Outcome of proceedings of the Working Party on Codification of Legislation

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  1. Tekst
  2. Originele weergave
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1.

Tekst

  • 1. 
    Proposal for a Council regulation on the common rules for imports (codified version) Master

copy: EN

doc. 6041/08 CODIF 6 COMER 17 2008/0007 (CNS)

  • - 
    Second citation of the proposal should be harmonised with the second citation of item 8

('Having regard to the instruments establishing common organisation of agricultural markets

and to the instruments concerning processed agricultural products adopted in pursuance of

Article 308 of the Treaty, in particular...'.

  • - 
    Recital 6 (footnote) of the proposal should read 'Regulation as last amended by Commission

Regulation (EC) No 1398/2007 (OJ L 311, 29.11.2007, p. 5)'.

  • - 
    Articles 3 and 4 of the proposal: the original OJ order should be reinstated. The correlation

table should be adapted accordingly.

The text was agreed as proposed by the Commission, with the above-mentioned changes and

including the suggestion made in the opinion of the Consultative Working Group.

  • 2. 
    Proposal for a directive of the European Parliament and of the Council on the legal protection of

computer programs (codified version) Master copy: EN

doc. 6043/08 CODIF 7 CODEC 131 PI 6 CULT 13 2008/0019 (COD)

  • - 
    Recital 1 first sentence shall read

'The content of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of

computer programs has been amended.'

instead of

'Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs

has been substantially amended.'

The text was agreed as proposed by the Commission, with the above-mentioned change and

including the suggestion made in the opinion of the Consultative Working Group.

  • 3. 
    Proposal for a directive of the European Parliament and of the Council on roll-over protection

structures of wheeled agricultural of forestry tractors (static testing) (codified version) Master

copy: FR

doc. 6044/08 CODIF 8 CODEC 132 ENT 19 2008/0008 (COD)

Annex XI - Correlation table of the Proposal shall be corrected to read as follows:

"Directive 79/622/EEC Codified proposal

Article 3, paragraphe 2 Article 4, deuxième et troisième

alinéas"

The text was agreed as proposed by the Commission, with the above-mentioned change and

including the suggestions made in the opinion of the Consultative Working Group.

  • 4. 
    Proposal for a directive of the European Parliament and of the Council concerning mergers of

public limited liability companies (codified version) Master copy: EN

doc. 6045/08 CODIF 9 CODEC 133 DRS 5 COMPET 142 2008/0009 (COD)

  • - 
    Annex II of the proposal -Correlation table shall be corrected because of the change of the

numbering of the paragraphs in Article 23.

Directive 78/855/EEC This Directive ... ...

Articles 1 - 22 Articles 1-22

Article 23(1) and (2) Article 23(1) first and second subparagraphs Article 23(3) Article 23(2) Article 23(4) Article 23(3)

Articles 24 - 31 Articles 24 - 31 ... ...

The text was agreed as proposed by the Commission, with the above-mentioned change and

including the suggestions made in the opinion of the Consultative Working Group.

Additional remark

  • - 
    Article 1(1) 25th indent: Finland has requested the following amendment 'Julkinen

osakeyhtiö/publikt aktiebolag'

In accordance with the Treaty of Accession Finland has notified that the 3rd company law

directive (mergers of public limited companies) is only applied to the public limited liability

companies (julkinen osakeyhtiö/publikt aktiebolag) in Finland. Classification of limited

liability companies to public and private companies came into force on 1 September 1997

(amendment of the Companies Act).

On 11 July 1997 Finland has notified the change of its legislation to the Commission and

asked the Commission to modify the directive. Finland has repeated its request in the context

of new accessions and modifications of the directive. However, this amendment has been

forgotten and the directive is still incorrect concerning Finland. Finland therefore asks the

Commission to agree with the proposed amendment.

Cion: Such a request is not admissible in the context of a codification exercise (see Point 1

and 6 of the Interinstitutional Agreement of 20 December 1994 - Accelerated working

method for official codification of legislative texts).

With a view to the further processing of the said request for amendment received from the

Finnish Permanent Representation, the Legal Service of the Commission already transmitted

that request to Directorate-General Internal Market and Services.

