16.5.2009   

EN

Official Journal of the European Union

L 122/1

16.5.2009   

EN

Official Journal of the European Union

L 122/3

(1)

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

(2)

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

(3)

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

(4)

Import duties should be fixed for the period from 16 May 2009 and should apply until new import duties are fixed and enter into force,

16.5.2009   

EN

Official Journal of the European Union

L 122/6

(1)

Council Directive 90/384/EEC of 20 June 1990 on the harmonisation of the laws of the Member States relating to non-automatic weighing instruments (3) has been substantially amended (4). In the interests of clarity and rationality the said Directive should be codified.

(2)

Member States have the responsibility of protecting the public against incorrect results of weighing operations by means of non-automatic weighing instruments when used for certain categories of applications.

(3)

In each Member State, mandatory provisions fix in particular the necessary performance requirements of non-automatic weighing instruments by specifying metrological and technical requirements, together with inspection procedures before and after going into service. These mandatory provisions do not necessarily lead to different levels of protection from one Member State to another but do, by their disparity, impede trade within the Community.

(4)

This Directive should set out mandatory and essential requirements as regards metrology and performance in relation to non-automatic weighing instruments. To facilitate proof of conformity with the essential requirements, it is necessary to have harmonised standards at European level, in particular as to the metrological, design and construction characteristics, so that instruments complying with those harmonised standards may be assumed to conform to the essential requirements. These standards, harmonised at European level, are drawn up by private bodies and must remain non-mandatory texts. For that purpose the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (Cenelec) and the European Telecommunications Standards Institute (ETSI) are recognised as the competent bodies for the adoption of harmonised standards in accordance with the general guidelines (5) for cooperation between the Commission, the European Free Trade Association (EFTA) and those three bodies, signed on 28 March 2003.

(5)

A series of Directives designed to remove technical barriers to trade in accordance with the principles established in the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards (6) has been adopted; each of those Directives provides for the affixing of the ‘CE’ conformity marking. In its communication of 15 June 1989 (7) on a global approach to certification and testing, the Commission proposed that common rules be drawn up concerning a ‘CE’ conformity marking with a single design. In its Resolution of 21 December 1989 on a global approach to conformity assessment (8), the Council approved as a guiding principle the adoption of a consistent approach such as this with regard to the use of the ‘CE’ conformity marking. The two basic elements of the new approach which should be applied are the essential requirements and the conformity assessment procedures.

(6)

Assessment of conformity with the relevant metrological and technical provisions is necessary to provide effective protection for users and third parties. The existing conformity assessment procedures differ from one Member State to another. To avoid multiple assessments of conformity, which are in effect barriers to the free movement of the instruments, arrangements should be made for the mutual recognition of conformity assessment procedures by the Member States. To facilitate the mutual recognition of conformity assessment procedures, Community procedures should be set up, together with criteria for the designation of the bodies responsible for carrying out tasks pertaining to the conformity assessment procedures.

(7)

It is therefore essential to ensure that such designated bodies ensure a high level of quality throughout the Community.

(8)

The presence on a non-automatic weighing instrument of the ‘CE’ conformity marking or of the sticker bearing the letter ‘M’ should indicate that there is a presumption that it satisfies the provisions of this Directive and therefore make it unnecessary to repeat the assessments of conformity already carried out.

(9)

This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex VII, Part B,

(a)

(b)

all applications other than those listed in point (a).

(a)

failure to meet the essential requirements set out in Annex I, where instruments do not meet the harmonised standards referred to in Article 6(1);

(b)

incorrect application of the harmonised standards referred to in Article 6(1);

(c)

shortcomings in the harmonised standards referred to in Article 6(1) themselves.

(a)

EC type examination as referred to in Annex II, point 1, followed either by the EC declaration of type conformity (guarantee of production quality) as referred to in Annex II, point 2, or by the EC verification as referred to in Annex II, point 3.

However, EC type examination shall not be compulsory for instruments which do not use electronic devices and the load-measuring device of which does not use a spring to balance the load;

(b)

EC unit verification as referred to in Annex II, point 4.

