on a level playing field.

4.15

Given that geothermal energy lends itself particularly well to combined heat and power generation, the Committee also recommends that the Commission look into suitable heating networks and use of geothermal heat.

5.   Summary

5.1

Technologies for tapping into thermal energy flows from the earth's interior, which is very hot, to the surface, are referred to as geothermal energy production.

5.2

This energy is mainly used for heating purposes, but it can also be used to generate electricity, or combined heat and electricity.

5.3

Geothermal energy is already being used in areas with geothermal anomalies, but it still represents an insignificant proportion of overall energy supply.

5.4

Technologies which allow areas without geothermal anomalies to be tapped offer the potential for geothermal energy to make a significant contribution to sustainable energy supply, and to base-load supply in particular. However, they require boreholes to be sunk to depths of about 4–5 kilometres, together with additional ‘stimulation’.

5.5

However, there is also considerable potential for development in the use of heat pumps to tap geothermal energy close to the surface for the purposes of heating and air-conditioning.

5.6

The potential to contribute to baseload capacity distinguishes geothermal energy from sources with fluctuating output (e.g. wind and solar energy), which are becoming increasingly dependent on technologies for regulating, buffering and storing energy and which are meeting public opposition due to the amount of land they require and their aesthetic impact on the countryside.

5.7

The Committee reiterates its recommendation that the opportunities offered by the European Research Area be utilised through a comprehensive energy research strategy.

5.8

This strategy should include R&D measures which are needed to develop geothermal energy, continuing and, as appropriate, building on existing programmes.

5.9

The Committee recommends that all geothermal energy R&D programmes, which until now have been solely supported at a national level, be integrated into such a European energy research programme and the measures which it comprises, to operate on the basis of open coordination.

5.10

The Committee recommends initial, tapered incentives and legislation in all Member States (e.g. a law on the sale of electricity to the grid) for commercial launches and private investment, in order to make the production and sale of temporarily subsidised energy more attractive and thus also to help test, enhance and evaluate the economic potential of this energy form.

5.11

The Committee recommends that such support measures should be sufficiently harmonised within the EU to ensure that EU-wide competition in regard to geothermal technology takes place on a level playing field.

Brussels, 9 February 2005

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Energy is not actually consumed, but merely converted and, in the process, used. This happens through conversion processes such as coal combustion, the conversion of wind energy into electricity, and nuclear fission (conservation of energy; E = mc2). However, the terms ‘energy supply’, ‘energy production’ and ‘energy consumption’ are also used.

(2)  Promoting renewable energy: Means of action and financing instruments; Proposal for a Directive of the European Parliament and of the Council on the promotion of cogeneration based on a useful heat demand in the internal energy market; Draft proposal for a Council Directive (Euratom) setting out basic obligations and general principles on the safety of nuclear installations and Draft proposal for a Council Directive (Euratom) on the management of spent nuclear fuel and radioactive waste; The issues involved in using nuclear power in electricity generation; Fusion energy.

(3)  Future use of which will have to be increasingly restricted in view of both the limited reserves of such fuels and also the need to reduce CO2 emissions (Kyoto Protocol).

(4)  The overall problem has been foreshadowed by previous oil crises (e.g. in 1973 and 1979), current increases in oil prices, and the current controversy – centred on the trade-off between economy and environment – about the allocation of emissions certificates.

(5)  However, see 2.2.1.2 and 2.2.2.2.

(6)  In future e.g. CO2 could be used.

(7)  Enthalpy, which is a term used in thermodynamics, is useable energy content (internal energy plus expansion energy).

(8)  However, see 2.2.1.1 on sealed geothermal probes and 2.2.1.2 on geothermal heat pumps.

(9)  See 2.2.2.2 on turbine circuits.

(10)  See: Promoting renewable energy: Means of action and financing instruments


8.9.2005   

EN

Official Journal of the European Union

C 221/28


Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and the Council on the implementation of the deployment and commercial operating phases of the European programme of satellite radionavigation

(COM(2004) 477 final — 2004/0156 (COD))

(2005/C 221/06)

On 16 November 2004, the Council decided to consult the European Economic and Social Committee, under Article 156 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Rannocchiari.

At its 414th plenary session, held on 9 and 10 February 2005 (meeting of 9 February) the European Economic and Social Committee adopted the following opinion by 134 votes with 3 abstentions:

1.   Introduction

1.1

Recognising its fundamental strategic importance for a competitive European system, the EESC has followed developments in the Galileo programme for satellite radionavigation and positioning infrastructure since its inception. Galileo's significance lies in its innovational impact on associated aspects of the economy, employment and the social dimension, as well as the enhanced quality of life for civil society that Galileo can ensure (1). Furthermore, the EESC has been aware of the need to involve the private sector in the development and use of the system since the very foundation of the Galileo Joint Undertaking (2), thereby ensuring sustained support throughout the development and deployment phases (3).

1.2

In its most recent opinion (4) on the subject, the EESC emphasised that ‘The Galileo programme finally entered the actual starting phase following the agreement on 26 May 2003 in the Council of the European Space Agency (ESA) on the respective financial contributions of the ESA Member States.’ It also reaffirmed that ‘The Galileo programme represents a major challenge for the European Union, its independence, its technological and scientific capacity, its economy and, primarily, its space and telecommunications industries.’

2.   Current state of play and anticipated developments

2.1

It should be remembered that the Galileo Programme has four phases:

A definition phase from 1999 to 2001, during which the architecture of the system was designed and the five services listed below were defined. This phase was primarily funded by the 5th RTD Framework programme 1998-2002.

A development and validation phase, which runs from 2002 to 2005 and covers the development of the satellites and the system's ground components, as well as validation in orbit. EU/ESA funding amounted to EUR 1.2 billion, over and above the EUR 100 million contributed by the 6th RTD Framework Programme 2002-2006.

A deployment phase covering 2006 and 2007 will involve the building and launching of satellites — the first two satellites are due to be launched towards the end of 2005 — and the establishment of the entire ground-based component. Overall funding is estimated at EUR 2.1 billion, one-third of which (i.e. EUR 700 million) will come from the Community budget. The remaining two-thirds (i.e. EUR 1.4 billion) of the cost will be borne by the consortium to be selected.

The commercial operating phase is scheduled to begin in 2008. Estimated annual management and maintenance costs amounting to approximately EUR 220 million are to be borne entirely by the private sector, except for an exceptional total Community contribution of EUR 500 million to cover the first years of this phase, in accordance with decisions to be taken under the new Community financial perspectives for 2007-2013.

2.2

At the end of the definition phase in May 2002, the Galileo Joint Undertaking was established for a four-year period ‘to ensure the unity of the administration and financial control of the project for the research, development and demonstration of the Galileo Programme and to this end mobilise the funds assigned to that programme’.

2.3

Furthermore, Council Regulation 1321/2004 (5), which establishes the GNSS (Global Navigation Satellite System) Supervisory Authority and the Council Joint Action 2004/552/CFSP (6), both of 12 July 2004, set up the operational structures of the system to ensure the management of the public interests inherent to the programmes and the security and protection of the Galileo system.

2.4

At international level, the European Union and the United States of America signed an extremely important agreement on Galileo and GPS (7) on 26 June 2004, following negotiations that lasted four years. The agreement concerns the promotion, supply and use of the two satellite navigation and positioning systems' services and the full compatibility and interoperability of related applications. The two systems will operate side by side without signal interference. This will enable Galileo to become the world standard for open signals in the civilian and commercial use of global navigation satellite systems (GNSS). GPS is operated by the military. In addition, it will also become accessible and ‘attractive’ to current GPS users through a single receiver.

2.5

Also at international level, a cooperation agreement was signed with Israel on 13 July 2004. This followed an agreement that had been signed with China on 30 October 2003. Negotiations to obtain interoperability with the Russian system GLONASS  (8) have been ongoing for some time. These negotiations have already reached an advanced stage, especially for the acquisition of frequencies and the use of Russian launch vehicles. Whilst cooperation agreements with the Russian Federation itself, Ukraine and India are at an advanced stage of negotiation, contacts with Australia, Brazil, Mexico and South Korea have been initiated. Switzerland, Norway, and Canada are also looking into the possibility of participating financially.

2.6

In the Mediterranean basin, an action plan was launched by the Euro-Mediterranean Conference of Foreign Ministers in Valencia in April 2002. The action plan included Mediterranean cooperation in satellite radionavigation and positioning. More recently, in Cairo, the Galileo Joint Undertaking launched the Euro-Med GNSS project for demonstration, training and coordination of the GNSS regional plan, to monitor, in cooperation with its Mediterranean partners, the impact of EGNOS  (9), a geostationary satellite and Galileo's precursor.

2.7

Once fully operational, the Galileo system will provide five types of service:

an open service that is suitable for mass-market applications for the general public and services of general interest;

a commercial service that will ensure the development of professional applications, with increased navigation performance and added value data, compared with the open service, with particular reference to a guarantee for the service;

a high-level performance Safety of Life service for situations where human life is at stake such as maritime and aviation navigation;

a search and rescue service to make decisive improvements to existing humanitarian search and rescue systems;

a Public Regulated Service (PRS) in encrypted form. It will be resistant to radio jamming and interference. It will be restricted mainly to public institutions involved in civil protection, national security, peacekeeping missions and law enforcement, where maximum levels of protection are required (10).

2.8

Given Galileo's operational features, civil management and predominantly commercial and professional applications, the Commission considers that its potential market by 2010, could stand at 3 billion receivers, with an annual return of investment of up to EUR 250 billion and the creation of new businesses and highly-skilled jobs in the hundreds of thousands, including approximately 150 000 in Europe.

2.9

The Galileo Joint Undertaking completed the competitive negotiating phase in September 2004. It received the two final tenders of two consortia that had applied for the concession contract (Eurely (11) and Inavsat (12)). The final selection was based on the following three criteria: business and financial capabilities; technical capabilities; and legal and technical aspects.

2.10

In accordance with its terms of reference, once the Joint Undertaking had presented a report on the tendering process to the Commission and the Commission had adopted a Communication to the European Parliament and the Council (13) on moving to the deployment and operational phase, it will be able to obtain the ‘the necessary political directives on the public funding of the next phases of the programme and the public service tasks, in particular the definition of the services’. As a consequence, it will be able to present a bid for signature by the Supervisory Authority, which is, in fact, the implementing authority under Regulation EC 1321/2004.

2.11

The Committee is concerned that the above-cited procedures could prove too complex, with overlapping and duplicated control measures, which are neither facilitating nor clear.

2.12

Furthermore, the Proposal for a Regulation under consideration provides that the Supervisory Authority, which it defines as a Community agency to manage the public interests of the satellite radionavigation programmes covered by EC Regulation 1321/2004, will not be set up until 2005.

3.   The European Commission proposal

3.1

The proposal under consideration satisfies the need to provide a specific legal instrument to ensure an independent budget line that will permit more efficient management and monitoring of the deployment and operation phases of Galileo, from a financial point of view and also vis-à-vis the concession holder.

3.2

The Proposal for a Regulation under consideration aims to define the modalities of the financial contribution of the Community for the implementation of the deployment and commercial operating phases. It focuses on:

3.2.1

the need for the Community to guarantee a coherent budgetary framework for the funds generated by the Community itself and the concession holder:

through the provision of Galileo services;

through licences and intellectual property rights on system components granted to it free-of-charge by the Supervisory Authority;

through long term loans granted by the EIB.

3.2.2

An appropriate institutional management and monitoring framework for the Supervisory Authority.

4.   General comments

4.1

The EESC believes that immediate steps should be taken to provide greater detail concerning the technical aspects of delivering the various services. This will ensure open standards that will provide access for other service providers and innovative services. Artificial barriers and exorbitant levies would thereby be avoided for newcomers, especially small-scale users.

4.2

With regard to the coherence of the budgetary framework, the EESC hopes that new financial perspectives for the Community budget will be adopted as soon as possible. Furthermore, it supports the Commission's request for a specific budget line of EUR 1 billion for the Galileo programme, which would be independent of other budget lines. The Committee also recommends that the sum should be raised to ensure the development and integration of EGNOS into the Galileo programme. The EESC considers that research activities on GNSS satellite radiopositioning should also be included in, and resourced by, the 7th RTD Framework Programme.

4.3

The EESC also believes that clarification is required as to how any future public funding by third country institutions that have already expressed an interest in contributing financially to Galileo will be included in the financial framework.

4.4

The EESC is aware that the budgetary framework foresees advantages for the concession holder due to its role as service provider and user of licences and free IPRs (14). The EESC is compelled to express its concern that the concession holder may acquire a dominant position or a monopoly, which could distort competition or inhibit the free market.

4.5

With regard to the appropriateness of the institutional framework for the management and control, which has been ‘externalised’ to a European agency (the European Supervisory Authority of the global system for satellite radionavigation), the Committee would emphasise the following points.

4.5.1

The European Space Agency is not represented on the Administrative Board of the European GNSS Authority. However it is a member of the current Administrative Board of the Joint Undertaking.

4.5.2

The managerial and supervisory responsibilities of the Joint Undertaking are to be transferred to the European GNSS Authority, which administers Galileo funds, acts as the contracting authority for the concession contract, monitors compliance with contractual obligations, grants the concession holder the right to use the assets for the duration of the contract, manages the agreement with the EGNOS operator, coordinates the Member States' initiatives regarding the frequencies required to ensure that the system functions, guarantees component certification compliance and enforces compliance with security obligations, including those that derive from Joint Action 2004/552/CFSP.

4.5.3

The EESC cannot conceal its concern regarding the extremely delicate transfer of authority from the Joint Undertaking, due to be dissolved in May 2006, and the new European GNSS Supervisory Authority, which should become operative in mid-2005.

4.5.4

The Committee therefore recommends that the Commission and the Council should follow closely the ‘cohabitation’ and transitional phase from Joint Undertaking to Supervisory Authority.

4.5.5

The provisions of Joint Action 2004/552/CFSP and the Regulation establishing the European GNSS Supervisory authority, which foresees a System Safety and Security Committee, will regulate all matters relating to Galileo's internal security.

The EESC believes that relations between the Galileo system and other existing European initiatives such as Global Monitoring for Environment and Security (GMES) and COSPAS-SARSAT (15) search and rescue system, justice and home affairs networks and GRID multimedia networks should be strengthened forthwith.

4.5.6

The EESC reiterates (16) that it is essential that security concerns and privacy and personal data protection issues should be dealt with jointly, through consultation with the European Fundamental Rights Agency  (17) wherever possible, or by setting up an appropriate consultative body. It would not appear sufficient to rely upon the provisions of Regulation EC 45/2001 referred to in Article 19 of the regulation establishing the European GNSS Supervisory Authority. The EESC considers that explicit guarantees for privacy and personal data protection are no less important than security considerations if the success of Galileo is to be secured through the full support of civil society.

4.5.7

Bearing in mind the need to involve civil society, the EESC notes that an initiative as important for Europe as the Galileo Programme remains virtually unknown to most European citizens. For this reason, the EESC hopes that the European institutions, in coordination with national governments, will launch an information and awareness-raising campaign that will not only raise European citizens' awareness and appreciation of this excellent research product of European industry but will also reassure them that their privacy is being safeguarded.

5.   Specific comments

5.1

In view of the foregoing, the EESC recommends that the following points should be added to Recitals in the Proposal for a Regulation:

5.1.1

New Recital 3(a): ‘In view of the impact that the programme may have on the lives of European citizens, the Commission will take steps to ensure that the European Fundamental Rights Agency, or an alternative ad hoc consultative body, be entrusted with privacy and personal data protection in the implementation of Galileo services. This will ensure transparent development, and constant dialogue with potential users and civil society’.

5.1.2

Add to Recital 12: ‘, to secure further Community resources on the same budget line for developing and integrating EGNOS into Galileo, and to provide adequate attention and resources within the 7th RTD Framework programme for satellite radionavigation and its integration with existing networks.’

5.1.3

New Recital 13(a): ‘The Commission and the Council shall ensure that the transition from the Galileo Joint Undertaking to the new European GNSS Supervisory Authority shall be implemented under conditions of absolute transparency to avoid possible duplication, operational delays or, worse still, market restrictions.’

5.1.4

New Recital 14(a): ‘The Commission shall ensure that any financial contributions from third country institutions to the funds of the European GNSS Supervisory Authority reflect mutual interests and existing balances through appropriate agreements to be submitted to the Council and the European Parliament.’

6.   Conclusions

6.1

The EESC reaffirms its full support for the Galileo programme and argues forcefully in favour of accelerating the two final development phases so as to ensure that it is fully operational in all respects by 2008.

6.2

The EESC urges the Commission to undertake an ex ante assessment of the added value for the concession holder, arising from the provision of services and intellectual property rights, and to disseminate clear and precise information based on the assessment's results.

6.3

The EESC considers that vital progress has been made towards setting up global infrastructure, in particular the EU-US cooperation agreement ensuring full compatibility and interoperability between existing global satellite radionavigation and positioning systems.

6.4

The EESC stresses the importance of international cooperation with China and Israel and believes that no effort should be spared in concluding mutual interest agreements with Switzerland, Norway, the Russian Federation, Ukraine, India, Australia, Mexico, Brazil and South Korea. The Committee considers the Mediterranean basin to be a privileged area, in so far as it is already able to benefit from EGNOS services. Furthermore, it is of strategic importance for peace, stability and sustainable development in Europe.

6.5

In this regard, the EESC is convinced that extending accessibility to third countries constitutes a vital contribution to the external dimension of European Union policy.

6.6

The EESC hopes that the European Commission will be provided with a dedicated budget line for an information and awareness-raising campaign that will not only raise European citizens' awareness and appreciation of this excellent research product of European industry but will also reassure them that their privacy is being safeguarded.

6.7

Finally, the EESC hopes that its comments regarding certain recitals will be accepted (protection of privacy, increased financial resources, transitional phase and contribution of third countries) as defined above. The proposals aim to contribute to the clarity and transparency of the initiative and to ensure that it is allocated sufficient resources. Consequently, they are in the interest of the European institutions as well as civil society.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJ C 311 17/11/2001 p. 19.

(2)  Galileo Joint Undertaking, set up under Article 171 of the EC Treaty by Council Regulation EC 876/2002 of 21 May 2002. It ensures the implementation of the development phase of the Galileo Programme and provides for the management of the deployment and operative phases. Its headquarters are in Brussels. Its founding members are the European Community, represented by the Commission, and the European Space Agency.

(3)  OJ C 48, 21/02/2002 p. 42

(4)  EESC opinion on the Communication from the Commission to the European Parliament and the Council - Progress report on the GALILEO research programme as at the beginning of 2004. OJ C 302 of 7 December 2004

(5)  Council Regulation on the establishment of structures for the management of the European satellite radionavigation programmes (OJ L 246, of 20 July 2004)

(6)  See OJ L 246, of 20 July 2004

(7)  US GPS: United States Global Positioning System, operated by the military

(8)  GLONASS: GLOBAL NAVIGATION SATELLITE SYSTEM.

(9)  EGNOS: European Geostationary Navigation Overlay Service: system based on the correction of the GPS signal via a network of ground stations and geostationary stations. It was launched in 1996 and operated as Galileo's precursor. EGNOS is to be integrated with the latter under the terms of the joint concession scheme..

(10)  See Concession for the deployment and operation phases of the Galileo programme 2003/S 200-179789, published on 17 October 2003

(11)  EURELY: Consortium founded by ALCATEL, FINMECCANICA and VINCI

(12)  INAVSAT : founded by EADS Space, Inmarsat Ventures and the Thales Group.

(13)  COM(2004) 636 final adopted 6 October 2004

(14)  IPR: intellectual property rights.

(15)  COSPAS (Russian acronym for ‘Cosmicheskaya Sistyema Poiska Avariynich Sudov,’ or Satellite search system for vessels -SARSAT: Search And Rescue Satellite Aided Tracking: an international satellite search and rescue system with humanitarian objectives. Between 1982 and 2003 the system was responsible for rescuing more than 15,000 people worldwide.

(16)  See EESC opinion on the Proposal for a Council Regulation on the establishment of the Galileo Joint Undertaking, Point 3.5. OJ C 48 of 21 February 2002

(17)  See COM(2004) 693 of 25/10/04, a Communication from the Commission that recommends the establishment of the agency in 2005, and proposes that it be entrusted with protecting individuals in matters pertaining to the processing of personal data.


8.9.2005   

EN

Official Journal of the European Union

C 221/33


Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council establishing an infrastructure for spatial information in the Community (INSPIRE)

(COM(2004) 516 final — 2004/0175 (COD))

(2005/C 221/07)

On 13 September 2004, the Council decided to consult the European Economic and Social Committee, under Article 175 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 13 January 2005. The rapporteur was Mr Retureau.

At its 414th plenary session on 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion by 140 votes with two abstentions:

1.   Summary of the Committee's opinion

1.1

The Committee considers the proposed establishment of an infrastructure for spatial information in the Community (INSPIRE) to be appropriate, desirable and in accordance with the principle of proportionality. This infrastructure will coordinate and make interoperable and accessible all spatial data collected at national level by the Member States in order to document more effectively, on a scientific basis, environment-related decisions and their follow-up, as well as reports required under certain directives. The Committee believes that the legal basis (Art. 175 TEC) is appropriate.

1.2

This initiative is likely to reduce duplication, omission and inefficiency and to make the collection and processing of data more coordinated and targeted. A Community-wide action plan is necessary; this will lead to greater efficiency in the use of data by the administrations and services concerned, and in the use of data by public and private operators in various forms, including value added services (specialist maps or databases, etc.).

1.3

The proposed directive creates the legal and technical framework necessary to realise this aim. It establishes a technical committee and makes it mandatory for Member States to give access to their geographical data. The system will be monitored by the Commission and regular reports are to be submitted.

1.4

The Committee therefore approves the proposal submitted for its opinion, as it unquestionably represents added value for the Community by providing a harmonised framework and promoting vital progress in terms of the quality and nature of the spatial data collected, thereby underpinning environmental policy, and possibly other national and European policies, and assisting in the decision-making process.

1.5

The Committee stresses the need to use open file protocols and formats or universal standards that are readable with free software; it also emphasises the need to ensure that the referenced information available through INSPIRE is placed in the public domain, as this is scientific data which is vital for environmental policy as well as for students and researchers. Lastly, the Committee stresses that the process should be undertaken without breaching the confidentiality of certain data, irrespective of whether they concern personal privacy, general interest or security matters.

2.   The Commission's proposal

2.1

The legal basis is Article 175(1) TEC. This article — by referring to Article 174 — makes it possible to propose measures in the field of the environment and health protection on the basis of technical and scientific data.

2.2

Natural phenomena, similarly to phenomena caused by human activity, have an impact on the quality of the environment and on our health; this justifies a Community-wide information and coordination campaign that will take into account the principles of proportionality and subsidiarity, as well as the precautionary principle.

2.3

A framework directive is proposed to allow broad scope for subsidiarity so that the provisions can be tailored to the diversity of the Member States and the regions.

2.4

The metadata will primarily be derived from national public sources, but this does not exclude the possibility of other sources being used. A Community geo-portal will give electronic access to national databases.

2.4.1

It is not mandatory for Member States to collect the data mentioned in the appendices. The INSPIRE initiative complements other initiatives, such as GMES or GALILEO, which can be used to gather specific or additional data.

2.4.2

The horizontal nature of INSPIRE is of key importance; it cuts across a variety of sectors, which makes it possible to identify and cover any omissions.

2.4.3

Environmental legislation stipulates the nature, quality and notification of the data relevant for each of the sector-specific texts (e.g. directive on water quality).

2.4.4

Data sharing, which enables the identification of omissions and difficulties encountered by Member States, should make it possible gradually to find solutions.

2.5

The aim is to collect and coordinate the spatial (geographical) data detailed, for example, in Annexes I, II and III, and to ensure the interoperability of the various national systems for the collection and processing of this data thus making them available to decision-makers, administrative services, research organisations and more generally to interested members of the public.

2.6

The harmonised data are input into networks by the Member States. These easily accessible data and diverse services will serve as a technical and scientific basis for European, national or international policies in a broad range of areas.

2.7

By sharing and combining the information and knowledge acquired from various countries and sectors, it will be possible to avoid duplication and ensure that all Community policies take environmental considerations into account.

