27.12.2017   

EN

Official Journal of the European Union

L 345/1

(1)

Regulation (EC) No 2006/2004 of the European Parliament and of the Council (3) provides for harmonised rules and procedures to facilitate cooperation between the national authorities that are responsible for the enforcement of cross-border consumer protection laws. Article 21a of Regulation (EC) No 2006/2004 provides for a review of the effectiveness of that Regulation and its operational mechanisms. Following such review, the Commission concluded that Regulation (EC) No 2006/2004 is not sufficient to effectively address the enforcement challenges of the Single Market, including the challenges of the Digital Single Market.

(2)

The communication of the Commission of 6 May 2015, ‘A Digital Single Market Strategy for Europe’, identified as one of the priorities of that strategy, the need to enhance consumer trust through more rapid, agile and consistent enforcement of consumer rules. The communication of the Commission of 28 October 2015‘Upgrading the Single Market Strategy: more opportunities for people and business’ reiterated that the enforcement of Union consumer protection legislation should be further strengthened by the reform of Regulation (EC) No 2006/2004.

(3)

The ineffective enforcement in cases of cross-border infringements, including infringements in the digital environment, enables traders to evade enforcement by relocating within the Union. It also gives rise to a distortion of competition for law-abiding traders operating either domestically or cross-border, online or offline, and thus directly harms consumers and undermines consumer confidence in cross-border transactions and the internal market. An increased level of harmonisation that includes effective and efficient enforcement cooperation among competent public enforcement authorities is therefore necessary to detect, to investigate and to order the cessation or prohibition of infringements covered by this Regulation.

(4)

Regulation (EC) No 2006/2004 established a network of competent public enforcement authorities throughout the Union. Effective coordination among different competent authorities participating in that network is necessary, as well as effective coordination among other public authorities at the Member State level. The coordination role of the single liaison office should be entrusted to a public authority in each Member State. That authority should have sufficient powers and necessary resources to undertake that key role. Each Member State is encouraged to designate one of the competent authorities as the single liaison office pursuant to this Regulation.

(5)

Consumers should also be protected against infringements covered by this Regulation that have already ceased, but the harmful effects of which may continue. Competent authorities should have the necessary minimum powers to investigate and to order the cessation of such infringements or their prohibition in the future, in order to prevent them from being repeated, and in so doing, to ensure a high level of consumer protection.

(6)

Competent authorities should have a minimum set of investigation and enforcement powers in order to apply this Regulation, to cooperate with each other more quickly and more efficiently and to deter traders from committing infringements covered by this Regulation. Those powers should be sufficient to tackle the enforcement challenges of e-commerce and the digital environment effectively and to prevent non-compliant traders from exploiting gaps in the enforcement system by relocating to Member States whose competent authorities are not equipped to tackle unlawful practices. Those powers should enable Member States to ensure that necessary information and evidence can be validly exchanged among competent authorities to achieve an equal level of effective enforcement in all Member States.

(7)

Each Member State should ensure that all competent authorities within its jurisdiction have all the minimum powers that are necessary to ensure the proper application of this Regulation. However, Member States should be able to decide not to confer all the powers on every competent authority, provided that each of those powers can be exercised effectively and as necessary in relation to any infringement covered by this Regulation. Member States should also be able to decide, in accordance with this Regulation, to ascribe certain tasks to designated bodies or to confer on competent authorities the power to consult consumer organisations, trader associations, designated bodies, or other persons concerned, regarding the effectiveness of the commitments proposed by a trader to cease the infringement covered by this Regulation. However, Member States should not be under any obligation to involve designated bodies in the application of this Regulation or to provide for consultations with consumer organisations, trader associations, designated bodies, or other persons concerned, regarding the effectiveness of the proposed commitments to cease the infringement covered by this Regulation.

(8)

Competent authorities should be in a position to open investigations or proceedings on their own initiative if they become aware of infringements covered by this Regulation by means other than consumer complaints.

(9)

Competent authorities should have access to any relevant documents, data and information that relate to the subject matter of an investigation or concerted investigations of a consumer market (‘sweeps’) in order to determine whether an infringement of Union laws that protect consumers’ interests has occurred or is occurring, and in particular to identify the trader responsible, irrespective of who possesses the documents, data or information in question, and regardless of their form or format, their storage medium, or the place where they are stored. Competent authorities should be able to directly request that third parties in the digital value chain provide any relevant evidence, data and information in accordance with Directive 2000/31/EC of the European Parliament and of the Council (4) and in accordance with the legislation on personal data protection.

(10)

Competent authorities should be able to request any relevant information from any public authority, body or agency within their Member State, or from any natural person or legal person, including, for example, payment service providers, internet service providers, telecommunication operators, domain registries and registrars, and hosting service providers, for the purpose of establishing whether an infringement covered by this Regulation has occurred or is occurring.

(11)

Competent authorities should be able to carry out necessary on-site inspections, and should have the power to enter any premises, land or means of transport, that the trader concerned by the inspection uses for purposes related to his trade, business, craft or profession.

(12)

Competent authorities should be able to request any representative or member of the staff of the trader concerned by the inspection to give explanations of facts, information, data or documents relating to the subject matter of the inspection, and should be able to record the answers given by that representative or staff member.

(13)

Competent authorities should be able to verify compliance with Union laws that protect consumers’ interests and to obtain evidence of infringements covered by this Regulation, including infringements that take place during or after the purchase of goods or services. Competent authorities should therefore have the power to purchase goods or services as test purchases, where necessary, under a cover identity, in order to detect infringements covered by this Regulation, such as refusals to implement the consumer right of withdrawal in the case of distance contracts, and to obtain evidence. That power should also include the power to inspect, observe, study, disassemble or test a product or service that has been purchased by the competent authority for those purposes. The power to purchase goods or services as test purchases might include the power on the part of competent authorities to ensure the return of any payment made where such return would not be disproportionate and would otherwise comply with Union and national law.

(14)

In the digital environment in particular, the competent authorities should be able to stop infringements covered by this Regulation quickly and effectively, and in particular where the trader selling goods or services conceals his identity or relocates within the Union or to a third country in order to avoid enforcement. In cases where there is a risk of serious harm to the collective interests of consumers, the competent authorities should be able to adopt interim measures in accordance with national law, including the removal of content from an online interface or ordering the explicit display of a warning to consumers when they access an online interface. Interim measures should not go beyond what is necessary to achieve their objective. Furthermore, the competent authorities should have the power to order the explicit display of a warning to consumers when they access an online interface, or to order the removal or modification of digital content if there are no other effective means to stop an illegal practice. Such measures should not go beyond what is necessary to achieve the objective of bringing to an end or prohibiting the infringement covered by this Regulation.

(15)

Pursuing the objective of this Regulation while stressing the importance of the traders’ willingness to act in accordance with Union laws that protect consumers’ interests and to remedy the consequences of their infringements covered by this Regulation, competent authorities should have the possibility to agree with traders on commitments containing steps and measures that a trader has to take regarding an infringement, and in particular the ceasing of an infringement.

(16)

Because they have a direct impact on the degree to which public enforcement acts as a deterrent, penalties for infringements of consumer law represent an important part of the enforcement system. Since national penalties regimes do not always allow the cross-border dimension of an infringement to be taken into account, competent authorities should, as part of their minimum powers, have the right to impose penalties for infringements covered by this Regulation. Member States should not be required to establish a new penalty regime for infringements covered by this Regulation. Instead, they should require competent authorities to apply the applicable regime for the same domestic infringement, where possible taking into account the actual scale and scope of the infringement concerned. In view of the findings of the Commission’s Report of the Fitness Check of consumer and marketing law, it might be considered to be necessary to strengthen the level of penalties for breaches of Union consumer law.

(17)

Consumers should be entitled to redress for harm caused by infringements covered by this Regulation. Depending on the case, the power of the competent authorities to receive from the trader, on the trader’s initiative, additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement covered by this Regulation, or where appropriate to seek to obtain commitments from the trader to offer adequate remedies to the consumers that have been affected by that infringement should contribute to removing the adverse impact on consumers caused by a cross-border infringement. Those remedies might include, inter alia, repair, replacement, price reductions, the termination of contract or the reimbursement of the price paid for the goods or services, as appropriate, to mitigate the negative consequences of the infringement covered by this Regulation on the affected consumer in accordance with the requirements of Union law. This should be without prejudice to a consumer’s right to seek redress through appropriate means. Where applicable, competent authorities should inform, by appropriate means, consumers that claim that they have suffered harm as a consequence of an infringement covered by this Regulation about how to seek compensation under national law.

(18)

The implementation and exercise of powers in application of this Regulation should be proportionate and adequate in view of the nature and the overall actual or potential harm of the infringement of Union laws that protect consumers’ interests. Competent authorities should take all facts and circumstances of the case into account and should choose the most appropriate measures which are essential to address the infringement covered by this Regulation. Those measures should be proportionate, effective and dissuasive.

(19)

The implementation and exercise of powers in the application of this Regulation should also comply with other Union and national law, including with applicable procedural safeguards and principles of the fundamental rights. Member States should remain free to set out conditions and limits for the exercise of the powers in national law, in accordance with Union law. Where, for example, in accordance with national law, prior authorisation to enter the premises of natural persons and legal persons is required from the judicial authority of the Member State concerned, the power to enter such premises should be used only after such prior authorisation has been obtained.

(20)

Member States should be able to choose whether the competent authorities exercise those powers directly, under their own authority, by recourse to other competent authorities or other public authorities, by instructing designated bodies or by application to the competent courts. Member States should ensure that those powers are exercised effectively and in a timely manner.

(21)

When responding to requests submitted through the mutual assistance mechanism, competent authorities should, where appropriate, also make use of other powers or measures granted to them at the national level, including the power to initiate or refer matters for criminal prosecution. It is of the utmost importance that courts and other authorities, in particular those involved in criminal prosecution, have the necessary means and powers to cooperate with competent authorities effectively and in a timely manner.

(22)

The effectiveness and efficiency of the mutual assistance mechanism should be improved. Requested information should be provided within the time limits set out in this Regulation, and necessary investigation and enforcement measures should be adopted in a timely manner. Competent authorities should reply to information and enforcement requests within set periods, unless otherwise agreed. The obligations of the competent authority within the mutual assistance mechanism should remain intact, unless it is likely that enforcement actions and administrative decisions taken at national level outside the mutual assistance mechanism would ensure the swift and effective cessation or prohibition of the intra-Union infringement. Administrative decisions in that regard should be understood as decisions giving effect to the measures taken to bring about the cessation or the prohibition of the intra-Union infringement. In those exceptional cases, competent authorities should be entitled to refuse to comply with a request for enforcement measures submitted under the mutual assistance mechanism.

(23)

The Commission should be better able to coordinate and monitor the functioning of the mutual assistance mechanism, issue guidance, make recommendations and issue opinions to the Member States when problems arise. The Commission should also be better able to assist competent authorities effectively and quickly to resolve disputes over the interpretation of their obligations stemming from the mutual assistance mechanism.

(24)

This Regulation should provide for harmonised rules setting out the procedures for the coordination of investigation and enforcement measures relating to widespread infringements and widespread infringements with a Union dimension. Coordinated actions against widespread infringements and widespread infringements with a Union dimension should ensure that competent authorities are able to choose the most appropriate and efficient tools to stop those infringements and, where appropriate, to receive or seek to obtain from the traders responsible remedial commitments for the benefit of consumers.

(25)

As part of a coordinated action, the competent authorities concerned should coordinate their investigation and enforcement measures in order to tackle effectively the widespread infringement or widespread infringement with a Union dimension and to bring about its cessation or prohibition. To that end, all necessary evidence and information should be exchanged between the competent authorities and necessary assistance should be provided. Competent authorities concerned by the widespread infringement or widespread infringement with a Union dimension should take the necessary enforcement measures in a coordinated way in order to bring about the cessation or prohibition of that infringement.

