16.11.2012   

EN

Official Journal of the European Union

CE 352/1

(1)

Regulation (EC) No 1406/2002 of the European Parliament and of the Council (3), which was adopted in response to the ‘Erika’ oil tanker incident, established a European Maritime Safety Agency (the ‘Agency’) for the purpose of ensuring a high, uniform and effective level of maritime safety and prevention of pollution by ships.

(2)

After the ‘Prestige’ oil tanker incident in 2002, Regulation (EC) No 1406/2002 was modified to give the Agency more tasks with regard to pollution response.

(3)

It is necessary to clarify which types of marine pollution should fall within the objectives of Regulation (EC) No 1406/2002. Thus, marine pollution caused by oil and gas installations should be understood as pollution by oil or any substance other than oil which, if introduced into the marine environment, is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, as established by the Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 2000.

(4)

Acting in accordance with Article 22 of Regulation (EC) No 1406/2002, the Administrative Board of the Agency (the ‘Administrative Board’) in 2007 commissioned an independent external evaluation on the implementation of that Regulation. Based on that evaluation, in June 2008, it issued recommendations regarding changes to the functioning of the Agency, to its areas of competence and to its working practices.

(5)

Based on the findings of the external evaluation, and on the recommendations, and on the multi-annual strategy adopted by the Administrative Board in March 2010, some provisions of Regulation (EC) No 1406/2002 should be clarified and updated. While focusing on its priority tasks in the area of maritime safety, the Agency should receive a number of new core and ancillary tasks reflecting the development of maritime safety policy at Union and international level. Given the budget constraints facing the Union, considerable screening and redeployment efforts are necessary to guarantee cost and budget efficiency and to avoid any overlapping. Staffing needs for the new core and ancillary tasks should, as a matter of principle, be covered through internal redeployment by the Agency. At the same time, the Agency should receive, where appropriate, funding from other parts of the Union budget, in particular from the European Neighbourhood Policy instrument. The delivery of any new core and ancillary tasks by the Agency will be undertaken within the limits of the current Financial Perspective and the Agency’s budget without prejudice to the negotiations and decisions on the future multi-annual financial framework. As this Regulation is not a financing decision, the Budgetary Authority should decide on resources for the Agency in the framework of the annual budgetary procedure.

(6)

The Agency’s tasks should be described clearly and precisely, and any duplication of tasks should be avoided.

(7)

The Agency has shown that certain tasks can be undertaken more efficiently at European level, which might, in certain cases, offer Member States savings on their national budgets and, where demonstrated, represent genuine European added value.

(8)

Some provisions regarding the specific governance of the Agency should be clarified. Taking into account the special responsibility of the Commission for the implementation of Union policies enshrined by the Treaty on the Functioning of the European Union, the Commission should provide policy guidance to the Agency in the performance of its tasks while fully respecting the legal status of the Agency and the independence of its Executive Director as established by Regulation (EC) No 1406/2002.

(9)

When appointing members of the Administrative Board, electing the Chair and Vice-Chair of the Administrative Board and appointing Heads of Department, the importance of ensuring balanced gender representation should be fully taken into account.

(10)

Any reference to relevant legal acts of the Union should be understood to refer to acts in the field of maritime safety, maritime security, prevention of, and response to, pollution caused by ships as well as response to marine pollution caused by oil and gas installations.

(11)

For the purposes of this Regulation, ‘maritime security’ is to be understood – in accordance with Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (4) – as the combined preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts. The security objective should be achieved by adopting appropriate measures in the field of maritime transport policy, without prejudice to the rules of the Member States in the field of national security, defence and public security, and in combating financial crimes against the State.

(12)

The Agency should act in the interests of the Union. This should include the situation when the Agency is tasked to act outside the territory of the Member States in its fields of competence and to provide technical assistance to relevant third countries, in promoting the Union’s maritime safety policy.

(13)

The Agency should provide technical assistance to Member States which should facilitate the establishment of the necessary national capacity to implement the Union acquis.

(14)

The Agency should provide operational assistance to the Member States and the Commission. This should include services such as the Union Maritime Information and Exchange System (SafeSeaNet), the European Satellite Oil Monitoring Service (CleanSeaNet), the European Union Long Range Identification and Tracking Data Centre (EU LRIT Data Centre) and the EU Port State Control inspection data base (Thetis).