2.8

The European Environment Agency must actively contribute to the implementation of the directive. A comitology procedure is planned for the technical management of INSPIRE. The Commission will apply the implementing powers conferred on it by the Council Decision of 22 June 1998.

3.   General comments

3.1

The Committee approves and supports the draft directive establishing an infrastructure for geographical data in the Community.

3.2

In synergy with other information sources, INSPIRE will support the decision-making process in environmental and health policies as well as in numerous other areas.

3.3

The Committee believes that the fact that the benefits outweigh the costs is a key advantage of the project; it will make it possible to avoid duplication and fine-tune Community policies, as well as providing information for the public.

3.4

For the Committee, the Community infrastructure and the information and services to which it provides access should be part of the public domain, as they primarily consist of scientific data and knowledge bases, the use of which is in the general interest (prevention of natural or industrial hazards, health, etc.). Too restrictive rights of use for data sets and services must not become an obstacle.

3.5

Nonetheless, public-private partnerships are possible, as is the use of data by private organisations or bodies for the purpose of providing added value services or creating specialised geographical databases for commercial use.

3.6

The interoperability of data sets and services is absolutely essential for the success of the INSPIRE infrastructure; the Committee supports the proposal to draw up rules for its implementation in cooperation with both service providers and users, and with the standardisation bodies.

3.7

The Committee believes that the protocols and formats for files created at national and Community level should be open or freely usable, and that the data should be readable for all internet access software to ensure that everyone has equal access to and use of the data, regardless of the software or equipment used.

3.8

Lastly, the Committee once again voices its concerns regarding the protection of personal data and of privacy. This protection should come on top of the need to protect key national interests and public security imperatives regarding the nature or sensitivity of freely available data.

4.   Specific comments

4.1

The Committee would also like to receive a copy of the periodic reports provided for under the draft directive.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


8.9.2005   

EN

Official Journal of the European Union

C 221/35


Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions — Flood risk management — Flood prevention, protection and mitigation

(COM(2004) 472 final)

(2005/C 221/08)

On 12 July 2004, the European Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned communication.

The Section for Agriculture, Rural Development and the Environment, which was responsible for the Committee's work on the subject, adopted its opinion on 13 January 2005. The rapporteur was Ms Sanchez Miguel.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February 2005), the European Economic and Social Committee adopted the following opinion by 132 votes with no votes against and two abstentions.

1.   Introduction

1.1

The adoption of the Water Framework Directive (1) (WFD) can be said to have brought about a significant shift in EU water policy, not only because it introduced a harmonised approach to the various situations facing our continental and marine waters, but also because it established an effective method of assessing the quality of these waters and put in place a centralised organisational system that makes it easier to tackle each river basin in a uniform manner, regardless of the various competences which exist for each stretch of the river basin. Furthermore, the Commission has continued to supplement and develop the WFD by means of legislative (2) and other provisions (3), to ensure that EU water policy works to protect our rivers and seas.

1.2

Incomprehensibly, however, the WFD omitted some aspects that are extremely important for the quality of our river basins, including the issue of flooding. Although there is nothing unnatural about the phenomenon of flooding, its effects are in some cases considerably amplified by human activity. Many of the disastrous effects of flooding could be mitigated by means of an appropriate policy on the use and protection of rivers and riverbanks. In particular, this would require the construction of water-related infrastructure to take real — not just formal — account of the environmental impact in order to avoid changing natural dynamics and to remain in the interests of a sensible use of water resources.

1.3

Flood risks are increasing in the EU for two main reasons: firstly, the effects of climate change, which could lead to more frequent torrential rains and higher sea levels as a consequence of the warming of the atmosphere. The second factor is the impact of human activity, such as construction work in rivers and projects to divert and channel the course of rivers, and the construction of ports without adopting measures to assess and correct their environmental impact. Another human factor is the increased desertification of our continent, which has suffered from the wide-scale felling of trees, fires and other activities that go against nature. In short, flood risks are increasing as a consequence of unsustainable activity. Adopting sustainable models of economic, social and environmental development can therefore minimise these risks.

1.3.1

The flooding of land used for industry, intensive farming and livestock-breeding, and also of built-up areas, results in the spread of substances and products which under normal conditions do not threaten water quality but, as a consequence of flooding, become dangerous contaminants, with potential effects for public health and the ecosystems concerned.

1.4

The EESC would point out that between 1998 and 2002 Europe suffered over 100 major floods including the catastrophic floods along the Danube and Elbe rivers in 2002. Since 1998 floods have caused some 700 fatalities, the displacement of about half a million people and some EUR 25 billion in insured economic losses (4).

1.5

The Commission is aware of this state of affairs and presented the Environment Council of July 2004 with a proposal for EU action on flood protection, with a view to ensuring concerted action to improve protection against flood risks. Member States must cooperate on mapping risk areas and on implementing flood risk management plans in every river basin and in coastal areas, with the Commission facilitating the coordination of information between all States and promoting best practice in this area.

1.6

Lastly, it should be added that although this action is to be undertaken in the context of Community water policy, this issue also affects other European policies, such as those on agriculture, environment, civil protection, transport, etc. Furthermore, there is an extremely far-reaching legal problem which affects all of these policies, relating to flood plain management: the demarcation and definition of the public sphere as it applies to the protection of riverbanks and coastlines, so that they are not subject to major modifications by the authorities that are exclusively politically motivated and which affect other competences in water management and in flood risk planning. Demarcating protected areas would make it easier to take flood prevention measures.

2.   Gist of the Commission's proposal

2.1

The Communication's content can be divided into three headings, which are:

flood risk management;

what is already being done and future initiatives;

a concerted EU action programme.

2.2

The aim of flood risk management is to reduce the likelihood and impact of floods. It is therefore proposed that the flood risk management plans incorporate the following elements:

prevention;

protection:

preparedness;

emergency response plans;

recovery and lessons learned.

2.3

In terms of what is already being done and of future initiatives to mitigate the effects of floods, three levels of action are proposed.

2.3.1

At European level, action is geared towards using existing measures and policies for preventing and mitigating floods. In terms of research policy, the aim is to use research projects such as FLOODsite, which helps to improve integrated flood risk analysis and management methodologies. The use of the Structural Funds, in particular the European Regional Development Fund, can help to improve technological research and development in infrastructures (5). The IRMA project (‘INTERREG Rhine-Meuse Activities’) is an example of a cross-border approach to combating floods.

2.3.1.1

At European level too, it is proposed that the CAP should be used to establish flood protection areas through forestry and other agricultural activities as a means of protecting the soil. Similarly, it is intended to bring environmental policy into play under the WFD, by integrating flood risk management into integrated river basin plans. Furthermore, the Solidarity Fund, created in 2002 in the wake of the major floods in Central Europe, is to remain in place for emergencies.

2.3.2

As regards the role of the Member States, it should be pointed out that they have acted to combat the effects of floods by providing official and legal guidelines, in particular in the States that suffer most from such events. There are plans and strategies to protect against floods, and risk maps have even been drawn up in those regions that suffer most frequent flooding.

2.3.3

Thirdly, measures have been put in place for international cooperation on transboundary rivers, in Central Europe in particular, by setting up bodies to ensure a coordinated approach to river basin management.

2.4

The EU's programme for concerted action contains some features that are crucial to establishing measures to prevent and mitigate the effects of flooding. The most noteworthy are: improving coordination between authorities through the river basin and coastal area management plans, flood risk mapping as a tool for planning, and exchange of best practice.

2.4.1

For this programme to succeed, the Member States, the Commission and the other interested parties must cooperate and fulfil their tasks and obligations in the field of flood risk prevention.

2.4.2

The estimated costs of this joint action are hard to quantify, but the qualitative benefits that minimising the effects of flooding will have for the people of Europe, their property and for the people and areas concerned far outweigh any costs.

2.5

An annex sets out guidelines for the development and implementation of flood risk management plans and flood risk maps; this is important for ensuring a uniform approach to achieving the programme's objectives.

3.   General comments

3.1

The EESC welcomes the Commission's Communication, aimed at improving and harmonising the prevention systems in place in many Member States to mitigate the effects of flooding. Nevertheless, firstly, a more thorough assessment of the problem must be made in order to decide on suitable measures geared, in particular, towards the most effective preventive actions which would prevent much of the damage caused by flooding. Secondly, some basic concepts not mentioned in the proposal must be defined, so that agreement can be reached on the measures proposed for management plans and risk maps, in the most harmonised manner possible.

3.2

Floods are natural phenomena associated with the normal functioning of river and coastal systems and operate on a geological timescale that is far greater than the timescale normally used for example in managing economic planning or land-use planning, etc. The ‘recurrence interval’ therefore means that:

when flooding takes place, be it in 100 or 500 years' time, the river will flood a given area;

these floods will definitely recur;

they can recur at any time.

Concepts used in hydrological planning include:

The riverbed or natural course of a continuous or non-continuous flow is the land covered by water under maximum normal rises in level.

Flood plains are areas demarcated by the theoretical levels that waters would reach during flooding, the statistical recurrence interval for which could be 100 or 500 years. This does not affect the ownership of the land (public or private), but the competent authority can set limits on usage in order to ensure the safety of persons and property.

The normal features of flood areas generally include wetlands, alluvial forests, other types of flood plain, debris cones caused by torrential floods in mountainous areas, lagoon marshes and several features (many of these associated with ecologically valuable ecosystems) indicating the limits of floods, which, as already stated, are events associated with the normal functioning of river and coastal systems.

3.3

The seriousness of a flood depends on the occupation and use of flood areas by human beings for activities that affect the normal functioning of these water systems, substantially altering the river and coastal environment. Such activity increases the risk of abnormal conditions that are extremely harmful to human beings and property. The EESC considers that the following factors should be seen as increasing the severity and scale of flooding:

inappropriate land-use planning, in some cases over a prolonged period, as a result of ignoring scientific and technical information, which would be unacceptable today;

ill-judged flood risk management (straightening of rivers, channelling of flood waters, construction of reservoirs and dams, cutting off flood detention basins by building dykes close to rivers), measures that have often proved to be inadequate or, taking a wider view, sometimes even counter-productive, particularly downriver.

3.4

The increasing flood risk as a consequence of changing natural factors, in particular climate change, requires a great deal of research to determine how these changes can affect river and coastal dynamics and hence flood-prone areas and recurrence intervals, amongst other variables.

3.5

The increasing risk as a consequence of human factors, such as land use in these areas and the number of people located there, can and must be corrected by including active planning policies geared to achieving the SUSTAINABLE use of flood areas and to minimising risks.

4.   Specific comments

4.1

The EESC agrees that flood risk management aims to reduce the likelihood and/or impact of floods, normally through a process involving the aims of prevention, protection, information, etc., as pointed out by the Commission. Nevertheless, it is worth classifying the actions and measures that can be adopted and the criteria for making the right choice in each case. The following preventive measures might be used:

Natural flood protection measures, e.g. improving or restoring natural drainage by reducing soil compaction or restoring forests in mountainous areas; recovery of (former) naturally occurring flood detention areas; slowing down the flow and propagation rate of the flood wave by reversing measures to straighten rivers; improved drainage of rainwater in residential areas.

Actions that alter a flood area's susceptibility to incur damage, such as early warning systems, land-use planning and restricting use in flood areas, etc.

Actions to prevent flooding (hydrological or hydraulic measures): these may be structural (flood control reservoirs, channelling, dykes, etc.) or non-structural (restrictions on urban use, programmes to safeguard property, etc.).

4.2

The EESC suggests to the Commission that management plans be based on the following principles and non-structural measures:

Returning river and coastal water systems to their natural state, promoting the recovery of natural spaces and the natural self-regulating functions of basins (reforestation in affected mountainous areas, the protection of wetlands and associated ecosystems, monitoring erosion and sedimentation in water courses, programmes for finding alternative uses for and recovering high risk land, etc.).

The principle of achieving sustainable development in flood areas, by:

i.

estimating the exploitable economic potential of land use in these areas which is compatible with natural flood activity;

ii.

planning the transition to these models in the various areas of planning, in particular land-use planning.

It is in this context that the principle of long-term strategic planning should be brought to bear, i.e. not simply a question of taking account of the forecast changes, as set out in the Commission Communication, but essentially of correcting them, in cases where it is reasonable to assume that the current level of risk will remain the same or increase.

4.3

Appropriate guidelines and criteria should be drawn up for selecting suitable measures to improve flood protection:

improved flood protection must not lead to deterioration of the hydrological situation elsewhere (e.g. due to increased run-off, higher water levels or faster flood waves downriver);

as far as possible and in keeping with the principle of sustainable development, preference is to be given not to constructing technical protection systems but to action to restore river basins, and to natural measures that contain flood water more within a specific area without causing damage (allowing it to spread rather than rise);

wherever possible, preference is to be given to measures which can offer synergies with other sustainable development objectives (e.g. the objectives of the Water Framework Directive concerning water and ground water quality and the objectives of European nature conservation directives).

4.4

Experience with flood risk management in various parts of the world, in particular since the 1970s, has demonstrated that the main difficulties in implementing preventive measures are not technical and cannot be resolved by risk or danger maps alone. In the USA, for example, the Army Corps of Engineers has produced more than 20 000 risk maps, but very few local authorities make use of them and, when they do, they opt for one type of structural action (such as channelling, dams and dykes) which has frequently failed to adequately control floods and prevent a great deal of avoidable damage because the authorities and the public at large have been lulled into a false sense of security.

4.5

It should be stressed that in the EU, such measures — basically the construction of dams and channels, which are of limited use — are precisely those financed by the Structural Funds, (ERDF and the Cohesion Funds). Preventive measures, structural or otherwise, are generally less well funded. The EESC therefore considers it necessary to assess the need to establish a specific funding line for this Action Programme or, failing this, drawing up guidelines for the inclusion of actions in other Commission-funded programmes.

4.6

At all events, structural measures such as these are not sufficient to prevent floods or to protect flood areas. They only make sense as part of a broader approach in which land-use planning, transport planning (roads, rail, etc.), maintenance of flood drainage channels and the protection of the areas and ecosystems that regulate natural run-off are also taken into account. It would thus be appropriate in future to make the guidelines in the Communication's annex more precise, and to include methodological principles or good practice for drawing up these plans.

4.7

Incorporating flood management plans into the management plans of the Water Framework Directive is crucial to ensuring that the necessary planning is undertaken for action over the entire length of the river basin and that the measures and actions undertaken by the competent authorities at the various levels (local, State, cross-border, etc.) are compatible and properly coordinated. Criteria and formulae must be established to ensure the proper integration of these two planning frameworks, which are compatible but different, by means of a Directive facilitating this. These elements should be dealt with in greater detail in the proposed further development of the appended guidelines.

4.8

Incorporating flood management into the WFD essentially requires:

a definition of flooding as a phenomenon associated with the normal functioning of river and coastal systems, which can, exceptionally and periodically, affect water quality and ecosystems;

a definition of ‘flood zone’ that is closely linked to the territorial aspect of WFD's scope (land use, potential contamination, ecosystems linked to water quality, etc.);

a definition of flood risk linked to the risks and damage to the bodies of water covered by the WFD;

specific risk management that addresses water management exactly as set out in the WFD (use of water in the river basin, cost recovery, action plans, establishing protected areas).

4.9

The most important aspects of flood risk management linked to WFD-based planning are:

1)

Risk definition and management:

hydrological risks, water quality and ecosystems

associated geological risks, landslides, avalanches

management and renovation of public inland waterways and coastal waters

ecological criteria for flood management

town planning criteria.

2)

Warnings and emergencies:

geographical zoning

hydrological information systems and an emergency prevention system

civil protection

a legislative framework in each Member State to regulate the above aspects

civic education

coordination between the authorities concerned.

3)

Other aspects:

multidisciplinary research and coordination

risk cover insurance

sound construction of infrastructure.

5.   Conclusions

5.1

The EESC is of the view that any action to prevent, protect against or mitigate flooding must incorporate the methodology and instruments created by the WFD, in particular the river basin plan, which makes it possible to regulate all activities relating to the management of inland waterways and the connected coastal areas. To this end, the EESC believes it necessary to incorporate the content of the Communication and the comments made here into a Community Directive that would help bring risk management plans into line with the characteristics of each basin plan, thereby adapting to the particular conditions of our rivers and coastlines.

5.2

To ensure that these aspects are properly incorporated, there must be:

a clear definition of the basic concepts that will underpin action, especially those referred to in point 4.7 of the opinion;

a thorough assessment of the current situation in every river basin and coastal area in Europe, especially in areas deemed to be high-risk as a result of climate change and human activity;

emphasis on actions to prevent the harmful effects of flooding, building on and including all measures aimed at the population, by means of appropriate education and information.

5.3

Risk management plans and risk mapping, as set out in the annexes to the proposed communication, must be extended, so as to establish and clarify a classification of action and measures, taking into account those with the highest priority and that are most appropriate to the financing obtained, as well as the criteria to be met in order to reduce costs and increase the benefits to people and property. The most important aim is to reconcile the natural functioning of inland waterway and coastal systems with human activity, in short, to achieve integrated and sustainable activity in flood areas.

5.4

Lastly, the EESC considers that the most significant aspects of flood risk management, which concern planning under the WFD, are the definitions of risk, warnings and emergencies for times when these phenomena occur. Moreover, it is important not to lose sight of other Community measures for multidisciplinary research and cooperation, aimed specifically at mitigating the damage caused by flooding, for putting in place insurance to cover damage and minimise the economic loss suffered by the victims and, above all, for vigilance and control over the safety of infrastructure projects in the inland waterway and coastal systems.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJ L 327 of 22.12.2000, p. 72.

(2)  EESC Opinion on the Proposal for a Directive of the European Parliament and of the Council on the protection of groundwater against pollution (COM(2003)550 final) – OJ C 112 of 30 April 2004, pp. 40–43.

(3)  European Parliament and Council Decision establishing the list of priority substances in the field of water policy, COM(2000) 47 final. Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee: Pricing policies for enhancing the sustainability of water resources, COM(2000) 477 final. Communication from the Commission to the Council and the European Parliament: Towards a strategy to protect and conserve the marine environment, COM(2002) 539 final.

(4)  Source: COM(2004) 472 final

(5)  An interesting example was presented to the EESC's Section for Agriculture, Rural Development and the Environment by Mr Sándor Tóth, representative of the Hungarian Department of the Environment and Water Management, on the programme of long-term flood management and regional development in the Tisza valley.


8.9.2005   

EN

Official Journal of the European Union

C 221/40


Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation on the financing of the Common Agricultural Policy

(COM(2004) 489 final — 2004/0164 (CNS))

(2005/C 221/09)

On 29 October 2004, the Council decided to consult the European Economic and Social Committee, under Article 37(2) of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 13 January 2005. The rapporteur was Mr Kienle.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February 2005), the European Economic and Social Committee adopted the following opinion by 133 votes with 6 abstentions:

1.   Introduction

1 January 2005 saw the launch of the far-reaching agricultural reform. At the heart of this reform is the decoupling of production subsidies and a stronger emphasis on rural development. The financial basis of the Common Agricultural Policy is the October 2002 decision by heads of state or government laying down a ceiling for agricultural expenditure under the first pillar, which is to be capped at actual 2006 levels for the EU-25 expenditure until 2013. This decision on agriculture is an accepted part of the EU's financial perspective for 2007-2013 which covers overall EU funding. Thus, expenditure on the Common Agricultural Policy including rural development (for the EU-27) is set to run at EUR 57.18 billion in 2007, and will increase by 1.1 % by 2013 (at 2004 prices).

However, contrary to what the title might suggest, the Commission proposal under review is not so much concerned with the sources and use of funding for the Common Agricultural Policy as with the budgetary implementation of support for agriculture and rural development.

2.   Gist of the Commission document

The proposal under review is intended by the European Commission to serve as a budgetary basis for the Common Agricultural Policy, including the EU's rural development policy, in the period 2007-2013, and to regulate its financing through a single legal act. It should be seen in conjunction with the proposal for a Regulation on support for rural development. The Commission's aim is to simplify and secure greater efficiency. To this end, it proposes a tighter monitoring, assessment and reporting system.

2.1   Funds for financing expenditure

2.1.1   Current situation: The European Agricultural Guidance and Guarantee Fund (EAGGF)

The European Agricultural Guidance and Guarantee Fund (EAGGF), which currently finances the Common Agricultural Policy, consists of a Guidance Section and a Guarantee Section. The Guarantee Section is used to finance the common organisation of agricultural markets (direct payments, export refunds, intervention buying-in), certain types of expenditure in the veterinary and phytosanitary sectors, and measures to evaluate and provide information on the Common Agricultural Policy. The Guarantee Section also comprehensively finances certain measures for rural development (agro-environmental measures, compensatory allowances for less-favoured areas, afforestation, early retirement) and investments in regions that do not have Objective 1 status.

The Guidance Section finances other investment expenditure on rural development not covered by the Guarantee Section of the EAGGF, i.e. measures in regions with Objective 1 status and the Leader+ initiative.

2.1.2   Basic features of the future Common Agricultural Policy funds

The structure of the new funds is to be on the same lines as the EAGGF. They are to be administered by a committee comprising representatives of the Member States and the Commission (Article 41, Committee on the funds). All measures financed by the new funds are to become subject to an accounts clearance procedure, whereas at present this requirement only applies to measures financed by the Guarantee Section. At present, measures financed by the Guidance Section are monitored through the multi-annual support programmes (as per Regulation EC 1260/1999 on the Structural Funds).

2.1.3   The new European Agricultural Guarantee Fund (EAGF)

The EAGF resembles the existing Guarantee Section of the Common Agricultural Fund (EAGGF) and is intended to continue financing, inter alia, intervention measures, export refunds, direct payments, information activities, and promotion of agricultural products, as at present. Support measures for rural development will no longer be financed by the EAGF; instead, they would be covered by the EAFRD.

2.1.4   The new European Agricultural Fund for Rural Development (EAFRD)

The new EAFRD is to be used for all future financing of rural development measures, in order to simplify financing of the second pillar. The EAFRD is to combine funds from the EAGGF Guidance Section and funds for rural development from the EAGGF Guarantee Section. Including modulation resources from the first pillar arising from reductions under Article 10 of Regulation (EC) 1782/2003, the 2013 budget for rural development will, as the European Commission sees it, amount to a total of EUR 14.2 billion (for the EU 27, at 2004 prices).

2.2   Payment and checking procedures

2.2.1   Paying agencies

According to the Commission's proposal, these procedures are to be dealt with by the paying agencies set up by Member States, as at present. Paying agencies are approved departments or bodies of the Member States with responsibility for checking the eligibility of requests, recording payments made, and preparing the requisite documentation for the Commission.

2.2.2   Payments to Member States and commitment of funds

EAGF payments are to be made monthly, EAFRD payments quarterly. Under the draft regulation, EAFRD funds will be committed separately for each programme over a period of several years, split into annual instalments. After this period, funds will be automatically decommitted, under the N+2 rule, which states that the funds allocated to a programme must be spent by the end of the second year after allocation, where N is the year of allocation.

2.2.3   Communication with the Commission

Member States are to submit declarations of expenditure to the Commission and annual accounts at the end of the budget year, together with a document certifying that the accounts submitted are complete, accurate and true. An additional requirement envisaged under the proposal is for a statement of assurance from the person in charge of the paying agency. For EAFRD expenditure, the Commission proposes that the paying agency should also submit separate annual accounts for each programme, split into annual instalments.

2.2.4   Clearance of accounts, conformity clearance and the financial report

The draft regulation envisages that the Commission will close the accounts of the paying agencies prior to 30 April. The clearance decision will cover the completeness, accuracy and veracity of the accounts submitted. In line with current procedures, the Commission is to assess whether any expenditure should be excluded from Community financing (conformity clearance). One change is that the period for making a financial correction has been extended from 24 months to 36 months. Also, the Commission's financial report on administration of the funds is to be submitted to the European Parliament and the Council by 1 September (instead of 1 July as at present).

3.   General comments

3.1   The public must be able to accept and readily understand support

The EESC is aware that funding for the Common Agricultural Policy accounts for a significant share of the EU's total budget, albeit that share is, in relative terms, diminishing over time. The EESC feels that it is all the more essential that therefore the public should be able to readily understand and accept support for agriculture and rural development. In the view of the EESC, two conditions must be met for this to happen:

payments must reach final beneficiaries with as few deductions as possible; and

abuse should be prevented through effective monitoring.