(26)

The participation of each competent authority in a coordinated action, and in particular the investigation and enforcement measures that a competent authority is required to take should be sufficient in order to address the widespread infringement or widespread infringement with a Union dimension effectively. Competent authorities concerned by that infringement should be required to take only those investigation and enforcement measures which are needed to obtain all necessary evidence and information regarding the widespread infringement or widespread infringement with a Union dimension and to bring about the cessation or prohibition of the infringement. However, a lack of available resources on the part of the competent authority concerned by that infringement should not be considered to justify not taking part in a coordinated action.

(27)

Competent authorities concerned by the widespread infringement or widespread infringement with a Union dimension which participate in a coordinated action should be able to conduct national investigation and enforcement activities in relation to the same infringement and against the same trader. However, at the same time, the obligation of the competent authority to coordinate its investigation and enforcement activities in the framework of the coordinated action with other competent authorities concerned by that infringement should remain intact, unless it is likely that enforcement actions and administrative decisions taken at national level outside the framework of the coordinated action would ensure the swift and effective cessation or prohibition of the widespread infringement or widespread infringement with a Union dimension. Administrative decisions in that regard should be understood as decisions giving effect to the measures taken to bring about the cessation or the prohibition of the infringement. In those exceptional cases, competent authorities should be entitled to decline to participate in the coordinated action.

(28)

Where there is a reasonable suspicion of a widespread infringement, the competent authorities concerned by that infringement should, by agreement, launch a coordinated action. In order to establish which competent authorities are concerned by a widespread infringement, all relevant aspects of that infringement should be considered, and in particular the place where the trader is established or resides, the location of the trader’s assets, the location of the consumers who were harmed by the alleged infringement, and the place of the points of sale of the trader, namely, shops and websites.

(29)

The Commission should cooperate more closely with Member States to prevent large-scale infringements from occurring. The Commission should therefore notify competent authorities if it suspects any infringements covered by this Regulation. If, for example by monitoring the alerts issued by competent authorities, the Commission has a reasonable suspicion that a widespread infringement with a Union dimension has occurred, it should notify Member States, through the competent authorities and single liaison offices concerned by that alleged infringement, stating the grounds which justify a possible coordinated action in the notification. Competent authorities concerned should conduct appropriate investigations on the basis of information that is available or easily accessible to them. They should notify the results of their investigations to the other competent authorities, to the single liaison offices concerned by that infringement and to the Commission. Where the competent authorities concerned conclude that such investigations reveal that an infringement might be taking place, they should start the coordinated action by taking the measures set out in this Regulation. A coordinated action tackling a widespread infringement with a Union dimension should always be coordinated by the Commission. If it is apparent that the Member State is concerned by that infringement, it should take part in a coordinated action in order to help to collect all necessary evidence and information related to the infringement and to bring about its cessation or prohibition. As regards the enforcement measures, criminal and judicial proceedings in Member States should not be affected by the application of this Regulation. The principle of ne bis in idem should be respected. However, if the same trader repeats the same act or omission that constituted an infringement covered by this Regulation which had already been addressed by enforcement proceedings that resulted in the cessation or prohibition of that infringement, it should be considered to be a new infringement and the competent authorities should address it.

(30)

Competent authorities concerned should take the necessary investigation measures to establish the details of the widespread infringement or widespread infringement with a Union dimension, and in particular the identity of the trader, acts or omissions committed by the trader, and the effects of the infringement. The competent authorities should take enforcement measures based on the outcome of the investigation. Where appropriate, the outcome of the investigation and the assessment of the widespread infringement or the widespread infringement with a Union dimension should be set out in a common position agreed among the competent authorities of the Member States concerned by the coordinated action, and should be addressed to the trader responsible for that infringement. The common position should not constitute a binding decision of the competent authorities. It should, however, give the addressee the opportunity to be heard on the matters which are part of the common position.

(31)

In the context of widespread infringements or widespread infringements with a Union dimension, the rights of defence of the traders should be respected. This requires, in particular, giving the trader the rights to be heard and to use, during the proceedings, the official language or one of the official languages used for official purposes in the Member State in which the trader is established or resides. It is also essential to ensure compliance with Union law on the protection of undisclosed know-how and business information.

(32)

Competent authorities concerned should take within their jurisdiction the necessary investigation and enforcement measures. However, the effects of widespread infringements or widespread infringements with a Union dimension are not limited to a single Member State. Therefore cooperation between competent authorities is required to address those infringements and to bring about their cessation or prohibition.

(33)

The effective detection of infringements covered by this Regulation should be supported by exchanging information between competent authorities and the Commission by the means of issuing alerts if there is a reasonable suspicion of such infringements. The Commission should coordinate the functioning of the exchange of information.

(34)

Consumer organisations play an essential role in informing consumers about their rights and educating them and protecting their interests, including the settlement of disputes. Consumers should be encouraged to cooperate with the competent authorities to strengthen the application of this Regulation.

(35)

Consumer organisations, and where appropriate trader associations, should be allowed to notify competent authorities of suspected infringements covered by this Regulation and to share with them the information needed to detect, investigate and stop infringements, to give their opinion about investigations or infringements and to notify competent authorities of abuses of Union laws that protect consumers’ interests.

(36)

In order to ensure the correct implementation of this Regulation, Member States should confer on designated bodies, European Consumer Centres, consumer organisations and associations, and, where appropriate, trader associations, that have the necessary expertise, the power to issue external alerts to the competent authorities of the relevant Member States and the Commission of suspected infringements covered by this Regulation and to provide the necessary information available to them. Member States might have appropriate reasons for not conferring on such entities the power to undertake those actions. In this context, where a Member State decides not to allow one of those entities to issue external alerts, it should provide an explanation justifying its reasons for doing so.

(37)

Sweeps are another form of enforcement coordination that has proven to be an effective tool against infringements of Union laws that protect consumers’ interests, and should be retained and strengthened in the future, for both online and offline sectors. In particular, sweeps should be conducted where market trends, consumer complaints or other indications suggest that infringements of Union laws that protect consumers’ interests have occurred or are occurring.

(38)

Data related to consumer complaints might help policymakers at Union and national level to assess the functioning of consumer markets and to detect infringements. The exchange of such data at Union level should be promoted.

(39)

It is essential that, to the extent necessary to contribute to achieving the objective of this Regulation, Member States inform each other and the Commission about their activities in protecting consumers’ interests, including about their support for the activities of consumer representatives, their support for the activities of bodies responsible for the extra-judicial settlement of consumer disputes and their support for consumers’ access to justice. In cooperation with the Commission, Member States should be able to carry out joint activities with respect to the exchange of consumer policy information in the aforementioned areas.

(40)

The enforcement challenges that exist go beyond the frontiers of the Union, and the interests of Union consumers need to be protected from rogue traders based in third countries. Hence, international agreements with third countries regarding mutual assistance in the enforcement of Union laws that protect consumers’ interests should be negotiated. Those international agreements should include the subject matter laid down in this Regulation and should be negotiated at Union level in order to ensure the optimum protection of Union consumers and smooth cooperation with third countries.

(41)

Information exchanged between competent authorities should be subject to strict rules on confidentiality and on professional and commercial secrecy, in order to ensure investigations are not compromised or that the reputations of traders are not unfairly harmed. Competent authorities should decide to disclose such information only when appropriate and necessary, in accordance with the principle of proportionality, taking into account the public interest, such as public safety, consumer protection, public health, environmental protection or proper conduct of criminal investigations, and on a case-by-case basis.

(42)

In order to enhance the transparency of the cooperation network, and to raise awareness amongst consumers and the public in general, every 2 years the Commission should produce an overview of the information, statistics and developments in the area of consumer law enforcement, collected within the enforcement framework of the cooperation provided for by this Regulation, and make it publicly available.

(43)

Widespread infringements should be resolved effectively and efficiently. A system of biennial exchange of enforcement priorities should be put in place to achieve this.

(44)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission, to lay down the practical and operational arrangements for the functioning of the electronic database. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5).

(45)

This Regulation is without prejudice to sectoral Union rules providing for cooperation among sectoral regulators or to applicable sectoral Union rules on the compensation of consumers for harm resulting from infringements of those rules. This Regulation is also without prejudice to other cooperation systems and networks set out in sectoral Union legislation. This Regulation promotes cooperation and coordination among the consumer protection network and the networks of regulatory bodies and authorities established by sectoral Union legislation. This Regulation is without prejudice to the application in the Member States of measures relating to judicial cooperation in civil and criminal matters.

(46)

This Regulation is without prejudice to the right to claim individual or collective compensation, which is subject to the national law, and does not provide for the enforcement of those claims.

(47)

Regulation (EC) No 45/2001 of the European Parliament and of the Council (6), Regulation (EU) 2016/679 of the European Parliament and of the Council (7) and Directive (EU) 2016/680 of the European Parliament and of the Council (8) should apply in the context of this Regulation.

(48)

This Regulation is without prejudice to the applicable Union rules concerning the powers of national regulatory bodies established by Union sectoral legislation. Where appropriate and possible, those bodies should use the powers available to them under Union law and national law to bring about the cessation or prohibition of infringements covered by this Regulation, and to assist the competent authorities in doing so.

(49)

This Regulation is without prejudice to the role and the powers of the competent authorities and of the European Banking Authority in relation to the protection of the collective economic interests of consumers in matters concerning payment accounts services and credit agreements relating to residential immovable property under Directive 2014/17/EU of the European Parliament and of the Council (9) and Directive 2014/92/EU of the European Parliament and of the Council (10).

(50)

In view of the existing cooperation mechanisms under Directive 2014/17/EU and Directive 2014/92/EU, the mutual assistance mechanism should not apply to intra-Union infringements of those Directives.

(51)

This Regulation is without prejudice to Council Regulation No 1 (11).

(52)

This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and present in the constitutional traditions of the Member States. Accordingly, this Regulation should be interpreted and applied in accordance with those rights and principles, including those related to the freedom of expression and the freedom and pluralism of the media. When exercising the minimum powers set out in this Regulation, the competent authorities should strike an appropriate balance between the interests protected by fundamental rights such as a high level of consumer protection, the freedom to conduct a business and the freedom of information.

(53)

Since the objective of this Regulation, namely, cooperation between national authorities responsible for the enforcement of consumer protection laws, cannot be sufficiently achieved by the Member States because they cannot ensure cooperation and coordination by acting alone, but can rather, by reason of its territorial and personal scope, be better achieved at the Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(54)

Regulation (EC) No 2006/2004 should therefore be repealed,

(1)

‘Union laws that protect consumers’ interests’ means the Regulations and the Directives, as transposed into the internal legal order of the Member States, that are listed in the Annex hereto;

(2)

‘intra-Union infringement’ means any act or omission contrary to Union laws that protect consumers’ interests that has done, does or is likely to do harm to the collective interests of consumers residing in a Member State other than the Member State in which:

(3)

‘widespread infringement’ means:

(4)

‘widespread infringement with a Union dimension’ means a widespread infringement that has done, does or is likely to do harm to the collective interests of consumers in at least two-thirds of the Member States, accounting, together, for at least two-thirds of the population of the Union;

(5)

‘infringements covered by this Regulation’ means intra-Union infringements, widespread infringements and widespread infringements with a Union dimension;

(6)

‘competent authority’ means any public authority established either at national, regional or local level and designated by a Member State as responsible for enforcing the Union laws that protect consumers’ interests;

(7)

‘single liaison office’ means the public authority designated by a Member State as responsible for coordinating the application of this Regulation within that Member State;

(8)

‘designated body’ means a body having a legitimate interest in the cessation or prohibition of infringements of the Union laws that protect consumers’ interests which is designated by a Member State and instructed by a competent authority for the purpose of gathering the necessary information and to take the necessary enforcement measures available to that body under national law in order to bring about the cessation or prohibition of the infringement, and which is acting on behalf of that competent authority;

(9)

‘applicant authority’ means the competent authority that makes a request for mutual assistance;

(10)

‘requested authority’ means the competent authority that receives a request for mutual assistance;

(11)

‘trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession;

(12)

‘consumer’ means any natural person who is acting for purposes which are outside his trade, business, craft or profession;

(13)

‘consumer complaint’ means a statement, supported by reasonable evidence, that a trader has committed, is committing, or is likely to commit, an infringement of the Union laws that protect consumers’ interests;

(14)

‘harm to collective interests of consumers’ means actual or potential harm to the interests of a number of consumers that are affected by intra-Union infringements, by widespread infringements or by widespread infringements with a Union dimension;

(15)

‘online interface’ means any software, including a website, part of a website or an application, that is operated by or on behalf of a trader, and which serves to give consumers access to the trader’s goods or services;

(16)

‘sweeps’ means concerted investigations of consumer markets through simultaneous coordinated control actions to check compliance with, or to detect infringements of, Union laws that protect consumers’ interests.

