21.5.2016   

EN

Official Journal of the European Union

L 132/1

(1)

The purpose of this Directive is to establish procedural safeguards to ensure that children, meaning persons under the age of 18, who are suspects or accused persons in criminal proceedings, are able to understand and follow those proceedings and to exercise their right to a fair trial, and to prevent children from re-offending and foster their social integration.

(2)

By establishing common minimum rules on the protection of procedural rights of children who are suspects or accused persons, this Directive aims to strengthen the trust of Member States in each other's criminal justice systems and thus to improve mutual recognition of decisions in criminal matters. Such common minimum rules should also remove obstacles to the free movement of citizens throughout the territory of the Member States.

(3)

Although the Member States are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the International Covenant on Civil and Political Rights, and the UN Convention on the Rights of the Child, experience has shown that this in itself does not always provide a sufficient degree of trust in the criminal justice systems of other Member States.

(4)

On 30 November 2009, the Council adopted a Resolution on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (3) (‘the Roadmap’). Taking a step-by-step approach, the Roadmap calls for the adoption of measures regarding the right to translation and interpretation (measure A), the right to information on rights and information about the charges (measure B), the right to legal advice and legal aid (measure C), the right to communicate with relatives, employers and consular authorities (measure D), and special safeguards for suspected or accused persons who are vulnerable (measure E). The Roadmap emphasises that the order of the rights is indicative and thus implies that it may be changed in accordance with priorities. The Roadmap is designed to operate as a whole; only when all its components are implemented will its benefits be experienced in full.

(5)

On 11 December 2009, the European Council welcomed the Roadmap and made it part of the Stockholm programme — An open and secure Europe serving and protecting citizens (4) (point 2.4). The European Council underlined the non-exhaustive character of the Roadmap by inviting the Commission to examine further elements of minimum procedural rights for suspects and accused persons, and to assess whether other issues, for instance the presumption of innocence, need to be addressed, in order to promote better cooperation in that area.

(6)

Four measures on procedural rights in criminal proceedings have been adopted pursuant to the Roadmap to date, namely Directives 2010/64/EU (5), 2012/13/EU (6), 2013/48/EU (7) and Directive (EU) 2016/343 (8) of the European Parliament and the Council.

(7)

This Directive promotes the rights of the child, taking into account the Guidelines of the Council of Europe on child-friendly justice.

(8)

Where children are suspects or accused persons in criminal proceedings or are subject to European arrest warrant proceedings pursuant to Council Framework Decision 2002/584/JHA (9) (requested persons), Member States should ensure that the child's best interests are always a primary consideration, in accordance with Article 24(2) of the Charter of Fundamental Rights of the European Union (the Charter).

(9)

Children who are suspects or accused persons in criminal proceedings should be given particular attention in order to preserve their potential for development and reintegration into society.

(10)

This Directive should apply to children who are suspects or accused persons in criminal proceedings and to children who are requested persons. In respect of children who are requested persons, the relevant provisions of this Directive should apply from the time of their arrest in the executing Member State.

(11)

This Directive, or certain provisions thereof, should also apply to suspects or accused persons in criminal proceedings, and to requested persons, who were children when they became subject to the proceedings, but who have subsequently reached the age of 18, and where the application of this Directive is appropriate in the light of all the circumstances of the case, including the maturity and vulnerability of the person concerned.

(12)

When, at the time a person becomes a suspect or accused person in criminal proceedings, that person has reached the age of 18, but the criminal offence was committed when the person was a child, Member States are encouraged to apply the procedural safeguards provided for by this Directive until that person reaches the age of 21, at least as regards criminal offences that are committed by the same suspect or accused person and that are jointly investigated and prosecuted as they are inextricably linked to criminal proceedings which were initiated against that person before the age of 18.

(13)

Member States should determine the age of the child on the basis of the child's own statements, checks of the child's civil status, documentary research, other evidence and, if such evidence is unavailable or inconclusive, a medical examination. A medical examination should be carried out as a last resort and in strict compliance with the child's rights, physical integrity and human dignity. Where a person's age remains in doubt, that person should, for the purposes of this Directive, be presumed to be a child.

(14)

This Directive should not apply in respect of certain minor offences. However, it should apply where a child who is a suspect or accused person is deprived of liberty.

(15)

In some Member States an authority other than a court having jurisdiction in criminal matters has competence for imposing sanctions other than deprivation of liberty in relation to relatively minor offences. That may be the case, for example, in relation to road traffic offences which are committed on a large scale and which might be established following a traffic control. In such situations, it would be unreasonable to require that the competent authorities ensure all the rights under this Directive. Where the law of a Member State provides for the imposition of a sanction regarding minor offences by such an authority and there is either a right of appeal or the possibility for the case to be otherwise referred to a court having jurisdiction in criminal matters, this Directive should therefore apply only to the proceedings before that court following such an appeal or referral.

(16)

In some Member States certain minor offences, in particular minor road traffic offences, minor offences in relation to general municipal regulations and minor public order offences, are considered to be criminal offences. In such situations, it would be unreasonable to require that the competent authorities ensure all the rights under this Directive. Where the law of a Member State provides in respect of minor offences that deprivation of liberty cannot be imposed as a sanction, this Directive should therefore apply only to the proceedings before a court having jurisdiction in criminal matters.

(17)

This Directive should apply only to criminal proceedings. It should not apply to other types of proceedings, in particular proceedings which are specially designed for children and which could lead to protective, corrective or educative measures.

(18)

This Directive should be implemented taking into account the provisions of Directives 2012/13/EU and 2013/48/EU. This Directive provides for further complementary safeguards with regard to information to be provided to children and to the holder of parental responsibility in order to take into account the specific needs and vulnerabilities of children.

(19)

Children should receive information about general aspects of the conduct of the proceedings. To that end, they should, in particular, be given a brief explanation about the next procedural steps in the proceedings in so far as this is possible in the light of the interest of the criminal proceedings, and about the role of the authorities involved. The information to be given should depend on the circumstances of the case.

(20)

Children should receive information in respect of the right to a medical examination at the earliest appropriate stage in the proceedings, at the latest upon deprivation of liberty where such a measure is taken in relation to the child.

(21)

Where a child is deprived of liberty, the Letter of Rights provided to the child pursuant to Directive 2012/13/EU should include clear information on the child's rights under this Directive.

(22)

Member States should inform the holder of parental responsibility about applicable procedural rights, in writing, orally, or both. The information should be provided as soon as possible and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the child.

(23)

In certain circumstances, which can also relate to only one of the persons holding parental responsibility, the information should be provided to another appropriate adult nominated by the child and accepted as such by the competent authority. One of those circumstances is where there are objective and factual grounds indicating or giving rise to the suspicion that providing information to the holder of parental responsibility could substantially jeopardise the criminal proceedings, in particular, where evidence might be destroyed or altered, witnesses might be interfered with, or the holder of parental responsibility might have been involved in the alleged criminal activity together with the child.

(24)

Where the circumstances which led the competent authorities to provide information to an appropriate adult other than the holder of parental responsibility cease to exist, any information that the child receives in accordance with this Directive, and which remains relevant in the course of the proceedings, should be provided to the holder of parental responsibility. This requirement should not unnecessarily prolong the criminal proceedings.

(25)

Children who are suspects or accused persons have the right of access to a lawyer in accordance with Directive 2013/48/EU. Since children are vulnerable and not always able to fully understand and follow criminal proceedings, they should be assisted by a lawyer in the situations set out in this Directive. In those situations, Member States should arrange for the child to be assisted by a lawyer where the child or the holder of parental responsibility has not arranged such assistance. Member States should provide legal aid where this is necessary to ensure that the child is effectively assisted by a lawyer.

(26)

Assistance by a lawyer under this Directive presupposes that the child has the right of access to a lawyer under Directive 2013/48/EU. Therefore, where the application of a provision of Directive 2013/48/EU would make it impossible for the child to be assisted by a lawyer under this Directive, such provision should not apply to the right of children to have access to a lawyer under Directive 2013/48/EU. On the other hand, the derogations and exceptions to assistance by a lawyer laid down in this Directive should not affect the right of access to a lawyer in accordance with Directive 2013/48/EU, or the right to legal aid in accordance with the Charter and the ECHR, and with national and other Union law.

(27)

The provisions laid down in this Directive on assistance by a lawyer should apply without undue delay once children are made aware that they are suspects or accused persons. For the purposes of this Directive, assistance by a lawyer means legal support and representation by a lawyer during the criminal proceedings. Where this Directive provides for the assistance by a lawyer during questioning, a lawyer should be present. Without prejudice to a child's right of access to a lawyer pursuant to Directive 2013/48/EU, assistance by a lawyer does not require a lawyer to be present during each investigative or evidence-gathering act.

(28)

Provided that this complies with the right to a fair trial, the obligation for Member States to provide children who are suspects or accused persons with assistance by a lawyer in accordance with this Directive does not include the following: identifying the child; determining whether an investigation should be started; verifying the possession of weapons or other similar safety issues; carrying out investigative or evidence-gathering acts other than those specifically referred to in this Directive, such as body checks, physical examinations, blood, alcohol or similar tests, or the taking of photographs or fingerprints; or bringing the child to appear before a competent authority or surrendering the child to the holder of parental responsibility or to another appropriate adult, in accordance with national law.

(29)

Where a child who was not initially a suspect or accused person, such as a witness, becomes a suspect or accused person, that child should have the right not to incriminate him or herself and the right to remain silent, in accordance with Union law and the ECHR, as interpreted by the Court of Justice of the European Union (Court of Justice) and by the European Court of Human Rights. This Directive therefore makes express reference to the practical situation where such a child becomes a suspect or accused person during questioning by the police or by another law enforcement authority in the context of criminal proceedings. Where, in the course of such questioning, a child other than a suspect or accused person becomes a suspect or accused person, questioning should be suspended until the child is made aware that he or she is a suspect or accused person and is assisted by a lawyer in accordance with this Directive.

(30)

Provided that this complies with the right to a fair trial, Member States should be able to derogate from the obligation to provide assistance by a lawyer where this is not proportionate in the light of the circumstances of the case, it being understood that the child's best interests should always be a primary consideration. In any event, children should be assisted by a lawyer when they are brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Directive, as well as during detention. Moreover, deprivation of liberty should not be imposed as a criminal sentence unless the child has been assisted by a lawyer in such a way as to allow the child to exercise his or her rights of the defence effectively and, in any event, during the trial hearings before a court. Member States should be able to make practical arrangements in that respect.

(31)

Member States should be able to derogate temporarily from the obligation to provide assistance by a lawyer in the pre-trial phase for compelling reasons, namely where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person, or where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious criminal offence, inter alia, with a view to obtaining information concerning the alleged co-perpetrators of a serious criminal offence, or in order to avoid the loss of important evidence regarding a serious criminal offence. During a temporary derogation for one of those compelling reasons, the competent authorities should be able to question children without the lawyer being present, provided that they have been informed of their right to remain silent and can exercise that right, and that such questioning does not prejudice the rights of the defence, including the right not to incriminate oneself. It should be possible to carry out questioning, to the extent necessary, for the sole purpose of obtaining information that is essential to avert serious adverse consequences for the life, liberty or physical integrity of a person, or to prevent substantial jeopardy to criminal proceedings. Any abuse of this temporary derogation would, in principle, irretrievably prejudice the rights of the defence.

(32)

Member States should clearly set out in their national law the grounds and criteria for such a temporary derogation, and they should make restricted use thereof. Any temporary derogation should be proportional, strictly limited in time, not based exclusively on the type or the seriousness of the alleged criminal offence, and should not prejudice the overall fairness of the proceedings. Member States should ensure that where the temporary derogation has been authorised pursuant to this Directive by a competent authority which is not a judge or a court, the decision on authorising the temporary derogation can be assessed by a court, at least during the trial stage.

(33)

Confidentiality of communication between children and their lawyer is key to ensuring the effective exercise of the rights of the defence and is an essential part of the right to a fair trial. Member States should therefore respect the confidentiality of meetings and other forms of communication between the lawyer and the child in the context of the assistance by a lawyer provided for in this Directive, without derogation. This Directive is without prejudice to procedures that address the situation where there are objective and factual circumstances giving rise to the suspicion that the lawyer is involved with the child in a criminal offence. Any criminal activity on the part of a lawyer should not be considered to be legitimate assistance to children within the framework of this Directive. The obligation to respect confidentiality not only implies that Member States refrain from interfering with, or accessing, such communication but also that, where children are deprived of liberty or otherwise find themselves in a place under the control of the State, Member States ensure that arrangements for communication uphold and protect such confidentiality. This is without prejudice to any mechanisms that are in place in detention facilities with the purpose of avoiding illicit enclosures being sent to detainees, such as screening correspondence, provided that such mechanisms do not allow the competent authorities to read the communication between children and their lawyer. This Directive is also without prejudice to procedures under national law according to which forwarding correspondence may be rejected if the sender does not agree to the correspondence first being submitted to a competent court.