The Legal Service would suggest that the request be directly discussed between the Finnish

Permanent Representation and Directorate-General Internal Market and Services. Should a

conclusion be reached that the request is justified and the directive needs to be amended,

Point 8 of the Interinstitutional Agreement would apply. Moreover, it should also be pointed

out that, according to a joint declaration on Point 8, "The European Parliament, the Council

and the Commission note that if it should appear necessary to go beyond straightforward

codification and make substantive changes, the Commission will be able to choose, case by

case, whether to recast its proposal or whether to submit a separate proposal for amendment,

leaving its codification proposal on the table, and then, once the substantive change has been

adopted, incorporate it into the proposal for codification". In view of the circumstances of

the present case, should a need for amending the act arise, the Legal Service of the

Commission would be in favour of a recasting thereof.

  • 5. 
    Proposal for a directive of the European Parliament and of the Council on reciprocal recognition

of navigability licences for inland waterway vessels (codified version) Master copy: FR

doc. 6046/08 CODIF 10 CODEC 134 TRANS 29 MAR 18 2008/0021 (COD)

  • - 
    It was concluded that the discrepancy existing between the FR Master copy version and other

language versions concerning points (a) and (b) of Article 1 of the proposal will be corrected

when the text is finalised by the lawyer-linguist.

  • - 
    Annex II, Part B will be corrected so as to read

Annex II, Part B:

'Date limite de transposition

19 janvier 1977

24 novembre 1978'

  • - 
    In the final paragraph of Article 1 of the EN version of the Proposal, the words "Regulation

on inspection of shipping on the Rhine" should be replaced by the words "Rhine Vessel

Inspection Regulation".

The text was agreed as proposed by the Commission, with the above-mentioned changes and

including the suggestions made in the opinion of the Consultative Working Group.

  • 6. 
    Proposal for a directive of the European Parliament and of the Council on co-ordination of

safeguards which, for the protection of the interests of members and third parties, are required

by Member States of companies within the meaning of the second paragraph of Article 48 of the

Treaty, with a view to making such safeguards equivalent (codified version) Master copy: FR

doc. 6047/08 CODIF 11 CODEC 136 FIN 39 2008/0022 (COD)

Annex I, part B of the proposal should be corrected to read as follows concerning Dir.

68/151/EEC:

Directive Date limite de transposition 68/151/CEE 11 septembre 1969

The text was agreed as proposed by the Commission, with the above-mentioned change and including the suggestions made in the opinion of the Consultative Working Group.

  • 7. 
    Proposal for a Council Regulation on the application of the Protocol on the excessive deficit

procedure annexed to the Treaty establishing the European Community (Codified version)

Master copy: EN

doc. 6656/1/08 REV 1 CODIF 19 UEM 76 2008/0034 (COD)

UK and IT made the following comments, which are summarized hereafter together with the Commission's replies.

UK, IT : Recital 1 of Regulation (EC) No. 3605/93

the words "whereas any revision of ESA will be decided by the Council in accordance with the rules on competence and procedure laid down in the Treaty" should not be omitted in

the adapted text of Recital (2) of the proposal. The reference to the legal base, in this case

the Treaty, shows the importance of this provision in the historical context.

Cion: In the present case recitals of the existing regulation have been adapted so as to provide a motivation of currently applicable provisions of the act as amended. The final

sentence of the first recital of Council Regulation (EC) No 3605/93 has been omitted in the

codified version of the regulation since it appears neither to motivate any of the existing

provisions nor to bear any direct relevance to the contents of the act (see point 10 of the

Joint Practical Guide for the drafting of Community legislation). On the contrary, that

sentence only contains a generic and redundant statement regarding the fact that any

revision of the "ESA" should be made in accordance with applicable rules on competence

and procedure, which can probably be considered to be rather self-evident and therefore

clearly superfluous.

UK: Recital 2 of Regulation No 475/2000

asks why the words "must not" were replaced by "should not", so that Recital 3 of the proposal now reads: "...Therefore, financial derivatives should not be included with the

liabilities making up government debt for the purposes of the Protocol on the excessive

deficit procedure"

Cion: Recitals "shall not contain normative provisions [...]", and the statement of reasons

contained in recitals "uses non-mandatory language [...]" (see point 10 of the Joint Practical Guide). Therefore, Recital no. 3 of the codification proposal has been adapted so as to avoid use of normative language.