(15)

The Agency’s expertise in electronic data transmission and in maritime information exchange systems should be used to simplify reporting formalities for ships with a view to the elimination of barriers to maritime transport and the establishment of a European Maritime Transport Space without Barriers. In particular, the Agency should support Member States in the implementation of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States (5).

(16)

The Agency should enhance its assistance to the Commission regarding research activities related to its fields of competences. However, duplication of work as regards the existing Union research framework should be avoided. In particular, the Agency should not be in charge of the management of research projects.

(17)

In the light of the development of new innovative applications and services and the improvement of the existing applications and services, and with a view to implementing a European Maritime Transport Space without Barriers, the Agency should make full use of the potential offered by the European satellite navigation programmes (EGNOS and Galileo) and by the Global Monitoring for Environment and Security programme (GMES).

(18)

After the expiry of the Union framework for cooperation in the field of accidental or deliberate marine pollution established by Decision No 2850/2000/EC of the European Parliament and of the Council (6), the Agency should continue some of the activities previously carried out under that framework by drawing in particular on the expertise within the Consultative Technical Group for Marine Pollution Preparedness and Response. The activities of the Agency in this field should not relieve coastal States of their responsibility to have appropriate pollution response mechanisms in place and should respect existing cooperation arrangements between Member States or groups of Member States.

(19)

Upon request, the Agency provides Member States with detailed information about potential cases of pollution by ships through CleanSeaNet to enable them to fulfil their responsibilities under Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (7). However, the effectiveness of enforcement varies greatly despite such pollution having the potential to end up in other national waters. In its next report under Article 12 of that Directive, the Commission should therefore provide information to the European Parliament and to the Council about the effectiveness and the consistency of the enforcement of that Directive and other relevant information about its application.

(20)

Requests from affected States for the mobilisation of anti-pollution actions by the Agency should be relayed through the EU Civil Protection Mechanism established by Council Decision 2007/779/EC, Euratom (8). However, the Commission may consider that in circumstances other than requests for mobilisation of stand-by anti-pollution ships and equipment, alternative means of communication using advanced information technology may be more appropriate and, thus, may inform the requesting Member State.

(21)

Recent events highlighted the risks of offshore oil and gas exploration and production activities to maritime transport and the marine environment. The Agency’s response capabilities for oil pollution and its expertise in the field of pollution by hazardous and noxious substances should be used to cover response to pollution originating from such activities, at the request of an affected State.

(22)

In particular, CleanSeaNet, which is currently used to provide evidence of oil spills from ships, should also be used by the Agency to detect and report oil spills from offshore oil and gas exploration and production activities, without causing any detrimental effects to the service provided for maritime transport.

(23)

The Agency has established and recognised valuable expertise and tools in the fields of maritime safety, maritime security, prevention of, and response to, pollution caused by ships. This expertise and these tools can be relevant for other Union activities related to the Union maritime transport policy. The Agency should therefore assist the Commission and the Member States upon request in the development and implementation of such Union activities provided that the Administrative Board has approved this in the context of the Agency’s annual work programme. Such assistance should be subject to a detailed cost/benefit analysis and should not be detrimental to the Agency’s core tasks.

(24)

Through the technical assistance that the Agency provides,, it also contributes to the development of more environment-friendly maritime transport.

(25)

As regards classification societies, most classification societies deal with both seagoing and inland waterway vessels. Based on the Agency’s experience with classification societies for seagoing vessels, the Agency could provide relevant information to the Commission with regard to classification societies for inland waterway vessels and thus allow for efficiency gains.

(26)

As regards the interface between transport information systems, the Agency should assist the Commission and the Member States by exploring, together with competent authorities for the River Information Services System, the possibility of sharing information between such systems.

(27)

Without prejudice to the responsibility of the competent authorities, the Agency should assist the Commission and the Member States in the development and implementation of the future e-Maritime initiative, which aims at improving the efficiency of the European maritime transport sector by facilitating the use of advanced information technologies.

(28)

With a view to achieving the single market and a European Maritime Transport Space without Barriers, administrative burdens on shipping should be reduced, thereby inter alia encouraging short sea shipping. In this context, the ‘Blue Belt’ concept and e-Maritime could potentially be used as a means of reducing reporting formalities required from commercial vessels on entering or leaving ports in the Member States.

(29)

It is recalled that according to the case-law of the Court of Justice of the European Union, and in order to respect the principle of institutional balance, the power to adopt decisions of general application may not be conferred on an agency.