(a)

the designated body fails to obtain the necessary information or to bring about the cessation or prohibition of the infringement covered by this Regulation without delay; or

(b)

the competent authorities concerned by an infringement covered by this Regulation do not agree that the designated body may be instructed pursuant to paragraph 1.

(a)

the identities and contact details of the competent authorities, of the single liaison office, of the designated bodies and of the entities issuing external alerts pursuant to Article 27(1); and

(b)

information about the organisation, powers and responsibilities of the competent authorities.

(a)

the power of access to any relevant documents, data or information related to an infringement covered by this Regulation, in any form or format and irrespective of their storage medium, or the place where, they are stored;

(b)

the power to require any public authority, body or agency within their Member State or any natural person or legal person to provide any relevant information, data or documents, in any form or format and irrespective of their storage medium, or the place where they are stored, for the purposes of establishing whether an infringement covered by this Regulation has occurred or is occurring, and for the purposes of establishing the details of such infringement, including tracing financial and data flows, ascertaining the identity of persons involved in financial and data flows, and ascertaining bank account information and ownership of websites;

(c)

the power to carry out necessary on-site inspections, including the power to enter any premises, land or means of transport that the trader concerned by the inspection uses for purposes related to his trade, business, craft or profession, or to request other public authorities to do so, in order to examine, seise, take or obtain copies of information, data or documents, irrespective of their storage medium; the power to seise any information, data or documents for a necessary period and to the extent necessary for the inspection; the power to request any representative or member of the staff of the trader concerned by the inspection to give explanations of facts, information, data or documents relating to the subject matter of the inspection and to record the answers;

(d)

the power to purchase goods or services as test purchases, where necessary, under a cover identity, in order to detect infringements covered by this Regulation and to obtain evidence, including the power to inspect, observe, study, disassemble or test goods or services.

(a)

the power to adopt interim measures to avoid the risk of serious harm to the collective interests of consumers;

(b)

the power to seek to obtain or to accept commitments from the trader responsible for the infringement covered by this Regulation to cease that infringement;

(c)

the power to receive from the trader, on the trader’s initiative, additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement covered by this Regulation, or, where appropriate, to seek to obtain commitments from the trader to offer adequate remedies to the consumers that have been affected by that infringement;

(d)

where applicable, the power to inform, by appropriate means, consumers that claim that they have suffered harm as a consequence of an infringement covered by this Regulation about how to seek compensation under national law;

(e)

the power to order in writing the cessation of infringements covered by this Regulation by the trader;

(f)

the power to bring about the cessation or the prohibition of infringements covered by this Regulation;

(g)

where no other effective means are available to bring about the cessation or the prohibition of the infringement covered by this Regulation and in order to avoid the risk of serious harm to the collective interests of consumers:

including by requesting a third party or other public authority to implement such measures;

(h)

the power to impose penalties, such as fines or periodic penalty payments, for infringements covered by this Regulation and for the failure to comply with any decision, order, interim measure, trader’s commitment or other measure adopted pursuant to this Regulation.

(a)

directly by competent authorities under their own authority;

(b)

where appropriate, by recourse to other competent authorities or other public authorities;

(c)

by instructing designated bodies, if applicable; or

(d)

by application to courts competent to grant the necessary decision, including, where appropriate, by appeal, if the application to grant the necessary decision is not successful.

(a)

whether interim measures have been imposed;

(b)

whether the infringement has ceased;

(c)

which measures have been adopted, and whether those measures have been implemented;

(d)

the extent to which consumers affected by the alleged infringement have been offered remedial commitments.

(a)

following a consultation with the applicant authority, it appears that the information requested is not needed by the applicant authority to establish whether an intra-Union infringement has occurred or is occurring, or to establish whether there is a reasonable suspicion that it may occur;

(b)

the applicant authority does not agree that the information is subject to the rules on confidentiality and on professional and commercial secrecy laid down in Article 33;

(c)

criminal investigations or judicial proceedings have already been initiated against the same trader in respect of the same intra-Union infringement before the judicial authorities in the Member State of the requested authority or of the applicant authority.

(a)

criminal investigations or judicial proceedings have already been initiated, or there is a judgment, a court settlement or a judicial order in respect of the same intra-Union infringement and against the same trader before the judicial authorities in the Member State of the requested authority;

(b)

the exercise of the necessary enforcement powers has already been initiated, or an administrative decision has already been adopted in respect of the same intra-Union infringement and against the same trader in the Member State of the requested authority in order to bring about the swift and effective cessation or prohibition of the intra-Union infringement;

(c)

following an appropriate investigation, the requested authority concludes that no intra-Union infringement has occurred;

(d)

the requested authority concludes that the applicant authority has not provided the information that is necessary in accordance with Article 13(1);

(e)

the requested authority has accepted commitments proposed by the trader to cease the intra-Union infringement within a set time limit and that time limit has not yet passed.

(a)

in respect of the same trader, a criminal investigation or judicial proceedings have already been initiated, a judgement has been given, or a court settlement has been reached, concerning the same infringement in that competent authority’s Member State;

(b)

the exercise of the necessary enforcement powers has already been initiated before the issuing of an alert referred to in Article 17(3), or an administrative decision has been adopted against the same trader in respect of the same infringement in that competent authority’s Member State in order to bring about the swift and effective cessation or prohibition of the widespread infringement or widespread infringement with a Union dimension;

(c)

following an appropriate investigation, it is apparent that the actual or potential impact of the alleged widespread infringement or widespread infringement with a Union dimension in that competent authority’s Member State is negligible and therefore no enforcement measures need to be adopted by that competent authority;

(d)

the relevant widespread infringement or the widespread infringement with a Union dimension has not occurred in that competent authority’s Member State and therefore no enforcement measures need to be adopted by that competent authority;

(e)

the competent authority has accepted commitments proposed by the trader responsible for the widespread infringement or widespread infringement with a Union dimension to cease that infringement in that competent authority’s Member State and those commitments have been implemented, and therefore no enforcement measures need to be adopted by that competent authority.

(a)

an immediate enforcement action is necessary to bring about the swift and effective cessation or prohibition of the infringement;

(b)

it is unlikely that the infringement will cease as a result of the commitments proposed by the trader responsible for the infringement;

(c)

the trader responsible for the infringement has not proposed commitments before the expiry of a time limit set by the competent authorities concerned;

(d)

the commitments that the trader responsible for the infringement proposed are insufficient to ensure the cessation of the infringement or, where appropriate, to provide a remedy to consumers harmed by the infringement; or

(e)

the trader responsible for the infringement has failed to implement the commitments to cease the infringement or, where appropriate, to provide a remedy to consumers harmed by the infringement, within the time limit referred to in Article 20(3).

(a)

ensure that all the competent authorities concerned and the Commission are duly informed, in a timely manner, of the progress of the investigation or of the enforcement action, as applicable, and informed of any anticipated next steps and the measures to be adopted;

(b)

coordinate and monitor the investigation measures taken by the competent authorities concerned in accordance with this Regulation;

(c)

coordinate the preparation and sharing of all necessary documents among the competent authorities concerned and the Commission;

(d)

maintain contact with the trader and other parties concerned by the investigation or enforcement measures, as applicable, unless otherwise agreed by the competent authorities concerned and the coordinator;

(e)

where applicable, coordinate the assessment, the consultations and the monitoring by the competent authorities concerned as well as other steps necessary to process and implement commitments proposed by the traders concerned;

(f)

where applicable, coordinate enforcement measures adopted by the competent authorities concerned;

(g)

coordinate requests for mutual assistance submitted by the competent authorities concerned pursuant to Chapter III.

(a)

a description of the act or omission that constitutes the infringement;

(b)

details of the product or service concerned by the infringement;

(c)

the names of the Member States concerned or possibly concerned by the infringement;

(d)

the identity of the trader or traders responsible or suspected of being responsible for the infringement;

(e)

the legal basis for possible actions by reference to national law and the corresponding provisions of the Union legal acts listed in the Annex;

(f)

a description of any legal proceedings, enforcement measures or other measures taken concerning the infringement and their dates and duration, as well as the status thereof;

(g)

the identities of the competent authorities bringing the legal proceedings and taking other measures.

(a)

the training of their officials involved in the application of this Regulation;

(b)

the collection, classification and exchange of data on consumer complaints;

(c)

the development of sector-specific networks of officials;

(d)

the development of information and communication tools; and

(e)

where applicable, the development of standards, methodologies and guidelines concerning the application of this Regulation.

(a)

to prove infringements covered by this Regulation; or

(b)

to bring about the cessation or prohibition of infringements covered by this Regulation.

(a)

a requested authority notifies the Commission pursuant to Article 12(2) that an intra- Union infringement has ceased;

(b)

the coordinator notifies the closure of the coordinated action pursuant to Article 22(1); or

(c)

the information has been entered in the database in all other cases.

(a)

information concerning market trends that might affect consumers’ interests in the Member State concerned and in other Member States;

(b)

an overview of actions carried out under this Regulation in the last 2 years, and in particular, investigation and enforcement measures related to the widespread infringements;

(c)

statistics exchanged by means of alerts referred to in Article 26;

(d)

the tentative priority areas, for the next 2 years, for the enforcement of the Union laws that protect consumers’ interests in the Member State concerned; and

(e)

the proposed priority areas, for the next 2 years, for the enforcement of the Union laws that protect consumers’ interests at the Union level.

27.12.2017   

EN

Official Journal of the European Union

L 345/27

(1)

On 24 July 2014, the International Accounting Standards Board published International Financial Reporting Standard (IFRS) 9 Financial Instruments (IFRS 9). IFRS 9 aims to improve the financial reporting of financial instruments by addressing concerns that arose in that area during the financial crisis. In particular, IFRS 9 responds to the G20’s call to move to a more forward-looking model for the recognition of expected credit losses on financial assets. In relation to the recognition of expected credit losses on financial assets it replaces International Accounting Standard (IAS) 39.

(2)

The Commission adopted IFRS 9 through Commission Regulation (EU) 2016/2067 (4). In accordance with that Regulation, credit institutions and investment firms (‘institutions’) that use IFRS to prepare their financial statements are required to apply IFRS 9 as of the starting date of their first financial year starting on or after 1 January 2018.

(3)

The application of IFRS 9 may lead to a sudden significant increase in expected credit loss provisions and consequently to a sudden decrease in institutions’ Common Equity Tier 1 capital. While the Basel Committee on Banking Supervision is currently considering the longer-term regulatory treatment of expected credit loss provisions, transitional arrangements should be introduced in Regulation (EU) No 575/2013 of the European Parliament and of the Council (5) to mitigate that potentially significant negative impact on Common Equity Tier 1 capital arising from expected credit loss accounting.