UK: Recital 3 of Regulation (EC) No. 351/2002:

asks why the wording of Recital 3: "Regulation...has changed the classification of interest

flows under swap contracts and forward rate agreements (FRAs)... while stating at the same

time the need for a specific treatment of these flows for the data transmitted under the

excessive deficit procedure" has been adapted to read, in recital 4 of the proposal: "Under

ESA 95, interest flows under swap contracts and forward rate agreements (FRAs) are to be

classified in the financial account and require specific treatment as regards the data

transmitted under the excessive deficit procedure."

Cion: accepts that in Recital (4) before the words "the data" the adapted wording "as

regards" be replaced by the word "for", which appears in the original version of Recital no. 3 of Commission Regulation (EC) No 351/2002 .

IT: Recital 3 of the proposal

the words "must not" cannot be replaced by "should not". Even if the Commission argues with the use of drafting techniques, the words "must not" could have been replaced by "shall

not", these latter words being used in other parts of the proposal.

Cion: Recitals "shall not contain normative provisions [...]", and the statement of reasons contained in recitals "uses non-mandatory language [...]" (see point 10 of the Joint Practical

Guide. Therefore, in Recital no. 3 of the codification proposal the wording appearing in the

original version of Recital no. 2 of Council Regulation (EC) No 475/2000 has been adapted

so as to avoid use of normative language. Neither the expression "must not" nor the

equivalent expression "shall not" are acceptable in the wording of a recital.

IT: Recital 3 of the proposal

the last part of Recital 2 of Regulation 475/2000 should not have been deleted: "...for iabilities which are subject to agreements fixing the exchange rate, this rate should be taken

into account in the conversion into national currency ", this wording being essential, as

otherwise the technical content of the provision corresponding to Art. 1(5) of Regulation

475/2000 would appear mechanical and it would not be understandable.

Cion: Accepts that in Recital no. 3 of the codification proposal the final sentence of Recital no. 2 of Council Regulation (EC) No 475/2000 be introduced as requested by IT.

UK, IT: final recital of Regulation (EC) No. 3605/93: the wording of the final Recital: "Whereas, pursuant to Article 104c (2) and (3) of the

Treaty, the Commission is to monitor the development of the budgetary situation and of the

stock of government debt in the Member States and to examine compliance with budgetary

discipline on the basis of criteria relating to government deficit and government debt;

whereas, if a Member State does not fulfil the requirements under one or both criteria, the

Commission must take into account all relevant factors; whereas the Commission has to

examine whether there is a risk of an excessive deficit in a Member State" should not have

been omitted in the proposal, considering the fundamental importance of the words "the

Commission must take into account all relevant factors ...". IT suggests that, alternatively,

the proposal should include wording of Regulation 1056/2005 or quote this Regulation),

which contains a similar wording in its Recital (7).

Cion: the wording of the final recital of Council Regulation (EC) No 3605/93 paraphrases

certain provisions contained in the Treaty article that constitutes the legal basis for the codification proposal. In compliance with principles of good legislative technique, such quotes are generally to be avoided in the statement of reasons for a Community act.

Regulation (EC) No 1056/2005 does not contain any amendments to Regulation (EC) No 3605/93. Therefore, recitals contained in the preamble to Regulation (EC) No 1056/2005

and motivating the provisions of that regulation should not be introduced into the preamble

to the codified version of Regulation (EC) No 3605/93.

UK: Article 1 point 1 of Regulation 2103/2005:

asks why the word "shall" has been replaced by the word "must" so that Article 2(2) of the

proposal now reads: "The planned data together with the actual data shall form a consistent

time series as far as the definitions and concepts are concerned."

Cion: The adaptation has been made in compliance with currently applicable rules of legislative drafting.