(30)

Without prejudice to the objectives and tasks laid down in Regulation (EC) No 1406/2002, the Commission should prepare and submit, within one year of the date of entry into force of this Regulation, in close cooperation with relevant stakeholders, a feasibility study with a view to evaluate and identify the possibilities of enhancing coordination and cooperation of different coastguard functions. That study should take into account the existing legal framework and relevant recommendations from the appropriate Union fora as well as the current development of the Common Information Sharing Environment (CISE) and should fully respect the principles of subsidiarity and proportionality, making clear the costs and benefits to the European Parliament and the Council.

(31)

Attracting well trained European seafarers is important for the competitiveness of the Union maritime clusters. Therefore, in light of the current and future demand in the Union for highly qualified seafarers, the Agency should, if appropriate, support Member States and the Commission in promoting maritime training by facilitating the voluntary exchange of best practice and by providing information on Union exchange programmes on maritime training. This could include assisting competent European stakeholders in pursuing excellence for maritime education and training on a voluntary basis, while fully respecting the responsibility of the Member States for the content and organisation of maritime training.

(32)

In order to counter the growing risk of piracy, the Agency should continue, where appropriate, to forward to competent national authorities and other relevant bodies, including operations such as EU Naval Force operation Atalanta, detailed information about the position of vessels flying the flag of Member States and transiting through areas, which are classified as very dangerous. Furthermore, the Agency has at its disposal means that could be useful, notably in the context of the development of the CISE. It is therefore appropriate that the Agency should provide, upon request, relevant vessel positioning and earth observation data to competent national authorities and Union bodies, such as Frontex and Europol, to facilitate preventive measures against intentional unlawful acts as understood in relevant Union law without prejudice to the rights and obligations of Member States and in accordance with the applicable national and Union law, in particular regarding those bodies requesting data. The provision of long-range identification and tracking of ships (LRIT) data should be subject to the consent of the flag State concerned, in accordance with procedures to be established by the Administrative Board.

(33)

When publishing information in accordance with Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on Port State Control (9), the Commission and the Agency should build upon the expertise and experience gained under the Paris Memorandum of Understanding on Port State Control (‘Paris MoU’) to ensure consistency.

(34)

The assistance of the Agency to the Member States and to the Commission with regard to the relevant work of international and regional organisations should be without prejudice to the relationship between those organisations and the Member States resulting from Member States’ membership of those organisations.

(35)

The Union has acceded to the following instruments, establishing regional organisations, whose activities are also covered by the Agency’s objectives: the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention as revised in 1992) (10); the Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) (11), and its 1995 revision (12) and to a number of protocols thereto; the Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Bonn Agreement) (13); the Convention for the protection of the marine environment of the North-East Atlantic (OSPAR Convention) (14); the Cooperation Agreement for the protection of the coasts and waters of the North-East Atlantic against pollution, signed on 17 October 1990 (Lisbon Agreement) (15), with the Additional Protocol thereto, signed on 20 May 2008, which have not yet entered into force (16). The Union is also negotiating accession to the Convention on the Protection of the Black Sea Against Pollution, signed in April 1992 (Bucharest Convention). The Agency should therefore provide technical assistance to Member States and the Commission to take part in the relevant work of those regional organisations.

(36)

In addition to those regional organisations, a number of other regional, sub-regional and bilateral coordination and cooperation arrangements exist with regard to pollution response. When providing assistance with regard to pollution response to third countries sharing a regional sea basin with the Union, the Agency should act, taking into account those arrangements.

(37)

The Union shares the regional sea basins of the Mediterranean Sea, the Black Sea and the Baltic Sea with neighbouring countries. Upon request by the Commission, the Agency should provide assistance with regard to pollution response to those countries.

(38)

In order to maximise efficiency, the Agency should cooperate as closely as possible in the context of the Paris MoU. The Commission and Member States should continue to examine any options for further efficiency gains, which could be proposed for consideration within the framework of the Paris MoU.

(39)

In order to ensure that the binding legal acts of the Union in the fields of maritime safety and the prevention of pollution caused by ships are correctly implemented in practice, the Agency should assist the Commission by carrying out visits to Member States. These visits to the national administrations should allow the Agency to gather all necessary information to present a comprehensive report to the Commission for its further assessment. The visits should be conducted in the spirit of the principles referred to in Article 4(3) of the Treaty on European Union and should be conducted in such a way so as to minimise the administrative burden upon the national maritime administrations. Furthermore the visits should be carried out in accordance with a set procedure including a standard methodology as adopted by the Administrative Board.