(4)

In its resolution of 6 October 2016 on International Financial Reporting Standards: IFRS 9 (6), the European Parliament called for a progressive phase-in regime that would mitigate the impact of the new impairment model of IFRS 9.

(5)

Where an institution’s opening balance sheet on the day that it first applies IFRS 9 reflects a decrease in Common Equity Tier 1 capital as a result of increased expected credit loss provisions, including the loss allowance for lifetime expected credit losses for financial assets that are credit-impaired, as defined in Appendix A to IFRS 9 as set out in the Annex to Commission Regulation (EC) No 1126/2008 (7) (‘Annex relating to IFRS 9’), compared to the closing balance sheet on the previous day, the institution should be allowed to include in its Common Equity Tier 1 capital a portion of the increased expected credit loss provisions for a transitional period. That transitional period should have a maximum duration of 5 years and should start in 2018. The portion of expected credit loss provisions that can be included in Common Equity Tier 1 capital should decrease over time down to zero to ensure the full implementation of IFRS 9 on the day immediately after the end of the transitional period. The impact of the expected credit loss provisions on Common Equity Tier 1 capital should not be fully neutralised during the transitional period.

(6)

Institutions should decide whether to apply those transitional arrangements and inform the competent authority accordingly. During the transitional period, an institution should have the possibility to reverse once its initial decision, subject to the prior permission of the competent authority which should ensure that such decision is not motivated by considerations of regulatory arbitrage.

(7)

As expected credit loss provisions incurred after the day that an institution first applies IFRS 9 could rise unexpectedly due to a worsening macroeconomic outlook, institutions should be granted additional relief in such cases.

(8)

Institutions that decide to apply transitional arrangements should be required to adjust the calculation of regulatory items which are directly affected by expected credit loss provisions to ensure that they do not receive inappropriate capital relief. For example, the specific credit risk adjustments by which the exposure value is reduced under the Standardised Approach for credit risk should be reduced by a factor which has the effect of increasing the exposure value. This would ensure that an institution would not benefit from both an increase in its Common Equity Tier 1 capital due to transitional arrangements as well as a reduced exposure value.

(9)

Institutions that decide to apply the IFRS 9 transitional arrangements specified in this Regulation should publicly disclose their own funds, capital ratios and leverage ratios both with and without the application of those arrangements in order to enable the public to determine the impact of those arrangements.

(10)

It is also appropriate to provide for transitional arrangements for the exemption from the large exposure limit available for exposures to certain public sector debt of Member States denominated in the domestic currency of any Member State. The transitional period should have a duration of 3 years starting from 1 January 2018 for exposures of this type incurred on or after 12 December 2017, whilst exposures of this type incurred before that date should be grandfathered and should continue to benefit from the large exposures exemption.

(11)

In order to enable the transitional arrangements provided for in this Regulation to be applied from 1 January 2018, this Regulation should enter into force on the day following that of its publication in the Official Journal of the European Union.

(12)

Regulation (EU) No 575/2013 should therefore be amended accordingly,

(1)

the following Article is inserted:

‘Article 473a

Introduction of IFRS 9

1.   By way of derogation from Article 50 and until the end of the transitional period set out in paragraph 6 of this Article, the following may include in their Common Equity Tier 1 capital the amount calculated in accordance with this paragraph:

The amount referred to in the first subparagraph shall be calculated as the sum of the following:

(a)

for exposures which are subject to risk weighting in accordance with Chapter 2 of Title II of Part Three, the amount (ABSA) calculated in accordance with the following formula: where: A2,SA = the amount calculated in accordance with paragraph 2; A4,SA = the amount calculated in accordance with paragraph 4 based on the amounts calculated in accordance with paragraph 3; f= the applicable factor laid down in paragraph 6; t= increase of Common Equity Tier 1 capital that is due to tax deductibility of the amounts A2,SA and A4,SA;

(b)

for exposures which are subject to risk weighting in accordance with Chapter 3 of Title II of Part Three, the amount (ABIRB) calculated in accordance with the following formula: where: A2,IRB = the amount calculated in accordance with paragraph 2 adjusted in accordance with point (a) of paragraph 5; A4,IRB = the amount calculated in accordance with paragraph 4 based on the amounts calculated in accordance with paragraph 3 which are adjusted in accordance with points (b) and (c) of paragraph 5; f= the applicable factor laid down in paragraph 6; t= increase of Common Equity Tier 1 capital that is due to tax deductibility of the amounts A2,IRB and A4,IRB.

2.   Institutions shall calculate the amounts A2,SA and A2,IRB referred to, respectively, in points (a) and (b) of the second subparagraph of paragraph 1 as the greater of the amounts referred to in points (a) and (b) of this paragraph separately for their exposures which are subject to risk weighting in accordance with Chapter 2 of Title II of Part Three and for their exposures which are subject to risk weighting in accordance with Chapter 3 of Title II of Part Three:

3.   Institutions shall calculate the amount by which the amount referred to in point (a) exceeds the amount referred to in point (b) separately for their exposures which are subject to risk weighting in accordance with Chapter 2 of Title II of Part Three and for their exposures which are subject to risk weighting in accordance with Chapter 3 of Title II of Part Three:

4.   For exposures which are subject to risk weighting in accordance with Chapter 2 of Title II of Part Three, where the amount specified in accordance with point (a) of paragraph 3 exceeds the amount specified in point (b) of paragraph 3, institutions shall set A4,SA as equal to the difference between those amounts, otherwise they shall set A4,SA as equal to zero.

For exposures which are subject to risk weighting in accordance with Chapter 3 of Title II of Part Three, where the amount specified in accordance with point (a) of paragraph 3, after applying point (b) of paragraph 5, exceeds the amount for these exposures as specified in point (b) of paragraph 3, after applying point (c) of paragraph 5, institutions shall set A4,IRB as equal to the difference between those amounts, otherwise they shall set A4,IRB as equal to zero.

5.   For exposures which are subject to risk weighting in accordance with Chapter 3 of Title II of Part Three, institutions shall apply paragraphs 2 to 4 as follows:

6.   Institutions shall apply the following factors to calculate the amounts ABSA and ABIRB referred to in points (a) and (b) of the second subparagraph of paragraph 1 respectively:

Institutions whose financial year commences after 1 January 2018 but before 1 January 2019 shall adjust the dates in points (a) to (e) of the first subparagraph so that they correspond to their financial year, shall report the adjusted dates to their competent authority and shall publicly disclose them.

Institutions which start to apply accounting standards as referred to in paragraph 1 on or after 1 January 2019 shall apply the relevant factors in accordance with points (b) to (e) of the first subparagraph starting with the factor corresponding to the year of the first application of those accounting standards.

7.   Where an institution includes in its Common Equity Tier 1 capital an amount in accordance with paragraph 1 of this Article, it shall recalculate all requirements laid down in this Regulation and in Directive 2013/36/EU that use any of the following items by not taking into account the effects that the expected credit loss provisions that it included in its Common Equity Tier 1 capital have on those items:

(b)

the exposure value as determined in accordance with Article 111(1) whereby the specific credit risk adjustments by which the exposure value shall be reduced shall be multiplied by the following scaling factor (sf): where: ABSA = the amount calculated in accordance with point (a) of the second subparagraph of paragraph 1; RASA = the total amount of specific credit risk adjustments;

8.   During the period set out in paragraph 6 of this Article, in addition to disclosing the information required in Part Eight, institutions that have decided to apply the transitional arrangements set out in this Article shall disclose the amounts of own funds, Common Equity Tier 1 capital and Tier 1 capital, the Common Equity Tier 1 capital ratio, the Tier 1 capital ratio, the total capital ratio and the leverage ratio they would have in case they were not to apply this Article.

9.   An institution shall decide whether to apply the arrangements set out in this Article during the transitional period and shall inform the competent authority of its decision by 1 February 2018. Where an institution has received the prior permission of the competent authority, it may reverse once, during the transitional period, its initial decision. Institutions shall publicly disclose any decision taken in accordance with this subparagraph.

An institution that has decided to apply the transitional arrangements set out in this Article may decide not to apply paragraph 4 in which case it shall inform the competent authority of its decision by 1 February 2018. In such a case, the institution shall set the amount A4 referred to in paragraph 1 as equal to zero. Where an institution has received the prior permission of the competent authority, it may reverse once, during the transitional period, its initial decision. Institutions shall publicly disclose any decision taken in accordance with this subparagraph.

10.   In accordance with Article 16 of Regulation (EU) No 1093/2010, the EBA shall issue guidelines by 30 June 2018 on the disclosure requirements laid down in this Article.’;

(2)

in Article 493, the following paragraphs are added:

‘4.   By way of derogation from Article 395(1), competent authorities may allow institutions to incur any of the exposures provided for in paragraph 5 of this Article meeting the conditions set out in paragraph 6 of this Article, up to the following limits:

The limits referred to in points (a), (b) and (c) of the first subparagraph shall apply to exposure values after taking into account the effect of the credit risk mitigation in accordance with Articles 399 to 403.

5.   The transitional arrangements set out in paragraph 4 shall apply to the following exposures:

For the purposes of points (a), (b) and (c) of the first subparagraph, the transitional arrangements set out in paragraph 4 of this Article shall apply only to asset items and other exposures to, or guaranteed by, public sector entities which are treated as exposures to a central government, a regional government or a local authority in accordance with Article 116(4). Where asset items and other exposures to, or guaranteed by, public sector entities are treated as exposures to a regional government or a local authority in accordance with Article 116(4), the transitional arrangements set out in paragraph 4 of this Article shall apply only where exposures to that regional government or local authority are treated as exposures to a central government in accordance with Article 115(2).

6.   The transitional arrangements set out in paragraph 4 of this Article shall apply only where an exposure referred to in paragraph 5 of this Article meets all of the following conditions:

7.   An exposure as referred to in paragraph 5 of this Article incurred before 12 December 2017 to which a risk weight of 0 % was assigned on 31 December 2017 in accordance with Article 495(2) shall be exempted from the application of Article 395(1).’.

27.12.2017   

EN

Official Journal of the European Union

L 345/34

(1)

Since the Commission communication ‘An Investment Plan for Europe’ (the ‘Investment Plan’) was presented on 26 November 2014, the conditions for an uptake in investment have improved and confidence is returning in Europe’s economy and growth. The Union is now in its fourth year of moderate recovery, with Gross Domestic Product growing at 2 % in 2015, but unemployment rates remain above their pre-crisis levels. The comprehensive efforts initiated with the Investment Plan are already delivering concrete results, despite the fact that it is not yet possible to estimate the full impact that the European Fund for Strategic Investments (EFSI) has had on growth as the macroeconomic effects of larger investment projects cannot be immediate. Investment has been picking up gradually throughout 2017 but the pace is still rather slow and remains below historical levels.

(2)

That positive investment momentum should be maintained and efforts should be continued to bring investment back to a long-term sustainable trend in such a way that it reaches the real economy. The mechanisms of the Investment Plan work, and should be reinforced to continue the mobilisation of private investments in such a way as to generate a substantive macroeconomic impact and to contribute to the creation of jobs in sectors that are important to the Union’s future and where market failures or sub-optimal investment situations remain.

(3)

On 1 June 2016, the Commission issued a Communication entitled ‘Europe investing again — Taking stock of the Investment Plan for Europe and next steps’ outlining the achievements of the Investment Plan and the envisaged next steps, including the extension of the EFSI beyond its initial three-year period, the scaling-up of the small and medium-sized enterprises (SME) window within the existing framework and the enhancement of the European Investment Advisory Hub (EIAH).

(4)

On 11 November 2016, the European Court of Auditors adopted an opinion concerning the proposal for a Regulation of the European Parliament and of the Council amending Regulations (EU) No 1316/2013 and (EU) 2015/1017 and the accompanying Commission evaluation, in accordance with Article 18(2) of Regulation (EU) 2015/1017, entitled ‘EFSI: an early proposal to extend and expand’.