(a)

where a Member State establishes that the ‘CE’ conformity marking has been affixed unduly, the manufacturer or his authorised representative established within the Community shall be obliged to make the instrument conform as regards the provisions concerning the ‘CE’ conformity marking and to end the infringement under the conditions imposed by the Member State;

(b)

where non-conformity continues, the Member State must take all appropriate measures to restrict or prohibit the placing on the market of the instrument in question or to ensure that it is withdrawn from the market in accordance with the procedures laid down in Article 8.

16.5.2009   

EN

Official Journal of the European Union

L 122/28

(1)

A number of substantive changes are to be made to Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (3). In the interests of clarity, that Directive should be recast.

(2)

Pursuant to Article 15 of Directive 94/45/EC, the Commission has, in consultation with the Member States and with management and labour at European level, reviewed the operation of that Directive and, in particular, examined whether the workforce size thresholds are appropriate, with a view to proposing suitable amendments where necessary.

(3)

Having consulted the Member States and management and labour at European level, the Commission submitted, on 4 April 2000, a report on the application of Directive 94/45/EC to the European Parliament and to the Council.

(4)

Pursuant to Article 138(2) of the Treaty, the Commission consulted management and labour at Community level on the possible direction of Community action in this area.

(5)

Following this consultation, the Commission considered that Community action was advisable and again consulted management and labour at Community level on the content of the planned proposal, pursuant to Article 138(3) of the Treaty.

(6)

Following this second phase of consultation, management and labour have not informed the Commission of their shared wish to initiate the process which might lead to the conclusion of an agreement, as provided for in Article 138(4) of the Treaty.

(7)

It is necessary to modernise Community legislation on transnational information and consultation of employees with a view to ensuring the effectiveness of employees’ transnational information and consultation rights, increasing the proportion of European Works Councils established while enabling the continuous functioning of existing agreements, resolving the problems encountered in the practical application of Directive 94/45/EC and remedying the lack of legal certainty resulting from some of its provisions or the absence of certain provisions, and ensuring that Community legislative instruments on information and consultation of employees are better linked.

(8)

Pursuant to Article 136 of the Treaty, one particular objective of the Community and the Member States is to promote dialogue between management and labour.

(9)

This Directive is part of the Community framework intended to support and complement the action taken by Member States in the field of information and consultation of employees. This framework should keep to a minimum the burden on undertakings or establishments while ensuring the effective exercise of the rights granted.

(10)

The functioning of the internal market involves a process of concentrations of undertakings, cross-border mergers, take-overs, joint ventures and, consequently, a transnationalisation of undertakings and groups of undertakings. If economic activities are to develop in a harmonious fashion, undertakings and groups of undertakings operating in two or more Member States must inform and consult the representatives of those of their employees who are affected by their decisions.

(11)

Procedures for informing and consulting employees as embodied in legislation or practice in the Member States are often not geared to the transnational structure of the entity which takes the decisions affecting those employees. This may lead to the unequal treatment of employees affected by decisions within one and the same undertaking or group of undertakings.

(12)

Appropriate provisions must be adopted to ensure that the employees of Community-scale undertakings or Community-scale groups of undertakings are properly informed and consulted when decisions which affect them are taken in a Member State other than that in which they are employed.

(13)

In order to guarantee that the employees of undertakings or groups of undertakings operating in two or more Member States are properly informed and consulted, it is necessary to set up European Works Councils or to create other suitable procedures for the transnational information and consultation of employees.

(14)

The arrangements for informing and consulting employees need to be defined and implemented in such a way as to ensure their effectiveness with regard to the provisions of this Directive. To that end, informing and consulting the European Works Council should make it possible for it to give an opinion to the undertaking in a timely fashion, without calling into question the ability of undertakings to adapt. Only dialogue at the level where directions are prepared and effective involvement of employees’ representatives make it possible to anticipate and manage change.

(15)

Workers and their representatives must be guaranteed information and consultation at the relevant level of management and representation, according to the subject under discussion. To achieve this, the competence and scope of action of a European Works Council must be distinct from that of national representative bodies and must be limited to transnational matters.

(16)

The transnational character of a matter should be determined by taking account of both the scope of its potential effects, and the level of management and representation that it involves. For this purpose, matters which concern the entire undertaking or group or at least two Member States are considered to be transnational. These include matters which, regardless of the number of Member States involved, are of importance for the European workforce in terms of the scope of their potential effects or which involve transfers of activities between Member States.