IT, UK: Art 1. pt 4 adapted of Regulation (EC) No. 2103/2005 concerning Article 8d and 8e of Regulation (EC) No. 3605/93 (now adapted in Art. 11 (2) and (3) of the

proposal)

The codification proposal has re-ordered the text, which could potentially change its

meaning. The previous text is in the order below:

"The methodological visits should only be undertaken in cases where substantial risks or potential problems with the quality of the data are identified, especially as they relate to the

methods, concepts and classification applied to the data, which Member States are obliged

to report.

The dialogue visits are designed to review reported data, to examine methodological issues, to discuss statistical processes and sources described in the inventories, and to assess

compliance with the accounting rules. The dialogue visits should be used to identify risks or

potential problems about the quality of the reported data.

The methodological visits are designed to monitor the processes and the government accounts which justify the reported actual data and to draw detailed conclusions as to the

quality of reported data, as defined in Article 8a(1). The methodological visits should not go

beyond the purely statistical domain. This should be reflected in the composition of the

delegations referred to in Article 8e."

Cion: The proposed re-ordering of certain provisions currently contained in Article 8d of Council Regulation (EC) No 3605/93 is a mere formal adaptation without altering the

substance of the provisions concerned.

The existing structure of Article 8d was slightly adapted, in order to present the provisions contained in that article in a more coherent manner. The first and second sentences of the

first paragraph, as well as the third paragraph, were presented in the same position and were

respectively renumbered as paragraph (1) and paragraph (4) of Article 11. The two other

paragraphs of Article 11 re-group the remaining provisions currently contained in the third

sentence of the first paragraph and in the second paragraph of Article 8d. In view of the

reference made to certain dialogue visits and to certain methodological visits in the second

sentence of the first paragraph of Article 8d (corresponding to Article 11(1), second

sentence, in the codification proposal), the first and second sentence of the second paragraph

of Article 8d, both dealing with dialogue visits, were presented as paragraph (2) in the

codified text; similarly, the third sentence of the first paragraph and the third and fourth

sentence of the second paragraph of Article 8d, all dealing with methodological visits, were

presented as paragraph (3) in the codified text.

IT: Article 12(2) of the proposal

asks why he wording "...These visits shall be confined...is different from the original Art. 1(4) of Regulation 2103/2005, which uses the word "should" instead. It is necessary to

maintain the word "should" in order to allow the participation of Member States´ experts in

the visits, which would otherwise be confined to the national authorities, whose task it is to

communicate with EUROSTAT.

Cion: The word "should" has been replaced with the word "shall" in compliance with the rules of good legislative drafting. The language used for drafting the enacting terms of a

legal act should always have a mandatory character, which corresponds to the word "shall",

while the word "should" is deemed to constitute a non-mandatory expression that should

appear only in recitals.

Furthermore, it was agreed that Recital 4 of the proposal should read as follows: Under ESA 95, interest flows under swap contracts and forward rate agreements (FRAs) are to be classified in the financial account and require specific treatment

as regards for the data transmitted under the excessive deficit procedure.

The text was agreed as proposed by the Commission, with the above-mentioned changes to Recitals 3 and 4 and including the suggestions made in the opinion of the Consultative

Working Group, subject to UK and IT reserves. These delegations are invited to inform the

Council Secretariat by 27 May 2008 whether they can lift these reserves.

  • 8. 
    Proposal for a Council Regulation establishing common rules for exports (Codified version)

Master copy: FR

doc. 6912/08 CODIF 23 COMER 42

doc. 6912/08 COR 1 CODIF 23 COMER 42 2008/0034 (ACC)

The opinion of the Consultative Working Group is not available as yet. It will suggest the

updates to Annex I of this proposal which are necessary to bring it in line with the latest

Regulation on CN codes (Regulation (EC) No 1214/2007).

  • 9. 
    Proposal for a Council directive on the marketing of material for the vegetative propagation of

the vine (codified version) Master copy: EN

doc. 6913/08 CODIF 24 AGRILEG 32 AGRIORG 17 2008/0039 (CNS)

The text was agreed as proposed by the Commission, the Consultative Working Party not having made any suggestions in its opinion.