3.2   Innovative approaches for simpler operations

The EESC acknowledges that the draft regulation contains a range of genuinely innovative approaches for better and simpler budgetary operations. The EESC believes that creating two funds with a clear division of tasks is the right way of achieving this objective. The regulation is a significant step forward in terms of simplification. Financing of the Common Agricultural Policy is regulated on a single legal basis, and the two monitoring systems currently operating are replaced by a single system. The various financial management systems for rural development measures are unified, but a second system remains for EAGF measures. The draft regulation on support for rural development replaces the five programming systems with a single system and reduces the number of programmes. The EESC endorses these simplifications, which will particularly benefit the Brussels administration.

3.3   Simplification must have a perceptible impact on beneficiaries

However, the EESC is of the view that simplification must have a perceptible impact at all levels, benefiting the EU, Member States and final beneficiaries. The EESC considers that it is particularly important for simplification of bureaucratic procedures to have an impact at the end of the administrative chain, for farmers. At present European farmers have to deal with a considerable amount of red tape, which is frequently accompanied by late payment of subsidies. SAPARD — the Special Accession Programme for Agriculture and Rural Development — was an extreme example of this, in a case that was also recently criticised by the European Court of Justice. However, there is only a very small risk of not being able to recover payments which have been mistakenly made to farmers. The EESC therefore feels that urgent steps should be taken to ensure that support for final beneficiaries is prompt and as straightforward as possible.

3.4   Red tape can be cut

Although the goal of simplification is being adequately achieved from the Commission's perspective, the same cannot be said for Member States. Some parts of the regulation even run counter to the objective of simplification, and increase the administrative burden. The EESC laments the fact that, because of differing procedures for payment and committing funds, paying agencies still have to run two separate financial management systems. In order to keep the effort involved to a minimum, it is essential that these two systems be as streamlined as possible. In view of this, further changes are needed, not least to the regulation on support for rural development. The requirement for extra documentation is an additional administrative burden for Member States.

3.5   More demands on Member States

In view of the longer period for charging expenditure, tighter deadlines and provisions for the recovery of funds by the Commission, the Commission's proposal would mean more shared financial responsibility for Member States. In principle, the EESC welcomes the fact that the rules on the recovery of funds, do not place liability for disbursed support on the EU alone, but also on the Member States. For funds to be used more efficiently and transparently, there must be scope for recovering funds which have been mistakenly paid out, even after a relatively long period. In view of objections by many Member States to greater shared responsibility, the EESC will be observing very closely whether these Member States lose interest in the programmes, at the expense of potential final beneficiaries. The tighter expiry deadline for payments is also intended to encourage more discipline on the part of Member States. While the EESC agrees that there should be limits to payments, it feels that the deadlines stipulated are excessively tight, and asks the Commission to reconsider them.

3.6   Indirect support should remain the exception

The EESC is concerned that increased technical support will divert resources from the actual purpose of the funds, which is to support agriculture and rural development. This kind of indirect support, i.e. support of institutions and structures which are responsible for providing actual support, should be kept within tight limits, and should only be permitted when strictly necessary. In this context, the EESC is particularly critical of Community support for administrative and monitoring capacity building in Member States, which is undeniably the responsibility of Member States themselves. The EESC suggests that this extension of technical support should only be offered in a few exceptional cases and for a limited period. The EESC feels that a report should be issued by the Commission in these cases, to ensure strict monitoring of such support.

4.   Specific comments

4.1   German names for the European Agricultural Fund for Rural Development (EAFRD)

In the German-language version of the regulation on support for rural development, the new European Agricultural Fund for Rural Development (EAFRD) — in German Europäischer Fonds für Landwirtschaft und Landentwicklung (EFLL) — is referred to as the Europäischer Landwirtschaftsfonds für die Entwicklung des ländlichen Raums (ELER). The EESC asks that the regulation texts should avoid any discrepancy and use the same name for the same fund.

4.2   Administrative burden

4.2.1   Extension of the certification procedure (Article 7)

An increased administrative burden would arise from the extension of the certification procedure to monitoring systems (Article 7). Currently, certification bodies examine the completeness, accuracy and veracity of the annual accounts submitted to the Commission, but under the proposed regulation they would have responsibility for ‘certification of the management, monitoring and control systems’. The EESC would like an explanation of why such certification is necessary. The aim should be for certification bodies to concentrate uniformly on certifying payments made by paying agencies.

4.2.2   Annual accounts (Article 8)

Annual accounts will have to be drawn up for payments from the new EAFRD but the system of financing (commitment of funds, prefinancing payments, intermediate payments, payments of balance) will be based on the total duration of the programme. The EESC is concerned that paying agencies will have to report expenditure both in annual accounts and in financial statements for programmes as a whole, which would result in increased effort. The annual accounts must be accepted in each case.

In addition, paying agencies will have to submit separate annual accounts for expenditure under individual EAFRD programmes. Certification bodies, which until now have submitted reports with annual accounts, will in turn have to prepare separate annual reports for these separate accounts. The EESC regrets that the Commission has not achieved more simplification, but feels that the effort involved is acceptable.

4.2.3   Additional documentation (Article 8)

In addition to the annual accounts, a statement of assurance will have to be submitted by the person in charge of the paying agency. The EESC does not feel that this is necessary. The arrangements for paying agencies and certification bodies already provide for monitoring procedures. In the view of the EESC it would also suffice for the person in charge of the paying agency to confirm the veracity of information.

4.3   Financing

4.3.1   Additional financing of technical assistance (Article 5)

Financing of technical assistance is to be extended to analysis, management, monitoring and implementation of the Common Agricultural Policy, as well as to measures for the development of control systems and technical and administrative assistance. The proposal also introduces financing of executive agencies set up in accordance with Council Regulation (EC) No. 58/2003 and financing of measures promoting cooperation and exchanging experience at Community level, undertaken in the context of rural development, including networking of the parties concerned. This expenditure is to be administered in a centralised manner. The EESC is extremely critical of proposals for Community support of the administrative functions of Member States.

However, it is appropriate that the Commission should be responsible for the promotion of networking.

4.3.2   Recovery of payments (Articles 32, 33, 35)

In the case of non-recovery, the proposal envisages that a greater share of the financial consequences should be borne by Member States. The Commission would be able to charge the sums to be recovered to the Member State, if the Member State had not initiated all the appropriate administrative or judicial procedures for recovery purposes (for the EAGF: within one year of the primary administrative or judicial finding). At present, this is not possible. If recovery has not taken place within four years, or within six years where recovery action has been taken in the national courts, 50 % of the financial consequences of non-recovery would be borne by the Member State concerned. At present, all of the financial consequences are borne by the Community budget. The EESC broadly welcomes the fact that responsibility for payments will not be borne by the Commission alone but will be shared with Member States. This could induce Member States to exercise greater care in devising their support and monitoring structures. A greater share in financial responsibility must not be allowed to put Member States off participation in programmes. Given that procedures can last for over four or six years, the EESC proposes reconsidering timeframes and percentage rates for Member State involvement.

4.3.3   Limiting prefinancing payments to 7 % (Article 25)

Article 25 sets the prefinancing amount, paid by the Commission after adoption of a rural development programme to the paying agency designated by the Member State, at 7 % of the EAFRD contribution. In the view of the EESC, this is an acceptable limit, as similar restrictions already apply, and as it would not have any adverse consequences for the liquidity of paying agencies.

4.4   Expiry of payments (Article 16)

Article 16 sets 15 October of the relevant budget year as a cut-off date for late payments by Member States. However, sometimes back payments have to be made (e.g. court judgements). In particular, administrative authorities will need more time to adjust to the new system of (decoupled) production subsidies. The EESC therefore feels that 15 October is not an appropriate cut-off date.

4.5   Period for refusing financing (Article 31)

Article 31 (conformity clearance) allows the Commission to refuse financing under certain circumstances (infringement of Community rules, failure to reach agreement with the relevant Member State). This does not apply to expenditure incurred more than thirty six months before the Commission notified the Member State in writing of its inspection findings. At present, the limitation period is 24 months. This change further helps the Commission to avoid payments that do not conform to Community law. However, the EESC feels that a certain degree of time pressure for checking such conformity — as exists under the current rules — is useful. In addition, prompt intervention by the EU serves a preventive purpose and maintains discipline among Member States.

4.6   Reduction of payments by the Commission (Article 17)

Article 17 gives the Commission the option of reducing or suspending monthly payments. In addition to recovering or refusing payments in the context of clearing accounts, the Commission would also have the option of cutting payments at short notice in the event of clearly improper use of Community funds. The EESC is in favour of laying down a legal basis for such an approach, which is already current practice.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


8.9.2005   

EN

Official Journal of the European Union

C 221/44


Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation amending Regulations (EEC) No 2759/75, (EEC) No 2771/75, (EEC) No 2777/75, (EC) No 1254/1999, (EC) No 1255/1999 and (EC) No 2529/2001 as regards exceptional market support measures

(COM(2004) 712 final — 2004/0254 (CNS))

(2005/C 221/10)

On 3 December 2004 the Council decided to consult the European Economic and Social Committee, under Article 37 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 13 January 2005. The rapporteur was Mr Leif E. Nielsen.

At its 414th plenary session held on 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion by 135 votes with 6 abstentions:

1.   Background

1.1

The outbreak of such serious infectious diseases as Bovine Spongiform Encephalopathy (BSE), Foot and Mouth Disease (FMD), Classical Swine Fever (CSF) and Newcastle Disease (ND) among domestic livestock has resulted in repeated crises on the markets for animal products in the EU. When there is an outbreak of such epizootic diseases, among the measures taken are the slaughtering of animals and restrictions on trade, with the aim of preventing the outbreak from spreading further. As a general rule the costs involved in eradicating epizootic diseases are financed by the Veterinary Fund, with 50 % of the funds coming from the Member States.

1.2

In addition, there is a strain on the markets in the products concerned, not least as a result of sales bans and restricted areas being introduced. The rules for the markets in pigmeat, eggs, poultrymeat, beef and veal, milk and milk products, and sheepmeat and goatmeat therefore include facilities for introducing measures to support the market in such situations. Before such exceptional measures are applied, it is a precondition that the Member States concerned have introduced the veterinary measures necessary to stamp out epizootic diseases. Moreover, measures to relieve the market situation are only introduced for the time that support for the market concerned is strictly necessary.

1.3

The exceptional measures concerned, which are taken by the Commission using the management committee procedure, were originally implemented with full Community financing, as was the case for CSF at the end of the 1980s and the beginning of the 1990s. In 1992, national co-financing was used for the first time in connection with CSF. Because it was not clear what the rate should be, in 1994 the Commission introduced provisions that clearly specified a figure of 70 % financing by the Community for a maximum number of animals. Later on, the same rate was applied in the beef and veal sector when combating BSE and FMD. Since 2001, the national co-financing rate has been 50 % since the requirement from the European Court of Auditors that there should be parallelism between co-financing under the Veterinary Fund and the co-financing of market measures.

1.4

Following a request from Germany, the Court of Justice ruled in 2003 that Commission had no authority to set a national co-financing rate of 30 % in a case involving the rules on the buying-up of beef in connection with BSE (1). The Commission therefore has no authority to continue the practice hitherto and so it is proposed that in future a national co-financing rate of 50 % should be specified in the market organisations for pigmeat, eggs, poultrymeat, beef and veal, milk and for sheepmeat and goatmeat regarding both internal market measures and sales on non-EU markets.

2.   General comments

2.1

It is regrettable that since 1992 the Commission and the Member States have not respected the hitherto applicable general principle of full Community financing for measures forming part of the so-called ‘first pillar’ of the Common Agricultural Policy, including measures implemented within the framework of the common market organisations. It is in the nature of things that by adopting the current proposal the Council may deviate from this principle, which it adopted itself. But because of the ruling of the Court of Justice in this matter, the Commission cannot deviate from Council decisions without express authorisation, even if it does so with the co-operation of the Member States in the relevant management committees.

2.2

Depending on the extent and duration of epizootic diseases, the measures taken may result in considerable costs being incurred, which to a very large extent must be covered by public funds. The question of allocating costs between the EU and the Member States is closely linked with that of financial solidarity between the Member States. In cases of national co-financing some Member States might be more willing and able to cover such expenditure than others. Some Member States might pass the costs on directly or indirectly to businesses, which, as became clear during the BSE crisis, may lead to considerable distortions of competition.

2.3

According to the Commission the Member States will make a bigger effort to combat and prevent livestock diseases, if there is national co-financing. Although the EESC can understand this argument, it cannot be ruled out that sometimes demand will delay decisions or make their adoption more difficult, thus hindering the implementation of effective counter-measures.

2.4

The EESC can also understand the Commission's argument that the proposal will imply a continuation of the practice that has been followed since 1992 and ensure parallelism between veterinary fund and market organisation measures.

2.5

However, the EESC feels that expenditure on exceptional measures in connection with the market organisations as originally laid down by the Council is based on joint responsibility and financial solidarity. In the EESC's view, any violation of this principle would create a risk of the Member States adopting different approaches to the fight against epizootic diseases, which, despite effective monitoring and preventive measures, can break out by chance and without warning. The consequences for the market would also affect other Member States. Moreover, there is a risk that national co-financing here will have a knock-on effect on other areas, bringing with it the danger of further re-nationalisation of the Common Agricultural Policy.

2.6

If, despite this, there is still support for the Commission proposal, it would be administratively burdensome — and essentially unjustified — if the financial contribution under this rule was dealt with under the Treaty's provisions regarding state aids. The Commission's proposal for exemption from the notification procedure should therefore have applied from the outset.

3.   Conclusion

3.1

The EESC wishes to maintain the principle of full Community solidarity for exceptional measures under the rules applying to market organisations, and therefore rejects the Commission's proposal for 50 % co-financing by the Member States.

Brussels, 9 February 2005.

The president

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Judgment of 30.9.2003 in case C-239/01, Collection of Decisions 2003 p. I-10333


8.9.2005   

EN

Official Journal of the European Union

C 221/46


Opinion of the European Economic and Social Committee on Beijing +10: Review of progress achieved in the field of gender equality in Europe and in developing countries

(2005/C 221/11)

At its plenary session of 16 December 2004, the European Economic and Social Committee decided, under Rule 29(2) of its Rules of Procedure, to draw up an own-initiative opinion on Beijing +10: Review of progress achieved in the field of gender equality in Europe and in developing countries.

The Section for External Relations, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 12 January 2005. The rapporteur was Ms Florio.

At its 414th plenary session held on 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion by 135 votes to 1, with 6 abstentions:

1.   Introduction

1.1

The 49th Session of the United Nations Commission on the Status of Women (CSW), to be held from 28 February to 11 March 2005, will be concerned with reviewing the application of the Platform for Action and the Beijing Declaration, which were approved at the 4th World Conference on Women (Beijing, 1995), and of the outcome documents approved at the 23rd Special Session of the General Assembly entitled ‘Women 2000: gender equality, development and peace for the twenty-first century’ (New York, 2000), which initiated a preliminary evaluation of progress made and obstacles faced in efforts to achieve gender equality.

1.2

At the 23rd Special Session, the General Assembly adopted a resolution of ‘Further actions and initiatives to implement the Beijing Declaration and the Platform for Action’ and a political declaration in which the Member States agreed to meet again 10 years after adoption of the platform to assess progress and consider new initiatives.

1.3

As provided for in the CSW multiannual programme, the work of the 49th Session will focus on progress made in the 12 areas defined in the Platform for Action and on identifying current challenges and new strategies for furthering the empowerment of women and children. In order to promote dialogue on this occasion the Assembly will allow broader participation of delegations from the Member States, civil society and international organisations.

1.4

The commitment of the United Nations has been crucial in putting the problem of gender equality on the international agenda. The First World Conference on Women was held in 1975, when the Decade for Women was declared (Mexico City). At the Second Conference (‘Mid-point of the Decade’, held in Copenhagen in 1980), governments (57 initially) began signing the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW, 1979), which is one of the milestones on the long road towards gender equality. The Third Conference (Nairobi, 1985) approved the Plan of Action ‘Forward-looking Strategies for the Advancement of Women’, in which governments and international organisations proclaimed the objective of gender equality.

1.5

A further step in the process of recognising women's issues and the role of women was UN Security Council Resolution 1325 (2000) on Women, Peace and Security (which recognised that war has a different impact on women and reaffirmed the need to strengthen women's role in decision-making processes relating to conflict prevention and resolution). More generally speaking, the advancement of women has been taken into account for more than ten years in the conclusions of all the major conferences and international meetings sponsored by the United Nations. (1)

1.6

Another important point was the United Nations Millennium Summit, held in September 2000, in which the Member States fixed eight clear and measurable objectives (Millennium Development Goals) to significantly reduce poverty, hunger, disease and environmental degradation by 2015. The Millennium Declaration was also a result of the need to draw up a coherent list of priorities from those identified over the past ten years at the various conferences and summits held at international level. One third of the objectives have to do with promoting gender equality and empowerment of women, and are closely linked to education and training; one fifth concern reproductive health. However, gender issues cut across all eight goals.

2.   General comments

2.1

Although the United Nations system has established an important legal framework for achieving gender equality, the practical application of principles within countries, and their trade and development policies, sometimes fall short of intentions on paper. Full achievement of civil, economic, social and political rights for women is in practice often threatened by macroeconomic policies and trade agreements based on neoliberalist principles that do not take any account of gender issues.

2.2

Furthermore, the complex international situation is certainly not a favourable environment for improving the situation of women, and there is a risk that gains made over previous years will be steadily eroded.

2.3

Current conflicts are further weakening and exacerbating the status of women.

2.4

Domestic violence is still a reality throughout the world and affects women of all ages, social classes and religions.

2.5

It is therefore important to reaffirm gender equality and the defence of women's rights as a priority objective and means of achieving equitable development, better wealth redistribution, sustainable economic growth and strengthening of systems to protect the weaker sectors of the population.

3.   Role of the Economic and Social Committee

3.1

It is important for the Economic and Social Committee to be involved, by drawing up a document of its own, in assessing the progress made by the European Union in relation to gender equality.

3.2

It should be noted here that the Committee has always taken a keen interest in activities aimed at improving women's status, both through its many opinions and by promoting various initiatives itself. With specific reference to the Fourth Conference on Women (Beijing, 1995) and its follow-up (Beijing +5) in particular, the Committee contributed two opinions (EXT/131 and REX/033), in which it highlighted, for example, the importance of a Committee delegation attending United Nations meetings.

3.3

In addition, in the context of cooperation with the European institutions — notably the Council, the European Parliament and the Commission — the Committee has taken on an important role in monitoring the numerous European Union initiatives to ensure gender equality, which represent an attempt over the past few years to meet the challenges and overcome the obstacles identified at Beijing.

3.4

In this sense we believe that — by reviewing progress made and obstacles encountered since the Fourth Conference — the Committee could make a valuable contribution to ensuring that women's issues are systematically taken into account in an ever larger number of spheres of European policy and society.

3.5

Moreover, given that the European Union will have to take on a leading role at international level, with the heavy responsibilities this implies, we intend in this opinion to set out possible EU contributions to improving the living conditions and advancement of women throughout the world on the basis of its cooperation and trade and development policies.

4.   The European Union

4.1

The issue of gender equality in the European Union, already present in the Treaty, was further codified with the Amsterdam Treaty, in which a ‘two-pronged approach’ was adopted that combined gender mainstreaming in all Community policies with the introduction of specific measures to improve the position of women. However, the question of equal opportunities for men and women had already been incorporated into the Community's economic and social cohesion policy and was a key objective of the Structural Funds as far back as 1994.

4.2

The EU has adopted an integrated approach, distinguishing between legislative and financial instruments and using the open method of coordination in social policies. The most recently adopted instruments for achieving gender equality within the EU include the Framework Strategy on Gender Equality (2001-2005), together with the annual gender equality work programmes and the Structural Funds.

4.3

The Framework Strategy on Gender Equality (2001-2005) is designed to coordinate activities and programmes that were first developed on a sectoral basis, reflecting the two-pronged approach of Amsterdam, in order to improve coherence, e.g. by developing reliable indicators and a system for monitoring, evaluating and publicising the results achieved.

4.4

The strategy identifies five broad areas of action/objectives, which are interlinked, for promoting gender equality: the economy (linked to the employment strategy and the Structural Funds, as well as the application of mainstreaming in all policy areas that have an impact on the position of women in the economy); participation and representation (linked to decision-making processes); social rights (linked to living conditions and disparities inherent in social protection systems); civil life (linked to basic human rights and freedoms, with particular emphasis on violence and sexual trafficking); changes in roles and stereotypes (linked to culture and the mass media).

4.5

Gender equality policies have also been stepped up using the Structural Funds. Provisions for the period 2000-2006 are based on a careful and critical analysis of measures to promote equal opportunities and of their weaknesses, and they incorporate the two-pronged approach laid down in the Amsterdam Treaty. In addition, the Structural Funds, and in particular the European Social Fund, have always been regarded as the main instrument of the European Employment Strategy. Under the new Employment Guidelines, adopted in July 2003, gender equality is a horizontal issue spanning all the objectives, and is also the subject of a specific guideline.

4.6

Considerable progress has been made within the European Social Fund, in relation mainly to employment and training policies. Efforts in this area have focused above all on improving women's access to, and their participation and position in, the labour market (Axis E) and on ways of reconciling work and family life. There is already an encouraging track record of successes in this sphere. Thus the ESF has taken on board the quantitative objectives set by the European Council in Lisbon (2000), namely that female employment should increase from 51 % (2000) to 60 % by 2010, and by the Barcelona Council (2002), according to which pre-school education should be available to 90 % of children between the age of three and the mandatory school age and to at least 33 % of children under the age of three.

4.7

However, measures to improve the quality of work and career prospects, encourage women entrepreneurs, narrow the wage gap and promote women's position in the new technology sector are only patchy. As regards the work/life balance some projects exist to improve childcare structures, but very few explicitly in relation to caring for elderly people or family dependants.

4.8

The gender dimension is still very modest in the other funds, especially those relating to agriculture and fisheries, sectors in which women are traditionally underrepresented, even though they play an active role in those sectors' development. Thus there remain profound inequalities in such areas and women's contribution to society is still undervalued, including in relation to improving environmental protection.

4.9

EU policies are backed up by various specific funding programmes and initiatives e.g. NOW (employment) for the labour market, STOP to promote cooperation to combat trafficking in women and children, DAPHNE to improve information and protection for victims of violence, and Women and Science (Research and Development Framework Programme) in the new technologies sector. The Framework Strategy is also intended to strengthen gender mainstreaming in various Community initiatives, such as Equal, Interreg, Urban, Leader as well as Leonardo, Socrates, Youth and Culture in the culture sector.

4.10

The Commission's report on equality between men and women (COM(2004) 115) notes that a fairly sophisticated EU legislative framework already exists in this area (2), backed by extensive case law. A proposal is also being drawn up for a single directive on implementing the principle of equal treatment between women and men in the access to and supply of goods and services, which should consolidate and standardise the relevant existing legislation.

4.11

At their recent meeting during the Dutch presidency, the European Ministers for Employment and Social Affairs concurred, noting with respect to drawing up the single directive on equal treatment that the areas in which action was required above all were wage parity, equal access to jobs, equal treatment under social protection systems, training and career possibilities, and burden of proof in cases of gender discrimination.

4.12

The proposal for a Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services (2003/0265 (CNS)) has also been examined by the EESC (3), which has identified certain major shortcomings that must be rectified without delay.

4.13

In addition, following adoption of the Beijing Platform for Action and in the wake of the Lisbon Council, more statistics on gender have been produced in the last few years, partly owing to the introduction of new indicators (e.g. on decision-making processes, the labour market or domestic violence) that allow problems to be effectively analysed and the impact of policies and measures to be monitored. Thus progress is already evident in relation to statistics even though much remains to be done if there is to be serious monitoring of the various spheres. The exact extent of progress made can only be ascertained if it is possible to examine and analyse quantitatively and qualitatively the phenomena and processes taking place.

4.14

On the other hand, gender budgets — i.e. application of gender mainstreaming to the budget procedure — are still virtually unknown at European level and in the Member States. Introducing the gender dimension at every level of budget planning is an acknowledgement that administrators' decisions are not neutral but have different impacts on men and women; in this sense gender budgeting is also an instrument for evaluating the impact of policies, funding and taxation on men and women.