(17)

It is necessary to have a definition of ‘controlling undertaking’ relating solely to this Directive, without prejudice to the definitions of ‘group’ or ‘control’ in other acts.

(18)

The mechanisms for informing and consulting employees in undertakings or groups of undertakings operating in two or more Member States must encompass all of the establishments or, as the case may be, the group’s undertakings located within the Member States, regardless of whether the undertaking or the group’s controlling undertaking has its central management inside or outside the territory of the Member States.

(19)

In accordance with the principle of autonomy of the parties, it is for the representatives of employees and the management of the undertaking or the group’s controlling undertaking to determine by agreement the nature, composition, the function, mode of operation, procedures and financial resources of European Works Councils or other information and consultation procedures so as to suit their own particular circumstances.

(20)

In accordance with the principle of subsidiarity, it is for the Member States to determine who the employees’ representatives are and in particular to provide, if they consider appropriate, for a balanced representation of different categories of employees.

(21)

It is necessary to clarify the concepts of information and consultation of employees, in accordance with the definitions in the most recent Directives on this subject and those which apply within a national framework, with the objectives of reinforcing the effectiveness of dialogue at transnational level, permitting suitable linkage between the national and transnational levels of dialogue and ensuring the legal certainty required for the application of this Directive.

(22)

The definition of ‘information’ needs to take account of the goal of allowing employees representatives to carry out an appropriate examination, which implies that the information be provided at such time, in such fashion and with such content as are appropriate without slowing down the decision-making process in undertakings.

(23)

The definition of ‘consultation’ needs to take account of the goal of allowing for the expression of an opinion which will be useful to the decision-making process, which implies that the consultation must take place at such time, in such fashion and with such content as are appropriate.

(24)

The information and consultation provisions laid down in this Directive must be implemented in the case of an undertaking or a group’s controlling undertaking which has its central management outside the territory of the Member States by its representative agent, to be designated if necessary, in one of the Member States or, in the absence of such an agent, by the establishment or controlled undertaking employing the greatest number of employees in the Member States.

(25)

The responsibility of undertakings or groups of undertakings in the transmission of the information required to commence negotiations must be specified in a way that enables employees to determine whether the undertaking or group of undertakings where they work is a Community-scale undertaking or group of undertakings and to make the necessary contacts to draw up a request to commence negotiations.

(26)

The special negotiating body must represent employees from the various Member States in a balanced fashion. Employees’ representatives must be able to cooperate to define their positions in relation to negotiations with the central management.

(27)

Recognition must be given to the role that recognised trade union organisations can play in negotiating and renegotiating the constituent agreements of European Works Councils, providing support to employees’ representatives who express a need for such support. In order to enable them to monitor the establishment of new European Works Councils and promote best practice, competent trade union and employers’ organisations recognised as European social partners shall be informed of the commencement of negotiations. Recognised competent European trade union and employers’ organisations are those social partner organisations that are consulted by the Commission under Article 138 of the Treaty. The list of those organisations is updated and published by the Commission.

(28)

The agreements governing the establishment and operation of European Works Councils must include the methods for modifying, terminating, or renegotiating them when necessary, particularly where the make-up or structure of the undertaking or group of undertakings is modified.

(29)

Such agreements must lay down the arrangements for linking the national and transnational levels of information and consultation of employees appropriate for the particular conditions of the undertaking or group of undertakings. The arrangements must be defined in such a way that they respect the competences and areas of action of the employee representation bodies, in particular with regard to anticipating and managing change.

(30)

Those agreements must provide, where necessary, for the establishment and operation of a select committee in order to permit coordination and greater effectiveness of the regular activities of the European Works Council, together with information and consultation at the earliest opportunity where exceptional circumstances arise.

(31)

Employees’ representatives may decide not to seek the setting-up of a European Works Council or the parties concerned may decide on other procedures for the transnational information and consultation of employees.

(32)

Provision should be made for certain subsidiary requirements to apply should the parties so decide or in the event of the central management refusing to initiate negotiations or in the absence of agreement subsequent to such negotiations.