(34)

This Directive is without prejudice to a breach of confidentiality that is incidental to a lawful surveillance operation by competent authorities. This Directive is also without prejudice to the work that is carried out, for example, by national intelligence services to safeguard national security in accordance with Article 4(2) of the Treaty on European Union (TEU), or that falls within the scope of Article 72 of the Treaty on the Functioning of the European Union (TFEU) pursuant to which Title V of Part III of the TFEU, on the Area of Freedom, Security and Justice, must not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

(35)

Children who are suspects or accused persons in criminal proceedings should have the right to an individual assessment to identify their specific needs in terms of protection, education, training and social integration, to determine if and to what extent they would need special measures during the criminal proceedings, the extent of their criminal responsibility and the appropriateness of a particular penalty or educative measure.

(36)

The individual assessment should, in particular, take into account the child's personality and maturity, the child's economic, social and family background, including living environment, and any specific vulnerabilities of the child, such as learning disabilities and communication difficulties.

(37)

It should be possible to adapt the extent and detail of an individual assessment according to the circumstances of the case, taking into account the seriousness of the alleged criminal offence and the measures that could be taken if the child is found guilty of such an offence. An individual assessment which has been carried out with regard to the same child in the recent past could be used if it is updated.

(38)

The competent authorities should take information deriving from an individual assessment into account when determining whether any specific measure concerning the child is to be taken, such as providing any practical assistance; when assessing the appropriateness and effectiveness of any precautionary measures in respect of the child, such as decisions on provisional detention or alternative measures; and, taking account of the individual characteristics and circumstances of the child, when taking any decision or course of action in the context of the criminal proceedings, including when sentencing. Where an individual assessment is not yet available, this should not prevent the competent authorities from taking such measures or decisions, provided that the conditions set out in this Directive are complied with, including carrying out an individual assessment at the earliest appropriate stage of the proceedings. The appropriateness and effectiveness of the measures or decisions that are taken before an individual assessment is carried out could be re-assessed when the individual assessment becomes available.

(39)

The individual assessment should take place at the earliest appropriate stage of the proceedings and in due time so that the information deriving from it can be taken into account by the prosecutor, judge or another competent authority, before presentation of the indictment for the purposes of the trial. It should nevertheless be possible to present an indictment in the absence of an individual assessment provided that this is in the child's best interests. This could be the case, for example, where a child is in pre-trial detention and waiting for the individual assessment to become available would risk unnecessarily prolonging such detention.

(40)

Member States should be able to derogate from the obligation to carry out an individual assessment where such a derogation is warranted in the circumstances of the case, taking into account, inter alia, the seriousness of the alleged criminal offence and the measures that could be taken if the child is found guilty of such an offence, provided that the derogation is compatible with the child's best interests. In that context, all relevant elements should be taken into consideration, including whether or not the child has, in the recent past, been the subject of an individual assessment in the context of criminal proceedings or whether the case concerned may be conducted without an indictment.

(41)

The duty of care towards children who are suspects or accused persons underpins a fair administration of justice, in particular where children are deprived of liberty and are therefore in a particularly weak position. In order to ensure the personal integrity of a child who is deprived of liberty, the child should have the right to a medical examination. Such a medical examination should be carried out by a physician or another qualified professional, either on the initiative of the competent authorities, in particular where specific health indications give reasons for such an examination, or in response to a request of the child, of the holder of parental responsibility or of the child's lawyer. Member States should lay down practical arrangements concerning medical examinations that are to be carried out in accordance with this Directive, and concerning access by children to such examinations. Such arrangements could, inter alia, address situations where two or more requests for medical examinations are made in respect of the same child in a short period of time.

(42)

Children who are suspects or accused persons in criminal proceedings are not always able to understand the content of questioning to which they are subject. In order to ensure sufficient protection of such children, questioning by police or by other law enforcement authorities should therefore be audio-visually recorded where it is proportionate to do so, taking into account, inter alia, whether or not a lawyer is present and whether or not the child is deprived of liberty, it being understood that the child's best interests should always be a primary consideration. This Directive does not require Member States to make audiovisual recordings of questioning of children by a judge or a court.

(43)

Where an audiovisual recording is to be made in accordance with this Directive but an insurmountable technical problem renders it impossible to make such a recording, the police or other law enforcement authorities should be able to question the child without it being audio-visually recorded, provided that reasonable efforts have been made to overcome the technical problem, that it is not appropriate to postpone the questioning, and that it is compatible with the child's best interests.

(44)

Whether or not the questioning of children is audio-visually recorded, questioning should in any event be carried out in a manner that takes into account the age and maturity of the children concerned.

(45)

Children are in a particularly vulnerable position when they are deprived of liberty. Special efforts should therefore be undertaken to avoid deprivation of liberty and, in particular, detention of children at any stage of the proceedings before the final determination by a court of the question whether the child concerned has committed the criminal offence, given the possible risks for their physical, mental and social development, and because deprivation of liberty could lead to difficulties as regards their reintegration into society. Member States could make practical arrangements, such as guidelines or instructions to police officers, on the application of this requirement to situations of police custody. In any case, this requirement is without prejudice to the possibility for police officers or other law enforcement authorities to apprehend a child in situations where it seems, prima facie, to be necessary to do so, such as in flagrante delicto or immediately after a criminal offence has been committed.

(46)

The competent authorities should always consider measures alternative to detention (alternative measures) and should have recourse to such measures where possible. Such alternative measures could include a prohibition for the child to be in certain places, an obligation for the child to reside in a specific place, restrictions concerning contact with specific persons, reporting obligations to the competent authorities, participation in educational programmes, or, subject to the child's consent, participation in therapeutic or addiction programmes.

(47)

Detention of children should be subject to periodic review by a court, which could also be a judge sitting alone. It should be possible to carry out such periodic review ex officio by the court, or at the request of the child, of the child's lawyer or of a judicial authority which is not a court, in particular a prosecutor. Member States should provide for practical arrangements in that respect, including regarding the situation where a periodic review has already been carried out ex officio by the court and the child or the child's lawyer requests that another review be carried out.

(48)

Where children are detained they should benefit from special protection measures. In particular, they should be held separately from adults unless it is considered to be in the child's best interests not to do so, in accordance with Article 37(c) of the UN Convention on the Rights of the Child. When a detained child reaches the age of 18, it should be possible to continue separate detention where warranted, taking into account the circumstances of the person concerned. Particular attention should be paid to the manner in which detained children are treated given their inherent vulnerability. Children should have access to educational facilities according to their needs.

(49)

Member States should ensure that children who are suspects or accused persons and kept in police custody are held separately from adults, unless it is considered to be in the child's best interests not to do so, or unless, in exceptional circumstances, it is not possible in practice to do so, provided that children are held together with adults in a manner that is compatible with the child's best interests. For example, in sparsely populated areas, it should be possible, exceptionally, for children to be held in police custody with adults, unless this is contrary to the child's best interests. In such situations, particular vigilance should be required on the part of competent authorities in order to protect the child's physical integrity and well-being.

(50)

It should be possible to detain children with young adults unless this is contrary to the child's best interests. It is for Member States to determine which persons are considered to be young adults in accordance with their national law and procedures. Member States are encouraged to determine that persons older than 24 years do not qualify as young adults.

(51)

Where children are detained, Member States should take appropriate measures as set out in this Directive. Such measures should, inter alia, ensure the effective and regular exercise of the right to family life. Children should have the right to maintain regular contact with their parents, family and friends through visits and correspondence, unless exceptional restrictions are required in the child's best interests or in the interests of justice.

(52)

Member States should also take appropriate measures to ensure respect for the freedom of religion or belief of the child. In that regard, Member States should, in particular, refrain from interfering with the religion or belief of the child. Member States are not, however, required to take active steps to assist children in worshipping.

(53)

Where appropriate, Member States should also take appropriate measures in other situations of deprivation of liberty. The measures taken should be proportionate and appropriate to the nature of the deprivation of liberty, such as police custody or detention, and to its duration.

(54)

Professionals in direct contact with children should take into account the particular needs of children of different age groups and should ensure that the proceedings are adapted to them. For those purposes, those professionals should be specially trained in dealing with children.

(55)

Children should be treated in a manner appropriate to their age, maturity and level of understanding, taking into account any special needs, including any communication difficulties, that they may have.

(56)

Taking into account the differences between the legal traditions and systems across the Member States, the privacy of children during criminal proceedings should be ensured in the best possible way with a view, inter alia, to facilitating the reintegration of children into society. Member States should provide that court hearings involving children are usually held in the absence of the public, or allow courts or judges to decide to hold such hearings in the absence of the public. This is without prejudice to judgments being pronounced publicly in accordance with Article 6 ECHR.

(57)

Children should have the right to be accompanied by the holder of parental responsibility during court hearings in which they are involved. If more than one person holds parental responsibility for the same child, the child should have the right to be accompanied by all of them, unless this is not possible in practice despite the competent authorities' reasonable efforts. Member States should lay down practical arrangements for the exercise by children of the right to be accompanied by the holder of parental responsibility during court hearings in which they are involved and concerning the conditions under which an accompanying person may be temporarily excluded from court hearings. Such arrangements could, inter alia, address the situation where the holder of parental responsibility is temporarily not available to accompany the child or where the holder does not want to make use of the possibility to accompany the child, provided that the child's best interests are taken into account.

(58)

In certain circumstances, which can also relate to only one of the persons holding parental responsibility, the child should have the right to be accompanied during court hearings by an appropriate adult other than the holder of parental responsibility. One of those circumstances is where the holder of parental responsibility accompanying the child could substantially jeopardise the criminal proceedings, in particular where objective and factual circumstances indicate or give rise to the suspicion that evidence may be destroyed or altered, witnesses may be interfered with, or the holder of parental responsibility may have been involved with the child in the alleged criminal activity.

(59)

In accordance with this Directive, children should also have the right to be accompanied by the holder of parental responsibility during other stages of the proceedings at which they are present, such as during police questioning.

(60)

The right of an accused person to appear in person at the trial is based on the right to a fair trial provided for in Article 47 of the Charter and in Article 6 ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights. Member States should take appropriate measures to provide incentives for children to attend their trial, including by summoning them in person and by sending a copy of the summons to the holder of parental responsibility or, where that would be contrary to the child's best interests, to another appropriate adult. Member States should provide for practical arrangements regarding the presence of a child at the trial. Those arrangements could include provisions concerning the conditions under which a child can be temporarily excluded from the trial.

(61)

Certain rights provided for by this Directive should apply to children who are requested persons from the time when they are arrested in the executing Member State.

(62)

The European arrest warrant proceedings are crucial for cooperation between the Member States in criminal matters. Compliance with the time-limits contained in Framework Decision 2002/584/JHA is essential for such cooperation. Therefore, while children who are requested persons should be able to exercise their rights fully under this Directive in European arrest warrant proceedings, those time-limits should be complied with.

(63)

Member States should take appropriate measures to ensure that judges and prosecutors who deal with criminal proceedings involving children have specific competence in that field or have effective access to specific training, in particular with regard to children's rights, appropriate questioning techniques, child psychology, and communication in a language adapted to children. Member States should also take appropriate measures to promote the provision of such specific training to lawyers who deal with criminal proceedings involving children.

(64)

In order to monitor and evaluate the effectiveness of this Directive, there is a need for collection of relevant data, from available data, with regard to the implementation of the rights set out in this Directive. Such data include data recorded by the judicial authorities and by law enforcement authorities and, as far as possible, administrative data compiled by healthcare and social welfare services as regards the rights set out in this Directive, in particular in relation to the number of children given access to a lawyer, the number of individual assessments carried out, the number of audiovisual recordings of questioning and the number of children deprived of liberty.

(65)

Member States should respect and guarantee the rights set out in this Directive, without any discrimination based on any ground such as race, colour, sex, sexual orientation, language, religion, political or other opinion, nationality, ethnic or social origin, property, disability or birth.

(66)

This Directive upholds the fundamental rights and principles as recognised by the Charter and by the ECHR, including the prohibition of torture and inhuman or degrading treatment, the right to liberty and security, respect for private and family life, the right to the integrity of the person, the rights of the child, the integration of persons with disabilities, the right to an effective remedy and to a fair trial, the presumption of innocence, and the rights of the defence. This Directive should be implemented in accordance with those rights and principles.

(67)

This Directive lays down minimum rules. Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. Such higher level of protection should not constitute an obstacle to the mutual recognition of judicial decisions that those minimum rules are designed to facilitate. The level of protection provided for by Member States should never fall below the standards provided by the Charter or the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights.