(5)

The EFSI, implemented and co-sponsored by the European Investment Bank (EIB) Group, is on track, from a quantitative perspective, to deliver the objective of mobilising at least EUR 315 000 000 000 in additional investments in the real economy by mid-2018. The market response and absorption have been particularly quick under the SME window where the EFSI is delivering well beyond expectations and building on the initial use of the existing European Investment Fund (EIF) facilities and mandates (InnovFin SME Guarantee Facility, COSME Loan Guarantee Facility (LGF) and the EIB Risk Capital Resources (RCR) mandate) to have an accelerated kick-start. In July 2016, the SME window was therefore scaled-up by EUR 500 000 000 within the existing parameters of Regulation (EU) 2015/1017 of the European Parliament and of the Council (4). Given the exceptional market demand for SME financing under the EFSI, a larger share of financing is to be targeted at SMEs. In this regard, 40 % of the increased risk-bearing capacity of the EFSI should be targeted at increasing access to financing for SMEs.

(6)

On 28 June 2016, the European Council concluded that the Investment Plan, in particular the EFSI, had already delivered concrete results and had been a major step in helping mobilise private investment while making smart use of scarce budgetary resources. The European Council noted that the Commission intended to put forward proposals soon on the future of the EFSI, which would need to be examined as a matter of urgency by the European Parliament and the Council.

(7)

The EFSI was established for an initial period of three years and with the aim of mobilising at least EUR 315 000 000 000 in investments, thereby supporting the objective of fostering growth and jobs. However, the drive to meet the headline target should not prevail over the additionality of the projects selected. The Union is therefore committed not only to extending the investment period and financial capacity of the EFSI, but also to increasing the focus on additionality. The extension covers the period of the current multiannual financial framework and should provide at least EUR 500 000 000 000 of investments by 2020. In order to enhance the firepower of the EFSI even further and to achieve the aim of doubling the investment target, Member States should also contribute as a matter of priority.

(8)

The EFSI and its implementation cannot fully realise their potential without the implementation of activities aimed at strengthening the single market, creating a favourable business environment and the implementation of socially balanced and sustainable structural reforms. In addition, well-structured projects, as part of investment and development plans at Member States level, are of key importance for the success of the EFSI.

(9)

For the period after 2020, the Commission intends to put forward the necessary proposals to ensure that strategic investment will continue at a sustainable level. Any legislative proposal should be based on the conclusions of a Commission report and an independent evaluation including a macroeconomic assessment of the usefulness of maintaining a scheme to support investment. That report and independent evaluation should also examine, to the extent applicable, the application of Regulation (EU) 2015/1017 as amended by this Regulation, over the extended period of the implementation of the EFSI.

(10)

The EFSI, as extended by this Regulation, should address remaining market failures and sub-optimal investment situations and continue to mobilise with strengthened additionality private sector financing in investments crucial for Europe’s future job creation, including for youth, growth and competitiveness. Such investments include investments in the areas of energy, environment and climate action, social and human capital and related infrastructure, healthcare, research and innovation, cross-border and sustainable transport, as well as the digital transformation. In particular, the contribution of operations supported by the EFSI to achieving the ambitious Union targets set at the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (COP21) and the Union commitment to reduce greenhouse gas emissions by 80 to 95 % should be reinforced. In order to reinforce the climate action element under the EFSI, the EIB should build on its experience as one of the largest providers of climate finance worldwide and use its state-of-the-art internationally agreed methodology to credibly identify climate action project components or cost shares. Projects should not be artificially structured with a view to falling under the definitions of SMEs and small mid-cap companies. Energy interconnection priority projects and energy efficiency projects should also be increasingly targeted.

In addition, EFSI support for motorways should be limited to supporting private and/or public investment in transport in cohesion countries, in less developed regions or in cross-border transport projects or if it is necessary to upgrade, maintain or improve road safety, develop intelligent transportation system (ITS) devices, guarantee the integrity and standards of existing motorways on the trans-European transport network, in particular safe parking areas, alternative clean fuels stations and electric charging systems, or contribute to the completion of the trans-European transport network by 2030 in accordance with Regulations (EU) No 1316/2013 (5) and (EU) No 1315/2013 (6) of the European Parliament and of the Council. In the digital sector, and within the scope of the ambitious Union policy on the Digital Economy, new digital infrastructure targets should be set in order to ensure that the digital divide will be bridged and that the Union will be a global pioneer in the new age of the so-called internet of things, blockchain technology, cybersecurity and network security. For reasons of clarity, although they are already eligible, it should be explicitly laid down that projects in the fields of agriculture, forestry, fishery and aquaculture and other elements of a wider bioeconomy fall within the general objectives eligible for EFSI support.

(11)

Cultural and creative industries play a key role in re-industrialising Europe, are a driver for growth and are in a strategic position to trigger innovative spill-overs in other industrial sectors, such as tourism, retail, and digital technologies. In addition to the Creative Europe Programme established by Regulation (EU) No 1295/2013 of the European Parliament and of the Council (7) and the Cultural and Creative Sectors Guarantee Facility established pursuant to that Regulation, the EFSI should help to overcome capital shortages in those sectors by providing additional support which should be complementary to the support provided under the Creative Europe Programme and the Cultural and Creative Sectors Guarantee Facility, so that a higher volume of these high-risk projects could be financed.

(12)

Operations involving entities located in the Union and extending outside it should also be supported by the EFSI, when they promote investment in the Union, in particular when they include cross-border elements. The EIAH should provide proactive support to promote and encourage such operations.

(13)

Additionality, which is a key feature of the EFSI, should be strengthened in the selection of projects. In particular, operations should only be eligible for EFSI support if they address clearly identified market failures or sub-optimal investment situations. Operations in physical infrastructure under the infrastructure and innovation window linking two or more Member States, including e-infrastructure and in particular broadband infrastructure, as well as services necessary for the construction, implementation, maintenance or functioning of such infrastructure, should be considered to be strong indications of additionality given their inherent difficulty and their high added value for the Union.

(14)

The EFSI should typically target projects with a higher risk profile than projects supported by EIB normal operations and the EFSI Investment Committee (the ‘Investment Committee’) should, when assessing additionality, have regard to risks which hinder investment, such as country-, sector- or region-specific risks and the risks associated with innovation, in particular in growth-, sustainability- and productivity-enhancing unproven technologies.

(15)

With a view to ensuring a wider geographical coverage of the EFSI and to increasing the efficiency of the EFSI intervention, combination and/or blending operations combining non-reimbursable forms of support and/or financial instruments from the general budget of the Union, such as European Structural and Investment Funds or those available under the Connecting Europe Facility (CEF) established by Regulation (EU) No 1316/2013 and Horizon 2020 — the Framework Programme for Research and Innovation established by Regulation (EU) No 1291/2013 of the European Parliament and of the Council (8), and financing from the EIB Group, including EIB financing under the EFSI, as well as other investors should be encouraged. Combination and/or blending aim to enhance the added value of Union spending by attracting additional resources from private investors and to ensure that the supported actions become economically and financially viable. To that end, EUR 1 000 000 000 of appropriations were transferred in parallel with the presentation of the Commission proposal for this Regulation from the CEF financial instruments to the grant part of the CEF with a view to facilitating blending with the EFSI. A blending call to that effect was successfully launched in February 2017. Another EUR 145 000 000 is being transferred to other relevant instruments, in particular those dedicated to energy efficiency. Further action is necessary to ensure that Union funds and EFSI support can be easily combined.

Although the Commission has already published concrete guidance on this matter, the approach on the issue of combining Union funds and the EFSI should be further developed aiming to increase the investments benefiting from the leverage provided by combining Union funds and the EFSI, taking into account possible legislative developments. In order to ensure economic efficiency and adequate leverage such combination of finances should, in principle, not exceed 90 % of total project costs for the less developed regions and 80 % for all other regions.

(16)

In order to reinforce the take-up of the EFSI in less developed regions and transition regions, the scope of the general objectives eligible for EFSI support should be enlarged. Projects would remain subject to examination by the Investment Committee and need to adhere to the same eligibility criteria for the use of the guarantee established pursuant to Regulation (EU) 2015/1017 (the ‘EU guarantee’) including the principle of additionality. Given the fact that there should be no restriction on the size of the projects eligible for EFSI support, small-scale projects should not be deterred from applying for EFSI financing. Moreover, further action to strengthen technical assistance and the promotion of the EFSI in less developed regions and transition regions is necessary.

(17)

Investment platforms are an essential tool to deal with market failures, especially in the financing of multiple, regional, or sectorial projects, including energy efficiency projects and cross-border projects. It is also important to encourage partnerships with national promotional banks or institutions, including with a view to setting up investment platforms. Cooperation with financial intermediaries can also play an important role in this respect. In that context, the EIB should, where appropriate, delegate the appraisal, selection and monitoring of small-scale sub-projects to financial intermediaries or approved eligible vehicles.

(18)

In the case of delegation of the appraisal, selection and monitoring of small-scale projects to financial intermediaries or approved eligible vehicles, the Investment Committee should not retain the right to approve the use of the EU guarantee for sub-projects under such EIB financing and investment operations where the EFSI contribution to such small-scale sub-projects is below a defined threshold. The EFSI Steering Board (the ‘Steering Board’) should, where appropriate, provide guidance on the procedure to be used by the Investment Committee for evaluating sub-projects above that threshold.

(19)

For the full investment period, the Union should provide the EU guarantee which should not, at any time, exceed EUR 26 000 000 000 in order to enable the EFSI to support investments, of which a maximum of EUR 16 000 000 000 should be available before 6 July 2018.

(20)

It is expected that when the EU guarantee is combined with the amount of EUR 7 500 000 000 to be provided by the EIB, the EFSI support should generate EUR 100 000 000 000 in additional investment by the EIB and the EIF. The amount of EUR 100 000 000 000 supported by the EFSI is expected to generate at least EUR 500 000 000 000 in additional investment in the real economy by the end of 2020.

(21)

In order to partly finance the contribution from the general budget of the Union to the EU guarantee fund for the additional investments to be made, a transfer should be made from the available envelope of the CEF, provided for in Regulation (EU) No 1316/2013, as well as from the revenues and repayments from the CEF Debt Instrument and from the 2020 European Fund for Energy, Climate Change & Infrastructure (‘Marguerite Fund’). The transfers from revenues and repayments require a derogation from the second and third subparagraphs of Article 140(6) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (9) in order to authorise their use by another instrument.

(22)

On the basis of the experience acquired from the investments supported by the EFSI, the target amount of the guarantee fund should be brought to 35 % of the total EU guarantee obligations, thus ensuring an adequate level of protection.

(23)

In line with the exceptional market demand for SME financing under the EFSI which is expected to continue, the EFSI SME window should be enhanced. Particular attention should be paid to social enterprises and social services, including through the development and deployment of new instruments that are adequate for the needs and specificities of the social enterprises and social services sector.

(24)

The EIB and the EIF should ensure that the final beneficiaries, including SMEs, are aware of the existence of EFSI support, so as to enhance the visibility of the EU guarantee. A clear reference to the EFSI should be made visible in agreements which provide EFSI support.

(25)

With a view to enhancing the transparency of EFSI operations, the Investment Committee should explain in its decisions, which are made public and accessible, the reasons why it deems that an operation should be granted the EU guarantee, with particular focus on compliance with the additionality criterion. The scoreboard of indicators should be made public once an operation under the EU guarantee is signed. The publication should not contain commercially sensitive information.

(26)

The scoreboard should be used in strict conformity with this Regulation, and with Commission Delegated Regulation (EU) 2015/1558 (10) and the Annex thereto, as an independent and transparent assessment tool for the Investment Committee to prioritise the use of the EU guarantee for operations that display higher scores and added value. The EIB should calculate the scores and indicators ex ante and monitor the results upon project completion.