(33)

In order to perform their representative role fully and to ensure that the European Works Council is useful, employees’ representatives must report to the employees whom they represent and must be able to receive the training they require.

(34)

Provision should be made for the employees’ representatives acting within the framework of this Directive to enjoy, when exercising their functions, the same protection and guarantees as those provided to employees’ representatives by the legislation and/or practice of the country of employment. They must not be subject to any discrimination as a result of the lawful exercise of their activities and must enjoy adequate protection as regards dismissal and other sanctions.

(35)

The Member States must take appropriate measures in the event of failure to comply with the obligations laid down in this Directive.

(36)

In accordance with the general principles of Community law, administrative or judicial procedures, as well as sanctions that are effective, dissuasive and proportionate in relation to the seriousness of the offence, should be applicable in cases of infringement of the obligations arising from this Directive.

(37)

For reasons of effectiveness, consistency and legal certainty, there is a need for linkage between the Directives and the levels of informing and consulting employees established by Community and national law and/or practice. Priority must be given to negotiations on these procedures for linking information within each undertaking or group of undertakings. If there are no agreements on this subject and where decisions likely to lead to substantial changes in work organisation or contractual relations are envisaged, the process must be conducted at both national and European level in such a way that it respects the competences and areas of action of the employee representation bodies. Opinions expressed by the European Works Council should be without prejudice to the competence of the central management to carry out the necessary consultations in accordance with the schedules provided for in national legislation and/or practice. National legislation and/or practice may have to be adapted to ensure that the European Works Council can, where applicable, receive information earlier or at the same time as the national employee representation bodies, but must not reduce the general level of protection of employees.

(38)

This Directive should be without prejudice to the information and consultation procedures referred to in Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (4) and to the specific procedures referred to in Article 2 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (5) and Article 7 of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (6).

(39)

Special treatment should be accorded to Community-scale undertakings and groups of undertakings in which there existed, on 22 September 1996, an agreement, covering the entire workforce, providing for the transnational information and consultation of employees.

(40)

Where the structure of the undertaking or group of undertakings changes significantly, for example, due to a merger, acquisition or division, the existing European Works Council(s) must be adapted. This adaptation must be carried out as a priority pursuant to the clauses of the applicable agreement, if such clauses permit the required adaptation to be carried out. If this is not the case and a request establishing the need is made, negotiations, in which the members of the existing European Works Council(s) must be involved, will commence on a new agreement. In order to permit the information and consultation of employees during the often decisive period when the structure is changed, the existing European Works Council(s) must be able to continue to operate, possibly with adaptations, until a new agreement is concluded. Once a new agreement is signed, the previously established councils must be dissolved, and the agreements instituting them must be terminated, regardless of their provisions on validity or termination.

(41)

Unless this adaptation clause is applied, the agreements in force should be allowed to continue in order to avoid their obligatory renegotiation when this would be unnecessary. Provision should be made so that, as long as agreements concluded prior to 22 September 1996 under Article 13(1) of Directive 94/45/EC or under Article 3(1) of Directive 97/74/EC (7) remain in force, the obligations arising from this Directive should not apply to them. Furthermore, this Directive does not establish a general obligation to renegotiate agreements concluded pursuant to Article 6 of Directive 94/45/EC between 22 September 1996 and 5 June 2011.

(42)

Without prejudice to the possibility of the parties to decide otherwise, a European Works Council set up in the absence of agreement between the parties must, in order to fulfil the objective of this Directive, be kept informed and consulted on the activities of the undertaking or group of undertakings so that it may assess the possible impact on employees’ interests in at least two different Member States. To that end, the undertaking or controlling undertaking must be required to communicate to the employees’ appointed representatives general information concerning the interests of employees and information relating more specifically to those aspects of the activities of the undertaking or group of undertakings which affect employees’ interests. The European Works Council must be able to deliver an opinion at the end of the meeting.

(43)

Certain decisions having a significant effect on the interests of employees must be the subject of information and consultation of the employees’ appointed representatives as soon as possible.