(68)

Since the objectives of this Directive, namely setting common minimum standards on procedural safeguards for children who are suspects or accused persons in criminal proceedings, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effect, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(69)

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

(70)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application.

(71)

In accordance with the Joint Political Declaration of Member States and the Commission of 28 September 2011 on explanatory documents (10), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified,

(a)

suspects or accused persons in criminal proceedings; or

(b)

subject to European arrest warrant proceedings pursuant to Framework Decision 2002/584/JHA (requested persons).

(a)

where the law of a Member State provides for the imposition of a sanction by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed or referred to such a court; or

(b)

where deprivation of liberty cannot be imposed as a sanction,

(1)

‘child’ means a person below the age of 18;

(2)

‘holder of parental responsibility’ means any person having parental responsibility over a child;

(3)

‘parental responsibility’ means all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effects, including rights of custody and rights of access.

(a)

promptly when children are made aware that they are suspects or accused persons, in respect of:

(b)

at the earliest appropriate stage in the proceedings, in respect of:

(c)

upon deprivation of liberty in respect of the right to specific treatment during deprivation of liberty, as provided for in Article 12.

(a)

would be contrary to the child's best interests;

(b)

is not possible because, after reasonable efforts have been made, no holder of parental responsibility can be reached or his or her identity is unknown;

(c)

could, on the basis of objective and factual circumstances, substantially jeopardise the criminal proceedings.

(a)

before they are questioned by the police or by another law enforcement or judicial authority;

(b)

upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 4;

(c)

without undue delay after deprivation of liberty;

(d)

where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.

(a)

Member States shall ensure that children have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;

(b)

Member States shall ensure that children are assisted by a lawyer when they are questioned, and that the lawyer is able to participate effectively during questioning. Such participation shall be conducted in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise or essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure under national law;

(c)

Member States shall ensure that children are, as a minimum, assisted by a lawyer during the following investigative or evidence-gathering acts, where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:

(a)

when they are brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Directive; and

(b)

during detention.

(a)

where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;

(b)

where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious criminal offence.

(a)

determining whether any specific measure to the benefit of the child is to be taken;

(b)

assessing the appropriateness and effectiveness of any precautionary measures in respect of the child;

(c)

taking any decision or course of action in the criminal proceedings, including when sentencing.

(a)

the child;

(b)

the holder of parental responsibility, or another appropriate adult as referred to in Articles 5 and 15;

(c)

the child's lawyer.

(a)

it is considered to be in the child's best interests not to do so; or

(b)

in exceptional circumstances, it is not possible in practice to do so, provided that children are held together with adults in a manner that is compatible with the child's best interests.

(a)

ensure and preserve their health and their physical and mental development;

(b)

ensure their right to education and training, including where the children have physical, sensory or learning disabilities;

(c)

ensure the effective and regular exercise of their right to family life;

(d)

ensure access to programmes that foster their development and their reintegration into society; and

(e)

ensure respect for their freedom of religion or belief.

(a)

would be contrary to the child's best interests;

(b)

is not possible because, after reasonable efforts have been made, no holder of parental responsibility can be reached or his or her identity is unknown; or

(c)

would, on the basis of objective and factual circumstances, substantially jeopardise the criminal proceedings.

(a)

it is in the child's best interests to be accompanied by that person; and

(b)

the presence of that person will not prejudice the criminal proceedings.

21.5.2016   

EN

Official Journal of the European Union

L 132/21

(1)

A number of amendments are to be made to Council Directives 2004/114/EC (4) and 2005/71/EC (5). In the interests of clarity, those Directives should be recast.

(2)

This Directive should respond to the need identified in the implementation reports on Directives 2004/114/EC and 2005/71/EC to remedy the identified weaknesses, to ensure increased transparency and legal certainty and to offer a coherent legal framework for different categories of third-country nationals coming to the Union. It should therefore simplify and streamline the existing provisions for those categories in a single instrument. Despite differences between the categories covered by this Directive, they also share a number of characteristics which makes it possible to address them through a common legal framework at Union level.

(3)

This Directive should contribute to the Stockholm Programme's aim of approximating national legislation on the conditions for entry and residence of third-country nationals. Immigration from outside the Union is one source of highly skilled people, and students and researchers are in particular increasingly sought after. They play an important role in forming the Union's key asset, human capital, and in ensuring smart, sustainable and inclusive growth, and therefore contribute to the achievement of the objectives of the Europe 2020 Strategy.

(4)

The implementation reports on Directives 2004/114/EC and 2005/71/EC pointed out certain insufficiencies, mainly in relation to admission conditions, rights, procedural safeguards, students' access to the labour market during their studies and intra-EU mobility provisions. Specific improvements were also considered necessary regarding the optional categories of third-country nationals. Subsequent wider consultations have also highlighted the need for better job-seeking possibilities for researchers and students and better protection of au pairs who are not covered by Directives 2004/114/EC and 2005/71/EC.

(5)

For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the fields of asylum, immigration and the protection of the rights of third-country nationals.

(6)

This Directive should also aim at fostering people-to-people contacts and mobility, as important elements of the Union's external policy, notably vis-à-vis the countries of the European Neighbourhood Policy or the Union's strategic partners. It should allow for a better contribution to the Global Approach to Migration and Mobility and its Mobility Partnerships which offer a concrete framework for dialogue and cooperation between the Member States and third countries, including in facilitating and organising legal migration.

(7)

Migration for the purposes set out in this Directive should promote the generation and acquisition of knowledge and skills. It constitutes a form of mutual enrichment for the migrants concerned, their country of origin and the Member State concerned, while strengthening cultural links and enhancing cultural diversity.

(8)

This Directive should promote the Union as an attractive location for research and innovation and advance it in the global competition for talent and, in so doing, lead to an increase in the Union's overall competitiveness and growth rates while creating jobs that make a greater contribution to GDP growth. Opening the Union up to third-country nationals who may be admitted for the purpose of research is also part of the Innovation Union flagship initiative. Creating an open labour market for Union researchers and for researchers from third countries was also affirmed as a key aim of the European Research Area, a unified area in which researchers, scientific knowledge and technology circulate freely.

(9)

It is appropriate to facilitate the admission of third-country nationals applying for the purpose of carrying out a research activity through an admission procedure which does not depend on their legal relationship with the host research organisation and by no longer requiring a work permit in addition to an authorisation. This procedure should be based on collaboration between research organisations and the immigration authorities in Member States. It should give the former a key role in the admission procedure with a view to facilitating and speeding up the entry of third-country nationals applying for the purpose of carrying out a research activity in the Union while preserving Member States' prerogatives with respect to immigration policy. Research organisations, which Member States should have the possibility to approve in advance, should be able to sign either a hosting agreement or a contract with a third-country national for the purpose of carrying out a research activity. Member States should issue an authorisation on the basis of the hosting agreement or the contract if the conditions for entry and residence are met.

(10)

As the efforts to be made to achieve the target of investing 3 % of GDP in research largely concern the private sector, this sector should be encouraged, where appropriate, to recruit more researchers in the years to come.

(11)

In order to make the Union more attractive for third-country nationals wishing to carry out a research activity in the Union, their family members, as defined in Council Directive 2003/86/EC (6), should be allowed to accompany them and benefit from intra-EU mobility provisions. Those family members should have access to the labour market in the first Member State and, in the case of long-term mobility, in the second Member States, except in exceptional circumstances such as particularly high levels of unemployment where Member States should retain the possibility to apply a test demonstrating that the post cannot be filled from within the domestic labour market for a period not exceeding 12 months. With the exception of derogations provided for in this Directive, all the provisions of Directive 2003/86/EC should apply, including grounds for rejection or withdrawal or refusal of renewal. Consequently, residence permits of family members could be withdrawn or their renewal refused if the authorisation of the researcher they are accompanying comes to an end and they do not enjoy any autonomous right of residence.

(12)

Where appropriate, Member States should be encouraged to treat doctoral candidates as researchers for the purposes of this Directive.

(13)

Implementation of this Directive should not encourage a brain drain from emerging or developing countries. Measures to support researchers' reintegration into their countries of origin should be taken in partnership with the countries of origin with a view to establishing a comprehensive migration policy.

(14)

In order to promote Europe as a whole as a world centre of excellence for studies and training, the conditions for entry and residence of those who wish to come to the Union for these purposes should be improved and simplified. This is in line with the objectives of the agenda for the modernisation of Europe's higher education systems, in particular within the context of the internationalisation of European higher education. The approximation of the Member States' relevant national legislation is part of this endeavour. In this context and in line with the Council conclusions on the modernisation of higher education (7), the term ‘higher education’ encompasses all tertiary institutions which may include, inter alia, universities, universities of applied science, institutes of technology, grandes écoles, business schools, engineering schools, IUTs, colleges of higher education, professional schools, polytechnics and academies.

(15)

The extension and deepening of the Bologna Process launched through the Bologna Joint Declaration of the European Ministers of Education of 19 June 1999 has led to more comparable, compatible and coherent systems of higher education in participating countries but also beyond them. This is because Member States have supported the mobility of students and higher education institutions have integrated it in their curricula. This needs to be reflected through improved intra-EU mobility provisions for students. Making European higher education attractive and competitive is one of the objectives of the Bologna Declaration. The Bologna Process led to the establishment of the European Higher Education Area. Its three-cycle structure with easily readable programmes and degrees as well as the introduction of qualifications frameworks have made it more attractive for third-country nationals to study in Europe.

(16)

The duration and other conditions of preparatory courses for students covered by this Directive should be determined by Member States in accordance with their national law.

(17)

Evidence of acceptance of a third-country national by a higher education institution could include, among other possibilities, a letter or certificate confirming enrolment.

(18)

Third-country nationals who apply to be admitted as trainees should provide evidence of having obtained a higher education degree within the two years preceding the date of their application or of pursuing a course of study in a third country that leads to a higher education degree. They should also present a training agreement which contains a description of the training programme, its educational objective or learning components, its duration and the conditions under which the trainee will be supervised, proving that they will benefit from genuine training and not be used as normal workers. In addition, host entities may be required to substantiate that the traineeship does not replace a job. Where specific conditions already exist in national law, collective agreements or practices for trainees, Member States should be able to require third-country nationals who apply to be admitted as trainees to meet those specific conditions.

(19)

Trainee employees who come to work in the Union in the context of an intra-corporate transfer are not covered by this Directive, as they fall under the scope of Directive 2014/66/EU of the European Parliament and of the Council (8).

(20)

This Directive should support the aims of the European Voluntary Service to develop solidarity, mutual understanding and tolerance among young people and the societies they live in, while contributing to strengthening social cohesion and promoting young people's active citenship. In order to ensure access to the European Voluntary Service in a consistent manner across the Union, Member States should apply the provisions of this Directive to third-country nationals applying for the purpose of European Voluntary Service.

(21)

Member States should have the possibility to apply the provisions of this Directive to school pupils, volunteers other than those under the European Voluntary Service and au pairs, in order to facilitate their entry and residence and ensure their rights.

(22)

If Member States decide to apply this Directive to school pupils, they are encouraged to ensure that the national admission procedure for teachers exclusively accompanying pupils within the framework of a pupil exchange scheme or an educational project is coherent with the procedure for school pupils provided for in this Directive.

(23)

Au pairing contributes to fostering people-to-people contacts by giving third-country nationals an opportunity to improve their linguistic skills and develop their knowledge of and cultural links with the Member States. At the same time, third-country national au pairs could be exposed to risks of abuse. In order to ensure fair treatment of au pairs and address their specific needs, it should be possible for Member States to apply the provisions of this Directive regarding the entry and residence of au pairs

(24)

If third-country nationals can prove that they are in receipt of resources throughout the period of their stay in the Member State concerned that derive from a grant, a fellowship or a scholarship, a valid work contract, a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs, Member States should take such resources into account in assessing the availability of sufficient resources. Member States should be able to lay down an indicative reference amount which they regard as constituting ‘sufficient resources’ that might vary for each one of the respective categories of third-country nationals.

(25)

Member States are encouraged to allow the applicant to present documents and information in an official language of the Union, other than their own official language or languages, determined by the Member State concerned.

(26)

Member States should have the possibility to provide for an approval procedure for public or private research organisations or both wishing to host third-country national researchers or for higher education institutions wishing to host third-country national students. This approval should be in accordance with the procedures set out in the national law or administrative practice of the Member State concerned. Applications to approved research organisations or higher education institutions should be facilitated and should speed up the entry of third-country nationals coming to the Union for the purpose of research or studies.

(27)

Member States should have the possibility to provide for an approval procedure for respective host entities wishing to host third-country national pupils, trainees or volunteers. Member States should have the possibility to apply this procedure to some or all of the categories of the host entities. This approval should be in accordance with the procedures set out in the national law or administrative practice of the Member State concerned. Applications to approved host entities should speed up the entry of third-country nationals coming to the Union for the purpose of training, voluntary service or pupil exchange schemes or educational projects.