(27)

With a view to enhancing the assessment of projects, the Steering Board should, in the strategic orientation of the EFSI, establish a minimum score for each pillar in the scoreboard.

(28)

The relevant Union policy on non-cooperative jurisdictions for tax purposes is laid down in the legal acts of the Union and in Council Conclusions, in particular in the Annex to those of 8 November 2016, and any subsequent updates.

(29)

Due diligence on EIB investment and financing operations under this Regulation should include a thorough check of compliance with applicable Union legislation and agreed international and Union standards on anti-money laundering, the fight against terrorism financing, tax fraud and tax avoidance. Moreover, in the context of EFSI reporting, the EIB should provide information, country-by-country, on the compliance of the EFSI operations with EIB and EIF policy on non-cooperative jurisdictions, as well as the list of intermediaries with which the EIB and the EIF cooperate.

(30)

It is appropriate to make certain technical clarifications in relation to the content of the agreement on the management of the EFSI, on the granting of the EU guarantee and on the instruments covered by the agreement, including coverage for currency exchange rate risk in certain situations. The agreement with the EIB on the management of the EFSI and on the granting of the EU guarantee should be adapted in line with this Regulation.

(31)

Notwithstanding the EIAH’s objective of building upon existing advisory services of the EIB and the Commission, and in order for it to act as a single technical advisory hub for project financing within the Union, the EIAH should be enhanced and its activities should also focus on contributing actively to the sectorial and geographical diversification of the EFSI, supporting the EIB and national promotional banks or institutions in originating and developing operations, in particular in less developed regions and transition regions, and, where necessary, helping to structure demand for EFSI support. The EIAH should endeavour to conclude at least one cooperation agreement with a national promotional bank or institution per Member State. In Member States where national promotional banks or institutions do not exist, the EIAH should provide, where appropriate, and at the request of the Member State concerned, proactive advisory support on the establishment of such bank or institution. The EIAH should pay particular attention to supporting the preparation of projects involving two or more Member States and projects that contribute to achieving the objectives of COP21. It should also actively contribute to the establishment of investment platforms and provide advice on the combination of other sources of Union funding with the EFSI. A local presence of the EIAH should be ensured where necessary, taking into account existing support schemes, with a view to providing tangible, proactive, tailor-made assistance on the ground.

(32)

The European Semester for economic policy coordination is based on a detailed analysis of Member States’ plans for budgetary, macroeconomic and structural reforms and provides them with country-specific recommendations. Against that background, the EIB should inform the Commission of its findings on barriers and bottlenecks to investment in Member States, identified when carrying out investment operations covered by this Regulation. The Commission is invited to factor those findings, among others, into the work it undertakes in the context of the third pillar of the Investment Plan.

(33)

In order to address market failures and gaps, to stimulate adequate additional investments and to promote the geographic and regional balance of EFSI-backed operations, an integrated and streamlined approach with the aim of promoting growth, jobs and investments is necessary. The cost of EFSI financing should contribute to the achievement of those goals.

(34)

To promote the investment goals set out in Regulation (EU) 2015/1017, blending with existing funds should be encouraged, where appropriate, in order to provide adequate concessionalities in the financing terms and conditions, including cost, of EFSI operations.

(35)

In cases where stressed financial market conditions would prevent the realisation of a viable project or where necessary to facilitate the establishment of investment platforms or the funding of projects in sectors or areas experiencing a significant market failure or sub-optimal investment situation, the EIB and the Commission should implement changes, in particular to the remuneration of the EU guarantee, to contribute to a reduction in the financing cost of the operation borne by the beneficiary of the EIB financing under EFSI so as to facilitate its implementation. Similar efforts should be undertaken where necessary to ensure that EFSI supports small-scale projects. Where the use of local or regional intermediaries permits a reduction in the cost of EFSI financing to the small-scale projects, such a form of deployment should also be considered.

(36)

In keeping with the need for financial sustainability of EFSI, the efforts to reduce the financing cost of EFSI operations in periods of stressed financial market conditions or to facilitate the establishment of investment platforms or the funding of projects in sectors or areas experiencing a significant market failure or suboptimal investment situation, should be coordinated with other available Union financial resources and instruments deployed by the EIB Group.

(37)

Regulations (EU) No 1316/2013 and (EU) 2015/1017 should therefore be amended accordingly,

(1)

In Article 2(4), point (b) is replaced by the following:

(2)

Article 4(2) is amended as follows:

(3)

Article 5(1) is replaced by the following:

‘1.   For the purposes of this Regulation, ‘additionality’ means support by the EFSI for operations which address market failures or sub-optimal investment situations and which could not have been carried out during the period in which the EU guarantee can be used, or not to the same extent, by the EIB, the EIF or under existing Union financial instruments, without EFSI support. Projects supported by the EFSI shall support the general objectives laid down in Article 9(2), shall strive to create employment and sustainable growth and shall typically have a higher risk profile than projects supported by normal EIB operations. Overall, the EFSI portfolio shall have a higher risk profile than the portfolio of investments supported by the EIB under its normal investment policies before the entry into force of this Regulation.

To better address market failures or sub-optimal investment situations, and to facilitate, in particular, the use of investment platforms for small-scale projects, thereby ensuring complementarity and thus avoiding crowding out participants in the same market, EIB special activities supported by the EFSI shall, as a preferred way and if duly justified:

Without prejudice to the requirement to meet the definition of additionality as set out in the first subparagraph, the following elements are strong indications of additionality:

(4)

Article 6 is amended as follows:

(5)

Article 7 is amended as follows:

(6)

Article 9 is amended as follows:

(7)

In Article 10(2), point (a) is replaced by the following:

(8)

Article 11 is amended as follows:

(9)

Article 12 is amended as follows:

(10)

Article 14 is amended as follows:

(11)

Article 16(1) is replaced by the following:

‘1.   The EIB, in cooperation with the EIF where appropriate, shall submit every six months a report to the Commission on EIB financing and investment operations covered by this Regulation. The report shall include an assessment of compliance with the requirements on the use of the EU guarantee and with the key performance indicators referred to in Article 4(2)(f)(iv). The report shall also include statistical, financial and accounting data on each EIB financing and investment operation and on an aggregated basis. Once a year, the report shall also include information on barriers to investment encountered by the EIB when carrying out investment operations covered by this Regulation.’;

(12)

Article 17 is amended as follows:

(13)

Article 18 is amended as follows:

(14)

In Article 19, the following paragraph is added:

‘The EIB and the EIF shall inform, or shall oblige financial intermediaries to inform, the final beneficiaries, including SMEs, of the existence of EFSI support by making that information visible, particularly in the case of SMEs, in the relevant agreement providing EFSI support, thereby increasing public awareness and improving visibility.’;

(15)

Article 20(2) is replaced by the following:

‘2.   For the purpose of paragraph 1 of this Article, the Court of Auditors shall, at its request and in accordance with Article 287(3) TFEU, be granted full access to any document or information necessary to carry out its task.’;

(16)

Article 22(1) is replaced by the following:

‘1.   In their financing and investment operations covered by this Regulation, the EIB and the EIF shall comply with applicable Union legislation and agreed international and Union standards and, therefore, shall not support projects under this Regulation that contribute to money laundering, terrorism financing, tax avoidance, tax fraud or tax evasion.

In addition, the EIB and the EIF shall not enter into new or renewed operations with entities incorporated or established in jurisdictions listed under the relevant Union policy on non-cooperative jurisdictions, or that are identified as high-risk third countries pursuant to Article 9(2) of Directive (EU) 2015/849 of the European Parliament and of the Council (*3), or that do not effectively comply with Union or internationally agreed tax standards on transparency and exchange of information.

When concluding agreements with financial intermediaries, the EIB and the EIF shall transpose the requirements referred to in this Article into the relevant agreements and shall request the financial intermediaries to report on their observance.

The EIB and the EIF shall review their policy on non-cooperative jurisdictions at the latest following the adoption of the Union list of non-cooperative jurisdictions for tax purposes.

Every year thereafter, the EIB and the EIF shall submit a report to the European Parliament and to the Council on the implementation of their policy on non-cooperative jurisdictions in relation to EFSI financing and investment operations including country-by-country information and a list of intermediaries with which they cooperate.

(*3)  Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).’;"

(17)

In Article 23(2), the first and second sentences of the first subparagraph are replaced by the following:

‘The power to adopt delegated acts referred to in Article 7(13) and (14) shall be conferred on the Commission for a period of five years from 4 July 2015. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of that five-year period.’;

(18)

Annex II is amended as set out in the Annex to this Regulation.

(1)

Article 5(1) is replaced by the following:

‘1.   The financial envelope for the implementation of the CEF for the period 2014 to 2020 is set at EUR 30 192 259 000 in current prices. That amount shall be distributed as follows:

Those amounts are without prejudice to the application of the flexibility mechanism provided for under Council Regulation (EU, Euratom) No 1311/2013 (*4).

(*4)  Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual financial framework for the years 2014-20 (OJ L 347, 20.12.2013, p. 884).’;"

(2)

In Article 14, the following paragraphs are added:

‘5.   By way of derogation from the second and third subparagraphs of Article 140(6) of Regulation (EU, Euratom) No 966/2012, revenues and repayments from the financial instruments established under this Regulation and from the financial instruments established under Regulation (EC) No 680/2007 which have been merged with financial instruments established under this Regulation in accordance with paragraph 3 of this Article shall, up to a maximum of EUR 125 000 000, constitute internal assigned revenue within the meaning of Article 21(4) of Regulation (EU, Euratom) No 966/2012 for the European Fund for Strategic Investments established by Regulation (EU) 2015/1017 of the European Parliament and of the Council (*5).

6.   By way of derogation from the second and third subparagraphs of Article 140(6) of Regulation (EU, Euratom) No 966/2012, revenues and repayments from the 2020 European Fund for Energy, Climate Change & Infrastructure (‘Marguerite Fund’), established in accordance with Regulation (EC) No 680/2007, shall, up to a maximum of EUR 25 000 000, constitute internal assigned revenue within the meaning of Article 21(4) of Regulation (EU, Euratom) No 966/2012 for the European Fund for Strategic Investments established by Regulation (EU) 2015/1017.

(*5)  Regulation (EU) 2015/1017 of the European Parliament and of the Council of 25 June 2015 on the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013 — the European Fund for Strategic Investments (OJ L 169, 1.7.2015, p. 1).’."

27.12.2017   

EN

Official Journal of the European Union

L 345/53

(1)

Council Directives 91/672/EEC (3) and 96/50/EC (4) are the first steps taken towards the harmonisation and recognition of professional qualifications for crew members in inland navigation.

(2)

The requirements for crew members navigating on the Rhine river fall outside the scope of Directives 91/672/EEC and 96/50/EC and are established by the Central Commission for the Navigation of the Rhine (CCNR), pursuant to the Regulations for Rhine Navigation Personnel.

(3)

Directive 2005/36/EC of the European Parliament and of the Council (5) applies to inland waterway occupations other than boatmasters. The mutual recognition of diplomas and certificates under Directive 2005/36/EC is not, however, fully adapted to regular and frequent cross-border activities of inland waterway occupations that notably exist on inland waterways linked to inland waterways of another Member State.

(4)

An evaluation study carried out by the Commission in 2014 highlighted the fact that the limitation of the scope of Directives 91/672/EEC and 96/50/EC to boatmasters, and the lack of automatic recognition of boatmasters’ certificates issued in accordance with those Directives on the Rhine, hinder the mobility of crew members in inland navigation.