(44)

The content of the subsidiary requirements which apply in the absence of an agreement and serve as a reference in the negotiations must be clarified and adapted to developments in the needs and practices relating to transnational information and consultation. A distinction should be made between fields where information must be provided and fields where the European Works Council must also be consulted, which involves the possibility of obtaining a reasoned response to any opinions expressed. To enable the select committee to play the necessary coordinating role and to deal effectively with exceptional circumstances, that committee must be able to have up to five members and be able to consult regularly.

(45)

Since the objective of this Directive, namely the improvement of the right to information and to consultation of employees in Community-scale undertakings and Community-scale groups of undertakings, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(46)

This Directive respects fundamental rights and observes in particular the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for the right of workers or their representatives to be guaranteed information and consultation in good time at the appropriate levels in the cases and under the conditions provided for by Community law and national laws and practices (Article 27 of the Charter of Fundamental Rights of the European Union).

(47)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are unchanged arises under the earlier Directives.

(48)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (8), Member States are encouraged to draw up, for themselves and in the interests of the Community, tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(49)

This Directive should be without prejudice to the obligations of the Member States relating to the time limits set out in Annex II, Part B for transposition into national law and application of the Directives,

(a)

‘Community-scale undertaking’ means any undertaking with at least 1 000 employees within the Member States and at least 150 employees in each of at least two Member States;

(b)

‘group of undertakings’ means a controlling undertaking and its controlled undertakings;

(c)

‘Community-scale group of undertakings’ means a group of undertakings with the following characteristics:

(d)

‘employees’ representatives’ means the employees’ representatives provided for by national law and/or practice;

(e)

‘central management’ means the central management of the Community-scale undertaking or, in the case of a Community-scale group of undertakings, of the controlling undertaking;

(f)

‘information’ means transmission of data by the employer to the employees’ representatives in order to enable them to acquaint themselves with the subject matter and to examine it; information shall be given at such time, in such fashion and with such content as are appropriate to enable employees’ representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings;

(g)

‘consultation’ means the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management, at such time, in such fashion and with such content as enables employees’ representatives to express an opinion on the basis of the information provided about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which may be taken into account within the Community-scale undertaking or Community-scale group of undertakings;

(h)

‘European Works Council’ means a council established in accordance with Article 1(2) or the provisions of Annex I, with the purpose of informing and consulting employees;

(i)

‘special negotiating body’ means the body established in accordance with Article 5(2) to negotiate with the central management regarding the establishment of a European Works Council or a procedure for informing and consulting employees in accordance with Article 1(2).

(a)

holds a majority of that undertaking’s subscribed capital;

(b)

controls a majority of the votes attached to that undertaking’s issued share capital;

or

(c)

can appoint more than half of the members of that undertaking’s administrative, management or supervisory body.

(a)

The Member States shall determine the method to be used for the election or appointment of the members of the special negotiating body who are to be elected or appointed in their territories.

Member States shall provide that employees in undertakings and/or establishments in which there are no employees’ representatives through no fault of their own, have the right to elect or appoint members of the special negotiating body.

The second subparagraph shall be without prejudice to national legislation and/or practice laying down thresholds for the establishment of employee representation bodies.

(b)

The members of the special negotiating body shall be elected or appointed in proportion to the number of employees employed in each Member State by the Community-scale undertaking or Community-scale group of undertakings, by allocating in respect of each Member State one seat per portion of employees employed in that Member State amounting to 10 %, or a fraction thereof, of the number of employees employed in all the Member States taken together;

(c)

The central management and local management and the competent European workers’ and employers’ organisations shall be informed of the composition of the special negotiating body and of the start of the negotiations.

(a)

the undertakings of the Community-scale group of undertakings or the establishments of the Community-scale undertaking which are covered by the agreement;

(b)

the composition of the European Works Council, the number of members, the allocation of seats, taking into account where possible the need for balanced representation of employees with regard to their activities, category and gender, and the term of office;

(c)

the functions and the procedure for information and consultation of the European Works Council and the arrangements for linking information and consultation of the European Works Council and national employee representation bodies, in accordance with the principles set out in Article 1(3);

(d)

the venue, frequency and duration of meetings of the European Works Council;

(e)

where necessary, the composition, the appointment procedure, the functions and the procedural rules of the select committee set up within the European Works Council;

(f)

the financial and material resources to be allocated to the European Works Council;

(g)

the date of entry into force of the agreement and its duration, the arrangements for amending or terminating the agreement and the cases in which the agreement shall be renegotiated and the procedure for its renegotiation, including, where necessary, where the structure of the Community-scale undertaking or Community-scale group of undertakings changes.