(28)

If Member States establish approval procedures for host entities, they should be able to decide to either allow admission only through approved host entities or to establish an approval procedure while also allowing admission through non-approved host entities.

(29)

This Directive should be without prejudice to the right of Member States to issue authorisations for the purpose of studies, research or training other than those regulated by this Directive to third-country nationals who fall outside its scope.

(30)

Once all the general and specific conditions for admission are fulfilled, Member States should issue an authorisation, within specified time limits. If a Member State issues residence permits only on its territory and all the conditions of this Directive relating to admission are fulfilled, the Member State should grant the third-country national concerned the requisite visa and should ensure that the competent authorities effectively cooperate for that purpose. In the event that the Member State does not issue visas, it should grant the third-country national concerned an equivalent permit allowing entry.

(31)

Authorisations should mention the status of the third-country national concerned. It should be possible for Member States to indicate additional information in paper format or store it in electronic format, provided this does not amount to additional conditions.

(32)

The different periods of duration of the authorisations under this Directive should reflect the specific nature of the stay of each category of third-country nationals covered by this Directive.

(33)

Member States should have the right to determine that the total duration of residence of students does not exceed the maximum duration of studies, as provided for in national law. In this respect, the maximum duration of studies could also include, if provided for by the national law of the Member State concerned, the possible extension of studies for the purpose of repeating one or more years of studies.

(34)

It should be possible for Member States to charge applicants for handling applications for authorisations and notifications. The level of the fees should not be disproportionate or excessive in order not to constitute an obstacle to the objectives of this Directive.

(35)

The rights granted to third-country nationals falling under the scope of this Directive should not depend on the form of the authorisation each Member State issues.

(36)

It should be possible to refuse admission for the purposes of this Directive on duly justified grounds. In particular, it should be possible to refuse admission if a Member State considers, on the basis of an assessment of the facts in an individual case and taking into account the principle of proportionality, that the third-country national concerned is a potential threat to public policy, public security or public health.

(37)

The objective of this Directive is not to regulate the admission and residence of third-country nationals for the purpose of employment and it does not aim to harmonise national laws or practices with respect to workers' status. It is possible, nevertheless, that in some Member States specific categories of third-country nationals covered by this Directive are considered to be in an employment relationship on the basis of national law, collective agreements or practice. Where a Member State considers third-country national researchers, volunteers, trainees or au pairs to be in an employment relationship, that Member State should retain the right to determine volumes of admission of the category or categories concerned in accordance with Article 79(5) TFEU.

(38)

Where a third-country national researcher, volunteer, trainee or au pair applies to be admitted to enter into an employment relationship in a Member State, it should be possible for that Member State to apply a test demonstrating that the post cannot be filled from within the domestic labour market.

(39)

As regards students, volumes of admission should not apply since, even if they are allowed to work during their studies in accordance with the conditions provided for in this Directive, they seek admission to the territory of the Member States to pursue as their main activity a full-time course of study which could encompass a compulsory training.

(40)

Where, after having been admitted to the territory of the Member State concerned, a researcher, volunteer, trainee or au pair applies to renew the authorisation to enter into or continue to be in an employment relationship in the Member State concerned, with the exception of a researcher who continues the employment relationship with the same host entity, it should be possible for that Member State to apply a test demonstrating that the post cannot be filled from within the domestic labour market.

(41)

In case of doubts concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in order to assess, on a case by case basis, the applicant's intended research, studies, training, voluntary service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in this Directive.

(42)

Where the information provided is incomplete, Member States should inform the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. Where additional information has not been provided within that deadline, the application could be rejected.

(43)

National authorities should notify the applicant of the decision on the application. They should do so in writing as soon as possible and at the latest within the period specified in this Directive.

(44)

This Directive aims to facilitate intra-EU mobility for researchers and students, inter alia by reducing the administrative burden related to mobility in several Member States. For this purpose, this Directive sets up a specific intra-EU mobility scheme whereby a third-country national who holds an authorisation for the purpose of research or studies issued by the first Member State is entitled to enter, stay and carry out part of the research activity or studies in one or several second Member States in accordance with the provisions governing mobility under this Directive.

(45)

In order to enable researchers to move easily from one research organisation to another for the purpose of research, their short-term mobility should cover stays in second Member States for a period of up to 180 days in any 360-day period per Member State. Long-term mobility for researchers should cover stays in one or several second Member States for a period of more than 180 days per Member State. Family members of researchers should be entitled to accompany the researcher during mobility. The procedure for their mobility should be aligned to that of the researcher they accompany.

(46)

As regards students who are covered by Union or multilateral programmes or an agreement between two or more higher education institutions, in order to ensure continuity of their studies, this Directive should provide for mobility in one or several second Member States for a period of up to 360 days per Member State.

(47)

Where a researcher or a student moves to a second Member State on the basis of a notification procedure and a document is necessary to facilitate access to services and rights, it should be possible for the second Member State to issue a document to attest that the researcher or the student is entitled to stay on the territory of that Member State. Such a document should not constitute an additional condition to benefit from the rights provided for in this Directive and should only be of a declaratory nature.

(48)

While the specific mobility scheme established by this Directive should set up autonomous rules regarding entry and stay for the purpose of research or studies in Member States other than the one that issued the initial authorisation, all the other rules governing the movement of persons across borders as laid down in the relevant provisions of the Schengen acquis should continue to apply.

(49)

Where the authorisation is issued by a Member State not applying the Schengen acquis in full and the researcher, his or her family members or the student, in the framework of intra-EU mobility, crosses an external border within the meaning of Regulation (EU) 2016/399 of the European Parliament and of the Council (9), a Member State should be entitled to require evidence proving that the researcher or the student is moving to its territory for the purpose of research or studies or that the family members are moving to its territory for the purpose of accompanying the researcher in the framework of mobility. In addition, in case of crossing of an external border within the meaning of Regulation (EU) 2016/399, the Member States applying the Schengen acquis in full should consult the Schengen information system and should refuse entry or object to the mobility for persons for whom an alert for the purpose of refusing entry or stay, as referred to in Regulation (EC) No 1987/2006 of the European Parliament and of the Council (10), has been issued in that system.

(50)

This Directive should allow second Member States to request that a researcher or a student, who moves on the basis of an authorisation issued by the first Member State and does not or no longer fulfils the conditions for mobility, leaves their territory. Where the researcher or the student has a valid authorisation issued by the first Member State, the second Member State should be able to request that researcher or student to go back to the first Member State in accordance with Directive 2008/115/EC of the European Parliament and of the Council (11). Where the mobility is allowed by the second Member State on the basis of the authorisation issued by the first Member State and that authorisation is withdrawn or has expired during the period of mobility, it should be possible for the second Member State to either decide to return the researcher or the student to a third country, in accordance with Directive 2008/115/EC, or request without delay the first Member State to allow re-entry of the researcher or student to its territory. In this latter case, the first Member State should issue the researcher or student with a document allowing re-entry to its territory.

(51)

Union immigration policies and rules, on the one hand, and Union policies and programmes favouring mobility of researchers and students at Union level, on the other hand, should complement each other more. When determining the period of validity of the authorisation issued to researchers and students, Member States should take into account the planned mobility to other Member States, in accordance with the provisions on mobility. Researchers and students covered by Union or multilateral programmes that comprise mobility measures or agreements between two or more higher education institutions should be entitled to receive authorisations covering at least two years, provided that they fulfil the relevant admission conditions for that period.

(52)

In order to allow students to cover part of the cost of their studies and, if possible, to gain practical experience, they should be given, during their studies, access to the labour market of the Member State where the studies are undertaken, under the conditions set out in this Directive. Students should be allowed to work a certain minimum amount of hours as specified in this Directive for that purpose. The principle of access for students to the labour market should be the general rule. However, in exceptional circumstances, Member States should be able to take into account the situation of their national labour markets.

(53)

As part of the drive to ensure a well-qualified workforce for the future, students who graduate in the Union should have the possibility to remain on the territory of the Member State concerned for the period specified in this Directive with the intention to identify work opportunities or to set up a business. Researchers should also have that possibility upon completion of their research activity as defined in the hosting agreement. In order to be issued a residence permit for that purpose, students and researchers may be asked to provide evidence in accordance with the requirements of this Directive. Once Member States issue them such a residence permit, they cease to be considered as researchers or students within the meaning of this Directive. Member States should be able to check, after a minimum time period established in this Directive, if they have a genuine chance of being employed or of launching a business. This possibility is without prejudice to other reporting obligations provided for in national law for other purposes. The authorisation issued for the purpose of identifying work opportunities or setting up a business should not grant any automatic right of access to the labour market or to set up a business. Member States should retain their right to take into consideration the situation of their labour market when the third-country national, who was issued an authorisation to remain on the territory for the purpose of job searching or to set up a business, applies for a work permit to fill a post.

(54)

The fair treatment of third-country nationals covered by this Directive should be ensured in accordance with Article 79 TFEU. Researchers should enjoy equal treatment with nationals of the Member State concerned as regards Article 12(1) and (4) of Directive 2011/98/EU of the European Parliament and of the Council (12) subject to the possibility for that Member State to limit equal treatment in the specific cases provided for in this Directive. Directive 2011/98/EU should continue to apply to students, including the restrictions provided for in that Directive. Directive 2011/98/EU should apply to trainees, volunteers and au pairs when they are considered to be in an employment relationship in the Member State concerned. Trainees, volunteers and au pairs, when they are not considered to be in an employment relationship in the Member State concerned, as well as school pupils, should enjoy equal treatment with nationals of the Member State concerned as regards a minimum set of rights as provided for in this Directive. This includes access to goods and services, which does not cover study or vocational grants or loans.

(55)

Equal treatment as granted to researchers and students, as well as trainees, volunteers and au pairs when they are considered to be in an employment relationship in the Member State concerned, includes equal treatment in respect of those branches of social security listed in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council (13). This Directive does not harmonise the social security legislation of Member States. It is limited to applying the principle of equal treatment in the field of social security to the third-country nationals falling within its scope. In addition, this Directive does not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. That should not affect, however, the right of survivors who derive rights from third-country nationals falling under the scope of this Directive, where applicable, to receive survivors' pensions when residing in a third country.

(56)

In many Member States, the right to family benefits is conditional upon a certain connection with that Member State since the benefits are designed to support a positive demographic development in order to secure the future work force in that Member State. Therefore, this Directive should not affect the right of a Member State to restrict, under certain conditions, equal treatment in respect of family benefits when the researcher and the accompanying family members are staying temporarily in that Member State.

(57)

In the event of mobility between Member States, Regulation (EU) No 1231/2010 of the European Parliament and of the Council (14) applies. This Directive should not confer more rights than those already provided for in existing Union law in the field of social security for third-country nationals who have cross-border interests between Member States.

(58)

This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments.

(59)

The residence permits provided for in this Directive should be issued by the competent authorities of the Member State using the uniform format as laid down in Council Regulation (EC) No 1030/2002 (15).

(60)

Each Member State should ensure that adequate and regularly updated information is made available to the general public, notably on the internet, concerning the host entities approved for the purposes of this Directive and the conditions and procedures for admission of third-country nationals to the territory of the Member States for the purposes of this Directive.

(61)

This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in accordance with Article 6 of the Treaty on European Union (TEU).

(62)

Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation.

(63)

In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (16), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(64)

Since the objective of this Directive, namely to determine the conditions of entry and residence of third-country nationals for the purposes of research, studies, training and European Voluntary Service, as mandatory provisions, and pupil exchange, voluntary service other than the European Voluntary Service or au pairing, as optional provisions, cannot be sufficiently achieved by the Member States and can rather, by reason of its scale or effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

(65)

In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to TEU and TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

(66)

In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark annexed to TEU and TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(67)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to Directives 2004/114/EC and 2005/71/EC. The obligation to transpose the provisions which are unchanged arises under those Directives.

(68)

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

(a)

the conditions of entry to, and residence for a period exceeding 90 days in, the territory of the Member States, and the rights, of third-country nationals, and where applicable their family members, for the purpose of research, studies, training or voluntary service in the European Voluntary Service, and where Member States so decide, pupil exchange schemes or educational projects, voluntary service other than the European Voluntary Service or au pairing;

(b)

the conditions of entry and residence, and the rights, of researchers, and where applicable their family members, and students, referred to in point (a), in Member States other than the Member State which first grants the third-country national an authorisation on the basis of this Directive.