(5)

To facilitate mobility, to ensure the safety of navigation and to ensure the protection of human life and the environment, it is essential for deck crew members, and especially for persons in charge of emergency situations on board passenger vessels and for persons involved in the bunkering of liquefied natural gas-fuelled vessels, to hold certificates proving their qualifications. For efficient enforcement, they should carry such certificates while exercising their occupation. Those considerations also apply to young persons, for whom it is important that their safety and health at work is protected in accordance with Council Directive 94/33/EC (6).

(6)

Navigation for sport or pleasure, the operation of ferries that do not move independently, and navigation by armed forces or by emergency services, are activities that do not require qualifications similar to those qualifications required for professional navigation for the transport of goods and people. Therefore, persons carrying out those activities should not be covered by this Directive.

(7)

Boatmasters who sail in circumstances that present a particular safety hazard should hold specific authorisations, in particular for sailing large convoys, sailing liquefied natural gas-fuelled craft, sailing in conditions of reduced visibility, sailing on inland waterways with a maritime character or sailing on waterways that present specific risks for navigation. In order to obtain such authorisations, boatmasters should be required to demonstrate specific additional competences.

(8)

For ensuring safety of navigation, Member States should identify inland waterways with a maritime character in accordance with harmonised criteria. The competence requirements for navigating on these waterways should be defined at Union level. Without unnecessarily limiting the mobility of boatmasters, when it is necessary for ensuring the safety of navigation, and where appropriate in cooperation with the relevant European River Commission, Member States should also have the possibility to identify the waterways that present specific risks for navigation in accordance with harmonised criteria and procedures pursuant to this Directive. In such cases, the related competence requirements should be set at national level.

(9)

With a view to contributing to the mobility of persons involved in the operation of craft across the Union, and considering that all certificates of qualification, service record books and logbooks issued in accordance with this Directive should comply with required minimum standards in accordance with harmonised criteria, Member States should recognise the professional qualifications certified in accordance with this Directive. Consequently the holders of such qualifications should be able to exercise their profession on all Union inland waterways.

(10)

In view of the lack of cross-border activities on certain national inland waterways and in order to reduce costs, Member States should have the possibility of not making Union certificates of qualification compulsory on national inland waterways that are not linked to a navigable inland waterway of another Member State. However, Union certificates should allow access to navigation activities on those non-linked waterways.

(11)

Directive 2005/36/EC remains applicable for deck crew members who are exempt from the obligation of holding a Union certificate of qualification issued in accordance with this Directive, and also remains applicable for inland waterways qualifications not covered by this Directive.

(12)

Where Member States grant exemptions from the obligation to carry a Union certificate of qualification, they should recognise Union certificates of qualification for persons who operate on their national inland waterways that are not linked to the navigable network of another Member State where the exemption is applied. Those Member States should also ensure that, regarding those inland waterways, the data regarding navigation time and journeys carried out are validated in the service record books of persons who hold a Union certificate of qualification, if the crew member so requests. Furthermore, those Member States should take and enforce appropriate measures and penalties to prevent fraud and other unlawful practises that involve Union certificates of qualification and service record books on those non-linked inland waterways.

(13)

Member States that apply exemptions to the obligation of carrying a Union certificate of qualification should have the possibility to suspend Union certificates of qualification for persons who operate on their national inland waterways that are not linked to the navigable network of another Member State where the exemption is applied.

(14)

A Member State, none of the inland waterways of which are linked to the navigable network of another Member State, that decides not to issue Union certificates of qualification in accordance with this Directive, would be under a disproportionate and unnecessary obligation if it had to transpose and implement all the provisions of this Directive. Such a Member State should therefore be exempt from the obligation to transpose and implement the provisions related to the certification of qualifications for as long as it decides not to issue Union certificates of qualification. Such a Member State should nevertheless be required to recognise the Union certificate of qualifications on its territory in order to promote the mobility of workers within the Union, to decrease the administrative burden associated with labour mobility and to increase the attractiveness of the profession.

(15)

In a number of Member States, inland navigation is an infrequent activity, serving only local or seasonal interests in waterways with no connections to other Member States. While the principle of the recognition of professional certificates under this Directive should also be respected in those Member States, the administrative burden should be proportional. Implementing tools such as databases and registers would create a significant administrative burden without presenting a real benefit, as the flow of information between Member States can also be achieved through other means of cooperation. It is therefore justified to allow the Member States concerned to transpose only the minimum provisions needed for the recognition of professional certificates issued in accordance with this Directive.

(16)

In certain Member States, inland waterway navigation is not technically possible. Requiring those Member States to transpose this Directive would therefore be a disproportionate administrative burden on them.

(17)

It is important that the inland waterway sector is able to provide programmes focused both on retaining people over the age of 50 and on improving the skills and employability of young people.

(18)

The Commission should ensure a level playing field for all crew members practising their trade on an exclusive and regular basis in the Union, and should stop any downward spiral in salaries, as well as any discrimination on grounds of nationality, place of residence or flag of registration.

(19)

In view of the established cooperation between the Union and the CCNR since 2003 which has led to the establishment of the European Committee for drawing up Standards in Inland Navigation (CESNI) under the auspices of the CCNR, and in order to streamline the legal frameworks governing the professional qualifications in Europe, certificates of qualification, service record books and logbooks, issued in accordance with the Regulations for Rhine Navigation Personnel which lay down requirements that are identical to those of this Directive, should be valid on all Union inland waterways. Such certificates of qualification, service record books and logbooks issued by third countries should be recognised in the Union, conditional upon reciprocity.

(20)

It is important that employers apply the social and labour laws of the Member State in which the activity is carried out when employing in the Union deck crew members who hold certificates of qualification, record books and logbooks which have been issued by third countries and which have been recognised by the responsible authorities in the Union.

(21)

To further remove barriers to labour mobility and to further streamline the legal frameworks governing the professional qualifications in Europe, any certificate of qualification, service record book or logbook issued by a third country on the basis of requirements which are identical to those laid down in this Directive may also be recognised on all Union waterways, subject to an assessment by the Commission, and subject to recognition by that third-country of documents issued in accordance with the this Directive.

(22)

Member States should issue certificates of qualification only to persons who have the minimum levels of competence, the minimum age, the medical fitness and the navigation time required for obtaining a specific qualification.

(23)

It is important that the Commission and the Member States encourage young people to seek professional qualifications in inland navigation and that the Commission and the Member States set up specific measures to support social partners’ activities in this regard.

(24)

To safeguard the mutual recognition of qualifications, certificates of qualification should be based on the competences necessary for the operation of craft. Member States should ensure that persons receiving certificates of qualification have the corresponding minimum levels of competence, verified following an appropriate assessment. Such assessments could take the form of an administrative examination, or could form part of approved training programmes carried out in accordance with common standards in order to ensure a comparable minimum level of competence in all Member States for various qualifications.

(25)

When navigating on the Union inland waterways, boatmasters should be able to apply knowledge about the rules on traffic on inland waterways, such as the European Code for Navigation on Inland Waterways (CEVNI) or other relevant traffic regulations, and about the applicable rules on manning of craft, including on resting time, as laid down in Union or national legislation or in specific regulations agreed at a regional level, such as the Regulations for Rhine Navigation Personnel.

(26)

Due to the responsibility with respect to safety when exercising the profession of boatmaster, sailing with the aid of radar and bunkering liquefied natural gas-fuelled craft or sailing liquefied natural gas-fuelled craft, verification through practical examinations on whether the required level of competence has effectively been reached is required. Such practical examinations might be carried out using approved simulators, with a view to further facilitating the evaluation of competence.

(27)

Skills to operate the on-board radio are crucial to ensure the safety of inland navigation. It is important that Member States encourage any deck crew member who might need to navigate the craft to have training and certification regarding the operation of such radios. For boatmasters and helmsmen, such training and certification should be compulsory.

(28)

Approval of training programmes is necessary to verify that the programmes comply with common minimum requirements regarding content and organisation. Such compliance allows for the elimination of unnecessary barriers to entering the profession, by preventing unnecessary additional examinations from being imposed on persons who have already acquired the necessary skills during their vocational training. The existence of approved training programmes could also facilitate the entry of workers with prior experience from other sectors into the profession of inland navigation, as they could benefit from dedicated training programmes that take account of their already acquired competences.

(29)

To further facilitate mobility for boatmasters, Member States should, subject to the consent of the Member State in which a stretch of inland waterway with specific risks is located, be allowed to assess the competences necessary for navigating on that specific stretch of inland waterway.

(30)

The navigation time should be verified by means of validated entries in service record books. To allow for such verification, Member States should issue service record books and logbooks and ensure that the latter provide a record of the journeys of craft. The medical fitness of a candidate should be certified by an approved medical practitioner.

(31)

Where loading and unloading activities require active navigational operations, such as dredging or manoeuvres between loading or unloading points, Member States should regard the time used for such activities as navigation time and record it accordingly.

(32)

Whenever the measures provided for in this Directive entail the processing of personal data, it should be carried out in accordance with Union law on the protection of personal data, in particular Regulations (EC) No 45/2001 (7) and (EU) 2016/679 (8) of the European Parliament and of the Council.

(33)

To contribute to the efficient administration of certificates of qualification, Member States should designate the competent authorities that are to implement this Directive and should set up registers for recording data on certificates of qualification, service record books and logbooks. In order to facilitate the exchange of information between Member States and with the Commission for the purpose of the implementation, enforcement and evaluation of this Directive, as well as for statistical purposes, for maintaining safety and for ease of navigation, Member States should report such information, including data on the certificates of qualifications, service record books and logbooks, by including it in a database kept by the Commission. In keeping that database, the Commission should duly respect the principles of personal data protection.

(34)

Authorities, including authorities in third countries, that issue certificates of qualification, service record books and logbooks in accordance with rules that are identical to those of this Directive, are processing personal data. The authorities involved in the implementation and enforcement of this Directive, and, where necessary, international organisations that established those identical rules, should also have access to the database kept by the Commission for the purpose of evaluating this Directive, for statistical purposes, for maintaining safety, for ensuring ease of navigation and in order to facilitate the exchange of information between those authorities. This access should however be subject to adequate level of data protection, specifically in the case of personal data, and, in the case of third countries and international organisations, should also be subject to the principle of reciprocity.

(35)

With a view to further modernising the inland waterway sector and to reducing the administrative burden while rendering the documents less prone to being tampered with, the Commission should, taking into account the principle of better regulation, consider examining the possibility of replacing the paper version of Union certificates of qualification, service record books and logbooks by electronic tools, such as electronic professional cards and electronic vessel units.

(36)

In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission with regard to opposing, where appropriate, the intended adoption by a Member State of competence requirements relating to specific risks on certain stretches of inland waterways. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (9).

(37)

In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission with regard to the adoption of models for the issuing of Union certificates of qualification, practical examination certificates, service record books and logbooks and the adoption of decisions on recognition in accordance with Article 10. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

(38)

In order to provide minimum harmonised standards for the certification of qualifications, to facilitate the exchange of information between Member States and to facilitate the implementation, monitoring and evaluation of this Directive by the Commission, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the setting of standards of competence, standards for medical fitness, standards for practical examinations, standards for the approval of simulators and standards defining the characteristics and conditions of use for the database, to be maintained by the Commission, that is to host a copy of key data related to Union certificates of qualification, service record books, logbooks and recognised documents. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (10). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(39)

Transitional measures should address not only the problem of certificates issued to boatmasters in accordance with Directive 96/50/EC, with Regulations for Rhine Navigation Personnel or with certain national legislation, but also the problem of certificates issued to other categories of deck crew members falling within the scope of this Directive. As far as possible, those measures should safeguard entitlements previously granted and should aim to give skilled crew members reasonable time in which to apply for a Union certificate of qualification. Those measures should therefore provide for an adequate period during which those certificates can continue to be used on the Union inland waterways for which they were valid before the end of the transposition period. Those measures should also ensure a system of transition to the new rules for all these certificates, in particular where journeys of local interest are concerned.