  • 10. 
    Proposal for a Council directive concerning veterinary checks in intra-Community trade

(codified version) Master copy: EN

doc. 6914/08 CODIF 25 AGRILEG 33 2008/0037 (CNS)

IT, ES, PT : Article 5(5) contains the obligation for the Council to re-examine Article 5 before 1 July 1995, acting on the basis of a Commission report. This date appears to be

obsolete and should be removed.

Cion: It is not clear whether, to date, there has been a Commission report on this subject, or whether the Council has fulfilled its obligation although a Commission report exists. This

obligation could still be relevant in court proceedings. Thus, in conformity with standing

practice, the date should be left in the proposal. AT : supports the Cion.

The text will therefore be further discussed at the meeting of the June CWP.

  • 11. 
    Proposal for a Directive of the European Parliament and of the Council relating to insurance

against civil liability in respect of the use of motor vehicles, and the enforcement of the

obligation to insure against such liability (codified version) Master copy: FR

doc. 7395/08 CODIF 28 CODEC 335 SURE 9 2008/0049 (COD)

On 23 April 2008, the Secretariat received written replies from the Commission to the

horizontal comments by delegations, which are summarized hereafter.

AT: the recitals of the proposal should be re-examined, since some of them have been

shortened or omitted completely (e.g. Recital 8 no longer contains 'les législations nationales

peuvent prévoir des dérogations pour certaines personnes et pour certains types de

véhicules'...).

Cion: according to point 10 of the Joint Practical Guide for the drafting of Community

legislation, "the purpose of the recitals is to set out concise reasons for the chief provisions

of the enacting terms [...]"; in point 10.1 it is indicated that "the `recitals' are the part of the

act which contains the statement of reasons for the act [...]", and point 10.5 confirms the

statement according to which "the recitals should state concisely the reasons for the main

provisions of the enacting terms of the act"; moreover, it is stated in point 10.7 that "any recital not serving to give the reasons for the enacting terms should be omitted [...]".

Following this approach, in the present case recitals of the existing directives have been

carefully selected, and if necessary adapted, so as to provide a motivation of currently

applicable provisions of those acts as amended.

However, Recital 18 should be adapted to read as follows: "In the case of an accident caused by an uninsured vehicle, the body which compensates victims of accidents caused by

uninsured or unidentified vehicles is better placed than the victim to bring an action against

the party liable. Therefore, it should be provided that this body cannot require that the

victim, if he is to be compensated, should establish that the party liable is unable or refuses

to pay".

FI : Recital 3

Instead of: "Each Member State must take all necessary measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by

insurance."

read as follows: "Each Member State must take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by

insurance."

Reason: Term appropriate is more extensive than term necessary. Amending the old term is not reasonable. It might inflict unexpected changes of substance.

Cion: accepts the proposed adaptation, already suggested by the Consultative Working

Party in its opinion relating to that proposal.

SK : Recital 16

Instead of the word "uninsured" (non assurés) use the word "unidentified" (non identifié).

Reasons: this recital concerns the circumstances in which damage is caused to the property. Art. 10(3) of the Proposal describes the same issue and it uses the term "unidentified", not

the term "uninsured".

Cion: cannot accept this adaptation since the proposed rewording would refer to uninsured vehicles that are already referred to in Recital no. 17. Recital no. 16 could adapted to read as

follows: "In order to alleviate the financial burden on that body, Member States may make

provision for the application of certain excesses where the body provides compensation for

damage to property caused by vehicles stolen or obtained by violence".

FI : Recital 24

This recital relates to particular situations. It should be placed after the recital number 25, which is a general provision.

Cion: accepts that the order of Recitals nos. 24 and 25 be inverted.

FI : Recital 42

The sentence "In order to make it easier for the party to seek compensation, the information

centers set up should be able to provide information concerning any motor vehicle

accident." should be placed after the recital number 43, which presents the basis for the

obligation to set up these information centres.

Cion: the sentence in question should be deleted from the text of Recital no. 42, and the wording of the first sentence of Recital no. 43 should be adapted so as to read as follows: "In

the interest of such injured parties, Member States should set up information centres to

ensure that such information is made available promptly and concerning any motor vehicle

accident".

FI : Recital 44

This recital should be placed after the recital number 11 since they both relate to the right to act in derogation from the general obligation to take out compulsory insurance.