4.15

Unfortunately, although Community policies to support women have been stepped up, there is still a need for positive action and a supreme effort by the Member States to ensure that objectives are actually achieved, as they hold the chief responsibility for implementing these policies.

4.16

Although the female unemployment rate has fallen to 55.6 % in Europe, the goal set by the Lisbon Council still seems distant in several countries. Women have swelled the ranks of the weakest category of workers, those in precarious employment, who often have no system of social protection. In many countries, wage discrimination between men and women persists or is worsening, and both vertical and horizontal segregation is still a lamentable reality. As already noted, even in relation to the work/life balance, measures appear to be focused exclusively on childcare; virtually nothing is being done to support care for other family members, and only a few countries have introduced measures to encourage parental leave for working fathers.

4.17

Considerable disparities also exist with regard to decision-making. Just consider that at EU level, the college of Commissioners of the European Commission comprises 22 men and seven women (only 24 % of the total), while Parliament has 510 men and 222 women (only 30 % of the total). Nor is the situation improving at national level: the average percentage of women in national parliaments is not even 25 %, whereas in governments it barely exceeds 20 %. (4) Women are also underrepresented in the EESC: of a total of 317 members only 79 (25 %) are women.

5.   The European Union and third countries: international cooperation and trade for the advancement of women

5.1

The problem of equal opportunities for men and women has now also been fully taken into account in European Union cooperation and development policies: Commission Communication COM(95) 423 (18 September 1995), followed by the Council Resolution on integrating gender issues in development cooperation (20 December 1995) formed the basis for adopting an initial regulation in 1998 (Council Regulation (EC) No. 2836/98 of 22 December 1998), which has now been renewed for the period 2004-2006. The new text (No. 806/2004) strengthens the objectives — support for mainstreaming and adoption of specific measures to promote equal opportunities as an essential contribution to reducing world poverty — and identifies as priorities the monitoring of resources and services for women, especially with respect to education, employment and participation in decision-making processes. Support for public and private measures to promote gender equality is also emphasised.

5.2

The Programme of Action for the mainstreaming of gender equality in Community Development Cooperation (2001-2006) (5) is intended to help bridge the gap between stated principles and practice on the basis of a concrete strategy and definition of priority areas: support for macro-economic policies to reduce poverty and social development programmes in health and education; food safety and sustainable rural development; transport; institutional capacity building and good governance; trade and development, cooperation and regional integration; support for gender mainstreaming in all projects and programmes, both at regional and national level; and provision of instruments and appropriate training in gender equality issues for European Commission staff.

5.3

The Programming Document for 2005 and 2006 Promoting gender equality in development cooperation identifies the following priority areas for action: promoting positive attitudes and behaviour among adolescents to combat violence against girls and women; and the need for training and methodological support for key stakeholders in partner countries.

5.4

The European Commission supports action and projects to improve gender equality through bilateral and regional cooperation with the western Balkans, eastern Europe and Central Asia, the Mediterranean, Africa, the Caribbean and the countries of the Pacific and Latin America. Other financial support is allocated on a thematic, rather than geographical, basis.

5.5

The Cotonou Agreement, signed on 23 June 2000 with the ACP (African-Caribbean-Pacific) countries, also marks an important point in the development of EU relations with third countries. This agreement — which demonstrates the link existing between politics, trade and development — introduces a social dimension, including by promoting full participation of non-government stakeholders, including civil society, in development strategies. Gender equality is also established as one of the cross-cutting issues of the agreement, and must therefore be systematically taken into account (Articles 8 and 31). A very positive development is that non-government stakeholders will now participate in the different phases of programming national strategic documents and we hope that particular attention will be paid here to including women's organisations.

The agreement also gives the Committee an explicit mandate to advise economic and social interest groups, thus formalising its role of preferred interlocutor.

5.6

Achieving full inclusion and active involvement of women in development policies will certainly be a difficult and long-drawn-out process, but we believe it is important that all the European institutions maintain a high level of interest so that what has been set out on paper is translated into concrete measures.

5.7

From this perspective we think it is important for Community economic and social cohesion policies to be put forward as a model that can be exported to the rest of the world and for the EU to promote and apply the principles of social cohesion at international level through its relations with third countries.

5.8

One useful approach could certainly be to include specific clauses in trade and cooperation agreements, or even to adopt positive actions for those countries that respect women's rights.

5.9

Although trade liberalisation has certainly boosted female employment in developing countries, it is also often consigned women to the category of workers in precarious employment, less-skilled, less well-paid and without any system of social protection. In addition, trade liberalisation is often accompanied by structural reforms proposed or imposed by international organisations, which in the absence of adequate social protection mechanisms place a particularly heavy burden on the weaker sectors of the population — where women are often in the majority.

5.10

These policies, especially trade policy, nevertheless still seem to take little account of gender questions. Given that they are by no means neutral and that, on the contrary, they often have a negative impact on women in particular, and that the economic development of a country cannot neglect the issue of social equality, it would be useful if (1) such policies were negotiated taking gender mainstreaming into consideration, and (2) systems were introduced for monitoring their effects at macro- and micro-economic level.

6.   Conclusions and work proposals

The effective cooperation now built-up by the European institutions has yielded significant results in terms of framing active policies to help women and of specific programmes and projects that have promoted women's participation in the labour market, defence of their rights and improvement of their living conditions. The EESC notes that there remain many areas where action should be taken:

The participation of women in decision-making processes and their representation is still too low, both in the European institutions and in the majority of Member States at national, regional and local level; it should be encouraged in all instances, and a quota system should also be considered.

Training measures to promote gender mainstreaming should be introduced both in the institutions and in the Member States, at all levels from decision-making to policy and strategy implementation.

Targeted studies and gender assessments, statistics, and specific indicators are essential for identifying issues, improving intervention strategies and policies, and for effectively evaluating their impact; it is necessary to continue producing de-aggregated data and defining new indicators.

Resources earmarked for positive action in favour of women in all EU funds and financing instruments, and in the Member States, should be carefully quantified, above all by encouraging and promoting gender budgeting.

The most important basic condition is, however, to ensure equal rights of access to education and training for women, as called for in Goal 3 of the Millennium Development Goals.

With regard to the Structural Funds, measures to help women in the agricultural (EAGGF) and fisheries (FIFG) sectors should be stepped up and linked to environmental protection, another area in which Community gender-linked policies are rather weak.

New impetus should be given to policies to encourage female entrepreneurship and increase the presence of women in the new technologies sector.

Training activities in the knowledge-based society sector should be stepped up in order to ensure that this does not become a further area of discrimination and exclusion for women, who in fact have much to contribute towards achieving the Lisbon Strategy objectives.

More generally, further measures are needed in the labour market to combat vertical and horizontal segregation and to remove all obstacles preventing the achievement of true equality; Member States must identify specific, quantifiable targets and objectives with the agreement of the social partners. In relation to wage discrimination in particular, the Member States must start applying a multi-faceted approach, as provided for in the Council guidelines for the employment policies of the Member States (6), which includes education and training, job classifications and pay systems and cultural stereotypes as basic dimensions of the problem.

In measures designed to reconcile work and family life more attention must be paid to providing care for elderly relatives, partly in view of the ageing of the population, without diminishing childcare provision.

In order to promote equal opportunities between men and women, investment in public services should be encouraged and improved, especially in school and university education, healthcare and welfare services.

Immigration and asylum policies and policies to promote the integration of migrant women, as well as measures to help women who have been victims of conflict, discrimination and violence in their country of origin, should be stepped up, also within the Member States.

Efforts should be made to combat the trafficking of women and children.

As far as trade and development policies are concerned, it is necessary to build on the policy of involving society in general and the role of women in particular; women's interest groups must be fully involved in framing development policies and drawing up national strategy documents in the countries concerned; it is also particularly important to increase specific funding for women, so as to boost their economic and social position.

The effects of trade agreements and development policies must be monitored, including at microeconomic level, by providing for specific analyses of their impact on the living conditions of the weakest social sectors, and taking gender differences into account.

The role of the Commission and its delegations must be enhanced so that they can be influential in ensuring respect for human rights and thus also respect for women when their rights have been violated.

Delegations should be given a specific responsibility for promoting mainstreaming of gender issues.

The European Union should bring all its influence to bear in persuading as many countries as possible to ratify and implement international treaties that have a positive impact on the status of women, especially the International Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol, and in ensuring that the reservations lodged by signatory countries are withdrawn.

The Committee intends to look more closely into the state of women's rights in the EU's new Member States.

In view of the Committee's role, its brief in relation to civil society, its objectives and the experience gained through ongoing monitoring of issues relevant to gender equality, it would also be useful for it to be represented on the European Commission delegation at the 49th Session of the United Nations Commission on the Status of Women.

Brussels, 9 February 2005.

The president

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Conference on Environment and Development (Rio de Janeiro, 1992), World Conference on Human Rights (Vienna, 1993), Special Session of the UN General Assembly on HIV/AIDS (New York, 2001), International Conference on Population and Development (Cairo, 1994), World Summit for Social Development (Copenhagen, 1995), World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 2001), International Conference on Financing for Development (Monterrey, 2002), Second World Assembly on Ageing (Madrid, 2002) and the World Summit on Sustainable Development (Johannesburg, 2002), World Summit on the Information Society (Geneva, 2003 and Tunisia, 2005).

(2)  Directives on equal treatment for men and women with regards to: equal pay (75/117/EEC); access to employment, vocational training and promotion, and working conditions (Council Directive 2002/73/EC amending Directive 76/2007/EEC); social security (79/7/EEC); legal and occupational social security schemes (86/378/EEC), and self-employed workers (86/613/EEC); as well as the Directives on the health and safety at work of pregnant workers and workers who are breastfeeding (92/85/EEC), the organisation of working time (93/104/EC), parental leave (96/34/EC), the burden of proof in cases of discrimination based on sex (97/80/EC), and part-time work (97/81/EC).

(3)  See Opinion …

(4)  European Commission data, Employment and Social Affairs DG, data as at 29/9/2004

(5)  COM(2001) 295 final

(6)  Council Decision of 22 July 2003 on Guidelines for the employment policies of the Member States (OJ L 197/13)


8.9.2005   

EN

Official Journal of the European Union

C 221/52


Opinion of the European Economic and Social Committee on the Green Paper — Defence procurement

(COM(2004) 608 final)

(2005/C 221/12)

On 23 September 2004 the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the Green paper — Defence procurement.

The European Economic and Social Committee instructed its Section for the Single Market, Production and Consumption to prepare its work on this subject.

In view of the urgent nature of the work, the EESC appointed Mr Wilkinson as rapporteur-general at its 414th plenary session (meeting of 9 February 2005). At this same meeting the EESC adopted the following opinion, by 96 votes with 9 abstentions:

1.   Introduction

1.1

The Green Paper on Defence Procurement (COM(2004) 608 final) is one of the measures foreseen in the Communication ‘Towards a European Union defence equipment policy’ which was adopted in March 2003, and on which the Committee commented in September 2003 (1).

1.2

‘European Defence Equipment Market (EDEM)’, is in reality only a part of the internal market covering a specific sector. The Green Paper seeks to contribute towards the creation over time of an internal market for EU defence equipment that is more open and transparent, while respecting the specific nature of the sector. This should lead to a stronger and more competitive defence industry, increased cost effectiveness and support for the development of the military capabilities of the EU in the European Security and Defence Policy (ESDP) field, within the context of the Common Security and Foreign Policy (CSFP).

1.3

On 12 July 2004 the Council agreed the establishment of the European Defence Agency (EDA) which is designed ‘to support the Member States (MS) in their effort to improve European defence capabilities in the field of crisis management and to sustain ESDP as it stands now and develops in the future’. This Agency has now started work. The EDA's functions (2) all relate to improving Europe's defence performance by promoting coherence in place of the current fragmentation.

1.4

‘Defence performance’ involves ensuring the availability of the capabilities needed to match the tasks envisaged, and the doctrine to undertake these tasks, in a cost effective way. This will include ensuring the maximum possible interoperability. At present the 25 MS together spend about €160 billion each year on defence, with about 20 % of this used in the equipment procurement process (including research and development, acquisition and support) (3).

2.   General comments

2.1

The matters covered in this Green Paper relate to the way in which improvements may be made to the system of defence equipment procurement in the 25 Member States (MS). Significant progress will only be possible when the other elements of ‘defence performance’ (see paragraph 1.4 above) are clear (4). Of particular concern to industry is the need for very clear guidance, harmonised requirements and continuity. Nonetheless the initiative is welcomed by the Committee as it can be treated as a discrete part of the process of starting to establish a more viable ESDP in a transparent and competitive market.

2.2

The leading role foreseen by the EDA is welcomed. There will be a need for clear agreement on the respective roles of EDA and others at present involved in the defence equipment field (5) and EESC would expect a reduction in their separate roles as progress allows. However, the lessons learnt from the experience of OCCAR (6) (which handles actual project management, including the key question of contract law) should be studied before changes are made.

2.3

We welcome the recognition that the starting points (and the procedures used) for each MS in the defence procurement process are very different and that changes are likely to be made at different speeds. We agree that it will be helpful to establish a more common basis for defence procurement and that this can be done relatively quickly given the agreement and the cooperation of all MS.

2.4

EESC agrees that there is a need to reduce fragmentation of the defence equipment market and to increase its competitiveness and transparency as prerequisites for maintaining and strengthening a viable EU defence industry and for contributing to more cost effectiveness in procuring and managing appropriate defence capabilities.

2.5

The analysis of the specific features of defence equipment markets given in paragraph 2 of the Green Paper is a good basis for consideration of the market and indicates some of the difficulties faced.

2.6

However, EESC would stress that any restructuring of defence industries must primarily be a matter for the industries concerned, taking account of market realities (7). A good reason for this is that most significant companies are trans national, even though their customers are national. Moreover, MS have different industrial strategies, of which the defence industries are only a part.

2.7

Industry (in the defence sector as elsewhere) has to avoid too many regulatory procedures if it is to function efficiently and to provide cost effective and economical results.

3.   Specific comments

3.1

It is necessary to clarify exactly what parts of the defence equipment procurement process are expected to be covered by the rules agreed. As well as the acquisition of such equipment there will be research and development, maintenance, repair, modification and training aspects, which are included in the cost of ‘ownership’, to consider; these are normally far more costly over time than the acquisition.

3.2   Article 296

3.2.1

EESC agrees that exemptions to the EU rules on public procurement granted by virtue of Article 296 of the EU Treaty will continue to be needed to allow MS to derogate on the grounds of protecting their essential security interests.

3.2.2

The Commission should give an indication of the value of the equipments for which this derogation has been used over a period of, 5 years (and show it as a percentage of the total amount spent on defence equipment in the EU). They would then have a benchmark to help in measuring progress.

3.2.3

The problem is that the use of such derogation has, for some MS, become almost the rule rather than the exception and this is clearly not compatible with the single market. EESC supports the Commission's view that this should change. The challenge will be to use Article 296 in conformity with decisions in past cases (8) while retaining its possibility as a derogation from standard rules for public procurement. MS must be prepared to justify (legally if need be) derogations that they do make. The benefits of greater competition and greater transparency should be stressed in the discussion.

3.2.4

The list of products produced in 1958 under Article 296.2 which suggests the scope of Article 296.1 is not working and is likely to remain of no real value as a useful way of ensuring the proper use of the security derogation. Each case must continue to be treated on its merits since even basic equipment (9) will fall within the scope for derogations in some cases. Further, lists are not likely to keep pace with new developments.

3.2.5

There is thus no easy solution to defining which equipments and which services related to them could be covered under Article 296. As a first step there is a need to clarify the EU's existing legal framework through an ‘interpretative communication’ to improve understanding and to facilitate better and more consistent application.

3.2.6

As well as procurement any such communication will have implications for several other aspects; State aid and (possibly) services of general interest are among these and need to be taken into consideration.

3.2.7

We believe that the ‘negociated procedure’ with prior notification should be suitable for the specific needs of defence equipment where the ‘open’ and the ‘restricted’ methods are not suitable. However, this view may need to be reconsidered after experience has been gained of working with the ‘interpretative communication’.

3.2.8

There is a view that a communication can only be an interim measure until a specific directive (or other specific legal instrument) has been drawn up. EESC's view is that after such an ‘interpretative communication’ has been produced and agreed the need for a legislative instrument can be considered in the light of its effect. We would welcome early action to produce the communication.

3.2.9

There is a further possibility, not mentioned in the Green Paper, of establishing a ‘code of conduct’ to be used by participating MS as another means of establishing an EDEM. Since the area is one within the responsibility of MS this could be considered, presumably using EDA as a facilitator. It might be difficult to monitor and enforce such a code and the Internal market aspects would still need to be included.

3.3   Publication of calls for tender

3.3.1

The need to consider further the system and format for calls for tender is not convincing. If defence equipment is to be treated as just another part of the internal market in principle (although it has greater possibilities for derogations) it will presumably be dealt with in the same way as other tenders. This will entail different systems and problems, such as language, that are found elsewhere. The grounds for a centralised publication system are weak.

3.3.2

The potential problem areas are confidentiality and offset, which are more likely to arise for defence equipment than for other equipments and services, and security of supply, where it will be hard to change suppliers or contractors once a contract has been let. These are all areas where the MS concerned should be responsible, although some general guidance from the Commission may be helpful.

3.4   Dual use

3.4.1

It is often difficult in today's industry to classify companies as being ‘defence equipment manufacturers’. Much equipment is now ‘dual use’ and the percentage is increasing. This is welcome from several points of view; for example, economies of scale can lead to more competitive pricing and security of supply can be easier to guarantee.

3.4.2

Also the efforts put into RTD for such equipment has a value to other (civil) purposes. It is therefore important that resources put into defence RTD is not subject to a regime that is too inflexible.

3.4.3

We remain concerned that there is much to be done to maximise the value of the coordination and focus that are needed in the defence equipment area, as we pointed out in our earlier paper on defence equipment (10).

3.5   European Defence Agency (EDA)

3.5.1

We welcome the establishment of the EDA and recognise that it can play a leading role in the field of defence equipment. We note that it is still building up the resources required to fulfil its agreed roles.

3.5.2

It will be important for EDA to ensure that EU doctrine and capabilities take NATO's role, doctrine and capabilities fully into account by maximising interoperability and by minimising any differences. It is not yet clear how EDA could add value by becoming directly involved in procurement but its expertise in the field of defence equipment should leave it in a good position to suggest how national rules can be better harmonised.

3.5.3

It will also be valuable in getting agreement to the financial aspects of equipment cooperation where necessary. A significant area of potential difficulty is sharing the costs and benefits of RTD in defence related areas and in separating the defence and the general aspects in so doing.

3.5.4

EDA should also be helpful in moving towards the approximation of national licencing systems when defence equipments are transferred between Member States. At present the national procedures are both varied and burdensome. It could also help in getting agreement to the way in which offset arrangements are handled since these will remain a feature of procurement in the future.

3.5.5

EDA may find it possible to get some agreement on national industrial policies as far as defence equipment is concerned and to define the elements that constitute ‘strategic equipment’ whose provision the EU would wish to be capable of providing to reduce dependence on third countries; this would be most valuable.

3.5.6

EDA may also be able to encourage MS to consider such innovative methods of acquisition as pooling, leasing and specialisation to meet capability needs.

3.5.7

Since ESDP will only become effective if the MS show the necessary strong political will to provide and to maintain the necessary capabilities to meet agreed EU tasks, EDA should also play a role in encouraging MS to do this.

4.   Conclusions

4.1

Defence equipment is only one requirement for a viable ‘defence performance’. For industry to play its part fully it will need clear guidance, harmonised requirements and continuity. It must also have primary responsibility for necessary restructuring. Industry also needs to avoid over burdensome regulatory procedures.

4.2

It must be made very clear what parts of the defence equipment procurement process will be covered by the rules agreed.

4.3

Article 296 of the Treaty will continue to be required. To ensure that progress in avoiding its too frequent use the Commission needs to establish a benchmark though examining current performance. It is not practicable to maintain any list of equipments and procedures to which Article 296 can be applied.

4.4

As a first step the Commission should produce as soon as possible an ‘interpretative communication’ on Article 296. Only after experience has been gained with this communication will it be possible to decide whether a legal instrument is also required.

4.5

‘Dual use’ equipment is increasingly common and this trend is welcome, not least because of the potential for civil use of RTD which applies to military equipment.

4.6

The important role foreseen for the European Defence Agency (EDA) is welcome; it will need to be clear what part all the agencies now involved are to play.

4.7

Among the important roles for EDA in this area are:

Ensuring coordination with NATO requirements

Helping to negotiate all the necessary financial aspects

Helping to harmonise existing national procedures

Suggesting innovative ways of providing necessary capabilities

Encouraging the maintenance of the necessary political will.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJEC C10/1 of 14.1.2004

(2)  EDA has four agreed functions; defence capabilities development, armaments cooperation, the European defence technological and industrial base and defence equipment market and research and technology.

(3)  As we commented in our opinion on COM(2003) 113 final, this combined EU spending is about 40 % that of the US, yet only produces about 10 % of the operational capabilities.

(4)  For example, the Committee notes the recent (September 2004) statement by the head of the EDA that EU forces are not well adapted to the modern world and its conflicts and threats; he spoke of the need to acquire more high technology equipment.

(5)  Such as OCCAR, Western European Armemnets group (WEAG) and Letter of Intent (LoI) countries.

(6)  OCCAR is a joint organisation for armaments cooperation to which 5 MS currently belong.

(7)  However, because of the specific nature of defence markets and because of the need to manage payments as part of national financial arrangements, MS will inevitably play a role in facilitating the development of defence equipment.

(8)  The decisions in the ‘Bremen case’ (1999/763/63(OJ L 301/8 of 24 November 1999) and the ‘Koninklijke Schelde Groep’ (OJ L 14/56 of 21 January 2003) are examples of the current lack of clarity.

(9)  We should note that even apparently simple equipment such as clothing can involve advanced technology.

(10)  See paragraph 5 of the opinion refered to at footnote 1.


8.9.2005   

EN

Official Journal of the European Union

C 221/56


Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways

(COM(2004) 139 final — 2004/0047 (COD))

(2005/C 221/13)

On 28 April 2004 the Council decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Chagas.

At its 414th plenary session (meeting of 9 February 2005), the European Economic and Social Committee adopted the following opinion by 122 votes to 53 with 12 abstentions.

1.   Introduction

1.1

The present proposal forms part of the third railway package, which was adopted by the European Commission on 3 March 2004. The other components are:

Proposal for a Directive on the certification of train crews (COM(2004) 142 final);

Proposal for a Regulation of the European Parliament and of the Council on international rail-passengers' rights and obligations (COM(2004) 143 final);

Proposal for a Regulation on compensation and quality requirements for rail freight services (COM(2004) 144 final);

and

Commission Communication on further integration of the European rail system (COM(2004) 140 final);

Commission staff working paper on gradually opening up the market for international passenger services by rail (SEC(2004) 236).

1.2

The first railway package (also called the infrastructure package) came into force on 15 March 2001 and had to be transposed into national legislation by 15 March 2003. It comprises the following components:

Amendment of Directive 91/440/EEC, including free market access for international rail freight on the trans-European rail freight network by 15 March 2003 and liberalisation of all international rail freight by 15 March 2008 (1);

Extension of the scope of the Directive on a European licence for railway undertakings (amendment of Directive 95/18/EC) (2);

Harmonisation of the provisions governing the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (replaces Directive 95/19/EC) (3).

1.3

In October 2003 the European Commission took nine Member States to the European Court of Justice for failing to notify the transposition of the first railway package into national law. By May 2004 five countries' notification had still not been received and two Member States had transposed only some of the provisions into national law.

1.4

The second railway package was published in the Official Journal of the European Community on 30 April 2004 and has to be transposed into national law by 30 April 2006. It comprises the following components:

Amendment of Directive 91/440/EC: bringing forward free market access for international rail freight to 1 January 2006 and liberalisation of national rail freight, including cabotage, from 1 January 2007 (4);

Directive on railway safety in the Community (5);

Regulation establishing a European Railway Agency (6);

Amendment of the Directives on the interoperability of the high-speed rail system (96/48/EC) and the conventional rail system (2001/16/EC) (7).

1.5

The first and second railway packages provided the legal basis for establishing a single rail freight market. The measures encompass market access, the licensing and safety certification of railway undertakings, access to infrastructure and the calculation of charges for its use, the creation of a legal framework for rail safety, and measures for ensuring the technical interoperability of the rail system.