(40)

The Agency should assist the Commission by carrying out inspections of recognised organisations in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (17). These inspections may also take place in third countries. The Commission and the Agency should ensure that the Member States concerned are duly informed. The Agency should also carry out the inspection tasks with regard to the training and certification of seafarers in third countries pursuant to Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (18), which the Commission has delegated to the Agency. Details of the technical assistance provided by the Agency to the maritime security inspections carried out by the Commission in accordance with Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for conducting Commission inspections in the field of maritime security (19) should not be covered by Regulation (EC) No 1406/2002.

(41)

In order to ensure coherence with the policy objectives and the institutional set-up of the Union as well as with the applicable administrative and financial procedures, the Commission should issue formal advice in the form of a written opinion on the Agency’s draft multi-annual strategy and draft annual work programmes, which the Administrative Board should take into account before adopting those documents.

(42)

In order to ensure a fair and transparent procedure for the appointment of the Executive Director, the selection procedure to be followed should be in accordance with the Commission guidelines for the selection and nomination of Directors for agencies of the Union. These guidelines provide that nationals of any Member State can submit an application.

For the same reasons, the Administrative Board should be represented by an observer in the pre-selection committee. The observer should be kept informed during the further stages of the selection procedure.

At the time that the Administrative Board takes its decision on appointment, its members should be able to address questions to the Commission on the selection procedure. Furthermore, the Administrative Board should have the opportunity to interview the shortlisted candidates, in line with standard practice.

At all stages of the selection procedure and appointment for the post of the Executive Director of the Agency, all parties involved should ensure that the personal data of the candidates are processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (20).

(43)

While the Agency is mainly financed through a contribution from the Union, it also has revenues resulting from fees and charges relating to its services. Those fees and charges relate in particular to the operation of the EU LRIT Data Centre and are applied in accordance with the Council Resolution adopted on 1 and 2 October 2007 and 9 December 2008 related to the establishment of the EU LRIT Data Centre and in particular with the paragraphs related to the financing of LRIT reports.

(44)

In the framework of the progress report provided for pursuant to Regulation (EC) No 1406/2002, the Commission should also examine the Agency’s potential contribution to the implementation of a future legislative act on the safety of offshore oil and gas prospecting, exploration and production activities, which is currently being examined by the European Parliament and the Council, with regard to the prevention of pollution from offshore oil and gas installations, taking into account the Agency’s established and recognised expertise and tools.

(45)

The Agency’s activities should, where appropriate, also contribute to the establishment of a genuine European Maritime Transport Space without Barriers.

(46)

Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (21), and in particular Article 185 thereof, should be taken into account.

(47)

Regulation (EC) No 1406/2002 should therefore be amended accordingly,

(1)

Articles 1 to 3 are replaced by the following:

‘Article 1

Objectives

1.   This Regulation establishes a European Maritime Safety Agency (“the Agency”) for the purpose of ensuring a high, uniform and effective level of maritime safety, maritime security, prevention of, and response to, pollution caused by ships as well as response to marine pollution caused by oil and gas installations.

2.   To that end, the Agency shall cooperate with the Member States and the Commission and provide them with technical, operational and scientific assistance in the fields mentioned in paragraph 1 of this Article within the limits of the core tasks set out in Article 2 and, as and when applicable, the ancillary tasks set out in Article 2a, in particular in order to help the Member States and the Commission to apply the relevant legal acts of the Union properly. As regards the field of response to pollution, the Agency shall provide operational assistance only upon the request of the affected State(s).

3.   By providing the assistance referred to in paragraph 2, the Agency shall, where appropriate, contribute to the overall efficiency of maritime traffic and maritime transport as set out in this Regulation, so as to facilitate the establishment of a European Maritime Transport Space without Barriers.

Article 2

Core tasks of the Agency

1.   In order to ensure that the objectives set out in Article 1 are met in the appropriate manner, the Agency shall perform the core tasks listed in this Article.

2.   The Agency shall assist the Commission:

3.   The Agency shall work with the Member States to:

4.   The Agency shall facilitate cooperation between the Member States and the Commission:

5.   The Agency may, upon the request of the Commission, provide technical assistance, including the organisation of relevant training activities, as regards relevant legal acts of the Union, to States applying for accession to the Union, and, where applicable, to European Neighbourhood partner countries and to countries taking part in the Paris MoU.