(a)

who seek international protection or who are beneficiaries of international protection in accordance with the Directive 2011/95/EU of the European Parliament and of the Council (17) or who are beneficiaries of temporary protection in accordance with the Council Directive 2001/55/EC (18) in a Member State;

(b)

whose expulsion has been suspended for reasons of fact or of law;

(c)

who are family members of Union citizens who have exercised their right to free movement within the Union;

(d)

who enjoy long-term resident status in a Member State in accordance with Council Directive 2003/109/EC (19);

(e)

who enjoy, together with their family members, and irrespective of their nationality, rights of free movement equivalent to those of citizens of the Union under agreements either between the Union and its Member States and third countries or between the Union and third countries;

(f)

who come to the Union as trainee employees in the context of an intra-corporate transfer under Directive 2014/66/EU;

(g)

who are admitted as highly qualified workers in accordance with Council Directive 2009/50/EC (20).

(1)

‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;

(2)

‘researcher’ means a third-country national who holds a doctoral degree or an appropriate higher education qualification which gives that third-country national access to doctoral programmes, who is selected by a research organisation and admitted to the territory of a Member State for carrying out a research activity for which such qualification is normally required;

(3)

‘student’ means a third-country national who has been accepted by a higher education institution and is admitted to the territory of a Member State to pursue as a main activity a full-time course of study leading to a higher education qualification recognised by that Member State, including diplomas, certificates or doctoral degrees in a higher education institution, which may cover a preparatory course prior to such education, in accordance with national law, or compulsory training;

(4)

‘school pupil’ means a third-country national who is admitted to the territory of a Member State to follow a recognised, state or regional programme of secondary education equivalent to level 2 or 3 of the International Standard Classification of Education, in the context of a pupil exchange scheme or educational project operated by an education establishment in accordance with national law or administrative practice;

(5)

‘trainee’ means a third-country national who holds a degree of higher education or is pursuing a course of study in a third country that leads to a higher education degree and who is admitted to the territory of a Member State for a training programme for the purpose of gaining knowledge, practice and experience in a professional environment;

(6)

‘volunteer’ means a third-country national who is admitted to the territory of a Member State to participate in a voluntary service scheme;

(7)

‘voluntary service scheme’ means a programme of practical solidarity activities, based on a scheme recognised as such by the Member State concerned or the Union, pursuing objectives of general interest for a non-profit cause, in which the activities are not remunerated, except for reimbursement of expenses and/or pocket money;

(8)

‘au pair’ means a third-country national who is admitted to the territory of a Member State to be temporarily received by a family in order to improve his or her linguistic skills and knowledge of the Member State concerned in exchange for light housework and taking care of children;

(9)

‘research’ means creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of man, culture and society, and the use of this stock of knowledge to devise new applications;

(10)

‘research organisation’ means any public or private organisation which conducts research;

(11)

‘education establishment’ means a public or private secondary education establishment recognised by the Member State concerned or whose courses of study are recognised in accordance with national law or administrative practice on the basis of transparent criteria and which participates in a pupil exchange scheme or educational project for the purposes set out in this Directive;

(12)

‘educational project’ means a set of educational actions developed by a Member State's education establishment in cooperation with similar establishments in a third country, with the purpose of sharing cultures and knowledge;

(13)

‘higher education institution’ means any type of higher education institution recognised or considered as such in accordance with national law which, in accordance with national law or practice, offers recognised higher education degrees or other recognised tertiary level qualifications, whatever such establishments may be called, or any institution which, in accordance with national law or practice, offers vocational education or training at tertiary level;

(14)

‘host entity’ means a research organisation, a higher education institution, an education establishment, an organisation responsible for a voluntary service scheme or an entity hosting trainees to which the third-country national is assigned for the purposes of this Directive and which is located in the territory of the Member State concerned, irrespective of its legal form, in accordance with national law;

(15)

‘host family’ means a family temporarily receiving an au pair and sharing its daily family life in the territory of a Member State on the basis of an agreement concluded between that family and the au pair;

(16)

‘employment’ means the exercise of activities covering any form of labour or work regulated under national law or applicable collective agreements or in accordance with established practice for or under the direction or supervision of an employer;

(17)

‘employer’ means any natural person or any legal entity, for or under the direction or supervision of whom or which the employment is undertaken;

(18)

‘first Member State’ means the Member State which first issues a third-country national an authorisation on the basis of this Directive;

(19)

‘second Member State’ means any Member State other than the first Member State;

(20)

‘Union or multilateral programmes that comprise mobility measures’ means programmes funded by the Union or by Member States promoting mobility of third-country nationals in the Union or in the Member States participating in the respective programmes;

(21)

‘authorisation’ means a residence permit or, if provided for in national law, a long-stay visa issued for the purposes of this Directive;

(22)

‘residence permit’ means an authorisation issued using the format laid down in Regulation (EC) No 1030/2002 entitling its holder to stay legally on the territory of a Member State;

(23)

‘long-stay visa’ means an authorisation issued by a Member State as provided for in Article 18 of the Schengen Convention (21) or issued in accordance with the national law of Member States not applying the Schengen acquis in full;

(24)

‘family members’ means third-country nationals as defined in Article 4(1) of Directive 2003/86/EC.

(a)

bilateral or multilateral agreements concluded between the Union or the Union and its Member States and one or more third countries; or

(b)

bilateral or multilateral agreements concluded between one or more Member States and one or more third countries.

(a)

the general conditions laid down in Article 7; and

(b)

the relevant specific conditions in Article 8, 11, 12, 13, 14 or 16.

(a)

present a valid travel document, as determined by national law, and, if required, an application for a visa or a valid visa or, where applicable, a valid residence permit or a valid long-stay visa; Member States may require the period of validity of the travel document to cover at least the duration of the planned stay;

(b)

if the third-country national is a minor under the national law of the Member State concerned, present a parental authorisation or an equivalent document for the planned stay;

(c)

present evidence that the third-country national has or, if provided for in national law, has applied for sickness insurance for all risks normally covered for nationals of the Member State concerned; the insurance shall be valid for the duration of the planned stay;

(d)

provide evidence, if the Member State so requires, that the fee for handling the application provided for in Article 36 has been paid;

(e)

provide the evidence requested by the Member State concerned that during the planned stay the third-country national will have sufficient resources to cover subsistence costs without having recourse to the Member State's social assistance system, and return travel costs. The assessment of the sufficient resources shall be based on an individual examination of the case and shall take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs.

(a)

a research organisation no longer complies with paragraph 2 of this Article, Article 8(2) or Article 10(7);

(b)

the approval has been fraudulently acquired; or

(c)

a research organisation has signed a hosting agreement with a third-country national fraudulently or negligently.

(a)

the title or purpose of the research activity or the research area;

(b)

an undertaking by the third-country national to endeavour to complete the research activity;

(c)

an undertaking by the research organisation to host the third-country national for the purpose of completing the research activity;

(d)

the start and end date or the estimated duration of the research activity;

(e)

information on the intended mobility in one or several second Member States if the mobility is known at the time of application in the first Member State.

(a)

information on the legal relationship between the research organisation and the researcher;

(b)

information on the working conditions of the researcher.

(a)

the purpose and estimated duration of the research activity, and the availability of the necessary financial resources for it to be carried out;

(b)

the third-country national's qualifications in the light of the research objectives, as evidenced by a certified copy of the qualifications.

(a)

that the third-country national has been accepted by a higher education institution to follow a course of study;

(b)

if the Member State so requires, that the fees charged by the higher education institution have been paid;

(c)

if the Member State so requires, of sufficient knowledge of the language of the course to be followed;

(d)

if the Member State so requires, that the third-country national will have sufficient resources to cover the study costs.

(a)

that the third-country national is neither below the minimum nor above the maximum age or grade set by the Member State concerned;

(b)

of acceptance by an education establishment;

(c)

of participation in a recognised, state or regional programme of education in the context of a pupil exchange scheme or educational project operated by an education establishment in accordance with national law or administrative practice;

(d)

that the education establishment, or, insofar as provided for by national law, a third party accepts responsibility for the third-country national throughout the stay in the territory of the Member State concerned, in particular as regards study costs;

(e)

that the third-country national will be accommodated throughout the stay by a family, in a special accommodation facility within the education establishment or, insofar as provided for by national law, in any other facility meeting the conditions set by the Member State concerned and selected in accordance with the rules of the pupil exchange scheme or educational project in which the third-country national is participating.

(a)

present a training agreement, which provides for a theoretical and practical training, with a host entity. Member States may require that such training agreement is approved by the competent authority and that the terms upon which the agreement has been based meet the requirements established in national law, collective agreements or practices of the Member State concerned. The training agreement shall contain:

(b)

provide evidence of having obtained a higher education degree within the two years preceding the date of application or of pursuing a course of study that leads to a higher education degree;

(c)

provide evidence, if the Member State so requires, that during the stay the third-country national will have sufficient resources to cover the training costs;

(d)

provide evidence, if the Member State so requires, that the third-country national has received or will receive language training so as to acquire the knowledge needed for the purpose of the traineeship;

(e)

provide evidence, if the Member State so requires, that the host entity accepts responsibility for the third-country national throughout the stay in the territory of the Member State concerned, in particular as regards subsistence and accommodation costs;

(f)

provide evidence, if the Member State so requires, that, if the third-country national is accommodated throughout the stay by the host entity, the accommodation meets the conditions set by the Member State concerned.

(a)

provide an agreement with the host entity or, insofar as provided for by national law, another body responsible in the Member State concerned for the voluntary service scheme in which the third-country national is participating. The agreement shall contain:

(b)

provide evidence, if the Member State so requires, that, if the third-country national is accommodated throughout the stay by the host entity, the accommodation meets the conditions set by the Member State concerned;

(c)

provide evidence that the host entity or, insofar as provided for by national law, another body responsible for the voluntary service scheme has subscribed to a third-party insurance policy;

(d)

provide evidence, if the Member State so requires, that the third-country national has received or will receive a basic introduction to the language, history, political and social structures of that Member State.

(a)

provide an agreement between the third-country national and the host family defining the third-country national's rights and obligations as an au pair, including specifications about the pocket money to be received, adequate arrangements allowing the au pair to attend courses and the maximum hours of family duties;

(b)

be between the age of 18 and 30. In exceptional cases, Member States may allow the admission of a third-country national, as an au pair, who is above the maximum age limit;

(c)

provide evidence that the host family or an organisation mediating au pairs, insofar as provided for by national law, accepts responsibility for the third-country national throughout the stay in the territory of the Member State concerned, in particular with regard to living expenses, accommodation and accident risks.

(a)

of basic knowledge of the language of the Member State concerned; or

(b)

of having secondary education, professional qualifications or, where applicable, of fulfilling the conditions to exercise a regulated profession, as required by national law.

(a)

the general conditions laid down in Article 7 or the relevant specific conditions laid down in Articles 8, 11, 12, 13, 14 or 16 are not met;

(b)

the documents presented have been fraudulently acquired, or falsified, or tampered with;

(c)

the Member State concerned only allows admission through an approved host entity and the host entity is not approved.

(a)

the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions;

(b)

where applicable, the terms of employment as provided for in national law or collective agreements or practices in the Member State concerned are not met by the host entity or host family that will employ the third-country national;

(c)

the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has been sanctioned in accordance with national law for undeclared work or illegal employment;

(d)

the host entity was established or operates for the main purpose of facilitating the entry of third-country nationals falling under the scope of this Directive;

(e)

where applicable, the host entity's business is being or has been wound up under national insolvency laws or no economic activity is taking place;

(f)

the Member State has evidence or serious and objective grounds to establish that the third-country national would reside for purposes other than those for which he or she applies to be admitted.

(a)

the third-country national no longer meets the general conditions laid down in Article 7, except for Article 7(6), or the relevant specific conditions laid down in Articles 8, 11, 12, 13, 14, 16 or the conditions laid down in Article 18;

(b)

the authorisation or the documents presented have been fraudulently acquired, or falsified, or tampered with;

(c)

the Member State concerned only allows admission through an approved host entity and the host entity is not approved;

(d)

the third-country national is residing for purposes other than those for which the third-country national was authorised to reside.

(a)

the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions;

(b)

where applicable, the terms of employment as provided for in national law or collective agreements or practices in the Member State concerned are not met by the host entity or host family employing the third-country national;

(c)

the host entity, another body as referred to in point (a) of Article 14(1), a third party as referred to in point (d) of Article 12(1), the host family or the organisation mediating au pairs has been sanctioned in accordance with national law for undeclared work or illegal employment;

(d)

the host entity was established or operates for the main purpose of facilitating the entry of third-country nationals falling under the scope of this Directive;

(e)

where applicable, the host entity's business is being or has been wound up under national insolvency laws or no economic activity is taking place;

(f)

with regard to students, the time limits imposed on access to economic activities under Article 24 are not respected or a student does not make sufficient progress in the relevant studies in accordance with national law or administrative practice.