1.6

As the EESC has already pointed out in its Opinion on the second railway package (8), this new legal framework makes it necessary to completely reorganise the sector and establish new authorities and competences.

1.7

In the same opinion the EESC also pointed to the need for European social rules. European social partners in the railway sector, the Community of European Railways and the European Transport Workers' Federation signed two European agreements on 17 January 2004 concerning:

1)

The introduction of a European train driver's licence for train drivers on international services.

2)

Agreements on certain aspects of the conditions of employment for train crews on international services.

1.8

As part of the third railway package, the Commission is proposing a directive on the certification of train crews, which would come into force in 2010 or 2015.

1.9

In submitting a further amendment to Directive 91/440/ECC, the Commission continues to pursue its aim of a gradual deregulation of the railway sector.

2.   The European Commission Proposal

2.1

The Commission proposes to deregulate market access for international passenger services from 1 January 2010 onwards. The proposal also covers cabotage, that is to say the picking up and setting down of passengers at railway stations along the entire route. At the same time the provision on free access to the market for international groupings is to be abolished.

2.2

Each year 6 billion passengers travel by train in the EU 25, with local and regional services taking the lion's share. International passenger services account for only about 10 % of rail travel, based on tickets sold. This includes regional cross-border services, long-distance cross-border services and high-speed (cross-border) services.

2.3

The Commission recognises that opening up international passenger services, including cabotage, to competition could perhaps have a negative impact on the economic balance of public service passenger transport. It proposes to grant exemptions from free market access on routes where public service contracts are already in force under Directive (EEC) No. 1191/69, and where a deregulation of international services could upset the balance. This exemption will only be granted in cases where this is absolutely critical to maintaining the provision of public service transport, and where it has been sanctioned by the regulatory authority under Article 30 of Directive 2001/14/EC. Judicial review of the decision to grant exemption must also be possible.

2.4

The Commission is required to present a report on the implementation of the provision by 31 December 2012.

3.   Evaluation of the Proposal

3.1   Prerequisites for revitalising the railway industry

3.1.1

The proposal to deregulate international passenger services is based on the assumption that competition in international services will lead to one or more of the following consequences: higher passenger numbers, a transfer from other transport modes (in particular air transport) to rail, improved quality for customers and lower fares.

3.1.2

In its Opinion on the 2nd railway package (9) the EESC already pointed out the basic prerequisites for revitalising the railway system:

funding the extension and consolidation of the railway infrastructure;

introducing technical interoperability and providing the funds this requires;

creating an environment for fair competition between modes of transport, and in particular:

ensuring that social legislation in the road transport sector is adhered to;

providing a fair infrastructure charging policy for all modes of transport.

3.1.3

To date the proposal for a fair infrastructure charging policy for all modes of transport, as announced in the White Paper on European Transport Policy for 2010, has not materialised.

3.1.4

The monitoring and proper application of social legislation in road transport still remains a serious problem.

3.1.5

Furthermore, a solution to the debt problems of many rail companies needs to be found. Especially in the new Member States, railway companies will be unable to compete without finding a solution for their high debts.

3.1.6

The EESC also pointed out that the introduction of new authorities, as required by the first and second railway packages (regulatory body, charging body, allocation body, notified body, safety authority, accident investigation body) would entail a realignment of the railway industry's organisational structures at short notice, and would require a number of years of practical experience before it could operate smoothly. The EESC has declared itself in favour of making rail safety a priority. This would include introducing European social legislation on the railway industry.

3.2   Ex-post analysis of the deregulation of rail freight services

3.2.1

The decisions concerning the deregulation of rail freight services have already been made; however the effects these decisions will have are as yet unknown.

3.2.2

The European Commission is required to submit a report by 1 January 2006, which covers the following areas (10):

implementation of Directive 91/440/EC in the Member States and examination of the way in which the various bodies involved actually operate;

market developments, in particular international trends in transport, operations and market shares of all market players (including new operators);

effect on the entire transport industry, and in particular any shift to alternative transport carriers;

effects on safety levels in individual Member States;

the working conditions in the industry in individual Member States.

3.2.3

The EESC believes it is appropriate to wait for the report to be published and an understanding of the effects measures implemented so far has been gained, before any further steps towards opening the market are taken and asks the Commission to deliver the report in time.

3.3   Ex-ante analysis of the deregulation of international rail-passenger services

3.3.1

Prior to announcing the 3rd railway package the Commission ordered a study on the deregulation of passenger services. The declared purpose of the study was to examine various options for deregulation and to recommend one of them. These options were:

deregulation of international services without cabotage;

deregulation of international services with cabotage;

deregulation of both national and international rail-passenger services.

3.3.2

The study recommended deregulation of international passenger services with cabotage (11).

3.3.3

The EESC regrets that a study of this kind was not used to examine important issues comprehensively. These issues relate to the effect of deregulation of passenger services:

regional rail services as services of general interest, especially in small and medium-sized Member States;

quality of service for customers;

employment and working conditions in rail-passenger transport;

rail operators in the new Central and Eastern European Member States.

3.3.4

The study includes observations on individual areas that it touched upon (such as the importance of fares and route prices). These observations were made on the basis of four case studies (Sweden, Germany, Spain, Hungary) and a simulation exercise for two routes. It also advises against deregulation of national rail-passenger services. However, the stated aim of the study was to recommend one of the three options.

3.4   Effects of deregulation on regional and public services

3.4.1

Through cabotage, the proposal for deregulation of international passenger services requires that markets in certain national passenger services are to some extent opened up.

3.4.2

National passenger transport is often a network transport where profits made on routes with large passenger volumes compensate for losses on lower-volume routes, thus making it possible to provide a fuller service. This is not only true of public service routes, with exclusive rights and/or subsidies, for which the Commission proposal allows exceptions, under strict conditions.

3.4.3

In small and medium-sized Member States in particular, this could lead to serious disruption to rail-passenger services, which are not contractually covered by exclusive rights.

3.4.4

In some Member States contracts on public services obligations cover not just individual routes, but the whole network. In such circumstances it will be difficult to furnish evidence of a threat to the balance of public service transport.

3.4.5

The possibility of exemptions, as proposed by the Commission, will involve complicated procedures in proving the validity of exemptions and could well lead to legal disputes.

3.4.6

In July 2000, the European Commission proposed COM(2000) 7 final, to replace Regulation (EEC) No. 1191/69 on the obligations inherent in the concept of a public service in transport, which provides the rules for exclusive rights and compensation for public passenger transport, by a new Regulation.

3.4.7

The proposal to amend Regulation (EEC) No. 1191/69 has been blocked in the Transport Council for several years. Fundamental differences between the Commission proposal and the European Parliament's position remain, and these could have considerable implications for the impact of the proposal in terms of deregulation of rail-passenger services. The Commission is planning to submit a new proposal before the end of the year.

3.4.8

This is another argument in favour of waiting until this piece of legislation has been adopted, before making any proposals to protect the balance of public service rail-passenger services in connection with deregulation.

3.5   Effects on quality of service for customers

3.5.1

In view of the high costs and traditionally low ticket prices, the study concludes that it is unlikely that deregulation of international passenger services will lead to further price reductions for customers.

3.5.2

Increased choice resulting from competition between rail operators on the same route, could at the same time mean that standards that have prevailed so far — one timetable, one ticket, information from one source — can no longer be guaranteed. Greater barriers to information will be created.

3.5.3

The Commission's response to this is to propose legislation, which obliges competing companies to cooperate in order to maintain the standards of information that have been guaranteed so far.

3.5.4

The EESC will examine this proposal in a separate opinion. However, it would like to point out that obliging competing companies to cooperate for the purpose of customer information is only necessary once the passenger service market has been opened.

3.6   Effect on Employment

3.6.1

The Commission assumes that deregulation of international passenger services will lead to reductions in personnel in the short term, but that in the medium term employment will rise as a result of an increase in passenger numbers. It does not, for instance, take into consideration, the possible negative effects on employment resulting from the deregulation's impact on regional and public service routes. In respect of Article 1.7 of this proposed directive the effects would depend on the decision of each Member State to finance regional passenger transport.

3.6.2

The number of employees in the railway industry has halved over the past decade. Rail operators in the new Member States and Western Europe rail have announced further large staff cuts. If deregulation of international passenger services leads to rail operators in small and medium-sized EU States being displaced in national long distance services as well, positive effects on employment are not to be expected.

3.6.3

Passenger rail travel has traditionally been a mode of transport open to all sections of society. Air transport has developed from a luxury to a mode of mass transport. The positive employment effects associated with this development cannot be reproduced to that extent in international rail-passenger transport.

3.6.4

Meanwhile, high quality jobs in the former state owned airlines have been replaced by lower quality jobs in other segments of the civil aviation industry.

3.6.5

The EESC views the sharp cuts in employment in the rail industry with great concern. Job cuts such as these lead to considerable social problems in the new Member States, which suffer from high unemployment and an underdeveloped social security system. Social support measures are urgently required here. The EESC is opposed to any measures, which lead to further job cuts and to a deterioration in the quality of jobs in an industry which is already under strain.

3.7   Effects on rail operators in the new Member States

3.7.1

The Steer Davies Gleave study, quoted above, points out that the poor condition of infrastructure in the new Member States, the poor financial situation of rail operators and ticket prices which are usually below the long-term level of costs, represent additional obstacles to greater competition.

3.7.2

Moreover, rail operators do not have the high-quality rolling stock required to withstand competition.

3.7.3

Regional rail services play an even greater role in the new Member States than in the EU-15. If deregulation of international passenger services has a negative effect on the provision of regional services, this effect will be even stronger in the new Member States. It would hasten the decline in the railways still relatively large share of passenger transport.

4.   Conclusion

4.1

In its previous opinions the EESC has always been in favour of revitalising the rail industry in Europe, and has pointed to essential prerequisites to achieving this:

expanding infrastructure and removing of bottlenecks;

establishing interoperability between railway systems;

creating fair competition between transport modes;

guaranteeing social provisions and rail safety.

4.2

The EESC calls on the Commission and the Member States to help ensure that these conditions are met as fast as possible.

4.3

The EESC underlines the importance of rail-passenger transport in meeting people's need for mobility and its importance as a provider of general interest services.

4.4

The EESC acknowledges the importance of a network service provider and of integrating this with other modes of public transport in the interests of public mobility. This service must not be put at risk.

4.5

The EESC believes that any decision on the deregulation of international passenger services shall be based on extensive and clear knowledge regarding the overall effects on rail-passenger transport and the impact of the measures decided on within the 1st and 2nd Railway Package.

4.6

It therefore calls on the Commission to carry out an adequate ex-ante analysis of the advantages and disadvantages which deregulating passenger services. The analysis should address the effects of deregulation on:

regional and general interest rail transport, especially in small and medium-sized Member States;

quality of service for customers;

employment and working conditions in rail-passenger transport;

rail operators in the new Member States of Central and Eastern Europe.

4.7

The EESC calls on the Commission initially to present the report on the implementation of market opening for rail freight services, as required by Directive 91/440/EEC (as amended by Directive 2004/51/EC).

4.8

The EESC points out that the proposal for a Regulation of the European Parliament and of the Council on action by Member States concerning public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterway [COM(2000) 7 final and amended Proposal COM(2002) 107 final] are still pending in the Council. The detailed shape of this Directive could have an impact on the rules on the protection of public-service routes within the framework of the deregulation of international rail-passenger services.

4.9

Improvements to the quality of service on passenger routes enhances the attractiveness of this mode of transport, which in turn furthers the European transport policy aim of a sustainable transport system. The main responsibility here lies with the rail operators. However, the EESC is critical of measures which could lower the current standards of service quality. It would give high consideration to measures aiming to improve the quality of services.

4.10

The EESC is of the opinion that promoting better cooperation between railway companies will be the right way to improve service quality for passengers in international rail-passenger transport, especially in regional international passenger transport.

4.11

The EESC would very much welcome it if the Commission entered into a dialogue with European social partners on the impact of deregulation on rail transport, and on the quantity and quality of employment in particular.

4.12

The share of rail-passenger transport in overall passenger transport is considerably greater in the new Member States than in the EU 15. Therefore, the EESC considers it imperative that particular attention be paid to developments in rail-passenger transport in the new Member States and to the impact of opening up the market in these countries. It is in the interest of the entire Community and in line with the aims of the White Paper on Transport Policy that this large share be maintained.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Directive 2001/12/EC – OJ L 75, 15.3.2001, p. 1 – EESC opinion – OJ C 209, 22.7.1999, p. 22

(2)  Directive 2001/13/EC – OJ L 75, 15.3.2001, p. 26 – EESC opinion – OJ C 209, 22.7.1999, p. 22

(3)  Directive 2001/14/EC – OJ L 75, 15.3.2001, p. 29 – EESC opinion – OJ C 209, 22.7.1999, p. 22

(4)  Directive 2004/51/EC – OJ L 164, 30.4.2004, p. 164 – EESC opinion – OJ C 61, 14.3.2003, p. 131

(5)  Directive 2004/49/EC – OJ L 164, 30.4.2004, p. 44 – EESC opinion – OJ C 61, 14.3.2003, p. 131

(6)  Regulation (EC) No. 881/2004 – OJ L 164, 30.4.2004, p. 1 – EESC opinion – OJ C 61, 14.3.2003, p. 131

(7)  Directive 2004/50/EC – OJ L 164, 30.4.2004, p. 114 – EESC opinion – OJ C 61, 14.3.2003, p. 131

(8)  OJ C 61, 14.3.2003, p. 131

(9)  See footnote 8.

(10)  Article 2(d) of Directive 2004/51/EC of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways.

(11)  EU Rail Passenger Liberalisation: Extended impact assessment, February 2004 by Steer Davies Gleave, London.


APPENDIX

to the Opinion of the European Economic and Social Committee (in accordance with Rule 54(3) of the Rules of Procedure)

The following proposals for amendments, which won more than a quarter of the votes cast, were rejected in the course of the discussions.

Point 3.1.4

Delete.

Reason

This point does not have anything to do with the deregulation of the railways. Two sectors are being mixed up in an opinion that deals with the development of the Community's railways. It cannot be said that the monitoring of social legislation in road transport is a serious problem, given the existence of various laws on driving and rest times and the working hours of drivers. All this legislation is monitored by macrograph. Moreover, August 2005 will see the introduction of a new monitoring system, the digital tachograph, which will allow for more accurate monitoring of drivers' working hours.

Results of voting

For: 58

Against: 80

Abstention: 7

Point 3.1.6

Delete the last sentence:

‘This would include introducing European social legislation on the railway industry.’

Reason

Rail safety in the EU has been regulated by Directive 2004/49 EC.

Results of voting

For: 52

Against: 93

Abstention: 5

Point 3.2.3

Replace with the following:

‘In the EESC's view, it would be advisable to analyse the content of this report upon publication in order to ascertain whether the proposal for a directive ought to be amended or modified.’

Reason

In effect, the current wording calls for a halt to the legislative process, which fosters a kind of legal uncertainty that is detrimental to all involved — businesses, employees and customers.

It would seem that a more positive and constructive approach would be to show a clear willingness to take the conclusions on board in order to amend or modify the proposal if necessary.

Thus, a dynamic and open process is maintained throughout.

Results of voting

For: 54

Against: 92

Abstention: 9

Points 3.4.7 and 3.4.8

Replace with the following and number the new point as 3.4.7:

‘When the new proposal to amend Regulation (EEC) No. 1191/69 is submitted to the Council of Ministers and the European Parliament, the implications of the text in terms of the deregulation of rail passenger services and maintaining the balance of public service transport should be discussed.’

Reason

The current wording refers to a situation that is no longer relevant. A new text has been drawn up by the Commission and may be submitted to the Transport Council in June. It is not possible to predict what sort of reception it will be given by either the Council of Ministers or the European Parliament.

The suggested wording is in line with a more constructive approach.

Results of voting

For: 68

Against: 90

Abstention: 8

Point 3.6

Delete.

Reason

It cannot be said that the deregulation of rail transport will lead to job losses and that the new jobs created will be of poorer quality, when the deregulation of all other modes of transport has resulted in an increase in jobs. It must be stressed that rail transport is the only mode that has not been deregulated.

Results of voting

For: 66

Against: 102

Abstention: 6.


8.9.2005   

EN

Official Journal of the European Union

C 221/64


Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on the certification of train crews operating locomotives and trains on the Community's rail network

(COM(2004) 142 final — 2004/0048 (COD))

(2005/C 221/14)

On 28 April 2004 the Council decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Chagas.

At its 414th plenary session (meeting of 9 February 2005) the Committee adopted the following opinion by 127 votes to 25 with 26 abstentions:

1.   Introduction

1.1

The present proposal forms part of the third railway package, which was adopted by the European Commission on 3 March 2004. The other components are:

amendment of Directive 91/440/EEC: liberalisation of international rail-passenger transport (COM(2004) 139 final);

Proposal for a Regulation of the European Parliament and of the Council on international rail passengers' rights and obligations (COM(2004) 143 final);

Proposal for a Regulation on compensation and quality requirements for rail-freight services (COM(2004) 144 final);

and

Commission Communication on further integration of the European rail system (COM(2004) 140 final);

Commission staff working paper on gradually opening up the market for international passenger services by rail (SEC(2004) 236).

1.2

The first railway package (also called the infrastructure package) came into force on 15 March 2001 and had to be transposed into national legislation by 15 March 2003. It comprises the following components:

amendment of Directive 91/440/EEC, including free market access for international rail freight on the trans-European rail freight network by 15 March 2003 and liberalisation of all international rail freight by 15 March 2008 (1);

extension of the scope of the Directive on a European licence for railway undertakings (amendment of Directive 95/18/EC) (2);

harmonisation of the provisions governing the allocation of railway-infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (replaces Directive 95/19/EC) (3).

1.3

In October 2003 the European Commission took nine Member States to the European Court of Justice for failing to notify the transposition of the first railway package into national law. By May 2004 five countries' notification had still not been received and two Member States had transposed only some of the provisions into national law.

1.4

The second railway package was published in the Official Journal of the European Community on 30 April 2004 and has to be transposed into national law by 30 April 2006. It comprises the following components:

amendment of Directive 91/440/EC: bringing forward free market access for international rail freight to 1 January 2006 and liberalisation of national rail freight, including cabotage, from 1 January 2007 (4);

Directive on railway safety in the Community (5);

Regulation establishing a European Railway Agency (6):

amendment of the Directives on the interoperability of the high-speed rail system (96/48/EC) and the conventional rail system (2001/16/EC) (7).

1.5

The first and second railway packages provided the legal basis for establishing a single rail-freight market. The measures encompass market access, the licensing and safety certification of railway undertakings, access to infrastructure and the calculation of charges for its use, the creation of a legal framework for rail safety, and measures for ensuring the technical interoperability of the rail system.

1.6

As the EESC has already pointed out in its opinion on the second railway package (8), this new legal framework makes it necessary to completely re-organise the sector and establish new authorities and remits.

1.7

The social provisions regarding the training and working conditions of personnel carrying out safety-critical duties are inadequately addressed or not addressed at all in this framework.

1.8

The European social partners in the rail sector — the Community of European Railways (CER) and the European Transport Workers' Federation (ETF) — signed two European agreements on 17 January 2004 on the following subjects:

1)

Introduction of a European train driver's licence for drivers engaged in cross-border services;

2)

Certain aspects of the working conditions of train crews engaged in cross-border services.

1.9

The present proposal partly reflects the social partners' agreement on the introduction of a European train driver's licence.

1.10

The EESC has been informed by the European Commission that the European social partners have formally applied for the agreement on working conditions (working and rest periods) to be implemented in the form of a Council Decision. This application is currently being examined by the Commission.

2.   European Commission's proposal

2.1

The need to improve interoperability and staff management is the reason given by the Commission for its draft Directive. The aim is to make the authorisation of railway undertakings easier at the same time as maintaining a high level of safety and guaranteeing the free movement of workers.

2.2

The Commission also quotes the European social partners' objectives such as:

to guarantee a high skills level for train crews in order to maintain and enhance safety levels; and

to reduce the risk of social dumping.

2.3

The Commission is proposing a certification process for train drivers based on uniform minimum European standards. Train drivers working on international routes are to be certified first by 2010, followed by all other drivers working on national routes by 2015.

2.4

According to the Commission, the first step will involve around 10 000 drivers in the Community and the second around 200 000 drivers.

2.5

The Commission is also proposing a certification process for other train staff indirectly involved in driving the train. However, the draft Directive does not contain any specific provisions on this matter and in particular does not contain any provisions on the skills levels required of other train staff. Account is to be taken of the principles laid down in the Directive. The skills requirements are to be defined later by the European Railway Agency or in the Technical Specifications for Interoperability.

2.6

The draft Directive makes provision for a two-part certification process:

1)

European driving licence, which is issued by the competent authorities, is recognised throughout the Community, is the property of the train driver, and attests to compliance with basic requirements and the acquisition of basic skills;

2)

harmonised complementary certificate, which is issued by the railway undertaking, remains the property of the undertaking and attests to specific knowledge relating to the undertaking or infrastructure.

2.7

The competent authorities and the railway undertakings are to keep registers indicating the respect qualifications and their renewal as well as the suspension and amendment of the licenses and the harmonised complementary certificates.

2.8

Three categories of train drivers are proposed: (A) shunting locomotives and work trains, (B) passenger trains, and (C) good trains.

2.9

The minimum age is to be 20, though this may be lowered to 18 when drivers only work nationally.

2.10

The draft contains provisions about amending and renewing licences and harmonised complementary certificates and carrying out periodic checks to ensure that holders continue to meet the conditions set, and provisions about their withdrawal and the possibilities for appealing against such decisions. It also deals with inspections and penalties.

2.11

Also contained in the proposal are provisions on access to training, examinations, and the assessment of the quality of training systems and procedures.

2.12

Annex I deals with the Community model licence and complementary certificate, while Annexes II to VII describes drivers' duties, medical/psychological examinations and professional qualifications.

2.13

The European Railway Agency is to be asked to submit a report by the end of 2010 in which it will also have to examine the possibility of introducing a smartcard.

3.   Assessment of the Commission proposal

3.1   Basic comments

3.1.1

The EESC basically welcomes the proposal.

3.1.2

Train drivers and other staff performing safety-critical tasks bear enormous responsibility for the safety of traffic, staff, passengers and goods. In a liberalised rail market common provisions must ensure a high level of skills.

3.1.3

Harmonised minimum provisions also make the cross-border deployment of staff easier (9). However, differences in Member States' operating systems and safety provisions more than anything else stand in the way of the cross-border deployment of staff and will continue to do so for many years yet. These differences plus the existence of different languages make considerable further demands on staff's skills.

3.1.4

The EESC also points out that a high level of skills and a certification process testifying to this help to ensure that the profession continues to enjoy recognition and remain attractive. This is important in a profession with unattractive working hours and less job security following the rise in temporary employment agencies. Undertakings in the road transport and inland waterway sectors are already complaining about the considerable difficulty in finding personnel. The aim of this Directive cannot be to cut down on training.

3.1.5

The traditional self-regulated railway undertakings have borne full responsibility for the training and skills levels of staff and the safe operation of services. This has led to a high level of skills and made the railways one of the safest modes of transport.

3.1.6

Care must be taken to ensure that the objective being pursued with this Directive leads to greater mobility among train drivers and discrimination-free access to training establishments and not to a situation where the quality of training as a whole deteriorates and the cost of training is passed on to the workforce.

3.2   Individual provisions

3.2.1   Scope and introduction of certification

3.2.1.1

The EESC supports the gradual introduction of certification for international and national traffic. This will make it possible for undertakings to stagger operations.

3.2.1.2

However, the timeframe laid down in Article 34 (2008-2010 for cross-border traffic and 2010-2015 for drivers operating nationally) is surprising. The certification of train drivers should take place before then given that the liberalisation of international freight traffic will have been in progress since 2003/2006 and national freight traffic is to be liberalised from 2007 onwards.

3.2.1.3

The EESC also welcomes the certification of train crews. Staff performing safety functions play an important role in rail safety. However, the proposed definition is incomprehensible: ‘Apart from the driver, any staff member present on board the locomotive or train and indirectly involved in driving the locomotive or train ….’ (Article 25). It would be better to talk of train crew members who perform safety tasks. The EESC thinks that it would be preferable for the Directive to also specify the tasks to be performed by this category of staff and the skills required.