—

where the central management and the special negotiating body so decide,

—

where the central management refuses to commence negotiations within six months of the request referred to in Article 5(1),

or

—

where, after three years from the date of this request, they are unable to conclude an agreement as laid down in Article 6 and the special negotiating body has not taken the decision provided for in Article 5(5).

(a)

an agreement or agreements covering the entire workforce, providing for the transnational information and consultation of employees have been concluded pursuant to Article 13(1) of Directive 94/45/EC or Article 3(1) of Directive 97/74/EC, or where such agreements are adjusted because of changes in the structure of the undertakings or groups of undertakings;

or

(b)

an agreement concluded pursuant to Article 6 of Directive 94/45/EC is signed or revised between 5 June 2009 and 5 June 2011.

16.5.2009   

EN

Official Journal of the European Union

L 122/45

(1)

According to Article 3 of the Decision 2006/505/EC, the Commission shall appoint a maximum of seven members of the Standards Advice Review Group from independent experts whose experience and competence in the accounting area, in particular in financial reporting issues, are widely recognised at Community level.

(2)

With Decision 2007/73/EC (2), the Commission appointed the seven members of the Standards Advice Review Group on 8 February 2007 for a three-year renewable term of office. In order to enable an orderly rotation of Group membership, the Group may decide on partial replacement of the members in groups of two or three. The Group has decided to replace three Members in 2009,

16.5.2009   

EN

Official Journal of the European Union

L 122/47

(1)

Radio frequency identification (RFID) marks a new development in the information society where objects equipped with microelectronics that can process data automatically will increasingly become an integral part of every day life.

(2)

RFID is progressively becoming more common, and hence a part of individuals’ lives in a variety of domains such as logistics (1), healthcare, public transport, the retail trade, in particular for improved product safety and faster product recalls, entertainment, work, road toll management, luggage management, and travel documents.

(3)

RFID technology has the potential to become a new motor for growth and jobs and thus make a powerful contribution to the Lisbon Strategy, as it holds great promise in economic terms, where it can bring about new business opportunities, cost reduction and increased efficiency, in particular in tackling counterfeiting and in managing e-waste, hazardous materials, and the recycling of products at their end of life.

(4)

RFID technology enables the processing of data, including personal data, over short distances without physical contact or visible interaction between the reader or writer and the tag, such that this interaction can happen without the individual concerned being aware of it.

(5)

RFID applications hold the potential to process data relating to an identified or identifiable natural person, a natural person being identified directly or indirectly. They can process personal data stored on the tag such as a person’s name, birth date or address or biometric data or data connecting a specific RFID item number to personal data stored elsewhere in the system. Furthermore, the potential exists for this technology to be used to monitor individuals through their possession of one or more items that contain an RFID item number.

(6)

Because of its potential to be both ubiquitous and practically invisible, particular attention to privacy and data protection issues is required in the deployment of RFID. Consequently, privacy and information security features should be built into RFID applications before their widespread use (principle of ‘security and privacy-by-design’).

(7)

RFID will only be able to deliver its numerous economic and societal benefits if effective measures are in place to safeguard personal data protection, privacy and the associated ethical principles that are central to the debate on public acceptance of RFID.

(8)

Member States and stakeholders should, especially in this initial phase of RFID implementation, make further efforts to ensure that RFID applications are monitored and the rights and freedoms of individuals are respected.

(9)

The Commission communication of 15 March 2007‘Radio frequency identification (RFID) in Europe: steps towards a policy framework’ (2) announced that clarification and guidance would be provided on the data protection and privacy aspects of RFID applications through one or more Commission Recommendations.

(10)

The rights and obligations concerning the protection of personal data and the free movement of such data, as provided for by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (3) and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (4) are fully applicable to the use of RFID applications that process personal data.

(11)

The principles laid down in Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (5) should be applied in the development of RFID applications.