The Agency may also provide assistance in case of pollution caused by ships as well as marine pollution caused by oil and gas installations affecting those third countries sharing a regional sea basin with the Union, in line with the EU Civil Protection Mechanism established by Decision 2007/779/EC, Euratom, and by analogy with the conditions applicable to Member States as referred to in paragraph (3)(d) of this Article. These tasks shall be coordinated with the existing regional cooperation arrangements related to marine pollution.

Article 2a

Ancillary tasks of the Agency

1.   Without prejudice to the core tasks referred to in Article 2, the Agency shall assist the Commission and the Member States, as appropriate, in the development and implementation of the Union activities set out in paragraphs 2 and 3 of this Article related to the Agency’s objectives, in so far as the Agency has established and recognised expertise and tools. The ancillary tasks set out in this Article shall:

2.   The Agency shall assist the Commission:

3.   The Agency shall assist the Commission and the Member States:

Article 3

Visits to Member States and inspections

1.   In order to perform the tasks entrusted to it and to assist the Commission in fulfilling its duties under the TFEU, and in particular the assessment of the effective implementation of relevant Union law, the Agency shall carry out visits to Member States in accordance with the methodology established by the Administrative Board.

2.   The Agency shall inform the Member State concerned in good time of the planned visit, the names of the authorised officials, and the date on which the visit starts and its expected duration. The Agency officials delegated to carry out such visits shall do so on presentation of a decision in writing from the Executive Director of the Agency specifying the purpose and the aims of their mission.

3.   The Agency shall carry out inspections on behalf of the Commission as required by binding legal acts of the Union regarding organisations recognised by the Union in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (32), and regarding the training and certification of seafarers in third countries in accordance with Directive 2008/106/EC.

4.   At the end of each visit or inspection, the Agency shall draw up a report and send it to the Commission and to the Member State concerned.

5.   Where appropriate, and in any case when a cycle of visits or inspections is concluded, the Agency shall analyse reports from that cycle with a view to identifying horizontal findings and general conclusions on the effectiveness and cost-efficiency of the measures in place. The Agency shall present this analysis to the Commission for further discussion with Member States in order to draw any relevant lessons and facilitate the dissemination of good working practices.

(2)

In Article 4, paragraphs 3 and 4 are replaced by the following:

‘3.   The Administrative Board shall adopt the practical arrangements for the application of paragraphs 1 and 2, including, where appropriate, arrangements regarding consultation with Member States before the publication of information.

4.   The information collected and processed in accordance with this Regulation by the Commission and the Agency shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (33) and the Agency shall take the necessary measures to ensure the safe handling and processing of confidential information.

(3)

In Article 5, paragraph 3 is replaced by the following:

‘3.   At the request of the Commission, the Administrative Board may decide, with the agreement of and in cooperation with the Member States concerned and with due regard to budgetary implications, including any contribution the Member States concerned may provide, to establish the regional centres necessary in order to carry out, in the most efficient and effective way, some of the Agency’s tasks. When taking such a decision, the Administrative Board shall define the precise scope of activities of the regional centre while avoiding unnecessary financial costs and enhancing cooperation with existing regional and national networks.’.

(4)

In Article 10, paragraph 2 is amended as follows:

(5)

Article 11 is amended as follows:

(6)

In Article 13, paragraph 4 is replaced by the following:

‘4.   When there is a matter of confidentiality or conflict of interest, the Administrative Board may decide to examine specific items of its agenda without the presence of the members concerned. Detailed rules for the application of this provision shall be laid down in the rules of procedure.’.

(7)

Article 15 is amended as follows:

(8)

Article 16 is replaced by the following:

‘Article 16

Appointment and dismissal of the Executive Director and the Heads of Department

1.   The Executive Director shall be appointed and dismissed by the Administrative Board. The appointment shall be made for a period of five years on grounds of merit and documented administrative and managerial competence, as well as documented experience in the fields referred to in Article 1 after hearing the opinion of the observer as referred to in Article 10. The Executive Director shall be appointed from a list of at least three candidates proposed by the Commission after an open competition, following publication of the post in the Official Journal of the European Union, and elsewhere, of a call for expression of interest. The candidate selected by the Administrative Board may be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members. The Administrative Board shall deliberate on dismissal at the request of the Commission or of one third of its members. The Administrative Board shall take its decisions on appointment or dismissal by a four-fifths majority of all members with the right to vote.