3.2.2   Categories of train drivers

3.2.2.1

Three ‘driving licence categories’ are proposed — shunting locomotives and work trains; carriage of passengers; and carriage of goods (Article 4(2)). A distinction between passenger and freight traffic is not practical, and there is no substantive reason for such a distinction. The training and the actual work involved is no different. Separate certificates are to be issued to testify to knowledge of the locomotives used, but often the locomotives are the same. Two categories — based on safety requirements — are sufficient: locomotives operating on closed lines (marshalling yards, worksites) and locomotives operating on open lines (main-line train drivers).

3.2.2.2

The EESC also thinks it would be more appropriate to indicate the category on the driving licence and not on the harmonised complementary certificate.

3.2.3   Minimum age and professional experience

3.2.3.1

The draft Directive specifies a minimum age of 20, though a Member State may issue a licence valid only on its territory from the age of 18 (Article 8). In a number of Member States (10) the minimum age is 21. The Directive would result in a lowering of the minimum age, at least for cross-border traffic.

3.2.3.2

The EESC thinks that the minimum age should be set at 21. Cross-border traffic is more demanding and requires better qualified staff. This age requirement is also compatible with the option of being able to specify a lower age limit for national traffic.

3.2.3.3

The EESC would also welcome three years' professional experience as a national main-line train driver, before being engaged as a driver in international traffic. A similar provision for national traffic is already included in Article 10. In the case of railway companies who are offering international rail transport services only, the necessary experience of the drivers could be obtained in cooperation with other railway companies that offer national services.

3.2.4   Structure of the certification process

3.2.4.1

The Commission proposes a two-part certification process, viz. a European driving licence issued by the relevant authority and recognised throughout Europe and a harmonised certificate issued by railway undertakings. The reason given for dividing the process into two parts is that the uniform licence with smartcard that was originally planned is too complicated and costly to introduce.

3.2.4.2

The EESC agrees basically with the structure proposed by the Commission. However, the use of two documents could cause confusion. This is particularly so with infrastructure knowledge. A clear distinction should be made between knowledge of the operating and safety provisions applicable to a given infrastructure and knowledge of lines and localities. Whereas knowledge of the operating provisions applicable to one or several infrastructure networks should be certified on the driving licence, knowledge of lines and localities — which has to be regularly updated — would have to be certified on the harmonised complementary certificate.

3.2.4.3

The two-part certification process is possible for a transitional period. However, the ultimate aim is to issue a single document with smartcard which testifies to the holder's basic knowledge and knowledge relating to a specific undertaking, and this fact should not be lost sight of.

3.2.5   Accreditation of examiners and training establishments

3.2.5.1

The European Railway Agency is to have the task of drawing up criteria for the accreditation of trainers, examiners and training establishments. The EESC considers this to be a practicable solution, but thinks that the Directive is unclear on a number of points. It is not clearly stated which tests are to be carried out by an accredited examiner and which skills are to be certified by the railway undertaking itself, without an accredited examiner. And it is also not clearly stated that testing knowledge of a given infrastructure's operating and safety system is to be carried out by an examiner who has been accredited by the particular Member State.

3.2.6   Professional qualifications and medical/psychological requirements

3.2.6.1

The draft Directive's annexes list train drivers' duties, the general and specific professional knowledge required and the medical/psychological requirements. In general the Commission has followed the line taken in the European social partners' agreement on the introduction of a European train driver's licence.

3.2.6.2

The EESC welcomes the Commission's decision to base itself on the professional and medical/psychological requirements laid down by the social partners. This will guarantee a high level of skills from which traffic safety will benefit. The EESC broadly thinks that the necessary qualifications and requirements for a train driver's certification should be specified within the body of the Directive.

3.2.6.3

Amendments to the annexes are to be made by the committee of Member States' representatives, which is also to be responsible for the adoption of the Technical Specifications for Interoperability (TIS). Consultation of the social partners is to be mandatory on matters relating to qualifications and occupational and health protection within the framework of the interoperability directives. Since the Directive's annexes on the certification of train crews are based on definitions of the European social partners, it is logical that these social partners should be involved in work on amending the annexes. The EESC insists on a provision to this effect in the Directive.

3.2.7   Periodic checks

3.2.7.1

Certain knowledge must be checked periodically to ensure that a licence or harmonised certificate can be kept.

3.2.7.2

With regard to the periodic medical check-ups, the Commission has followed the line taken in the European social partners' agreement.

3.2.7.3

The EESC would point to the need for psychological counselling after rail accidents involving people (which often means people committing suicide in front of trains). This has been overlooked in the Directive (Article 14 in conjunction with Annex III).

3.2.7.4

The proposal is too imprecise on the subject of the regular updating of line knowledge. It should be clearly specified that the certification of line knowledge lapses if the line has not been driven on for one year.

3.2.7.5

The Directive says nothing about the further training of train drivers at regular intervals in the field of general knowledge. This is a matter addressed in the European social partners' agreement. The EESC recommends that, in keeping with this agreement, the Directive should provide that basic aptitudes shall be developed and refreshed annually.

3.2.8   Withdrawal of licences

3.2.8.1

The Directive stipulates that train drivers are to notify the competent authorities if they no longer satisfy the conditions required to perform their duties. This is tantamount to drivers ‘handing themselves in’, which they cannot do. Only an accredited occupational doctor is able to take this decision and inform the undertaking. And it is the undertakings which must notify the authorities.

3.2.8.2

The Directive does not lay down the procedure for getting back a licence after it has been taken away.

4.   Proposal for a Directive on the certification of train crews and the European social partners' agreement on the introduction of a European driving licence

4.1

The EESC welcomes the fact that the European social partners — the CER and ETF — have acted themselves and have already proposed a system of licensing for train drivers operating on international routes.

4.2

The advantage of the agreement is that employees in undertakings that are CER members will be required to be highly qualified quite soon and that it will not be necessary to wait until 2010. These undertakings must not be penalised vis-à-vis undertakings which do not apply the agreement.

4.3

The EESC thinks that full account must be taken of the European social partners' agreement in areas where it overlaps with the scope of the Directive.

4.4

The European social partners' agreement assumes that the train drivers concerned always have some form of national certification, and therefore does not regulate this matter. This is based on traditional railway undertakings' many years of experience in cooperating on routes.

4.5

The European train driver's licence provided for in the social partners' agreement is an additional licence which testifies to the additional knowledge needed to drive on another country's infrastructure. This is issued by the undertakings and is the property of the undertakings.

4.6

The harmonised complementary certificate proposed in the Directive tallies more or less with the European train driver's licence.

4.7

The EESC asks the Commission to examine to what extent the European train driver's licence provided for in the social partners' agreement can be recognised as being equivalent to the harmonised complementary certificate for a transitional period in order to accommodate the undertakings which have already become active on this front. The Directive should contain a provision to this effect.

4.8

The EESC thinks that undertakings which have signed up to the social partners' agreement will be disadvantaged vis-à-vis undertakings using the Directive's system of certification insofar as further training in general professional knowledge is to be provided annually under the terms of the agreement, but this provision has not been included in the draft Directive despite being crucial for maintaining skills levels.

5.   Conclusions

5.1

The EESC welcomes the proposal for a Directive on the certification of train crews. It regrets that this social measure is being presented as the final link in a chain of European legislative provisions for liberalising the rail-freight sector.

5.2

Train drivers and crews have key roles to play in the field of safety. The certification of train drivers and crews must guarantee that they are highly qualified.

5.3

The EESC is concerned about the enormous time lapse between the complete opening-up of the market in rail freight and the deadlines for the introduction of certification and asks the Commission to take all possible steps in order to reduce this gap.

5.4

The EESC therefore calls on the Council and the European Parliament to remove the draft Directive for the certification of train crews from the third package and to handle it separately so as to avoid further delays. The European Parliament and the Council should adopt the Directive quickly and as a matter of priority.

5.5

In so doing, they should take full account of the EESC's opinion and the amendments proposed therein.

5.6

The EESC welcomes the European social partners' agreement on certain aspects of the working conditions of train crews engaged in cross-border services. It calls on the Commission to submit the agreement to the Council for a decision and recommends to the Council that it adopt the proposal.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Directive 2001/12/EC – OJ L 75 of 15.03.2001, p. 1 – EESC opinion – OJ C 209 of 22.07.1999, p. 22

(2)  Directive 2001/13/EC – OJ L 75 of 15.03.2001, p. 26 – EESC opinion – OJ C 209 of 22.07.1999, p. 22

(3)  Directive 2001/14/EC – OJ L 75 of 15.03.2001, p. 29 – EESC opinion – OJ C 209 of 22.07.1999, p. 22

(4)  Directive 2004/51/EC – OJ L 164 of 30.04.2004, p. 164 – EESC opinion – OJ C 61 of 14.03.2003, p. 131

(5)  Directive 2004/49/EC – OJ L 164 of 30.04.2004, p. 44 – EESC opinion – OJ C 61 of 14.03.2003, p. 131

(6)  Regulation (EC) No 881/2004 – OJ L 164 of 30.04.2004, p. 1 – EESC opinion – OJ C 61 of 14.03.2003, p. 131

(7)  Directive 2004/50/EC – OJ L 164 of 30.04.2004, p. 114 – EESC opinion – OJ C 61 of 14.03.2003, p. 131

(8)  OJ C 61 of 14.03.2003, p. 131

(9)  However, it should be stressed that the exchange of train drivers and crews at borders only takes a few minutes (e.g. eight minutes at the Brenner border crossing). Border stops in the freight sector are due more to other factors such as checking paperwork or inspecting rolling stock.

(10)  For example, Austria, Denmark, Netherlands, Germany and Norway


APPENDIX

to the Opinion of the European Economic and Social Committee (in accordance with Rule 54 (3) of the Rules of Procedure)

The following proposal for amendment, which won more than a quarter of the votes cast, was rejected in the course of the discussions.

Point 3.2.3.3

Delete.

Reason

The proposal for a directive makes provision for a two-part certification process:

a European driving licence, recognised throughout the Community,

a harmonised complementary certificate, which attests to specific knowledge relating to the undertaking or infrastructure.

The directive also lays down provisions on the amendment and renewal of driving licences and harmonised complementary certificates, and provides for periodic checks to ensure that holders continue to meet the conditions set.

The purpose of the harmonised complementary certificate is to ascertain a driver's skill and familiarity with the line(s) in question.

There is therefore no reason to introduce an additional three-year probationary period for drivers engaged in international traffic, which, as point 3.2.3.3 stands, would be on top of the two years which may be required for drivers to progress from the shunting locomotives category to the national mainline trains categories (passenger and goods trains).

This requirement, which would be tantamount to introducing a five-year probationary period, would reduce the value of the harmonised complementary certificate and conflict with the desire to facilitate cross-border interoperability. Its effect, or purpose, would be to stop the development and improvement of cross-border rail links.

Lastly, there is no need to introduce different requirements for train drivers working on national routes and those working on the international network, since the harmonised complementary certificate is, in any case, a guarantee of skill and familiarity with the network.

For these reasons, there is no basis for point 3.2.3.3 and it should be deleted.

Results of voting

For: 59

Against: 100

Abstention: 11.


8.9.2005   

EN

Official Journal of the European Union

C 221/71


Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation applying a scheme of generalised tariff preferences

(COM(2004) 699 final — 2004/0242 (CNS))

(2005/C 221/15)

On 10 November 2004 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for External Relations, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 12 January 2005. The rapporteur was Mr Pezzini.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion by 132 votes to 1 with 3 abstentions.

1.   Introduction

1.1

Council Regulation (EC) No. 2501/2001 of 10 December 2001 (1) applying a multiannual scheme of generalised tariff preferences (GSP) will expire on 31 December 2005. In July 2004, the Commission adopted guidelines (2) on the role of the GSP for the next ten-year period, from 1 January 2006 to 31 December 2015. It has now published its proposals (3) for the implementing regulation.

1.1.1

In 1994, the previous guidelines (4) for the ten-year period 1994-2005 and their implementing regulations introduced a number of important changes, such as tariff modulation according to product sensitivity, graduation and special incentive schemes. In 2001, a special arrangement for the Least Developed Countries (LDC), ‘Everything but Arms’ (EBA), was introduced for an unlimited period of time. Experience has shown that some of these measures work well in practice and should be continued while others would seem to require adjustment in the light of experience gained.

1.1.2

The Community has granted trade preferences to developing countries in the framework of its GSP since 1971. Trade policy plays a key role in the EU's relations with the rest of the world. The GSP scheme is part of that policy and must be consistent with and consolidate the objectives of development policy. To this end, it must comply with the WTO requirements and, in particular, with the GATT enabling clause of 1979. It must also be compatible with the Doha Development Agenda. A key priority is to help developing countries to benefit from globalisation, in particular by linking trade and sustainable development. In this context, it is understood that sustainable development comprises a variety of aspects, such as respect for fundamental human and labour rights, good governance and environmental protection. In addition, the fight against drugs is a shared responsibility of all countries.

1.2

The Commission has consulted widely on its guidelines for the next ten-year period since they were first published. However, because of the specialised statistics required, impact assessments have been conducted internally. The Commission will conduct an assessment of the impact on the outermost regions of the EU once the Regulation has come into force.

1.3

It is not envisaged that the changes put forward in the draft proposal would involve a significant change in the annual loss of customs revenue as compared to the present situation.

2.   The Commission's proposals

2.1

The proposals constitute a simplification of the present system by reducing the number of arrangements from five to three; this has been achieved by the introduction of a single incentive arrangement to replace the three special incentives currently in place for the protection of labour rights, protection of the environment and combating the production and trafficking of drugs. Thus, the proposed scheme consists of:

a general arrangement;

a special incentive arrangement (SIA) for sustainable development; and

a special arrangement (EBA) for the Least Developed Countries.

2.2

A further measure of simplification would be achieved by removing from the list of beneficiaries those countries that presently enjoy preferential access to the Community market under the terms of bilateral, regional or other free-trade agreements (FTA). The Community would ensure that no country would lose as a result of this measure by consolidating into the relevant FTA the benefits for any particular product that had previously received GSP treatment.

2.3

Preferences would continue to be differentiated according to the sensitivity of products. Common Customs Tariff (CCF) duties on products designated as non-sensitive would continue to be entirely suspended, except for agricultural components. The current flat-rate reduction of 3.5 percentage points for sensitive products would be maintained.

2.4

The general arrangement would be open to all countries except those which had been classified by the World Bank during a period of three consecutive years as high-income countries and where the five largest sections of GSP-covered exports to the Community represented less than 75 % of the total GSP-covered exports from that country into the Community. Any such countries that are currently beneficiaries under the GSP system would be removed from the scheme on the entry into force of the proposed Regulation. Beneficiary countries, which also benefit from a commercial agreement with the Community, covering at least all of the preferences provided by the present scheme for that country, would also be removed from the list of eligible countries.

2.5

The SIA for sustainable development is targeted at those developing countries most in need. The additional preferences would be granted immediately (subject to the submission of an application) to developing countries that have ratified and effectively implemented all of the sixteen core conventions on human and labour rights set out in Appendix 1 and at least seven of the conventions relating to good governance and the protection of the environment set out in Appendix 2. At the same time, the beneficiary countries would be required to commit to ratifying and effectively implementing those international conventions, which they had not yet ratified. A deadline of 31 December 2008 would be set for the completion of this process.

2.5.1

The conventions chosen are those with mechanisms, which can be used by the relevant international organisations to evaluate on a regular basis how effectively they have been implemented. The Commission will take these evaluations into account before deciding which of the applicant countries will be selected to benefit from the SIA. Based on the applications from the developing countries, the Commission would later produce a list of the beneficiaries under the arrangement.

2.5.2

The applications from countries wishing to benefit from the SIA would be required to be submitted within three months of the date of publication of the Regulation.

2.5.3

A further requirement is that the applicant countries should be vulnerable countries. The definition of a vulnerable country for this purpose is that the World Bank should not have classified it as a high-income country or that its GSP-covered exports to the Community should amount to less than 1 % of total GSP-covered imports to the Community.

2.6

The proposals include measures to reduce the impact on a beneficiary nation when the United Nations removes it from the list of LDCs. This would take the form of a transition period for the gradual withdrawal of that country from the EBA arrangement. At present, the country in question automatically suffers immediate loss of all the GSP advantages that it enjoyed as a LDC. The new mechanism allows for this process to take place over a transitional period.

2.7

The graduation mechanism has been retained but has been modified to make it simpler in operation. As at present, it would be applied to groups of products from countries that are competitive on the Community market and no longer need the GSP to boost their exports but the current criteria (share of preferential imports, development index and export-specialisation index) would be replaced by a single straightforward criterion: share of the Community market, expressed as a share of preferential imports. Groups of products are defined by reference to the ‘sections’ in the Combined Nomenclature. As only those countries that are competitive for all the products in a section would be graduated, small beneficiary countries would not be graduated solely on the basis of a few competitive products in a section.

2.7.1

Graduation would be applied to any beneficiary country in respect of products of a section when the average of Community imports from that country of products included in the section concerned exceeds 15 % of Community imports of the same products from all countries over a period of three consecutive years. For certain textile products, the threshold is reduced to 12.5 %.

2.8

Where the rate of an ad valorem duty reduced in accordance with the provisions of the Regulation was 1 % or less, that duty would be entirely suspended. Similarly, where a specific duty amounted to EUR 2 or less per individual amount, the duty would be entirely suspended.

2.9

The proposals include provisions for the temporary withdrawal of preferential arrangements in respect of all or of certain products of a country in certain specified circumstances. These do not represent a significant departure from the status quo. The Commission has indicated that these provisions are still intended for use only in exceptional circumstances.

2.9.1

When a product originating in a beneficiary country is imported on terms which cause, or threaten to cause, serious difficulties to a Community producer of like or directly competing products, normal CCF duties might be reintroduced at any time at the request of a Member State or on the Commission's initiative.

2.10

The Commission would be assisted in its task of implementing the Regulation by a Generalised Preferences Committee, composed of representatives of the Member States and chaired by the Commission. The Committee would receive reports from the Commission on the operation of the system and could examine any matter relating thereto but, in particular, it would be involved in determining such matters as the eligibility of an applicant country for access to the SIA for sustainable development, the temporary withdrawal of benefits, the re-imposition of CCF duties in cases of hardship to a Community producer and the establishment of transitional periods for the loss of EBA benefits for countries removed from the United Nations' list of LDCs.

3.   General comments

3.1

The GSP is an important element of the EU's foreign trade policy, which has far-reaching repercussions; it exerts a considerable influence on events in the developing world, it impacts the EU budget, it affects relationships with the EU's trading partners in such organisations as the WTO and it has significant consequences for European industry, particularly manufacturing industry. It is one of the few matters that is managed at the European level in a federal rather than a non-federal manner; the Commission has exclusive competence in this area. Globalisation has enhanced the importance of GSP; the EU has utilised this regime to help developing countries benefit from the globalisation process. At the same time, it has enabled the EU to promote the practice of sustainable development by granting preferential terms of access to the European market to those countries which show respect for the fundamental principles of human rights.

3.2

When the Commission published the guidelines (5) that form the basis of the present proposals, the EESC issued an Opinion (6) commenting in detail on the issues raised. In that Opinion, it stated that simplification of the system should be a primary objective. It therefore welcomes those measures contained in the Commission's proposals that are aimed at simplifying the structure. In particular, it considers that the reduction in the number of arrangements from five to three will considerably facilitate the attaining of that objective.

3.3

The EESC also called for the number of participating nations to be reduced (7) and proposed, inter alia, the exclusion of countries that currently benefit from preferential access to the Community under the terms of an FTA, with the safeguard that any preferences from which they benefited under the current GSP system should be subsumed into the relevant bi-lateral agreement. It is pleased to note that this recommendation has been adopted.

3.4

The EESC expressed concern (7) that the bulk of Community assistance was going to the most affluent of the beneficiary nations and not to those which stood most in need. It warmly welcomes the fact that the Commission has addressed this issue but wonders whether the proposals go far enough in this direction.

3.5

The EESC recommended (7) that the graduation mechanism should be retained but that it should be simplified and rendered more transparent. It endorses the Commission's proposals in this area and considers that they will achieve a significant measure of improvement in both respects. In particular, the substitution of a single, clear criterion for the existing multiple criteria should both simplify the process and enhance its transparency.

3.6

The EESC urged (7) that the opportunity be taken to harmonise, unify and streamline all the rules and procedures of the GSP system. It is of the opinion that the present proposals go a long way towards realising this ideal.

3.7

The EESC called (7) for the publication of a detailed impact assessment with the Commission proposals. It is disappointed that this has not been done and would point out that conducting an assessment of the impact on the outermost regions of the EU after the event is a pointless exercise unless it is intended to modify the system in the light of this assessment, which would not satisfy the requirement that the regulations should be stable over time. A climate of uncertainty is inimical to the satisfactory operation of a GSP system.

3.8

The EESC approves the concept of incorporating the observance of human rights, protection of labour rights, protection of the environment, good governance and the curbing of drug production and trafficking within the definition of ‘sustainable development’.

3.9

The EESC pointed out (7) that the existing special incentive arrangements have been totally ineffectual in achieving their worthwhile objectives. Only two countries have qualified for the special incentive arrangement for the protection of labour rights and none at all for the special incentive for the protection of the environment; meanwhile, twelve nations have benefited from the special arrangement to combat the production and trafficking of drugs but without having any perceptible effect on the incidence of these activities.

3.9.1

The EESC considers that the new proposals, while introducing a welcome measure of simplification into the process, are unlikely to be any more efficacious. The size of the incentive has not been increased and there is no reason to suppose that the new arrangements will provide any greater inducement for beneficiary countries to embrace the principles and practice of sustainable development. Faced with the requirement to adopt twenty-seven international conventions they may well prefer to follow their own dictates and forego the benefits on offer.

3.9.2

Given the difficulty of providing a worthwhile incentive within the confines of a continually reducing tariff barrier, consideration might be given to also linking the observance of these conventions to the provision of development aid.

3.10

The EESC observes that all the conventions with which the applicant countries are required to comply are those with mechanisms that the ‘relevant international organisations’ can use to regularly evaluate how effective the implementation has been. The EESC would advocate that the social partners should have a role in this evaluation.

3.11

The EESC notes that the conditions for temporary withdrawal of benefits are little changed from those prevailing under the existing regime. Given that they have only been invoked in the case of one country (Myanmar), which represents an extreme example of the flouting of international conventions, their usefulness in promoting sustainable development is questionable. A sanction which is applied only in such rare circumstances can have little deterrent effect. The EESC would have preferred to see a wider application of this mechanism in order to reinforce the SIA for promoting sustainable development, which it fears is likely to fall into desuetude.

3.12

The EESC questions whether the new system would provide a more effective deterrent to fraud than that which it replaces. It would have preferred to see a more proactive approach to this issue. In particular, it would have liked to see the creation of mechanisms for closer cooperation between agencies in the EU and their counterparts in the beneficiary countries. It is difficult to avoid the conclusion that in this area the Commission has adopted a policy of festina lente.

3.13

The EESC welcomes the fact that the Commission has consulted widely, both in the EU and in the beneficiary countries, before formulating these proposals.

3.14

The EESC notes that the Commission would continue to be assisted in the administration of the GSP system by a General Preferences Committee, acting within the framework of the ‘Regulatory Committee’ procedure.

4.   Specific comments

4.1

The EESC notes that the countries to be excluded from the general arrangement will be limited to those which have been classified by the World Bank as high-income countries and if they are not sufficiently diversified in their exports. It is of the opinion that the number of countries meeting these criteria will be limited. It has proposed (7) that the new guidelines should exclude, inter alia, countries with nuclear weapons programmes and those which operate as tax havens. It regrets that many of these nations would appear to continue to be eligible for inclusion in the list of beneficiaries.

4.2

One of the criteria for inclusion in the SIA promoting sustainable development is that a country should be a ‘vulnerable country’. Article 9(2) defines this as being a country which has not been excluded from the general arrangement under the terms set out in point 4.1 above or whose GSP-covered exports to the Community represent less than 1 % of total GSP-covered imports to the Community. The ESC considers that this article should be redrafted to replace the word ‘or’ with ‘and’; otherwise, the article will have an effect which was surely not intended.