(12)

The Opinion of the European Data Protection Supervisor (6) provides guidance as to how to handle products that contain tags which are provided to individuals and calls for privacy and security impact assessments to identify and develop ‘best available techniques’ to safeguard the privacy and security of RFID systems.

(13)

RFID application operators should take all reasonable steps to ensure that data does not relate to an identified or identifiable natural person through any means likely to be used by either the RFID application operator or any other person, unless such data is processed in compliance with the applicable principles and legal rules on data protection.

(14)

The Commission communication of 2 May 2007‘Promoting data protection by privacy enhancing technologies (PETs)’ (7) sets out clear actions to achieve the goal of minimising the processing of personal data and using anonymous or pseudonymous data wherever possible by supporting the development of PETs and their use by data controllers and individuals.

(15)

The Commission communication of 31 May 2006‘A strategy for a secure information society — “Dialogue, partnership and empowerment”’ (8) acknowledges that diversity, openness, interoperability, usability and competition are key drivers for a secure information society, highlights the role of Member States and public administrations in improving awareness and in promoting good security practices, and invites private-sector stakeholders to take initiatives to work towards affordable security certification schemes for products, processes and services addressing EU-specific needs, in particular with respect to privacy.

(16)

The Council Resolution of 22 March 2007 on a strategy for a secure information society in Europe (9) invites Member States to give due attention to the need to prevent and fight new and existing security threats to electronic communications networks.

(17)

A framework developed at Community level for conducting privacy and data protection impact assessments will ensure that the provisions of this Recommendation are followed coherently across Member States. The development of such framework should build on existing practices and experiences gained in Member States, in third countries and in the work conducted by the European Network and Information Security Agency (ENISA) (10).

(18)

The Commission will ensure the development of guidelines at Community level on information security management for RFID applications, building on existing practices and experiences gained in Member States and third countries. Member States should contribute to that process and encourage private entities and public authorities to participate.

(19)

An assessment of the privacy and data protection impacts carried by the operator prior to the implementation of an RFID application will provide the information required for appropriate protective measures. Such measures will need to be monitored and reviewed throughout the lifetime of the RFID application.

(20)

In the retail trade sector, an assessment of the privacy and data protection impacts of products containing tags which are sold to consumers should provide the necessary information to determine whether there is a likely threat to privacy or the protection of personal data.

(21)

The use of international standards, such as those developed by the International Organisation for Standardisation (ISO), codes of conduct and best practices which are compliant with the EU regulatory framework can help to manage information security and privacy measures throughout the whole RFID-enabled business process.

(22)

RFID applications with implications for the general public, such as electronic ticketing in public transport, require appropriate protective measures. RFID applications that affect individuals by processing, for example, biometric identification data or health-related data, are especially critical with regard to information security and privacy and therefore require specific attention.

(23)

Society as a whole needs to be aware of the obligations and rights that are applicable in relation to the use of RFID applications. The parties that deploy the technology therefore have a responsibility to provide individuals with information on the use of these applications.

(24)

Raising awareness among the public and small and medium-sized enterprises (SMEs) about the features and capabilities of RFID will help allow this technology to fulfil its economic promise while at the same time mitigating the risks of it being used to the detriment of the public interest, thus enhancing its acceptability.

(25)

The Commission will contribute to the implementation of this Recommendation directly and indirectly by facilitating dialogue and cooperation among stakeholders, in particular through the Competitiveness and Innovation Framework Programme (CIP) established by Decision No 1639/2006/EC of the European Parliament and of the Council (11) and Seventh Framework Research Programme (FP7) established by Decision No 1982/2006/EC of the European Parliament and of the Council (12).

(26)

Research and development on low-cost privacy-enhancing technologies and information security technologies is essential at Community level to promote a wider take-up of these technologies under acceptable conditions.

(27)

This Recommendation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Recommendation seeks to ensure full respect for private and family life and the protection of personal data,

1.

This Recommendation provides guidance to Member States on the design and operation of RFID applications in a lawful, ethical and socially and politically acceptable way, respecting the right to privacy and ensuring protection of personal data.

2.