2.   The Administrative Board, acting on a proposal from the Commission, taking into account the evaluation report may extend once the term of office of the Executive Director for not more than four years. The Administrative Board shall take its decision by a four-fifths majority of all members with the right to vote. The Administrative Board shall inform the European Parliament about its intention to extend the Executive Director’s term of office. Within a month before the extension of his/her term of office, the Executive Director may be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members. If the term of office is not extended, the Executive Director shall remain in office until the appointment of his/her successor.

3.   The Executive Director may be assisted by one or more Heads of Department. If the Executive Director is absent or indisposed, one of the Heads of Department shall take his/her place.

4.   The Heads of Department shall be appointed on grounds of merit and documented administrative and managerial skills, as well as professional competence and experience in the fields referred to in Article 1. The Heads of Department shall be appointed or dismissed by the Executive Director after having received a positive opinion of the Administrative Board.’.

(9)

Article 18 is amended as follows:

(10)

Article 22 is replaced by the following:

‘Article 22

Evaluation

1.   At regular intervals and at least every five years, the Administrative Board shall commission an independent external evaluation on the implementation of this Regulation. The Commission shall make available to the Agency any information the latter considers relevant to that evaluation.

2.   The evaluation shall assess the impact of this Regulation as well as the utility, relevance, achieved added value and effectiveness of the Agency and its working practices. The evaluation shall take into account the views of stakeholders, at both European and national level. It shall, in particular, address the possible need to modify the Agency’s tasks. The Administrative Board shall issue specific terms of reference in agreement with the Commission, following consultations with the parties involved.

3.   The Administrative Board shall receive the evaluation and issue recommendations regarding changes to this Regulation, the Agency and its working practices to the Commission. Both the evaluation findings and recommendations shall be forwarded by the Commission to the European Parliament and the Council and shall be made public. An action plan with a timetable shall be included, if appropriate.’;

(11)

The following Article is inserted:

‘Article 22a

Progress report

By … (35), and taking into account the evaluation report referred to in Article 22, the Commission shall submit a report to the European Parliament and the Council setting out how the Agency has undertaken the additional responsibilities assigned by this Regulation with a view to identifying further efficiency gains and, if necessary, the case for modifying its objectives and tasks.

(12)

Article 23 is deleted.

(1*)

OJ L 129, 29.4.2004, p. 6.

(2*)

OJ L 131, 28.5.2009, p. 47.

(3*)

OJ L 314, 1.12.2007, p. 9.

(4*)

OJ L 131, 28.5.2009, p. 114.

(5*)

OJ L 131, 28.5.2009, p. 57.

(6*)

OJ L 323, 3.12.2008, p. 33.

(7*)

OJ L 255, 30.9.2005, p. 11.

(8*)

OJ L 283, 29.10.2010, p. 1.

(9*)

OJ L 164, 25.6.2008, p. 19.

(10*)

OJ L 389, 30.12.2006, p. 1.

(11*)

OJ L 131, 28.5.2009, p. 11.’.

16.11.2012   

EN

Official Journal of the European Union

CE 352/23

(1)

Following the entry into force of the Treaty of Lisbon, foreign direct investment is included in the list of matters falling under the common commercial policy. In accordance with Article 3(1)(e) of the Treaty on the Functioning of the European Union (‘TFEU’), the European Union has exclusive competence with respect to the common commercial policy. Accordingly, only the Union may legislate and adopt legally binding acts within that area. The Member States are able to do so themselves only if so empowered by the Union, in accordance with Article 2(1) TFEU.

(2)

In addition, Chapter 4 of Title IV of Part Three TFEU lays down common rules on the movement of capital between Member States and third countries, including in respect of capital movements involving investments. Those rules can be affected by international agreements relating to foreign investment concluded by Member States.

(3)

This Regulation is without prejudice to the allocation of competences between the Union and its Member States in accordance with the TFEU.

(4)

At the time of the entry into force of the Treaty of Lisbon, Member States maintained a significant number of bilateral investment agreements with third countries. The TFEU does not contain any explicit transitional provisions for such agreements which have now come under the Union's exclusive competence. Furthermore, some of those agreements may include provisions affecting the common rules on capital movements laid down in Chapter 4 of Title IV of Part Three TFEU.

(5)

Although bilateral investment agreements remain binding on the Member States under public international law and will be progressively replaced by agreements of the Union relating to the same subject matter, the conditions for their continuing existence and their relationship with the Union's investment policy, require appropriate management. That relationship will develop further as the Union exercises its competence.