4.3

The EESC has pointed out (7) that, under the existing system, the graduation point is too far removed from the updating point. It therefore welcomes the fact that, in future, graduation would take place in the year following the third consecutive year which constitutes the reference period for any given country and sector.

4.4

The EESC supports the Commission's proposal to maintain regional cumulation within the meaning of Regulation (EEC) No. 2454/93 when a product used in further manufacture in a country belonging to a regional group originates in another country of the group which does not benefit from the arrangements applying to the final product, provided that both countries benefit from regional cumulation for that group. It would point out that, in the past, these provisions have been the source of a considerable level of fraudulent manipulation.

4.5

The EESC reiterates its opinion (7) that the preferential rules of origin should be simplified, and the compliance burden on EU importers correspondingly reduced, by bringing them into line with the current rules of origin on non-preferential imports.

4.6

The EESC reiterates its call (8) for dialogue between the EU and the LDCs to improve the implementing rules for the special arrangements for LDCs in certain specific cases, especially by adapting the transition period.

4.7

The EESC welcomes the proposal to eliminate duties where preferential treatment results in an ad valorem duty of 1.0 % or less or a specific duty of EUR 2 or less. It considers that this will constitute an appreciable measure of simplification.

4.8

The EESC notes that the temporary withdrawal of benefits is limited to a period of three months, renewable once. The Commission may extend this period in accordance with Articles 3 and 7 of Decision 1999/468/EC, as has already been done in the case of Myanmar. The EESC would have preferred a provision whereby the temporary withdrawal of benefits, once applied, would be maintained until such time as the offending nation had removed the cause for withdrawal by remedying the breach of international conventions which had given rise to the withdrawal in the first place.

4.9

The EESC feels that the requirement for countries or territories wishing to benefit from the SIA for sustainable development to submit a request to that effect within three months of the date of entry into force of the Regulation is somewhat onerous and likely to be self-defeating by limiting the degree of uptake. There might well be a number of countries at that point in time that did not meet the criteria and therefore saw no point in submitting an application. After the expiration of the three-month deadline, such countries would then have no incentive to ratify and effectively implement the international conventions set out in appendices 1 and 2. The EESC would have considered it preferable to have left the door open for the admission of these countries at a later date provided that they had then met the criteria for inclusion.

4.10

The EESC pointed out (7) that the GSP system is one element of the EU's trade policy and that, as such, it must be compatible with the other elements of that policy. In order to achieve a coherent trade policy it is essential that other Directorates-General in the Commission should be involved in the process. In particular, there should be close, continuous and effective cooperation between the Directorates-General for Trade and for Enterprise.

4.11

The EESC considers it advisable that, in the case of serious market disturbances for goods covered by Annex 1 of the Treaty, the safeguard clause could also be invoked at the request of a Member State to the Commission, which would then consult the relevant management committee.

4.12

According to the Commission proposal, the special arrangement for the Least Developed Countries (LDCs) is to be incorporated into the GSP and the other arrangements (including that for sugar) are to be taken over in accordance with Regulation 416/2001. The fears of the LDCs are well-founded namely that there will be considerably more disadvantages than advantages following the reform of the EU sugar regime, with a sharp drop in prices arising from the proposed moves to open up the EU market fully to these countries as of 1 July 2009. The Committee refers in this regard to its Opinion of 15 December 2004 (9) on the proposed CMO/sugar reform. This called on the Commission, in line with the express wishes of the LDCs, to negotiate preferential import quotas for sugar for the period after 2009, with periodic reviews that take into account the link between the reform of the European sugar market and the development objectives of least developed countries (LDCs). The EESC is in favour of prohibiting ‘swap’ practices (three-way trade).

4.13

Generally speaking, the EESC believes that, for the products under consideration, the application of Article 12(1) should be clearly defined within the framework of the relevant common market organisations.

5.   Conclusions

5.1

The EESC has advocated that the existing system should be simplified and rendered more transparent and that the opportunity should be taken to harmonise, unify and streamline all the GSP rules and procedures. It considers that the proposed scheme would be a material improvement in this respect and to this extent it endorses the Commission's proposals.

5.2

The EESC approves the fact that the number of beneficiary countries would be reduced but fears that the reduction might not be of sufficient proportions.

5.2.1

The EESC considers that the Generalised System of Preferences should be reserved for least developed countries and countries most in need, in order to ensure that they are the primary beneficiaries of the new GSP regime. The graduation threshold for textile and clothing products should therefore be lowered to 10 percent (10).

5.3

The EESC considers that the new SIA for promoting sustainable development will have little more impact on the behaviour of beneficiary nations than those which it replaces.

5.4

The EESC is concerned that the issue of fraud in the existing system does not appear to have been effectively addressed and considers that more could have been done in this respect.

5.5

The EESC is disappointed that detailed impact assessments on these proposals have not been published or apparently, in some cases, conducted.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJ L 346 of 31.12.2001

(2)  COM(2004) 461 final

(3)  COM(2004) 699 final

(4)  COM(1994) 212 final

(5)  Op. cit.

(6)  EESC opinion of 25 February 2004– OJ C 110 of 30 April 2004

(7)  Ibid

(8)  CESE 1646/2004 - Communication from the Commission to the Council and the European Parliament - Accomplishing a sustainable agricultural model for Europe through the reformed CAP - sugar sector reform - COM(2004) 499 final

(9)  CESE 1646/2004 - Communication from the Commission to the Council and the European Parliament - Accomplishing a sustainable agricultural model for Europe through the reformed CAP - sugar sector reform - COM(2004) 499 final

(10)  Proposal for a Council Regulation COM(2004) 699 final, Article 13


APPENDIX 1

Core human and labour rights UN/ILO Conventions

1.

International Covenant on Civil and Political Rights

2.

International Covenant on Economic Social and Cultural Rights

3.

International Convention on the Elimination of All Forms of Racial Discrimination

4.

Convention on the Elimination of All Forms of Discrimination Against Women

5.

Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

6.

Convention on the Rights of the Child

7.

Convention on the Prevention and Punishment of the Crime of Genocide

8.

Minimum Age for Admission to Employment (No. 138)

9.

Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182)

10.

Abolition of Forced Labour Convention (No. 105)

11.

Forced Compulsory Labour Convention (No. 29)

12.

Equal Remuneration of Men and Women Workers for Work of Equal Value Convention (No. 100)

13.

Discrimination in Respect of Employment and Occupation Convention (No. 111)

14.

Freedom of Association and Protection of the Right to Organise Convention (No. 87)

15.

Application of the Principles of the Right to Organise and to Bargain Collectively Convention (No. 98)

16.

International Convention on the Suppression and Punishment of the Crime of Apartheid.


APPENDIX 2

Conventions related to environment and governance principles

17.

Montreal Protocol on Substances that deplete the Ozone Layer

18.

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal

19.

Stockholm Convention on persistent Organic Pollutants

20.

Convention on International Trade in Endangered Species

21.

Convention on Biological Diversity

22.

Cartagena Protocol on Biosafety

23.

Kyoto Protocol to the UN Framework Convention on Climate Change

24.

UN Single Convention on Narcotic Drugs (1961)

25.

UN Convention on Psychotropic Substances (1971)

26.

UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)

27.

Mexico UN Convention against Corruption.


8.9.2005   

EN

Official Journal of the European Union

C 221/77


Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure

(COM(2004) 173 final/3 — 2004/0055 COD)

(2005/C 221/16)

On 6 April 2004 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the abovementioned proposal.

The Committee Bureau instructed the Section for the Single Market, Production and Consumption to prepare the Committee's work on the subject.

Given the urgent nature of the work, the European Economic and Social Committee appointed Mr Pegado Liz as rapporteur-general at its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February), and adopted the following opinion with 73 votes in favour and two abstentions.

1.   Aim of the proposal

1.1

With the proposal for a regulation creating a European judicial order for payment procedure (1), the Commission is pursuing a number of initiatives gradually creating and developing an area of freedom, security and justice, removing barriers and helping to make it easier to conduct civil proceedings at European level, as specifically laid down in its Action Plan adopted by the Justice and Home Affairs Council of 3 December 1998 (2).

1.2

This proposal fulfils one of the key goals of the Green Paper of 20 December 2002 (3); the other goal of creating a European procedure for small claims litigation is being dealt with separately by the Commission.

1.3

With a view to establishing a European order for payment procedure, the Commission has taken into account the comments and recommendations made by the European Parliament and the EESC respectively regarding the aforementioned Green Paper, and is now presenting a draft regulation seeking to establish a single order for payment procedure applicable throughout the European Union.

1.4

The Commission's grounds for this initiative are based on the fact that Member States' civil procedural law systems differ, resulting in high costs and the delays entailed in cross-border litigation, which can become disproportionate, particularly where proceedings for the recovery of uncontested debts are concerned.

1.5

The Commission has decided to extend the scope of the single order for payment procedure to national disputes, in order to ensure equal treatment for all and to prevent distortion of competition between economic operators, in line with the EESC's opinion on the Green Paper, whilst ensuring that the procedure is compatible with the principles of proportionality and subsidiarity.

1.6

The text makes it quite clear that the order for payment procedure is optional, as the creditor can always opt for a different, more formal procedure provided for by domestic law. This, too, is in line with the EESC's opinion.

1.7

The Commission followed the following fundamental principles when defining the procedure:

a)

the procedure should be as simple as possible and based on the use of standard forms;

b)

no examination of the merits of a claim;

c)

presentation of documentary evidence not to be required;

d)

adequate protection of the defendant's rights;

e)

no need for appeals;

f)

enforceability;

g)

representation by a lawyer not to be compulsory.

1.8

The Commission also ensures mutual exchange of information concerning the courts with jurisdiction to issue European orders for payment in the different Member States; this information is to be updated regularly.

1.9

The Committee is pleased to learn that the United Kingdom and Ireland are looking into the possibility of joining the scheme, as has been the case with similar initiatives in the past. In order to ensure that the system now being proposed operates more smoothly, however, the Committee would have preferred Denmark not to completely opt out of implementing the regulation and hopes that, in future, the constraints hindering its full membership of a single European judicial area will be overcome.

1.10

The territorial scope of the proposal may cause difficulties as regards its implementation. To surmount these difficulties, account should be taken of i) the specific characteristics of certain territories, as set out in Article 299 TEC, and ii) the responsibilities that some Member States have assumed for these regions. It should therefore be pointed out that, irrespective of the actual implementation of the order procedure, appointment of the competent bodies concerned must be carried out by the relevant national authority which is to fulfil these responsibilities on behalf of the State, thereby ensuring the legitimacy of those bodies.

2.   Precedents and parallel initiatives

2.1

For a long time, the Community institutions, including the European Parliament (4) and the EESC (5), had been producing documents expressing their desire to see the standardisation and simplification of civil procedures, in order to ensure faster, more effective implementation of justice.

2.2

Echoing these concerns, which had mainly been expressed by economic operators, professionals and consumers, the Commission, too, had long been reflecting on the best way to proceed; the progress made in the pioneering field of consumer law was particularly significant (6).

2.3

However, it was clearly with the Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation that the issue was addressed with a view to a potential legislative initiative.

2.4

This initiative is part of a series of extremely important measures which have been taken in the field of judicial cooperation in civil matters over recent years (7):

2.5

Regulation (EC) No. 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims (8) deserves special mention and is particularly relevant when considering the current Commission proposal, in that the two texts address two aspects of the same situation — the need for simpler, more effective civil law enforcement in a single area of justice.

3.   Legal instrument and basis

3.1

In line with most of the initiatives adopted in this field, the Commission has opted to propose the adoption of a regulation, taking Articles 61(c) and 65 of the Treaty as a basis.

3.2

In its earlier opinion, the EESC firmly endorsed the adoption of a regulation, and therefore fully supports the Commission's decision.

3.3

It also fully endorses the Commission's choice of legal basis, which goes beyond a merely formal interpretation of the relevant legal concepts. This is the only way to fulfil the objective of creating a single EU judicial area.

4.   General comments

4.1

The EESC welcomes the draft regulation, which, as has been said, has incorporated most of its comments regarding the Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation, and which rightly aims to implement the right enshrined in Article 47 of the EU Charter of Fundamental Rights.

4.2

The EESC urges the Commission to consider the possibility of extending this proposal for a regulation to cover the European Economic Area.

4.3

The need to create a European procedure for the rapid recovery of uncontested debts is well documented in the responses of the various Member States to the aforementioned Green Paper, as is the concern to guarantee adequate defence rights for the debtors on whom the order for payment is served

4.3.1

The EESC considers, however, that the Commission proposal would be improved by the inclusion of statistics on the estimated numbers of dispute proceedings, both cross-border and national, that will be subject to the new instrument now being proposed, and also a cost/benefit analysis of the instrument's implementation — a matter on which the Commission's explanatory memorandum is silent.

4.4

In its opinion on the Green Paper, the EESC stated, in particular, that ‘When formulating a European small claims procedure, the key aim will be to define suitable measures for speeding up such litigation without, at the same time, jeopardising the guarantees afforded to the parties in question under the rule of law.’

4.5

The EESC believes that, although the proposal needs to be carefully and closely revised so as to enable it to achieve its goals more effectively, it does represent a balanced response to the twin requirements of rapid debt recovery and guaranteed defence rights.

4.6

Nonetheless, the EESC points out that it is important to bear in mind that businesses must not be able to use orders for payment as a cover for irregular procedures such as, in particular, exerting pressure or the recovery of debts arising from disregard for consumer protection rules. Similarly, it is important to ensure that the procedure adopted does not encourage instances of collusion between businesses in different Member States, with uncontested orders for payment being used as a cover for transferring money of dubious and/or even criminal origin and a legal procedure thus used to launder money.

4.7

The EESC also points out that a significant number of recovery proceedings which come before the courts, even if uncontested, are related to aggressive and/or misleading advertising which promotes products by convincing the consumer that their purchase and use or consumption of a product will not entail increased costs or, if they do, will not affect the family finances.

4.8

The EESC therefore feels that the proposal only addresses one aspect of what is a much wider, more complex issue. Accordingly, it again urges the Commission to propose legislation defining the liability of suppliers in cases of household over-indebtedness incurred as a result of unfair practices on their part (9).

4.9

The Commission considers that it will be possible for the European order for payment procedure to co-exist alongside other identical procedures serving the same purpose and contained in Member States' national legislation.

4.9.1

The EESC, however, believes that there should only be one order for payment procedure, namely the procedure laid down and regulated by the proposal under consideration. By definition, this procedure must be deemed the most appropriate for the situations it covers, as otherwise it would lose its legitimacy. Accordingly, when this regulation is adopted, the order for payment procedures provided for in the national legislation of some Member States should cease to have effect.

4.9.2

The European order for payment procedure should be optional only if there is an alternative common procedure, not when the alternative would be a national order for payment procedure.

4.9.3

For these reasons, the explanatory memorandum and recital 8 of the proposal should be reworded to stipulate clearly that the European order for payment procedure is an alternative only to other common — summary or ordinary — procedures, and not to any similar national procedures.

4.10

The proposal frequently employs the term ‘debtor’ to refer to the person on whom the European order for payment is served. The EESC feels that this term is incorrect, as it conveys the idea that the person on whom the order is served is a debtor, whereas, until the order for payment is enforced, there is, strictly speaking, no debtor and may never be.

4.10.1

The EESC therefore believes that the term ‘debtor’ should be replaced with the term ‘defendant’ wherever it is used in the text so that the same term is used throughout.

4.11

All the time frames laid down in the proposal should be measured in days rather than weeks. The rules for calculating them and the days not counted (e.g. court recesses, public holidays, Saturdays and Sundays) should be clearly specified, for obvious reasons of legal certainty. The EESC suggests using the rules set out in Article 80 et seq. of the rules of procedure of the Court of Justice.

4.12

In procedural law, ‘common procedure’ and ‘ordinary procedure’ are two different concepts. In some Member States, the main distinction is between common procedures and special procedures. A procedure is special when the law lays down a specific procedure for specific types of litigation, and it is common in all other cases. A common procedure may be ordinary, summary or accelerated, depending on the value of the claim.

4.12.1

The proposal uses the term ‘ordinary procedure’ loosely, without making this distinction. Article 2(2) refers to an ordinary procedure as distinct from a summary procedure. Article 6(5), Article 8 and Article 12 use the term ‘ordinary procedure/proceedings’ to mean the same as common procedure.

4.12.2

Thus, the term ‘ordinary procedure/proceedings’ used in Article 6(5), Article 8 and Article 12 should be replaced with the term ‘common procedure/proceedings’.

5.   Specific comments

5.1   Article 2 — European order for payment procedure

5.1.1

The phrase ‘uncontested pecuniary claims for a specific amount that have fallen due’ should be replaced with ‘uncontested pecuniary claims for a specified net amount that have fallen due’.

5.1.2

For a particular debt to be executable, it must be of a specified amount, which must be net, and it must have fallen due. This kind of concept is very clearly specified in the different legal systems and should be preserved here in order to ensure greater legal certainty in law enforcement.

5.2   Article 4 — Requirements for the delivery of a European order for payment

5.2.1

In Article 4(1), the clause ‘… if the requirements as set out in Articles 1, 2 and 3 are met’ should be amended, as Articles 1 and 2 do not actually refer to requirements. Article 1 defines the scope of the regulation and Article 2 specifies the procedure it creates.

5.2.1.1

The EESC therefore suggests the following wording: ‘… if the conditions and requirements as set out in Articles 1, 2 and 3 respectively are met’.

5.2.2

Article 4(2) gives courts the opportunity to require the claimant to complete or correct the application.

5.2.2.1

In the interests of legal certainty and economy of procedure, the EESC asks the Commission to consider turning this option into an obligation, at least in cases where the application contains particularly blatant errors or omissions.

5.2.2.2

Moreover, the proposal should lay down a specific — of necessity, short — time limit for the claimant to comply with the court's request. If the claimant does not correct the application before the time limit expires, it would then be rejected without further consideration.

5.3   Article 5 — Rejection of the application

5.3.1

Under procedural law, generally speaking, an objection or appeal may be lodged against a decision to reject an order for payment application. However, Article 5(2) is intended to ensure that the decision cannot be contested in any way.

5.3.2

Therefore, given the way the order for payment procedure is conceived and the fact that it is optional (which means that there is nothing to prevent other judicial procedures being used), appeal is unnecessary.

5.3.3

In view of this, Article 5(2) should read: ‘No objection or appeal shall lie against the rejection of an application for a European order for payment’, in order to be consistent with the information given in the explanatory memorandum. (10)

5.4   Article 6 — European payment notification

5.4.1

According to the second sentence of Article 6(2), if the defendant's address (as stated previously, the term ‘debtor’ should be replaced by ‘defendant’) is known with certainty, methods of service without proof of receipt by the defendant are admissible.

5.4.1.1

The EESC draws the Commission's attention to the fact that the clause ‘if the defendant's address is known with certainty’ is too vague and could lead to situations of great legal uncertainty with harmful consequences for defendants.

5.4.1.2

Some Member States have the system of an address for service: under this system, if the notification is served to the address for service by a contractual party, it is assumed to have been received, and there is therefore no need for proof of receipt. The EESC considers that the establishment of an address for service would not be sufficient to fulfil the requirement of knowing an address with certainty.

5.4.1.3

If this system — i.e. dispensing with the requirement of service with proof of receipt by the defendant — is combined with the system of seizure of goods in default of payment before the notification is actually served on the defendant, a situation could arise where the defendant only becomes aware of the order for payment at the point when it is executed and his or her goods are seized.

5.4.1.4

The EESC believes that this serious situation, which is distressing for people whose goods are seized without them having the opportunity to oppose it, is to be avoided (11). It therefore proposes, as stressed in its opinion on the aforementioned Green Paper, that the use of methods of service without proof of receipt by the defendant should not be admissible and that the clause ‘if the defendant's address is not known with certainty’ should therefore be deleted from the end of Article 6(2).

5.4.2

The time limit of three weeks laid down in Article 6(3)(b) should be specified in terms of the equivalent number of days, so as to make it easier to calculate the length of time involved.

5.4.3

In the Portuguese version of the proposal and in some other versions, the nature of the time frame laid down in Article 6(5) should be clarified, e.g. in the Portuguese version the words ‘de prescrição’ (‘of the statute of limitations’) should be added after the word ‘prazo’. (10)

5.4.4

In its opinion on the aforementioned Green Paper, the EESC also recommended to the Commission ‘that the legal instrument should spell out the consequences of failure to provide information on appeals’.

5.4.4.1

The current proposal does not include any such provisions, and so the EESC once again urges the Commission to lay down provisions to this effect.

5.5   Article 8 — Effects of a statement of defence

5.5.1

The EESC does not feel that the proposal makes it clear that, once a statement of defence has been lodged, the proceedings are to continue in accordance with the rules of civil procedure of the Member States concerned without the parties having to instigate any further procedures.

5.5.2

Therefore, in Article 8(1), the words ‘proceedings shall continue’ should be followed by the clause ‘automatically, without the need for a new procedure to be instigated’.

5.6   Article 9 — European order for payment

5.6.1

As stated with regard to Article 6(2), the second sentence of Article 9(2) stipulates that if the defendant's address (here too, the term ‘debtor’ should be replaced by ‘defendant’) is known with certainty, methods of service without proof of receipt by the defendant are admissible.

5.6.2

The EESC draws the Commission's attention to the fact that the clause ‘if the defendant's address is known with certainty’ is too vague and could lead to situations of great legal uncertainty with harmful consequences for the defendants.

5.6.3

For this reason, the EESC feels that exactly the same proposal as it made with regard to Article 6 applies here, in other words that the use of methods of service without proof of receipt by the defendant should not be admissible and that, therefore, the clause ‘if the defendant's address is not known with certainty’ should be deleted from the end of Article 9(2).

5.7   Article 11 — Opposition to the European order for payment

5.7.1

If the Commission accepts the EESC's suggestion that the use of methods of service without proof of receipt by the defendant should not be admissible, Article 11(4)(a)(i) should be deleted to ensure consistency.

5.7.2

The expression ‘acts promptly’ in the final sentence of Article 11(4) is very vague and is open to many different interpretations.

5.7.2.1

In order to ensure legal certainty, the EESC therefore proposes that the Commission specify a time limit within which the rights set forth in Article 11(4) must be exercised.

5.8   Article 12 — Effects of the lodging of a statement of opposition

5.8.1

As stated with regard to Article 8, the proposal does not make it clear that, once a statement of defence has been lodged, the proceedings are to continue in accordance with the rules of civil procedure of the Member States concerned without the parties having to instigate any further procedures.

5.8.2

Therefore, the words ‘proceedings shall continue’ should be followed by the clause ‘automatically, without the need for a new procedure to be instigated’.

5.9   Article 13 — Legal representation

5.9.1

The EESC believes that making representation by a lawyer or another legal professional non-mandatory may be admissible when the value of the claim is sufficiently low as to make it not worth the expense of engaging experts of this kind.

5.9.2

However, unlike some Member States' laws, the proposal does not specify ceilings for application of the order for payment procedure, with the result that it could be used to recover large sums which, under the laws of certain Member States, ought to require use of an ordinary procedure if opposition is expressed.

5.9.3

In such circumstances, it is not sensible for a legal professional only to be engaged when a case is being transferred to an ordinary civil procedure. Indeed, when completing the proposed response form, a debtor is required not only to state whether or not he acknowledges the debt but also to lodge a statement of opposition relating to the claim in its entirety or, in respect of the principal claim, only to the interest or only to the costs. If a debtor completes this form, he might inadvertently weaken any defence that his lawyer might adopt, should a lawyer be involved from the beginning of the order procedure.

5.9.4

On the other hand, making representation by legal professionals non-mandatory could have a negative impact where the parties involved are very unevenly matched (consumers against professionals, large businesses against small or family businesses).

5.9.5

For these reasons, the EESC advises the Commission to consider making representation by a lawyer or another legal professional mandatory where the sums involved exceed a set amount (such as EUR 2 500).

5.10   Article 14 — Costs

5.10.1

The EESC believes that a paragraph 2 should be added to Article 14, worded as follows: ‘There shall be no charge for the European order for payment procedure if no statement of defence or opposition is lodged.’

5.10.2

Given that the order for payment procedure is an out-of-court procedure, it is proposed that a single, initial, small fee be established, irrespective of the value of the claim.