(40)

The harmonisation of legislation in the field of professional qualifications in inland navigation in Europe is facilitated by close cooperation between the Union and the CCNR, and by the development of CESNI standards. The CESNI, which is open to experts from all Member States, draws up standards in the field of inland navigation, including standards for professional qualifications. European River Commissions, relevant international organisations, social partners and professional associations should be fully involved in the design and drawing up of CESNI standards. Where the conditions laid down in this Directive are met, the Commission should refer to CESNI standards when adopting implementing and delegated acts in accordance with this Directive.

(41)

Since the objective of this Directive, namely the establishment of a common framework on the recognition of minimum professional qualifications for inland navigation, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and 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 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(42)

In order to improve the gender balance in the inland waterway sector, it is important that access by women to qualifications and to the profession be promoted.

(43)

According to the case law of the Court of Justice of the European Union, the information which Member States are obliged to supply to the Commission in the context of transposing a directive must be clear and precise. This is also the case for this Directive, which provides for a specifically targeted approach for transposition.

(44)

Directives 91/672/EEC and 96/50/EC should therefore be repealed,

(a)

vessels having a length of 20 metres or more;

(b)

vessels for which the product of length, breadth and draught is a volume of 100 cubic metres or more;

(c)

tugs and pushers intended for:

(d)

passenger vessels;

(e)

vessels required to have a certificate of approval pursuant to Directive 2008/68/EC of the European Parliament and of the Council (11);

(f)

floating equipment.

(a)

navigating for sport or pleasure;

(b)

involved in the operation of ferries not moving independently;

(c)

involved in the operation of craft used by armed forces, forces maintaining public order, civil defence services, waterway administrations, fire services and other emergency services.

(a)

navigating limited journeys of local interest, where the distance from the departure point is at no time more than ten kilometres; or

(b)

navigating seasonally.

(1)

‘inland waterway’ means a waterway other than the sea, open to navigation by craft referred to in Article 2;

(2)

‘craft’ means a vessel or item of floating equipment;

(3)

‘vessel’ means an inland waterway vessel or seagoing ship;

(4)

‘tug’ means a vessel specially built to perform towing operations;

(5)

‘pusher’ means a vessel specially built to propel a pushed convoy;

(6)

‘passenger vessel’ means a vessel constructed and equipped to carry more than 12 passengers;

(7)

‘Union certificate of qualification’ means a certificate, issued by a competent authority, attesting that a person fulfils the requirements of this Directive;

(8)

‘STCW Convention’ means ‘STCW Convention’ as defined in Article 1(21) of Directive 2008/106/EC of the European Parliament and of the Council (12);

(9)

‘deck crew members’ means persons who are involved in the general operation of a craft navigating on Union inland waterways and who carry out various tasks, such as tasks related to navigation, controlling the operation of the craft, cargo handling, stowage, passenger transport, marine engineering, maintenance and repair, communication, health and safety, and environmental protection, other than persons who are solely assigned to the operation of the engines, cranes, or electrical and electronic equipment;

(10)

‘radio operator’s certificate’ means a national certificate, issued by a Member State in accordance with the Radio Regulations annexed to the International Telecommunication Convention, authorising the operation of a radio-communication station on an inland waterway craft;

(11)

‘passenger navigation expert’ means a person serving on board the vessel who is qualified to take measures in emergency situations on board passenger vessels;

(12)

‘liquefied natural gas expert’ means a person who is qualified to be involved in the bunkering procedure of a craft using liquefied natural gas as fuel or to be the boatmaster sailing such a craft;

(13)

‘boatmaster’ means a deck crew member who is qualified to sail a craft on the Member States’ inland waterways and is qualified to have overall responsibility on board, including for the crew, for the passengers and for the cargo;

(14)

‘specific risk’ means a safety hazard that is due to particular navigation conditions which require boatmasters to have competences beyond what is expected under the general standards of competence for the management level;

(15)

‘competence’ means the proven ability to use the knowledge and skills required by the established standards for the proper performance of the tasks necessary for the operation of inland waterway craft;

(16)

‘management level’ means the level of responsibility associated with serving as boatmaster and with ensuring that other deck crew members properly perform all tasks in the operation of a craft;

(17)

‘operational level’ means the level of responsibility associated with serving as boatman, as able boatman or as helmsman and with maintaining control over the performance of all tasks within that person’s designated area of responsibility in accordance with proper procedures and under the direction of a person serving at management level;

(18)

‘large convoy’ means a pushed convoy for which the product of the total length and the total width of the pushed craft is 7 000 square metres or more;

(19)

‘service record book’ means a personal register that records details of a crew member’s work history, in particular navigation time and journeys carried out;

(20)

‘logbook’ means an official record of the journeys made by a craft and its crew;

(21)

‘active service record book’ or ‘active logbook’ means a service record book or logbook which is open for recording data;

(22)

‘navigation time’ means the time, measured in days, that deck crew members have spent aboard during a journey on a craft on inland waterways, including loading and unloading activities that require active navigational operations, which has been validated by the competent authority;

(23)

‘floating equipment’ means a floating installation carrying working gear such as cranes, dredging equipment, pile drivers or elevators;

(24)

‘length’ means the maximum length of the hull in metres, excluding rudder and bowsprit;

(25)

‘breadth’ means the maximum breadth of the hull in metres, measured to the outer edge of the shell plating (excluding paddle wheels, rub rail, and similar);

(26)

‘draught’ means the vertical distance in metres between the lowest point of the hull without taking into account the keel or other fixed attachments and the maximum draught line;

(27)

‘seasonal navigation’ means a navigating activity which is exercised for not more than six months each year.

(a)

sailing on waterways that have been classified as inland waterways with a maritime character pursuant to Article 8;

(b)

sailing on waterways that have been identified as stretches of inland waterways with specific risks pursuant to Article 9;

(c)

sailing with the aid of radar;

(d)

sailing craft using liquefied natural gas as fuel;

(e)

sailing large convoys.

(a)

the Convention on the International Regulations for Preventing Collisions at Sea is applicable;

(b)

the buoys and signs are in accordance with the maritime system;

(c)

terrestrial navigation is necessary on that inland waterway; or

(d)

maritime equipment which requires special knowledge for its operation is necessary for navigation on that inland waterway.

(a)

frequently changing stream patterns and speed;

(b)

the hydro-morphological characteristics of the inland waterway and the absence of appropriate Fairway Information Services on the inland waterway or of suitable charts;

(c)

the presence of a specific local traffic regulation justified by specific hydro-morphological characteristics of the inland waterway; or

(d)

a high frequency of accidents at a specific stretch of the inland waterway that is attributed to the lack of a competence that is not covered by the standards referred to in Article 17.

(a)

of their identity;

(b)

that they meet the minimum requirements laid down in Annex I on age, competence, administrative compliance and navigation time for the qualification for which they have applied;

(c)

that they meet the standards for medical fitness in accordance with Article 23, where applicable.

(a)

of their identity;

(b)

that they meet the minimum requirements laid down in Annex I on age, competence, administrative compliance and navigation time for the specific authorisation for which they have applied;

(c)

that they hold a Union certificate of qualification as a boatmaster or of a certificate recognised in accordance with Article 10(2) and (3), or that they meet the minimum requirements for Union certificates of qualification for boatmasters provided for by this Directive.

(a)

of their identity;

(b)

that they meet the requirements established in accordance with Article 20 for the competence for specific risks for the specific stretch of inland waterway for which the authorisation is required;

(c)

that they hold a Union certificate of qualification as a boatmaster or of a certificate recognised in accordance with Article 10(2) and (3), or that they meet the minimum requirements for Union certificates of qualification for boatmasters provided for by this Directive.

(a)

for Union certificates of qualification as a deck crew member and for specific authorisations other than the one referred to in point (d) of Article 6, satisfactory documentary evidence referred to in points (a) and (c) of Article 11(1) has been submitted;

(b)

for Union certificates of qualification for specific operations, the satisfactory documentary evidence referred to in points (a) and (b) of Article 11(1) has been submitted.

(a)

under the responsibility of an administrative authority in accordance with Article 18 or;

(b)

as part of a training programme approved in accordance with Article 19.

(a)

a Union certificate of qualification as a boatmaster;

(b)

a specific authorisation for sailing with the aid of radar as referred to in point (c) of Article 6;

(c)

a Union certificate of qualification as a liquefied natural gas expert;

(d)

a Union certificate of qualification as a passenger navigation expert.

(a)

the training objectives, learning content, methods, media of delivery, procedures, including the use of simulators, where applicable, and course materials are properly documented and allow applicants to achieve the standards of competence referred to in Article 17(1);

(b)

the programmes for the assessment of the relevant competences are conducted by qualified persons who have in-depth knowledge of the training programme;

(c)

an examination to verify compliance with the standards of competence referred to in Article 17(1) is carried out by qualified examiners who are free from conflicts of interest.

(a)

a limited number of journeys to be carried out on the stretch concerned;

(b)

a simulator examination;

(c)

a multiple choice examination;

(d)

an oral examination; or

(e)

a combination of the means referred to in points (a) to (d).

(a)

their first Union certificate of qualification as a deck crew member;

(b)

their Union certificate of qualification as a boatmaster;

(c)

the renewal of their Union certificate of qualification as a deck crew member in case the conditions specified in paragraph 3 of this Article are met.

(a)

implementing, enforcing and evaluating this Directive;

(b)

exchanging information between the authorities that have access to the database referred to in Article 25 and the Commission;

(c)

producing statistics.

(a)

the instructions for encoding data into the database;

(b)

the access rights of the users, differentiated where appropriate according to the type of users, the type of access and the purpose for which the data is used;

(c)

the maximum duration that data is retained in accordance with paragraph 3 of this Article, differentiated where appropriate according to the type of document;

(d)

the instructions regarding the operation of the database and its interaction with the registers referred to in paragraph 1 of this Article.

(a)

the requirements of Article 9 of Regulation (EC) No 45/2001 are fulfilled; and

(b)

the third country or the international organisation does not limit access by Member States or by the Commission to its corresponding database.

(a)

organise and supervise the examinations referred to in Article 18;

(b)

approve the training programmes referred to in Article 19;

(c)

approve simulators referred to in Article 21;

(d)

issue, renew, suspend or withdraw the certificates and issue the specific authorisations referred to in Articles 4, 5, 6, 11, 12, 13, 14 and 38 as well as the service record books and the logbooks referred to in Article 22;

(e)

validate the navigation time in service record books referred to in Article 22;

(f)

determine the medical practitioners who may issue medical certificates pursuant to Article 23;

(g)

keep the registers referred to in Article 25;

(h)

detect and combat fraud and other unlawful practices referred to in Article 29.

(a)

the issuance, renewal, suspension and withdrawal of Union certificates of qualification, service record books and logbooks;

(b)

all training courses and programmes;

(c)

examinations and assessments carried out by or under the authority of each Member State; and

(d)

the qualifications and experience required of trainers and examiners.

(a)

those standards are available and up-to-date;

(b)

those standards comply with any applicable requirements set out in the Annexes;

(c)

Union interests are not compromised by changes in the decision-making process of CESNI.

(a)

those standards are available and up-to-date;

(b)

those standards comply with any applicable requirements set out in the Annexes;

(c)

Union interests are not compromised by changes in the decision-making process of CESNI.

(a)

for the Union certificate of qualification as a boatman: 540 days of navigation time, including at least 180 days in inland navigation;

(b)

for the Union certificate of qualification as an able boatman: 900 days of navigation time, including at least 540 days in inland navigation;

(c)

for the Union certificate of qualification as a helmsman: 1 080 days of navigation time, including at least 720 days in inland navigation.

(a)

this inland navigation activity is performed at the beginning or at the end of a maritime transport journey; and

(b)

the Member State has recognised certificates referred to in this paragraph for at least five years on 16 January 2018 on the inland waterways concerned.