(a)

under point (c) of Article 12(1) of Directive 2011/98/EU, by excluding study and maintenance grants and loans or other grants and loans;

(b)

under point (e) of Article 12(1) of Directive 2011/98/EU, by not granting family benefits to researchers who have been authorised to reside in the territory of the Member State concerned for a period not exceeding six months;

(c)

under point (f) of Article 12(1) of Directive 2011/98/EU, by limiting its application to cases where the registered or usual place of residence of the family members of the researcher for whom he or she claims benefits lies in the territory of the Member State concerned;

(d)

under point (g) of Article 12(1) of Directive 2011/98/EU by restricting access to housing.

(a)

the conditions laid down in paragraph 3 and, where applicable, paragraphs 2 and 5 are not met,

(b)

the documents presented have been fraudulently acquired, or falsified, or tampered with.

(a)

at the time of the application in the first Member State, where the mobility to the second Member State is already envisaged at that stage; or

(b)

after the researcher was admitted to the first Member State, as soon as the intended mobility to the second Member State is known.

(a)

the hosting agreement in the first Member State as referred to in Article 10 or, if the second Member State so requires, a hosting agreement concluded with the research organisation in the second Member State;

(b)

where not specified in the hosting agreement, the planned duration and dates of the mobility;

(c)

evidence that the researcher has sickness insurance for all the risks normally covered for nationals of the Member State concerned as provided for in point (c) of Article 7(1);

(d)

evidence that during the stay the researcher will have sufficient resources to cover subsistence costs without having recourse to the Member State's social assistance system, as provided for in point (e) of Article 7(1), as well as the travel costs to the first Member State in the cases referred to in point (b) of Article 32(4);

(a)

the conditions set out in paragraph 5 or, where applicable, paragraph 6 are not complied with;

(b)

one of the grounds for rejection set out in points (b) or (c) of Article 20(1) or in paragraph 2 of that Article applies;

(c)

the maximum duration of stay as referred to in paragraph 1 has been reached.

(a)

apply Article 28 and allow the researcher to stay on the territory on the basis of and during the period of validity of the authorisation issued by the first Member State; or

(b)

apply the procedure provided for in paragraphs 2 to 7.

(a)

the second Member State may require the researcher, the research organisation in the first Member State or the research organisation in the second Member State to transmit the following documents:

The second Member State may require the applicant to provide the address of the researcher concerned in its territory. Where the national law of the second Member State requires an address to be provided at the time of application and the researcher concerned does not yet know his or her future address, that Member State shall accept a temporary address. In such a case, the researcher shall provide his or her permanent address at the latest at the time of the issuance of the authorisation for long-term mobility.

The second Member State may require the applicant to present the documents in an official language of that Member State or in any official language of the Union determined by that Member State;

(b)

the second Member State shall take a decision on the application for long-term mobility and notify the decision to the applicant in writing as soon as possible, but not later than 90 days from the date on which the complete application was submitted to the competent authorities of the second Member State;

(c)

the researcher shall not be required to leave the territories of the Member States in order to submit an application and shall not be subject to a visa requirement;

(d)

the researcher shall be allowed to carry out part of the research in the research organisation in the second Member State until a decision on the application for long-term mobility has been taken by the competent authorities, provided that:

(e)

an application for long-term mobility may not be submitted at the same time as a notification for short-term mobility. Where the need for long-term mobility arises after the short-term mobility of the researcher has started, the second Member State may request that the application for long-term mobility be submitted at least 30 days before the short-term mobility ends.

(a)

the conditions set out in point (a) of paragraph 2 are not complied with;

(b)

one of the grounds for rejection set out in Article 20, with the exception of point (a) of paragraph 1 of that Article, applies;

(c)

the researcher's authorisation in the first Member State expires during the procedure; or

(d)

where applicable, the maximum duration of stay referred to in the second subparagraph of paragraph 1 has been reached.

(a)

the conditions set out in point (a) of paragraph 2 or in paragraph 4 of this Article are not or are no longer complied with; or

(b)

one of the grounds of withdrawal of an authorisation, as set out in Article 21, with the exception of point (a) of paragraph (1), point (f) of paragraph (2) and paragraphs (3), (5) and (6) of that Article, applies.

(a)

the documents and information required under paragraph 5 and points (b), (c) and (d) of paragraph 6 of Article 28 related to the family members accompanying the researcher;

(b)

evidence that the family member has resided as a member of the family of the researcher in the first Member State in accordance with Article 26.

(a)

the documents and information required under points (i), (ii), (iii) and (v) of point (a) of Article 29(2) related to the family members accompanying the researcher;

(b)

evidence that the family member has resided as a member of the family of the researcher in the first Member State in accordance with Article 26.

(a)

at the time of the application in the first Member State, where the mobility to the second Member State is already envisaged at that stage; or

(b)

after the student was admitted to the first Member State, as soon as the intended mobility to the second Member State is known.

(a)

evidence that the student carries out part of the studies in the second Member State in the framework of a Union or multilateral programme that comprises mobility measures or of an agreement between two or more higher education institutions and evidence that the student has been accepted by a higher education institution in the second Member State;

(b)

where not specified under point (a), the planned duration and dates of the mobility;

(c)

evidence that the student has sickness insurance for all the risks normally covered for nationals of the Member State concerned as provided for in point (c) of Article 7(1);

(d)

evidence that during the stay the student will have sufficient resources to cover subsistence costs without having recourse to the Member State's social assistance system as provided for in point (e) of Article 7(1), study costs, as well as the travel costs to the first Member State in the cases referred to in point (b) of Article 32(4);

(e)

evidence that the fees charged by the higher education institution have been paid, where applicable.

(a)

the conditions set out in paragraphs 5 or 6 are not complied with;

(b)

one of the grounds for rejection set out in point (b) or (c) of Article 20(1) or in paragraph 2 of that Article applies;

(c)

the maximum duration of stay referred to in paragraph 1 has been reached.

(a)

a copy of the notification in accordance with Article 28(2) or Article 31(2), or

(b)

where the second Member State allows mobility without notification, evidence that the student carries out part of the studies in the second Member State in the framework of a Union or multilateral programme that comprises mobility measures or an agreement between two or more higher education institutions, or for researchers, either a copy of the hosting agreement specifying the details of the mobility of the researcher or, where the details of the mobility are not specified in the hosting agreement, a letter from the research organisation in the second Member State that specifies at least the duration of the intra-EU mobility and the location of the research organisation in the second Member State.

(a)

the second Member State may request that the researcher and, where applicable, his or her family members, or the student immediately ceases all activities and leaves its territory;

(b)

the first Member State shall, upon request of the second Member State, allow re-entry of the researcher and, where applicable, of his or her family members or of the student without formalities and without delay. This shall also apply if the authorisation issued by the first Member State has expired or has been withdrawn during the period of mobility within the second Member State.

(a)

about the procedures applied to mobility referred to in Articles 28 to 31;

(b)

whether that Member State only allows admission of students and researchers through approved research organisations or higher education institutions;

(c)

about multilateral programmes for students and researchers that comprise mobility measures and agreements between two or more higher education institutions.

21.5.2016   

EN

Official Journal of the European Union

L 132/58

(1)

Council Directive 1999/32/EC (3) has been substantially amended several times (4). In the interests of clarity and rationality, that Directive should be codified.

(2)

The environmental policy of the Union, as set out in the action programmes on the environment, and in particular in the Sixth Environment Action Programme adopted by Decision No 1600/2002/EC of the European Parliament and of the Council (5), and in the Seventh Environment Action Programme adopted by Decision No 1386/2013/EU of the European Parliament and of the Council, (6) has as one of its objectives to achieve levels of air quality that do not give rise to significant negative impacts on, and risks to, human health and the environment.

(3)

Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) provides that Union policy on the environment is to aim at a high level of protection, taking into account the diversity of situations in the various regions of the Union.

(4)

This Directive lays down the maximum permitted sulphur content of heavy fuel oil, gas oil, marine gas oil and marine diesel oil used in the Union.

(5)

Emissions from shipping due to the combustion of marine fuels with a high sulphur content contribute to air pollution in the form of sulphur dioxide and particulate matter, which harm human health and the environment and contribute to acid deposition. Without the measures set out in this Directive, emissions from shipping would soon have been higher than emissions from all land-based sources.

(6)

Acidification and atmospheric sulphur dioxide damage sensitive ecosystems, reduce biodiversity and amenity value and detrimentally affect crop production and the growth of forests. Acid rain falling in cities may cause significant damage to buildings and the architectural heritage. Sulphur dioxide pollution may also have a significant effect upon human health, particularly among those sectors of the population suffering from respiratory diseases.

(7)

Acidification is a transboundary phenomenon requiring Union as well as national or local solutions.

(8)

Emissions of sulphur dioxide contribute to the formation of particulate matter in the atmosphere.

(9)

Air pollution caused by ships at berth is a major concern for many harbour cities when it comes to their efforts to meet the Union's air quality limit values.

(10)

Member States should encourage the use of shore-side electricity, as the electricity for present-day ships is usually provided by auxiliary engines.

(11)

The Union and the individual Member States are Contracting Parties to the UN-ECE Convention of 13 November 1979 on Long-Range Transboundary Air Pollution. The second UN-ECE Protocol on transboundary pollution by sulphur dioxide stipulates that the Contracting Parties should reduce sulphur dioxide emissions in line with or beyond the 30 % reduction specified in the first Protocol, and the second UN-ECE Protocol is based on the premise that critical loads and levels will continue to be exceeded in some sensitive areas. Further measures to reduce sulphur dioxide emissions will still be required. The Contracting Parties should therefore make further significant reductions in emissions of sulphur dioxide.

(12)

Sulphur, which is naturally present in small quantities in oil and coal, has for decades been recognised as the dominant source of sulphur dioxide emissions, which are one of the main causes of ‘acid rain’ and one of the major causes of the air pollution experienced in many urban and industrial areas.

(13)

Studies have shown that the benefits from reducing sulphur emissions by reductions in the sulphur content of fuels will often be considerably greater than the estimated costs to industry in this Directive. The technology exists and is well established for reducing the sulphur level of liquid fuels.

(14)

In accordance with Article 193 TFEU, this Directive should not prevent any Member State from maintaining or introducing more stringent protective measures in order to encourage early implementation with respect to the maximum sulphur content of marine fuels, for instance using emission abatement methods outside SOx Emission Control Areas. Such measures are required to be compatible with the Treaties and are to be notified to the Commission.

(15)

A Member State, before introducing new, more stringent protective measures, should notify the draft measures to the Commission in accordance with Directive (EU) 2015/1535 of the European Parliament and of the Council (7).

(16)

The TFEU requires consideration to be given to the special characteristics of the outermost regions of the Union, namely the French overseas departments, the Azores, Madeira and the Canary Islands.

(17)

With regard to the limit on the sulphur content of heavy fuel oil, it is appropriate to provide for derogations in Member States and regions where the environmental conditions so allow.

(18)

With regard to the limit on the sulphur content of heavy fuel oil, it is also appropriate to provide for derogations for their use in combustion plants which comply with the emission limit values laid down in Directive 2001/80/EC of the European Parliament and of the Council (8), or in Annex V to Directive 2010/75/EU of the European Parliament and of the Council (9).

(19)

For refinery combustion plants excluded from the scope of point (d) of Article 3(2) or point (c) of Article 3(3) of this Directive the emissions of sulphur dioxide averaged over such plants should not exceed the limits set out in Directive 2001/80/EC, or Annex V to Directive 2010/75/EU, or any future revision of those Directives. In the application of this Directive, Member States should bear in mind that substitution by fuels other than those referred to in Article 2 should not produce an increase in emissions of acidifying pollutants.

(20)

In 2008, the International Maritime Organisation (IMO) adopted a resolution to amend Annex VI to the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL), containing regulations for the prevention of air pollution from ships. The revised Annex VI to MARPOL entered into force on 1 July 2010.

(21)

The revised Annex VI to MARPOL introduces, inter alia, stricter sulphur limits for marine fuel in SOx Emission Control Areas (1,00 % as of 1 July 2010 and 0,10 % as of 1 January 2015) as well as in sea areas outside SOx Emission Control Areas (3,50 % as of 1 January 2012 and, in principle, 0,50 % as of 1 January 2020). Most Member States are obliged, in accordance with their international commitments, to require ships to use fuel with a maximum sulphur content of 1,00 % in SOx Emission Control Areas as of 1 July 2010. In order to ensure coherence with international law as well as to secure proper enforcement of new globally established sulphur standards in the Union, this Directive should be in line with the revised Annex VI to MARPOL. In order to ensure a minimum quality of fuel used by ships either for fuel-based or technology-based compliance, marine fuel the sulphur content of which exceeds the general standard of 3,50 % by mass should not be allowed for use in the Union, except for fuels supplied to ships using emission abatement methods operating in closed mode.