This Recommendation provides guidance on measures to be taken for the deployment of RFID applications to ensure that national legislation implementing Directives 95/46/EC, 1999/5/EC and 2002/58/EC is, where applicable, respected when such applications are deployed.

3.

For the purposes of this Recommendation the definitions set out in Directive 95/46/EC should apply. The following definitions should also apply:

4.

Member States should ensure that industry, in collaboration with relevant civil society stakeholders, develops a framework for privacy and data protection impact assessments. This framework should be submitted for endorsement to the Article 29 Data Protection Working Party within 12 months from the publication of this Recommendation in the Official Journal of the European Union.

5.

Member States should ensure that operators, notwithstanding their other obligations pursuant to Directive 95/46/EC:

6.

Member States should support the Commission in identifying those applications that might raise information security threats with implications for the general public. For such applications, Member States should ensure that operators, together with national competent authorities and civil society organisations, develop new schemes, or apply existing schemes, such as certification or operator self-assessment, in order to demonstrate that an appropriate level of information security and protection of privacy is established in relation to the assessed risks.

7.

Without prejudice to the obligations of data controllers, in accordance with Directives 95/46/EC and 2002/58/EC, Member States should ensure that operators develop and publish a concise, accurate and easy to understand information policy for each of their applications. The policy should at least include:

8.

Member States should ensure that operators take steps to inform individuals of the presence of readers on the basis of a common European sign, developed by European standardisation organisations, with the support of concerned stakeholders. The sign should include the identity of the operator and a point of contact for individuals to obtain the information policy for the application.

9.

On the basis of a common European sign, developed by European standardisation organisations, with the support of concerned stakeholders, operators should inform individuals of the presence of tags that are placed on or embedded in products.

10.

When conducting the privacy and data protection impact assessment as referred to in points 4 and 5, the operator of an application should specifically determine whether tags placed on or embedded in products sold to consumers through retailers who are not operators of that application represent a likely threat to privacy or the protection of personal data.

11.

Retailers should deactivate or remove at the point of sale tags used in their application unless consumers, after being informed of the policy referred to in point 7, give their consent to keep tags operational. Deactivation of the tags should be understood as any process that stops those interactions of a tag with its environment which do not require the active involvement of the consumer. Deactivation or removal of tags by the retailer should be done immediately and free of charge for the consumer. Consumers should be able to verify that the deactivation or removal is effective.

12.

Point 11 should not apply if the privacy and data protection impact assessment concludes that tags that are used in a retail application and would remain operational after the point of sale do not represent a likely threat to privacy or the protection of personal data. Nevertheless, retailers should make available free of charge an easy means to, immediately or at a later stage, deactivate or remove these tags.

13.

Deactivation or removal of tags should not entail any reduction or termination of the legal obligations of the retailer or manufacturer towards the consumer.

14.

Points 11 and 12 should apply only to retailers that are operators.

15.

Members States, in collaboration with industry, the Commission and other stakeholders, should take appropriate measures to inform and raise awareness among public authorities and companies, in particular SMEs, of the potential benefits and risks associated with the use of RFID technology. Specific attention should be given to information security and privacy aspects.

16.

Member States, in collaboration with industry, civil society associations, the Commission and other relevant stakeholders, should identify and provide examples of good practice in the implementation of RFID applications to inform and raise awareness among the general public. They should also take appropriate measures, such as large-scale pilot projects, to increase public awareness of RFID technology, its benefits, risks and implications of use, as a prerequisite for wider take-up of this technology.

17.

Member States should cooperate with industry, relevant civil society stakeholders and the Commission to stimulate and support the introduction of the ‘security and privacy by design’ principle at an early stage in the development of RFID applications.

18.

Member States should take all necessary measures to bring this Recommendation to the attention of all stakeholders which are involved in the design and operation of RFID applications within the Community.

19.

Member States should inform the Commission at the latest 24 months following the publication of this Recommendation in the Official Journal of the European Union of action taken in response to this Recommendation.

20.

Within three years from the publication of this Recommendation in the Official Journal of the European Union, the Commission will provide a report on the implementation of this Recommendation, its effectiveness and its impact on operators and consumers, in particular as regards the measures recommended in points 9 to 14.

21.

This Recommendation is addressed to the Member States.