(6)

In the interest of Union investors and their investments in third countries, and of Member States hosting foreign investors and investments, bilateral investment agreements that specify and guarantee the conditions of investment should be maintained in force and progressively replaced by investment agreements of the Union, providing for high standards of investment protection.

(7)

This Regulation should address the status under Union law of bilateral investment agreements of the Member States signed before 1 December 2009. Those agreements can be maintained in force, or enter into force, in accordance with this Regulation.

(8)

This Regulation should also lay down the conditions under which Member States are empowered to conclude and/or maintain in force bilateral investment agreements signed between 1 December 2009 and … (2).

(9)

Moreover, this Regulation should lay down the conditions under which Member States are empowered to amend or conclude bilateral investment agreements with third countries after … (2).

(10)

Where bilateral investment agreements with third countries are maintained in force by Member States under this Regulation, or authorisations have been granted to open negotiations or conclude such agreements, that should not prevent the negotiation or conclusion of investment agreements by the Union.

(11)

Member States are required to take the necessary measures to eliminate incompatibilities, where they exist, with Union law, contained in bilateral investment agreements concluded between them and third countries. The implementation of this Regulation is without prejudice to the application of Article 258 TFEU with respect to failures of Member States to fulfil obligations under Union law.

(12)

The authorisation to amend or conclude bilateral investment agreements provided for by this Regulation should notably allow Member States to address any incompatibilities between their bilateral investment agreements and Union law, other than incompatibilities arising from the allocation of competences between the Union and its Member States, which are addressed in this Regulation.

(13)

The Commission should present to the European Parliament and the Council a report on the application of this Regulation. That report should, inter alia, review the need for the continued application of Chapter III. Where the report recommends discontinuing the application of the provisions of Chapter III or where it proposes modifying those provisions, it may be accompanied if appropriate, by a legislative proposal.

(14)

The European Parliament, the Council and the Commission should ensure that any information identified as confidential is treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (3).

(15)

Investment agreements between Member States should not be covered by this Regulation.

(16)

It is necessary to provide for certain arrangements to ensure that bilateral investment agreements, maintained in force pursuant to this Regulation, remain operational, including as regards dispute settlement, while at the same time respecting the Union's exclusive competence.

(17)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (4).

(18)

Specifically, those powers should be conferred on the Commission given that the procedures set out in Articles 9, 11 and 12 empower Member States to act in areas of the Union's exclusive competence and decisions thereon must be taken at Union level.

(19)

The advisory procedure should be used for the adoption of authorisations pursuant to Articles 9, 11 and 12, given that those authorisations are to be granted on the basis of clearly defined criteria established in this Regulation,

(a)

be in conflict with Union law other than the incompatibilities arising from the allocation of competences between the Union and its Member States;

(b)

be superfluous, because the Commission has submitted or has decided to submit a recommendation to open negotiations with the third country concerned pursuant to Article 218(3) TFEU;

(c)

be inconsistent with the Union's principles and objectives for external action as elaborated in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union; or

(d)

constitute a serious obstacle to the negotiation or conclusion of bilateral investment agreements with third countries by the Union.

(a)

inform the Commission without undue delay of all meetings which will take place under the provisions of the agreement. The Commission shall be provided with the agenda and all relevant information permitting an understanding of the topics to be discussed at those meetings. The Commission may request further information from the Member State concerned. Where an issue to be discussed might affect the implementation of the Union's policies relating to investment, including in particular the common commercial policy, the Commission may require the Member State concerned to take a particular position;

(b)

inform the Commission without undue delay of any representations made to it that a particular measure is inconsistent with the agreement. The Member State shall also immediately inform the Commission of any request for dispute settlement lodged under the auspices of the bilateral investment agreement as soon as the Member State becomes aware of such a request. The Member State and the Commission shall fully cooperate and take all necessary measures to ensure an effective defence which may include, where appropriate, the participation in the procedure by the Commission;

(c)

seek the agreement of the Commission before activating any relevant mechanisms for dispute settlement against a third country included in the bilateral investment agreement and shall, where requested by the Commission, activate such mechanisms. Those mechanisms shall include consultations with the other party to a bilateral investment agreement and dispute settlement where provided for in the agreement. The Member State and the Commission shall fully cooperate in the conduct of procedures within the relevant mechanisms, which may include, where appropriate, the participation in the relevant procedures by the Commission.