5.10.3

If this is not thought advisable, the regulation should make it clear that Member States' national legislation transposing Directive 2003/8/EC of 27 January 2003 on access to justice in cross-border disputes is applicable in the present case (12).

5.11   Annexes: Forms

5.11.1

The proposed system rests on the use of the forms reproduced in annexes 1, 2 and 3 (12). The procedures will only run smoothly if the forms serve the purpose for which they are intended.

5.11.2

The EESC has well-founded doubts about the effectiveness and practicality of the forms used in cross-border disputes.

5.11.3

For example: if an Italian company which is owed money by a Polish consumer submits an application for a European order for payment to an Italian court, will the Polish consumer receive the payment notification in Italian or Polish? If it is in Italian, what guarantee is there that the consumer will understand it and be able to decide whether to make a statement of defence? If it is in Polish, who will be responsible for translating it?

5.11.4

The claimant does not merely have to tick boxes in the form; he also has to add written information. Who will be responsible for translating this? And who will certify that the translation is accurate?

5.11.5

Regulation 1348/2000, of 29 May 2000, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, does not allay the concerns referred to above, due to the rather informal and unhurried nature of the European order procedure now under examination.

5.11.6

Indeed, even if the aforementioned hypothetical Polish consumer were to receive a European order for payment in his mother tongue, in which language would he reply? Who would provide a translation from Polish into Italian? Conversely, if he does not receive the notification in Polish, he could, legally speaking, refuse to accept it. Any situation of this nature, however, would create barriers that would adversely affect the swiftness of the European order for payment.

5.11.7

The EESC therefore asks the Commission to consider the most effective way of ensuring that the use of these forms in cross-border disputes does not jeopardise the swift recovery of debts or the defendant's right of defence.

5.11.8

The EESC also thinks that all the forms apart from the response forms are too complicated to be filled in by people without legal training.

5.11.9

A number of terms (statutory interest rate; % above the base rate of the ECB; order for payment; ‘can be enforced against you’) could be unclear to the layman. As the Commission proposes to make legal representation non-mandatory (although the EESC thinks that this should only be the case for small sums), action is needed to ensure that the users of the forms understand them and can fill them in correctly.

5.11.10

In Portugal at least, the terms ‘rent’ and ‘hire’ relate to two separate concepts (immovable property is rented, movable property is hired). In the Portuguese version of point 8.2 of the application for a European order for payment and in point 9.3 of the European payment notification, the term ‘contrato de locação’ should therefore be used for movable property. The terminology used in the other language versions should also be checked against the terms to be found in Member States' civil law.

5.11.11

Lastly, point 11 of the application for a European order for payment and point 12 of the European payment notification will be very difficult for the layman to complete. The EESC suggests that this matter be analysed by the court on the basis of the place of residence of the claimant and defendant.

Brussels, 9 February 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  COM(2004) 173 final of 19.03.04.

(2)  OJ C 19 of 23.01.99.

(3)  COM(2002) 746 final of 20.12.02, rapporteur: Mr Von Fürstenwerth (OJ C 220 of 16.9.2003).

(4)  See EP resolutions A2-152/86 of 13.3.1987, A3-0212/94 of 22.4.1994 and A-0355/96 of 14.11.1996

(5)  See in particular opinions on the Green Paper on consumer access to justice (rapporteur: Mr Ataíde Ferreira, OJ C 295 of 22.10.1994) and on the single market and consumer protection: oportunities and obstacles (rapporteur: Mr Ceballo Herrero, OJ C 39 of 12.2.1996).

(6)  In this connection, cf the following documents:

Commission communication on Consumer redress (COM(84) 692 final of 12.12.1981) and supplementary communication on the same subject (COM(87) 210 final of 7.5.1987) in supplement 2/85 to the Bulletin of the European Communities

Commission communication on A new impetus for consumer protection policy (COM(85) 314 final of 23.7.1985) in OJ C 160 of 1.7.1985

Commission action plan of 14 February 1996 (COM(96) 13 final)

Commission Communication on Towards greater efficiency in obtaining and enforcing judgments in the European Union (COM(97) 609 final of 22.12.1997, OJ C 33 of 31.1.98)

Green Paper on consumer access to justice and the settlement of consumer disputes in the single market (COM(93) 576).

Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 final of 19.4.2002)

(7)  These include:

Commission Recommendation of 12 May 1995 on payment periods in commercial transactions, and the related Commission Communication (OJ L 127 of 10.6.1995 and OJ C 144 of 10.6.1995)

Directive 98/27/EC of 19.5.1998 on injunctions for the protection of consumers' interests (OJ L 166 of 11.6.1998, p.51)

Directive 2000/35/EC of 29 June 2000 on combating late payment in commercial transactions (OJ L 200 of 8.8.2000)

Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) (OJ L 12 of 16.1.2001). EESC rapporteur: Mr Malosse (OJ C 117 of 26.4.2000)

Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174 of 27.6.2001). EESC rapporteur: Mr Bataller (OJ C 139 of 11.5.2001)

Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters (OJ C 12 of 15.1.2001)

Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L 160 of 30.6.2000). EESC rapporteur: Mr Ravoet (OJ C 75 of 15.3.2000)

Regulation (EC) No. 1347/2000 of 29 May 2000 on the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (OJ L 160 of 30.6.2000). EESC rapporteur: Mr Braghin (OJ C 368 of 20.12.1999)

Regulation (EC) No. 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ L 160 of 30.6.2000). EESC rapporteur: Mr Bataller (OJ C 368 of 20.12.1999)

Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ L 174 of 27.6.2001). EESC rapporteur: Mr Retureau (OJ C 139 of 11.5.2001)

Commission Communication concerning a New Legal Framework for Payments in the Internal Market [COM(2003) 718 final of 2.12.2003]. EESC rapporteur: Mr Ravoet (OJ C 302 of 7.12.2004).

(8)  COM(2002) 159 final, OJ C 203 of 27.8.2002. EESC rapporteur: Mr Ravoet (OJ C 85 of 8.4.2003).

(9)  See the EESC opinion and information report on household over-indebtedness (rapporteur: Mr Ataíde Ferreira, OJ C 149 of 21.6.2002).

(10)  Translator's note: The Portuguese version of the explanatory memorandum uses the word ‘recurso’ (appeal), while Article 5(2) uses the word ‘impugnação’ (objection). The English version uses the word ‘appeal’ in both cases.

(11)  Article 14 of Regulation (EC) No. 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims provides for a debtor to be served without proof of receipt by the debtor but does not consider this admissible if the debtor's address is not known with certainty. Of the various situations provided for, only those described in points c), d) and e) justify the objections raised by the EESC in this opinion and in the opinion on the relevant Green Paper.

(12)  Translator's note: The English version already mentions the statute of limitations.


8.9.2005   

EN

Official Journal of the European Union

C 221/87


Opinion of the European Economic and Social Committee on the Proposal for a European Parliament and Council recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry

(COM(2004) 341 final — 2004/0117 (COD))

(2005/C 221/17)

On 14 May 2004, the Council decided to consult the European Economic and Social Committee, under Article 157 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur was Mr Pegado Liz.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February), the European Economic and Social Committee adopted the following opinion by 73 votes to two:

1.   Summary of the proposal for a recommendation

1.1

With this proposal for a recommendation (1), on the content of audiovisual and information services, covering all forms of delivery, from broadcasting to the Internet, the Commission proposes to follow up the second evaluation report, of 12 December 2003, on the application of the Council Recommendation of 24 September 1998, on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity. (2)

1.2

The main reasons given for the need for this additional recommendation are, firstly, the challenges posed by recent developments in technology, including the power of new computers and the fact that broadband technologies allow distribution of content such as video on 3G mobile telephones. (3) Secondly, the proliferation of illegal, harmful and undesirable content and conduct in all forms of digital broadcasting, from radio and television to the Internet, continues to be a concern for the general public and in particular parents and educationalists, the industry and law-makers.

1.3

Although the Commission has its own powers to draft recommendations in this field, which does not fall within the scope of legislative harmonisation, wherever it deems this necessary to ensuring the operation and development of the common market, it wished in this case, to involve the Council and the European Parliament directly in drafting and adopting this document.

One of the recommendation's aims is to enhance the competitiveness of the European audiovisual and information industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity, and the Commission believes that the broader public debate, instigated by the European Parliament, together with the commitment of the Member States meeting within the European Council will make it easier to fulfil this aim. The Commission therefore proposes that Article 157 of the Treaty should be used as the legal basis for adopting the Recommendation.

1.4

In this Proposal for a Recommendation, the Commission hopes that the European Parliament and the Council recommend that the Member States establish the legal or other conditions fostering a climate of confidence which will promote the development of the audiovisual and information services industry.

To this end, it highlights four types of measures, with a view to:

a)

ensuring the right of reply across all media, including the Internet, without prejudice to the possibility of adjusting the way the right is exercised to the specific characteristics of each type of medium;

b)

enabling minors to make responsible use of on-line audiovisual and information services, in particular by improving the level of awareness among parents, educators and teachers of the potential of the new services and of the means whereby they may be made safe for minors, in particular through media literacy or media education programmes;

c)

facilitating identification of, and access to, quality content and services for minors, including through the provision of means of access in educational establishments and public places;

d)

encouraging the industry to avoid discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in all media.

1.5

The Commission believes, furthermore, that the European Parliament and the Council must recommend that the various industries and parties concerned

a)

adopt initiatives to provide minors with broader access to audiovisual and information services, with guarantees that programme content will be safe and monitored, while avoiding potentially harmful content, including a ‘bottom-up’ harmonisation through cooperation between self-regulatory and co-regulatory bodies in the Member States, and through the exchange of best practices concerning such issues as a system of common, descriptive symbols which would help viewers to assess the content of programmes;

b)

and avoid and combat all and any form of discrimination and promote a diversified and realistic picture of the skills and potential of both women and men in society.

1.6

The Annex to the Proposal contains some indicative guidelines for the implementation, at national level, of measures aimed at ensuring the right of reply across all media including:

legitimate interest, regardless of nationality;

time spans that are consistent with the exercise of this right;

the option to appeal to the courts.

2.   Background to the proposal

2.1

The issue of protecting minors against harmful content and the exercise of the right to reply in television programmes appears for the first time in Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (4), amended by Directive 97/36/EC of the European Parliament and Council, of 30 June 1997 (5) (known as the ‘Television without frontiers’ Directive).

2.2

Nevertheless, and as the Commission recalls, the first Community text that sought to introduce a degree of regulation into the content of audiovisual and information services was the Recommendation of 24 September 1998 which, echoing the substance of the considerations contained in the Green Paper on the Protection of minors and human dignity in audiovisual and information services of 16 October 1996 (6) and the conclusions of the Resolution on illegal and harmful content on the Internet, of 17 February 1997 (7), put forward a series of recommendations to the Member States, industry and the parties concerned, to foster, mainly by means of self-regulation, a climate of confidence that would promote the development of audiovisual and information services, ensuring a high level of protection of minors and of human dignity.

2.3

As regards this important text, in its opinion of 29 April 1998, (8) the European Economic and Social Committee drew attention to various crucial aspects relating to the principles, nature, scope and content of any regulation that seeks to ensure the effective protection of minors and human dignity in the audiovisual media. In brief, it concluded by recommending a harmonised and integrated international approach to regulation on audiovisual services. It highlighted the aspects of the use of content rating systems and filtering software, clarification on responsibility for illegal and harmful content, recommending initiatives to educate and to raise the awareness of parents, educators and teachers and called for greater cooperation and coordination between European and international organisations. The opinion also proposed that a European or preferably international framework be established for codes of conduct, guidelines and grass-roots measures to ensure the suitable protection of minors and of human dignity.

2.4

Following this initial text, several initiatives with similar concerns have been adopted at Community level, by the Council and the Commission (9).

2.5

The EESC too has taken a number of initiatives that have identical concerns. The most important of these are:

a)

the opinion on A programme for child protection on the Internet  (10) ;

b)

the opinion on the Commission Communication on Principles and guidelines for the community's audiovisual policy in the digital age (11);

c)

The opinions on Proposals for Decisions 276/1999/EC and 1151/2003/EC, (respectively Doc. COM(1998) 518 final and COM(2002) 152 final) (12);

d)

the opinion on the Proposal for a European Parliament and Council decision on safer use of the Internet (Doc. COM(2004) 91 final of 12.3.2004) (13).

The reader is referred to the considerations and recommendations contained in them.

3.   General comments

3.1

The EESC welcomes the Commission initiative to extend and implement the EP and Council Recommendation of 24 September 1998 in the light of the results of the second evaluation report on its implementation in key aspects such as the protection of minors and human dignity, combating social discrimination in any form and ensuring the right of reply across the media, including the Internet.

3.2

The EESC acknowledges that, in the current context, the Treaty does not grant the European Union own powers to harmonise laws in the audiovisual sector but is unhappy at this state of affairs and recommends that it be addressed in the next revision of the Treaties.

3.3

The EESC finds it illogical that, in order to protect minors and human dignity, to protect honour and privacy in the media within the European Union, with the completely open borders provided for in the TV without frontiers Directive, it should be necessary to invoke as a key factor not rights relating to the personality as such, but ‘the development of the competitiveness of the European audiovisual and information services industry’. Protecting this core of fundamental citizens' rights must not be seen as a merely incidental aspect of achieving the aim of developing the audiovisual market.

3.4

The EESC does recognise, however, that given the aforementioned legal restrictions, the recommendation, broadly in the terms drawn up by the Commission, is the best way of making progress on the issues at stake. It also agrees with the legal basis suggested by the Commission for this recommendation (Article 157 of the Treaty establishing the European Communities), which is in fact identical to the legal basis used in the Council Recommendation of 24 September 1998 on developing the competitiveness of the European audiovisual and information services industry, by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity (14), complemented by the present draft recommendation and by Council Decision of 20 December 2000 on the implementation of a programme to encourage the development, distribution and promotion of European audiovisual works (MEDIA Plus — Development, distribution and promotion 2001-2005) (15).

3.5

The EESC reiterates the view expressed in the opinion (16) on the proposal for a Council recommendation on the protection of minors and human dignity in the audiovisual and information services industry (98/C 214/07), to the effect that the European audiovisual and information services industry can only achieve its full potential in a climate of confidence which, in turn, can only be achieved by guaranteeing the protection of minors and human dignity.

3.6

The EESC also confirms its belief that only a harmonised and integrated international approach to the regulation of audiovisual services can result in the effective implementation of any protection measures, in particular as regards aspects of the rating systems and filtering software and clarification on responsibility for illegal and harmful content. Hence the Committee's renewed call for greater cooperation and coordination between European and international organisations and its reiteration of the proposal to establish international codes of conduct, guidelines and grass roots measures for the adequate protection of minors and human dignity.

3.7

The EESC draws attention in particular to the definition of the concept of human dignity provided by the European Union's Charter of Fundamental Rights, which is an integral part of the European Constitution (Article I-2) and to the need, in the context of this proposal for a Recommendation, for this concept to be viewed in a way that is entirely consistent with the aim and the content of the aforementioned Charter.

3.8

The EESC believes that effectively protecting minors and human dignity in the light of technological developments in the audiovisual and information services industry requires, in particular, the promotion of media literacy ‘to enable consumers to use the media in a manner geared to the values of society and to develop a sense of judgment in these matters’  (17).

3.9

Where the Internet in particular is concerned, the EESC believes it to be crucial to coordinate policies and measures to promote literacy and the safe use of the Internet by minors, and consequently agrees with the conclusions of the European Forum on Harmful and Illegal Cyber Content: Self-Regulation, User Protection and Media Competence, organised by the Council of Europe on 28 November 2001 (18).

3.10

The EESC reiterates its support for self-regulation, where justified, and highlights the importance of using co-regulatory models because these appear to be particularly effective for implementing rules on protecting minors, as specifically mentioned in the Commission Communication, the Future of European Regulatory Audiovisual Policy COM(2003) 784 final of 15 December 2003 (19).

3.11

Without prejudice to the vital importance of initiatives to promote media literacy, the EESC welcomes the idea of establishing Community criteria for describing and identifying audiovisual content whilst stressing, however, in order to take account of specific cultural characteristics, that content should be reviewed at national and regional level.

3.12

The EESC wishes to express its support for the vast majority of very positive innovations and developments contained in the new Commission initiative, which represent significant progress in relation to its previous Recommendation. Of these it would highlight:

a)

the reference, in the first indent of point I(2) to media literacy and media education programmes;

b)

the call for active encouragement to combat all and any form of discrimination, above and beyond a purely passive concept of ‘avoiding’ such discrimination, in point I(3);

c)

the idea of a ‘bottom-up’ harmonisation through cooperation between self-regulatory and co-regulatory bodies in the Member States, and through the exchange of best practices concerning such issues as a system of common, descriptive symbols which would help viewers to assess the content of programmes (point II(1));

d)

and, in particular, the recommendation to ensure the right of reply across all media, including the Internet, assuming that the same right will also apply to the Community institutions' own publications and broadcasts.

3.13

The EESC believes, however, that it should have been possible to take the recommended approach further, in the following ways:

4.   Specific comments

4.1   Protection of minors

4.1.1

Minors are not the only group requiring special protection from certain harmful and dangerous content, involving in particular violence, pornography and paedophilia — this also applies to other more sensitive or vulnerable groups, such as the elderly or persons with learning difficulties, and the recommendation should also take these groups into account.

4.1.2

Various aspects relating to the protection of minors, raised by the EESC in its recent opinion on the Proposal for a European Parliament and Council Decision on establishing a multi-annual Community programme on promoting safer use of the Internet (20), should be seen as useful recommendations to the Member States, to be incorporated into this Proposal for a Recommendation and including, in particular:

a)

better training and information on the means of making Internet use safer;

b)

holding Internet service providers liable and obliging them to comply immediately with any decision of a legitimate authority ordering that that they should cease transmission of illegal, harmful or dangerous programmes or content;

c)

encouraging and supporting the introduction of hotlines, filtering technologies, content rating, and anti-spam and spim measures;

d)

making authors of Internet access software and server operating systems liable for protecting and maintaining any systems sold against virus attacks, with the obligation to provide easy and accessible anti-virus technology;

e)

implementing systems to identify and provide information on harmful and dangerous content and the withdrawal of all racist or xenophobic content or content which advocates crime, violence or hatred.

4.1.3

Specific concerns about Internet use must not mean, however, that less attention is paid to traditional forms of media, in particular radio and television broadcasts, where serious offences against vulnerable members of the public, particularly minors, must be dealt with as a separate issue, either through self-regulation or regulation by other bodies.

4.2   Protection of human dignity

4.2.1

Protecting human dignity in the media cannot be confined to banning all forms of discrimination. Programmes with content that could undermine anyone's privacy or fundamental rights must also, where this is justified by the potential effect on society, be discussed by the competent national authorities.

4.2.2

The Member States must also be recommended, in this area, to:

a)

encourage the media to adopt precise and specific ethical rules to ensure due respect for privacy;

b)

encourage the media to put in place self-regulatory mechanisms to which the victims of attacks on privacy and human dignity can address complaints;

c)

set up independent bodies, including judicial bodies, to hear this type of complaint should the self-regulatory mechanisms prove ineffective;

d)

establish a right to compensation for material and non-material damage which would at the same time provide redress for victims and act as a deterrent for those responsible for serious and systematic attacks on people's privacy and human dignity;

e)

monitor programmes with content that could constitute attacks on privacy, human dignity and fundamental rights.

4.3   Right of reply

4.3.1

In addition to a right of reply, provision should also be made for a ‘right of correction’, with the same general scope and in the same conditions, in order to combat false, incorrect or inaccurate content that affects people's rights.

4.3.2

It must be stated clearly that the right of reply can be guaranteed not only by legislative means but also by the use of co-regulatory and self-regulatory measures.

4.3.3

The Annex must include provisions on:

a)

the precise and mandatory identification of cases in which publication of a reply or correction can be rejected (as stated in Resolution 74/26 of the Council of Europe), and determination of a short deadline within which any rejection must be made;

b)

the principle that the reply must be given the same prominence in the place of publication or type of broadcast as that in the publication/broadcast being replied to;

c)

the principle that exercising the right of reply and the right of correction must be free of charge.

4.3.4

The first indent of the annex, which reads regardless of nationality should be expanded to read or of place of residence.

5.   Final comments

5.1

The EESC once again welcomes the proposal for a recommendation now being considered, with the reservations stated in the 'specific comments' section and, given that technological innovation and progress will create new challenges in terms of both quality and quantity, also suggests that an evaluation of the recommendation's impact on Member States, industry and the other interested parties should be made, four years after its adoption.

5.2

Bearing in mind the evaluation process referred to in the previous point, the EESC suggests that a Monitoring Centre should be set up, with the task of systematically charting the measures promoted by the Member States, by industry and parties involved in implementing this recommendation.

Brussels, 9 February 2005.

The president

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Doc. COM(2004) 341 final of 30.4.2004.

(2)  Recommendation 98/560/EC published in OJ L 270 of 7.10.98; on this proposal, the Committee issued opinion CES 626/98 of 29 April 1998 (rapporteur: Mrs Jocelyn Barrow). In turn, the second evaluation report is contained in Doc. COM(2003) 776 final.

(3)  See the Commission Communication on Connecting Europe at high speed: recent developments in the sector of electronic communications (COM(2004) 61 final) and OJ C 120 of 20.5.2005, rapporteur: Mr McDonagh; see also the Commission Communication on Mobile Broadband Services (COM(2004) 447 of 30.6.2004).

(4)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ L 298 of 17.10.1989, p. 23.

(5)  Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ L 202 of 30.7.1997, p. 60.

(6)  COM(96) 483 final, on which the EESC delivered an opinion. The rapporteur was Dame Jocelyn Barrow, in OJ L 287 of 22.9.1997, p. 11.

(7)  OJ C 70 of 6.3.1997.

(8)  Opinion in OJ C 214 of 10.7.1998. The rapporteur was Dame Jocelyn Barrow.

(9)  The most important of these are:

a)

Decision No 276/1999/EC of the European Parliament and of the Council of 25 January 1999 adopting a multiannual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks, mainly as regards protecting children and minors (in OJ L 33 of 6.2.1999 amended by Decision 1151/2003/EC of 16 June 2003, in OJ L 162 of 1.7.2003, extending the action plan for two years).

b)

the Commission Communication of 14 December 1999, on Principles and guidelines for the Community's audiovisual policy in the digital age, which states that the framework must also guarantee effective protection of society's general interests, such as the freedom of expression and right of reply, protection for authors and their works, pluralism, consumer protection, the protection of minors and of human dignity and the promotion of linguistic and cultural diversity (COM(1999) 657 final).

c)

the Council Conclusions of 17 December 1999 on the protection of minors in the light of the development of digital audiovisual services, which highlight the need to adapt and complement current systems for protecting minors from harmful audiovisual content, in the light of ongoing technical, social and market developments (in OJ C 8 of 12.1.2000);

d)

Directive 2000/31/EC of 8 June 2000 on electronic commerce, which contains provisions relevant to the protection of minors and human dignity, in particular Article 16(1)(e), according to which Member States and the Commission are to encourage the drawing-up of codes of conduct regarding the protection of minors and human dignity (in OJ L 178 of 17.7.2000);

e)

Commission Communication: Creating a Safer Information Society by improving the Security of Information Infrastructures and Combating Computer-related Crime, which proposes an entire range of legislative and non-legislative measures to react against infringements of privacy, unauthorised access, industrial sabotage and abuse of intellectual property (COM(2000)890 final: rapporteur, Mr Dantin, and the Proposal for a Framework Decision on attacks against information systems, which succeeded it (COM(2002) 173 final of 19.4.02 and the opinion of 28.11.01, in OJ C 48 of 21.1.02: Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on network and information security: proposal for a European policy approach: rapporteur, Mr Retureau.

f)

Evaluation Report to the Council and the European Parliament on the application of Council Recommendation of 24 September 1998 concerning the protection of minors and human dignity, which describes the results regarding the recommendation's application as ‘encouraging’. The report also, however, highlights the need for users to be more closely involved and for more time to be allowed for fully applying the recommendation. These points were highlighted in the Council conclusions of 23 July 2001 on the Commission's evaluation report (in OJ C 213 of 31.7.2001.

g)

the Fourth Report from the Commission on the application of Directive 89/553/EEC Television without Frontiers, adopted on 6