(22)

Amendments to Annex VI to MARPOL regarding SOx Emission Control Areas are possible under IMO procedures. In the event that further changes, including exemptions, are introduced with regard to the application of limits for SOx Emission Control Areas in Annex VI to MARPOL, the Commission should consider any such changes and, where appropriate, without delay make the necessary proposal in accordance with the TFEU to fully align this Directive with the IMO rules regarding SOx Emission Control Areas.

(23)

The introduction of any new emission control areas should be subject to the IMO process under Annex VI to MARPOL and should be underpinned by a well-founded case based on environmental and economic grounds and supported by scientific data.

(24)

In accordance with Regulation 18 of the revised Annex VI to MARPOL, Member States should endeavour to ensure the availability of marine fuels which comply with this Directive.

(25)

In view of the global dimension of environmental politics and shipping emissions, ambitious emission standards should be set at a global level.

(26)

The Union will continue to advocate more effective protection of areas sensitive to SOx emissions and a reduction in the normal limit value for bunker fuel oil at the IMO.

(27)

Passenger ships operate mostly in ports or close to coastal areas and their impacts on human health and the environment are significant. In order to improve air quality around ports and coasts, those ships are required to use marine fuel with a maximum sulphur content of 1,50 % until stricter sulphur standards apply to all ships in territorial seas, exclusive economic zones and pollution control zones of Member States.

(28)

In order to facilitate the transition to new engine technologies with the potential for significant further emission reductions in the maritime sector, the Commission should further explore opportunities to enable and encourage the uptake of gas-powered engines in ships.

(29)

Proper enforcement of the obligations with regard to the sulphur content of marine fuels is necessary in order to achieve the aims of this Directive. The experience from the implementation of Directive 1999/32/EC has shown that there is a need for a stronger monitoring and enforcement regime in order to ensure the proper implementation of this Directive. To that end, it is necessary that Member States ensure sufficiently frequent and accurate sampling of marine fuel placed on the market or used on board ship as well as regular verification of ships' logbooks and bunker delivery notes. It is also necessary for Member States to establish a system of effective, proportionate and dissuasive penalties for non-compliance with the provisions of this Directive. In order to ensure more transparent information, it is also appropriate to provide that the register of local suppliers of marine fuel be made publicly available.

(30)

Complying with the low sulphur limits for marine fuels, particularly in SOx Emission Control Areas, can result in a significant increase in the price of such fuels, at least in the short term, and can have a negative effect on the competitiveness of short sea shipping in comparison with other transport modes, as well as on the competitiveness of the industries in the countries bordering SOx Emission Control Areas. Suitable solutions are necessary in order to reduce compliance costs for the affected industries, such as allowing for alternative, more cost-effective methods of compliance than fuel-based compliance and providing support, where necessary. The Commission should, based, inter alia, on reports from Member States, closely monitor the impacts of the shipping sector's compliance with the new fuel quality standards, particularly with regard to possible modal shift from sea to land-based transport and should, if appropriate, propose proper measures to counteract such a trend.

(31)

Limiting modal shift from sea to land-based transport is important given that an increasing share of goods being transported by road would in many cases run counter to the Union's climate change objectives and increase congestion.

(32)

The costs of the new requirements to reduce sulphur dioxide emissions could result in modal shift from sea to land-based transport and could have negative effects on the competitiveness of the industries. The Commission should make full use of instruments such as Marco Polo and the trans-European transport network to provide targeted assistance so as to minimise the risk of modal shift. Member States may consider it necessary to provide support to operators affected by this Directive in accordance with the applicable State aid rules.

(33)

In accordance with existing guidelines on State aid for environmental protection, and without prejudice to future changes thereto, Member States may provide State aid in favour of operators affected by this Directive, including aid for retrofitting operations of existing vessels, if such aid measures are deemed to be compatible with the internal market in accordance with Articles 107 and 108 TFEU, in particular in light of the applicable guidelines on State aid for environmental protection. In this context, the Commission may take into account that the use of some emission abatement methods go beyond the requirements of this Directive by reducing not only the sulphur dioxide emissions but also other emissions.

(34)

Access to emission abatement methods should be facilitated. Those methods can provide emission reductions at least equivalent to, or even greater than, those achievable using low sulphur fuel, provided that they have no significant negative impacts on the environment, such as marine ecosystems, and that they are developed subject to appropriate approval and control mechanisms. The already known alternative methods, such as the use of on-board exhaust gas cleaning systems, the mixture of fuel and liquefied natural gas or the use of biofuels should be recognised in the Union. It is important to promote the testing and development of new emission abatement methods in order, among other reasons, to limit modal shift from sea to land-based transport.

(35)

Emission abatement methods hold the potential for significant emission reductions. The Commission should therefore promote the testing and development of such technologies, inter alia, by considering the establishment of a co-financed joint programme with industry, based on principles from similar programmes, such as the Clean Sky Programme.

(36)

The Commission, in cooperation with Member States and stakeholders, should further develop measures identified in the Commission's Staff Working Paper of 16 September 2011 entitled ‘Pollutant emission reduction from maritime transport and the sustainable waterborne transport toolbox’.

(37)

In the case of a disruption in the supply of crude oil, petroleum products or other hydrocarbons, the Commission may authorise the application of a higher limit within a Member State's territory.

(38)

Member States should establish the appropriate mechanisms for monitoring compliance with the provisions of this Directive. Reports on the sulphur content of liquid fuels should be submitted to the Commission.

(39)

This Directive should contain detailed indications as regards the content and the format of the report to ensure harmonised reporting.

(40)

The power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the amendment of the equivalent emission values for, and the criteria for the use of, emission abatement methods laid down in Annexes I and II to this Directive, in order to adapt them to scientific and technical progress in such a way as to ensure strict consistency with the relevant instruments of the IMO, and in respect of the amendment of points (a) to (e) and (p) of Article 2, point (b)(i) of Article 13(2) and Article 13(3) of this Directive in order to adapt those provisions to scientific and technical progress. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(41)

In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (10).

(42)

It is appropriate for the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 of the European Parliament and of the Council (11) to assist the Commission in the approval of the emission abatement methods which are not covered by Council Directive 96/98/EC (12).

(43)

Effective, proportionate and dissuasive penalties are important for the implementation of this Directive. Member States should include in those penalties fines calculated in such a way as to ensure that the fines at least deprive those responsible of the economic benefits derived from their infringement and that those fines gradually increase for repeated infringements. Member States should notify the provisions on penalties to the Commission.

(44)

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

(a)

fuels intended for the purposes of research and testing;

(b)

fuels intended for processing prior to final combustion;

(c)

fuels to be processed in the refining industry;

(d)

fuels used and placed on the market in the outermost regions of the Union, provided that the relevant Member States ensure that, in those regions:

(e)

fuels used by warships and other vessels on military service. However, each Member State shall endeavour to ensure, by the adoption of appropriate measures not impairing the operations or operational capability of such ships, that the ships act in a manner consistent, so far as is reasonable and practical, with this Directive;

(f)

any use of fuels in a vessel necessary for the specific purpose of securing the safety of a ship or saving life at sea;

(g)

any use of fuels in a ship necessitated by damage sustained by it or its equipment, provided that all reasonable measures are taken after the occurrence of the damage to prevent or minimise excess emissions and that measures are taken as soon as possible to repair the damage. This shall not apply if the owner or master acted either with intent to cause damage, or recklessly;

(h)

without prejudice to Article 5, fuels used on board vessels employing emission abatement methods in accordance with Articles 8 and 10.

(a)

‘heavy fuel oil’ means:

(b)

‘gas oil’ means:

Diesel fuels as defined in point 2 of Article 2 of Directive 98/70/EC of the European Parliament and of the Council (13) are excluded from this definition. Fuels used in non-road mobile machinery and agricultural tractors are also excluded from this definition;

(c)

‘marine fuel’ means any petroleum-derived liquid fuel intended for use or in use on board a vessel, including those fuels defined in ISO 8217. It includes any petroleum-derived liquid fuel in use on board inland waterway vessels or recreational craft, as defined respectively in Article 2 of Directive 97/68/EC of the European Parliament and of the Council (14) and Article 1(3) of Directive 94/25/EC of the European Parliament and of the Council (15), when such vessels are at sea;

(d)

‘marine diesel oil’ means any marine fuel as defined for DMB grade in Table I of ISO 8217 with the exception of the reference to the sulphur content;

(e)

‘marine gas oil’ means any marine fuel as defined for DMX, DMA and DMZ grades in Table I of ISO 8217 with the exception of the reference to the sulphur content;

(f)

‘MARPOL’ means the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto;

(g)

‘Annex VI to MARPOL’ means the annex, entitled ‘Regulations for the Prevention of Air Pollution from Ships’, which the Protocol of 1997 added to MARPOL;

(h)

‘SOx Emission Control Areas’ means sea areas defined as such by the International Maritime Organisation (IMO) under Annex VI to MARPOL;

(i)

‘passenger ships’ means ships that carry more than 12 passengers, where a passenger is every person other than:

(j)

‘regular services’ means a series of passenger ship crossings operated so as to serve traffic between the same two or more ports, or a series of voyages from and to the same port without intermediate calls, either:

(k)

‘warship’ means a ship belonging to the armed forces of a State, bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline;

(l)

‘ships at berth’ means ships which are securely moored or anchored in a Union port while they are loading, unloading or hotelling, including the time spent when not engaged in cargo operations;

(m)

‘placing on the market’ means supplying or making available to third persons, against payment or free of charge, anywhere within Member States' jurisdictions, marine fuels for on-board combustion. It excludes supplying or making available marine fuels for export in ships' cargo tanks;

(n)

‘outermost regions’ means the French overseas departments, the Azores, Madeira and the Canary Islands, as set out in Article 349 TFEU;

(o)

‘emission abatement method’ means any fitting, material, appliance or apparatus to be fitted in a ship or other procedure, alternative fuel, or compliance method, used as an alternative to low sulphur marine fuel meeting the requirements set out in this Directive, that is verifiable, quantifiable and enforceable;

(p)

‘ASTM method’ means the methods laid down by the American Society for Testing and Materials in the 1976 edition of standard definitions and specifications for petroleum and lubricating products;

(q)

‘combustion plant’ means any technical apparatus in which fuels are oxidised in order to use the heat generated.

(a)

in combustion plants which fall within the scope of Directive 2001/80/EC, which are subject to Article 4(1) or (2) or point (a) of Article 4(3) of that Directive and which comply with the emission limits for sulphur dioxide for such plants as set out in that Directive;

(b)

in combustion plants which fall within the scope of Directive 2001/80/EC, which are subject to point (b) of Article 4(3) and Article 4(6) of that Directive and the monthly average sulphur dioxide emissions of which do not exceed 1 700 mg/Nm3 at an oxygen content in the flue gas of 3 % by volume on a dry basis;

(c)

in combustion plants which do not fall under points (a) or (b), and the monthly average sulphur dioxide emissions of which do not exceed 1 700 mg/Nm3 at an oxygen content in the flue gas of 3 % by volume on a dry basis;

(d)

for combustion in refineries, where the monthly average of emissions of sulphur dioxide averaged over all combustion plants in the refinery, irrespective of the type of fuel or fuel combination used, but excluding plants which fall under points (a) and (b), gas turbines and gas engines, does not exceed 1 700 mg/Nm3 at an oxygen content in the flue gas of 3 % by volume on a dry basis.

(a)

in combustion plants which fall within the scope of Chapter III of Directive 2010/75/EU, and which comply with the emission limits for sulphur dioxide for such plants as set out in Annex V to that Directive or, where those emission limit values are not applicable in accordance with that Directive, for which the monthly average sulphur dioxide emissions does not exceed 1 700 mg/Nm3 at an oxygen content in the flue gas of 3 % by volume on a dry basis;

(b)

in combustion plants which do not fall under point (a), and the monthly average sulphur dioxide emissions of which does not exceed 1 700 mg/Nm3 at an oxygen content in the flue gas of 3 % by volume on a dry basis;

(c)

for combustion in refineries, where the monthly average of emissions of sulphur dioxide averaged over all combustion plants in the refinery, irrespective of the type of fuel or fuel combination used, but excluding plants falling under point (a), gas turbines and gas engines, does not exceed 1 700 mg/Nm3 at an oxygen content in the flue gas of 3 % by volume on a dry basis.

(a)

3,50 % as from 18 June 2014;

(b)

0,50 % as from 1 January 2020.

(a)

1,00 % until 31 December 2014;

(b)

0,10 % as from 1 January 2015.

—

vessels flying their flag, and

—

in the case of Member States bordering SOx Emission Control Areas, vessels of all flags while in their ports.