Cion : cannot accept that the proposed adaptation. Recital 44 clearly relates to the obligation

of the national Information Centres to keep a record of exempted vehicles and/or persons.

Recital 44 therefore refers to the set of rules found in Art. 23 of the codified proposal and

should be kept among the recitals relating to national Information Centres.

IT : Article 9(1) second subparagraph

Instead of: '10 June 2012" Read as follows: '11 June 2012'.

Cion: agrees with IT ; the date should be corrected so as to read "11 June 2012".

FI, AT, SK, IT : Article 9(1) last subparagraph Instead of: "However, until the 10 December 2008 at the latest...

Read as follows: "However, until the 10 December 2009 at the latest..." (for IT it should be 11 December 2009).

Reason: Article 1 of Directive 84/5/EEC is replaced by the provisions of Article 2 of Directive 2005/14/EC which reads as follows: "Within 30 months of the date of

implementation of Directive 2005/14/EC Member States shall increase guarantees to at

least a half of the levels provided for in this paragraph". The deadline for implementation

ended on 11 June 2007. Thirty months from that date stands for 10 December 2009.

Cion : agrees that the date should read "11 December 2009".

FI : Article 11, second subparagraph

Instead of: "If it is decided that the other party should have paid all or..."

Read as follows: "If it is ultimately decided that the other party should have paid all or..."

Cion: accepts that the suggested adaptation of Article 11, second subparagraph.

FI, Article 12(2)

Instead of: "The members of the family of the policyholder,...." Read as follows: "The members of the family of the insured person,..."

Reason: Amending the old term might entail a change of substance.

Cion: accepts the proposed re-wording of Article 12(2).

FI : Article 17 (title)

Instead of: "Franchises" Read as follows: "Excess"

Reason: The headline is out of focus since the article relates to prohibition to rely on excesses.

Cion : accepts the suggested change of the title of Article 17.

PL: Chapter 7(title)

This chapter covers also vehicles which cannot be identified and which are not insured. Both

of this type of vehicles are not part of Article 3.

Cion : The title of chapter 7 should remain unchanged. It is true that Article 25, which is

part of chapter 7, provides for the intervention of national compensation bodies in cases

where the accident was caused by either an uninsured or an unidentified vehicle, but this

should be seen as an additional and exceptional task to the main task of compensation

bodies under Art. 24 in respect of insured vehicles.

PL: Article 19 (title)

The title does not seem to be adequate since the settlement of claims is also covered by Chapter 4 and Article 22.

Cion : title of Article 19 is adequate. The reasoned offer procedure of Article 19 (to be read

in conjunction with Article 22) applies only to accidents caused by vehicles covered by

insurance. It does not oblige national guarantee funds under Chapter 4.

PL: Article 24 (title) (Article 5(2), 10)

the use of 'compensation body/body responsible for compensation' should be checked and be

used in a consistent way throughout the text.

Cion : in order to deal with the apparent inconsistency pointed out by the Polish

government, the sixth and of the seventh sentence of Recital no. 11 should be adapted so as

to read as follows: "Indeed, compensation to victims of accidents caused by uninsured

vehicles should be paid by the guarantee fund of the Member State in which the accident

took place. Where payments are made to victims of accidents caused by vehicles subject to

the derogation, the guarantee fund should have a claim against the guarantee fund of the

Member State in which the vehicle is normally based". Furthermore, Article 5(2), third

subparagraph, should be adapted so as to read as follows: "The guarantee fund referred to in

Article 10(1) of the Member State in which the accident has taken place shall then have a

claim against the guarantee fund provided for in Article 10(1) in the Member State where

the vehicle is normally based".

The delegations which raised horizontal questions are invited to inform the Council

Secretariat (Codification) by 27 May 2008 whether they maintain a reserve on points raised

by them on which the Commission disagreed. All other delegations are invited to inform the

Council Secretariat by 27 May 2008 if they disagree with any of the changes to the text

following from the suggestions which were accepted by the Commission. Failing such

notification, these changes will be deemed to be agreed by the Working Party.

____________________

2.

Originele weergave

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3.

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