(a)

present a record of the actions taken to attempt to achieve compliance; and

(b)

provide evidence that it attempted to purchase marine fuel which complies with this Directive in accordance with its voyage plan and, if it was not made available where planned, that attempts were made to locate alternative sources for such marine fuel and that, despite best efforts to obtain marine fuel which complies with this Directive, no such marine fuel was made available for purchase.

(a)

maintain a publicly available register of local suppliers of marine fuel;

(b)

ensure that the sulphur content of all marine fuels sold in their territory is documented by the supplier on a bunker delivery note, accompanied by a sealed sample signed by the representative of the receiving ship;

(c)

take action against marine fuel suppliers that have been found to deliver fuel that does not comply with the specification stated on the bunker delivery note;

(d)

ensure that remedial action is taken to bring any non-compliant marine fuel discovered into compliance.

(a)

whenever, according to published timetables, ships are due to be at berth for less than two hours;

(b)

to ships which switch off all engines and use shore-side electricity while at berth in ports.

(a)

be empowered to adopt delegated acts, in accordance with Article 16, amending Annexes I and II;

(b)

adopt implementing acts laying down the detailed requirements for monitoring of emissions, where appropriate. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

(a)

guidelines developed by the IMO;

(b)

the results of any trials conducted under Article 10;

(c)

effects on the environment, including achievable emission reductions, and impacts on ecosystems in enclosed ports, harbours and estuaries; and

(d)

the feasibility of monitoring and verification.

(a)

the Commission and any port State concerned are notified in writing at least 6 months before trials begin;

(b)

permits for trials do not exceed 18 months in duration;

(c)

all ships involved install tamper-proof equipment for the continuous monitoring of funnel gas emissions and use it throughout the trial period;

(d)

all ships involved achieve emission reductions which are at least equivalent to those which would be achieved through the sulphur limits for fuels specified in this Directive;

(e)

there are proper waste management systems in place for any waste generated by the emission abatement methods throughout the trial period;

(f)

there is an assessment of impacts on the marine environment, particularly ecosystems in enclosed ports, harbours and estuaries throughout the trial period; and

(g)

full results are provided to the Commission and are made publicly available within 6 months of the end of the trials.

(a)

inspection of ships' logbooks and bunker delivery notes; and

(b)

as appropriate, the following means of sampling and analysis:

(a)

the frequency of sampling;

(b)

the sampling methods;

(c)

the definition of a sample representative of the fuel examined.

21.5.2016   

EN

Official Journal of the European Union

L 132/79

(1)

On 14 September 2012, the Council authorised the Commission to open negotiations, on behalf of the Union and its Member States and the Republic of Croatia, to conclude a Protocol amending the Euro-Mediterranean Aviation Agreement between the European Union and its Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part (1), to take account of the accession to the European Union of the Republic of Croatia (‘the Protocol’).

(2)

Those negotiations were successfully completed on 24 April 2014.

(3)

The Protocol should be signed on behalf of the Union and its Member States, subject to its conclusion at a later date.

(4)

The Protocol should be applied provisionally,

21.5.2016   

EN

Official Journal of the European Union

L 132/81

21.5.2016   

EN

Official Journal of the European Union

L 132/85

(1)

Council Regulation (EC, Euratom) No 1150/2000 (3) was recast by Council Regulation (EU, Euratom) No 609/2014 (4). Regulation (EU, Euratom) No 609/2014 is to enter into force on the day of entry into force of Council Decision 2014/335/EU, Euratom (5). That Decision has not yet entered into force.

(2)

In order to give the Commission (Eurostat) sufficient time to assess relevant gross national income (GNI) data and to give the GNI Committee sufficient time to establish an opinion on the GNI data, any changes to the GNI of a given financial year should be possible until 30 November of the fourth year after that financial year. The period for keeping supporting documents related to the value added tax (VAT) and GNI own resources should, consequently, also be extended from 30 September to 30 November of the fourth year following the financial year to which they refer.

(3)

This Regulation should reflect the existing practice whereby the Commission accounts for own resources purposes referred to in Article 9 of Regulation (EU, Euratom) No 609/2014 (‘Commission own resources accounts’) are kept with Member States' treasuries or with their national central banks. The notion of treasury should cover also other public entities exercising similar functions.

(4)

The Commission own resources accounts should be kept free of any charge and interest. The application of charges or negative interest would reduce the Union's budget and lead to unequal treatment of Member States. Therefore, where negative interest is applicable to Commission own resources accounts, the Member States concerned should credit an amount equal to the amount of negative interest. Since some Member States do not have the possibility of avoiding the financial impact of the obligation to credit such amounts of negative interest to the Commission own resources accounts, it is appropriate that the Commission, when covering its cash resource requirements, aim to reduce that impact by drawing with priority on the sums credited to the accounts concerned.

(5)

The Commission own resources accounts should only be debited upon the Commission's instruction. This should be without prejudice to the application of negative interest.

(6)

In the interest of clarity and readability, Article 10 of Regulation (EU, Euratom) No 609/2014 should be divided into several Articles.

(7)

The Commission should, at any time, have sufficient cash resources available to comply with payment requirements arising from the implementation of the budget, which are particularly concentrated in the first months of the year. The Commission already has the possibility of inviting Member States to bring forward up to two additional twelfths for the specific needs of paying expenditure of the European Agricultural Guarantee Fund (EAGF) pursuant to Regulation (EU) No 1307/2013 of the European Parliament and of the Council (6). In order to further reduce the risk of payment delays due to temporary shortages of cash resources, it should be possible for the Commission to invite Member States to bring forward up to an additional half of one twelfth for the specific needs of paying expenditure of the European Structural and Investment Funds pursuant to Regulation (EU) No 1303/2013 of the European Parliament and of the Council (7), in so far as it is justified by cash requirements. However, to avoid excessive pressure on national treasuries, the total amount that can be brought forward to the same month should not exceed two additional twelfths. Moreover, due to the specific payment requirements applicable to the EAGF, this is not to be applied to the detriment of the EAGF.

(8)

Pursuant to Regulation (EU, Euratom) No 1150/2000, the Commission is to calculate adjustments to the VAT and GNI-based own resources, and inform Member States thereof, in time for them to enter these adjustments in the Commission own resources account on the first working day of December. The amounts of the adjustments to be made available on the first working day of December 2014 were of an unprecedented size. In order to prevent unreasonably heavy budgetary constraints on Member States just before the year-end, Council Regulation (EU, Euratom) No 1377/2014 (8) amended Regulation (EC, Euratom) No 1150/2000 to allow Member States to defer, in certain exceptional circumstances, the entry of these adjustments in the Commission own resources account.

(9)

Regulation (EC, Euratom) No 1150/2000, as thus amended, will cease to apply once Regulation (EU, Euratom) No 609/2014 enters into force. However, this should not prejudice the validity of those deferments to the entry of adjustments already formally requested under Regulation (EU, Euratom) No 1377/2014 while this latter Regulation was still in force.

(10)

In the interest of simplification, and in order to limit the fiscal strain on Member States and the Commission in particular towards the end of the year, the procedure for adjusting the VAT and GNI own resources should be streamlined. There should be more time between the formal notification to Member States of the required adjustments and their entry in the Commission own resources account. Such notification and entry should occur in the same year, that year being also relevant for recording the impact on the government accounts and for the purposes of the Stability and Growth Pact. There should be an immediate redistribution of the overall amount of adjustments among Member States according to their respective shares in the GNI-based own resource. This would eliminate the need for the derogation introduced by Regulation (EU, Euratom) No 1377/2014.

(11)

In order to achieve the Union's objectives, the procedure for calculating interest should ensure in particular that own resources are made available in a timely manner and in full.

(12)

In order to improve legal certainty and clarity, cases where interest for late payment is due should be defined for the VAT and GNI-based own resources. In view of the specificities of those own resources, which have a verification cycle allowing for corrections and adjustments respectively within a period of four years, any changes to VAT and GNI-based own resources following from such corrections or adjustments should not give rise to the retroactive calculation of interest. Interest in respect of those resources should therefore be payable only for delays in entering amounts of monthly twelfths and amounts resulting from the annual calculation of adjustments for previous financial years. Moreover, to maintain a proper incentive for taking corrective action, interest should also be payable in case of delays in entering amounts resulting from particular corrections to VAT statements on the date specified pursuant to measures taken by the Commission under the second subparagraph of Article 9(1) of Council Regulation (EEC, Euratom) No 1553/89 (9). Furthermore, when a Member State fails to provide, within the explicit time limit set by the Commission, corrections to GNI data necessary for addressing points notified by the Commission or by a Member State, interest should also be applied to any increase of own resources resulting from an adjustment carried out as a consequence of addressing the notified point. This interest should be applied as from the moment where the amount of the adjustment should have been entered, that is, the first working day of June of the year following that in which the explicit time limit expired, until the moment where that adjusted amount is entered in the account. In line with existing rules and practice, any delay in making an entry in respect of traditional own resources should give rise to the calculation of interest.

(13)

The interest rate system set out in Article 12 of Regulation (EU, Euratom) No 609/2014 contains a fixed increase of 2 percentage points to the basic rate and a progressive increase of 0,25 of a percentage point for each month of delay, the increased rate being applicable to the entire period of delay. That interest rate system has been instrumental in ensuring that own resources are made available in a timely manner and in full, and its main elements should therefore be maintained.

(14)

Nevertheless, the existing rules providing for an ever increasing rate have led to the payment of very high interest rates in exceptional cases involving delays of many years. In order to ensure the proportionality of the system while maintaining the deterrent effect, the accumulated increase to that basic rate should be limited to an annual maximum of 16 percentage points.

(15)

On the other hand, the existing fixed increase of 2 percentage points to the basic rate for short periods of delay in particular may lead to a disincentive to make own resources available in a timely manner in circumstances where refinancing costs on the money market are higher than the interest payable. In order to further reinforce the smooth functioning of the system, the fixed increase to the basic rate should therefore be raised to 2,5 percentage points and the resulting interest rate applied should not be lower than that percentage, even where the applicable basic rate is negative. This should, in particular, prevent delays in making available the monthly twelfths of the own resources based on VAT and on GNI, which currently constitute more than 80 % of the Union's budget revenue.

(16)

In order to promote effective protection of the financial interests of the Union and to take into account the newly introduced provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council (10), it should be possible for Member States to be released from the obligation to make available to the Union's budget those amounts of traditional own resources that prove irrecoverable due to deferred entry in the accounts or deferred notification of customs debts in order not to prejudice criminal investigations affecting the financial interests of the Union. The Commission should communicate with the least possible delay to Member States, and update, where necessary, the criteria that will guide the assessment of cases involving this possibility.

(17)

The reporting threshold for cases of traditional own resources declared or deemed irrecoverable should be raised in order to reduce the administrative burden for the Member States and for the Commission.

(18)

It should be clarified that the possibility for the Commission pursuant to Article 14(3) of Regulation (EU, Euratom) No 609/2014 to draw in excess of its assets to ensure compliance with the Union's obligations in the sole case of default under a loan contracted or guaranteed pursuant to Council regulations and decisions also covers regulations and decisions which, following the Treaty of Lisbon, are to be adopted not just by the Council, but by the European Parliament and the Council pursuant to the Treaty on the Functioning of the European Union.

(19)

Save in exceptional cases, the Commission should notify to Member States, or to their national central banks, its orders of cash movement transactions affecting the accounts opened for own resources purposes at least one day before those orders are to be executed.

(20)

Regulation (EU, Euratom) No 609/2014 should therefore be amended accordingly.

(21)

For reasons of consistency, this Regulation should enter into force on the same day as Regulation (EU, Euratom) No 609/2014. The amendment set out in this Regulation to Article 18 of Regulation (EU, Euratom) No 609/2014 should apply from 1 January 2014 so as to safeguard the continued application of the derogation introduced by Regulation (EU, Euratom) No 1377/2014 until the date of entry into force of this Regulation. The amendment set out in this Regulation to Article 12 of Regulation (EU, Euratom) No 609/2014 should apply where the due date of the own resource occurs after the entry into force of this Regulation. However, for reasons of proportionality, Member States should also benefit from the limitation on the total increase of the interest rate, as well as from the limitation on the payment of interest for the VAT-based own resources only in relation to delays specified in Article 12 of Regulation (EU, Euratom) No 609/2014, as amended by this Regulation, for own resources that were due prior to the date of entry into force of this Regulation, where those own resources became known after that date,

(1)

In Article 3, the second paragraph is replaced by the following:

‘The supporting documents relating to the statistical procedures and bases referred to in Article 3 of Regulation (EC, Euratom) No 1287/2003 shall be kept by the Member States until 30 November of the fourth year following the financial year in question. The supporting documents relating to the VAT-based own resource base shall be kept for the same period.’.

(2)

Article 6 is amended as follows: