Inhaltsverzeichnis - European Parliament · Web view1a Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market

United in diversity

TEXTS ADOPTEDPART IIIat the sitting of

Tuesday11 March 2014

P7_TA-PROV(2014)03-11 PROVISIONAL EDITION PE 531.356

EN EN

EUROPEAN PARLIAMENT 2013 - 2014

CONTENTS

TEXTS ADOPTED

P7_TA-PROV(2014)0190Information accompanying transfers of funds ***I(A7-0140/2014 - Rapporteur: Mojca Kleva Kekuš, Timothy Kirkhope)European Parliament legislative resolution of 11 March 2014 on the proposal for a regulation of the European Parliament and of the Council on information accompanying transfers of funds (COM(2013)0044 – C7-0034/2013 – 2013/0024(COD)).......................1

P7_TA-PROV(2014)0191Prevention of the use of the financial system for the purpose of money laundering and terrorist financing ***I(A7-0150/2014 - Rapporteurs: Krišjānis Kariņš, Judith Sargentini)European Parliament legislative resolution of 11 March 2014 on the proposal for a directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (COM(2013)0045) – C7-0032/2013 – 2013/0025(COD)).................................................32

P7_TA-PROV(2014)0192EU guarantee to EIB against losses under financing operations supporting investment projects outside the Union ***I(A7-0392/2013 - Rapporteur: Ivailo Kalfin)European Parliament legislative resolution of 11 March 2014 on the proposal for a decision of the European Parliament and of the Council on granting an EU guarantee to the European Investment Bank against losses under financing operations supporting investment projects outside the Union (COM(2013)0293 – C7-0145/2013 – 2013/0152(COD)).............................................................................................................106

P7_TA-PROV(2014)0193Genetic Resources ***I(A7-0263/2013 - Rapporteur: Sandrine Bélier)European Parliament legislative resolution of 11 March 2014 on the proposal for a regulation of the European Parliament and of the Council on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union (COM(2012)0576 – C7-0322/2012 – 2012/0278(COD))................................................167

P7_TA-PROV(2014)0194Roadworthiness tests for motor vehicles and their trailers ***I(A7-0210/2013 - Rapporteur: Werner Kuhn)European Parliament legislative resolution of 11 March 2014 on the proposal for a regulation of the European Parliament and of the Council on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC (COM(2012)0380 – C7-0186/2012 – 2012/0184(COD))................................................213

PE 531.356\ I

EN

P7_TA-PROV(2014)0190

Information accompanying transfers of funds ***I

European Parliament legislative resolution of 11 March 2014 on the proposal for a regulation of the European Parliament and of the Council on information accompanying transfers of funds (COM(2013)0044 – C7-0034/2013 – 2013/0024(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2013)0044),

– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0034/2013),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Central Bank of 17 May 20131,

– having regard to the opinion of the European Economic and Social Committee of 11 November 20132,

– having regard to Rules 55 of its Rules of Procedure,

– having regard to the joint deliberations of the Committee on Economic and Monetary Affairs and the Committee on Civil Liberties, Justice and Home Affairs under Rule 51 of the Rules of Procedure,

– having regard to the report of the Committee on Economic and Monetary Affairs and the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Development and the Committee on Legal Affairs (A7-0140/2014),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

1 OJ C 166, 12.6.2013, p. 2.2 OJ C 271, 19.9.2013, p. 31.

1

Amendment 1

Proposal for a regulationRecital 1

Text proposed by the Commission Amendment

(1) Flows of dirty money through transfers of funds can damage the stability and reputation of the financial sector and threaten the internal market. Terrorism shakes the very foundations of our society. The soundness, integrity and stability of the system of transfers of funds and confidence in the financial system as a whole could be seriously jeopardised by the efforts of criminals and their associates either to disguise the origin of criminal proceeds or to transfer funds for terrorist purposes.

(1) Flows of illicit money damage the structure, stability and reputation of the financial sector and threaten the internal market as well as international development, and directly or indirectly undermine the confidence of citizens in the rule of law. The funding of terrorism and organised crime remains a significant problem which should be addressed at Union level. Terrorism and organised crime damage the democratic institutions and shake the very foundations of our society. Crucial facilitators of illicit money flows are secretive corporate structures operating in and through secrecy jurisdiction, often also referred to as tax havens. The soundness, integrity and stability of the system of transfers of funds and confidence in the financial system as a whole is being seriously jeopardised by the efforts of criminals and their associates either to disguise the origin of criminal proceeds or to transfer funds for criminal activities or terrorist purposes.

Amendment 2



(2) In order to facilitate their criminal activities, money launderers and terrorist financers could try to take advantage of the freedom of capital movements entailed by the integrated financial area, unless certain coordinating measures are adopted at Union level. By its scale, Union action should ensure that Recommendation 16 on wire transfers of the Financial Action Task Force (FATF), adopted in February 2012 is transposed uniformly throughout

(2) In order to facilitate their criminal activities, money launderers and terrorist financers are taking advantage of the freedom of capital movements entailed by the integrated financial area, unless certain coordinating measures are adopted at Union and international level. International cooperation within the framework of the Financial Action Task Force (FATF) and the global implementation of its recommendations

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the Union, and, in particular, that there is no discrimination between national payments within a Member State and cross border payments between Member States. Uncoordinated action by Member States alone in the field of cross border transfers of funds could have a significant impact on the smooth functioning of payment systems at Union level and therefore damage the internal market in the field of financial services.

aim to prevent regulatory arbitrage and the distortion of competition. By its scale, Union action should ensure that FATF Recommendation 16 on wire transfers adopted in February 2012 is transposed uniformly throughout the Union, and, in particular, that there is no discrimination or discrepancy between national payments within a Member State and cross border payments between Member States. Uncoordinated action by Member States alone in the field of cross border transfers of funds could have a significant impact on the smooth functioning of payment systems at Union level and therefore damage the internal market in the field of financial services.

Amendment 3

Proposal for a regulationRecital 2 a (new)


(2a) The implementation and enforcement of this Regulation, including FATF Recommendation 16, should not result in unjustified or disproportionate costs for payment service providers and citizens who use their services, and the free movement of legal capital should be fully guaranteed throughout the Union.

Amendment 4



(5) In order to foster a coherent approach in the international context in the field of combating money laundering and terrorist financing, further Union action should take account of developments at that level, namely the International Standards on combating money-laundering and the financing of terrorism and proliferation adopted in 2012 by the FATF, and in

(5) In order to foster a coherent approach in the international context and make the fight against money laundering and terrorist financing more efficient, further Union action should take account of developments at that level, namely the International Standards on combating money-laundering and the financing of terrorism and proliferation adopted in 2012

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particular Recommendation 16 and the revised interpretative note for its implementation.

by the FATF, and in particular Recommendation 16 and the revised interpretative note for its implementation.

Amendment 5



(5a) Particular attention should be paid to the Union obligations set out in Article 208 TFEU in order to stem the increasing trend of money laundering activities being moved from developed countries with stringent anti-money laundering rules to developing countries where rules may be less stringent.

Amendment 6



(6) The full traceability of transfers of funds can be a particularly important and valuable tool in the prevention, investigation and detection of money laundering or terrorist financing. It is therefore appropriate, in order to ensure the transmission of information throughout the payment chain, to provide for a system imposing the obligation on payment service providers to have transfers of funds accompanied by information on the payer and the payee.

(6) The full traceability of transfers of funds can be a particularly important and valuable tool in the prevention, investigation and detection of money laundering or terrorist financing. It is therefore appropriate, in order to ensure the transmission of information throughout the payment chain, to provide for a system imposing the obligation on payment service providers to have transfers of funds accompanied by information on the payer and the payee, which should be accurate and updated. In that regard, it is essential for financial institutions to report adequate, accurate and up-to-date information with respect to transfers of funds carried out for their clients to enable the competent authorities to prevent money laundering and terrorist financing more effectively.

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Amendment 7



(7) The provisions of this Regulation apply without prejudice to national legislation implementing Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data19 . For example, personal data collected for the purpose of complying with this Regulation should not be further processed in a way inconsistent e with Directive 95/46/EC. In particular, further processing for commercial purposes should be strictly prohibited. The fight against money laundering and terrorist financing is recognised as an important public interest ground by all Member States. Hence, in the application of this Regulation, the transfer of personal data to a third country which does not ensure an adequate level of protection in the meaning of Article 25 of Directive 95/46/EC should be permitted according to Article 26 (d) of the same Directive.

(7) The provisions of this Regulation apply without prejudice to national legislation implementing Directive 95/46/EC of the European Parliament and of the Council19. For example, personal data collected for the purpose of complying with this Regulation should not be further processed in a way inconsistent e with Directive 95/46/EC. In particular, further processing for commercial purposes should be strictly prohibited. The fight against money laundering and terrorist financing is recognised as an important public interest ground by all Member States. Hence, in the application of this Regulation, the transfer of personal data to a third country which does not ensure an adequate level of protection in the meaning of Article 25 of Directive 95/46/EC should be permitted according to Article 26 (d) of the same Directive. It is important that payment service providers operating in multiple jurisdictions with branches or subsidiaries located outside the Union are not unreasonably prevented from sharing information about suspicious transactions within the same organisation. This is without prejudice to international agreements between the Union and third countries which aim to combat money laundering including appropriate safeguards for citizens ensuring an equivalent or adequate level of protection.

__________________ __________________19 OJ L 281, 23.11.1995, p. 31. 19 Directive 95/46/EC of the European

Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

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Amendment 8



(9) It is appropriate to exclude from the scope of this Regulation transfers of funds that represent a low risk of money laundering or terrorist financing. Such exclusions should cover credit or debit cards, mobile telephones or other digital or information technology (IT) devices, Automated Teller Machine (ATM) withdrawals, payments of taxes, fines or other levies, and transfers of funds where both the payer and the payee are payment service providers acting on their own behalf. In addition, in order to reflect the special characteristics of national payment systems, Member States may exempt electronic giro payments, provided that it is always possible to trace the transfer of funds back to the payer. However, there must be no exemption when a debit or credit card, a mobile telephone or other digital or IT prepaid or postpaid device is used in order to effect a person-to-person transfer.

(9) It is appropriate to exclude from the scope of this Regulation transfers of funds that represent a low risk of money laundering or terrorist financing. Such exclusions should cover credit or debit cards, mobile telephones or other digital or information technology (IT) devices, Automated Teller Machine (ATM) withdrawals, payments of taxes, fines or other levies, and transfers of funds where both the payer and the payee are payment service providers acting on their own behalf. In addition, in order to reflect the special characteristics of national payment systems, Member States may exempt electronic giro payments, provided that it is always possible to trace the transfer of funds back to the payer, as well as transfers of funds carried out through cheque image exchanges or bills of exchange. However, there must be no exemption when a debit or credit card, a mobile telephone or other digital or IT prepaid or postpaid device is used in order to effect a person-to-person transfer. Taking into account the dynamically evolving technological progress, consideration should be given to extend the scope of the Regulation to cover e-money and other new payment methods.

Amendment 9



(10) In order not to impair the efficiency of payment systems, the verification requirements for transfers of funds made from an account should be separate from those for transfers of funds not made from

(10) Payment service providers should ensure that the information on the payer and the payee is not missing or incomplete. In order not to impair the efficiency of payment systems, the

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an account. In order to balance the risk of driving transactions underground by imposing overly strict identification requirements against the potential terrorist threat posed by small transfers of funds, the obligation to check whether the information on the payer is accurate should, in the case of transfers of funds not made from an account, be imposed only in respect of individual transfers of funds that exceed EUR 1 000,. For transfers of funds made from an account, payment service providers should not be required to verify information on the payer accompanying each transfer of funds, where the obligations under Directive [xxxx/yyyy] have been met.

verification requirements for transfers of funds made from an account should be separate from those for transfers of funds not made from an account. In order to balance the risk of driving transactions underground by imposing overly strict identification requirements against the potential terrorist threat posed by small transfers of funds, the obligation to check whether the information on the payer is accurate should, in the case of transfers of funds not made from an account, be restricted only to the name of the payer for individual transfers of funds of up to EUR 1 000. For transfers of funds made from an account, payment service providers should not be required to verify information on the payer accompanying each transfer of funds, where the obligations under Directive [xxxx/yyyy] have been met.

Amendment 10



(12a) The authorities responsible for combating money laundering and terrorist financing, and relevant judicial and law enforcement agencies in the Member States, should intensify cooperation with each other and with the relevant third-country authorities, including developing countries, in order further to strengthen transparency, the sharing of information and best practices. The Union should support capacity-building programmes in developing countries to facilitate that cooperation. Systems for collecting evidence and making available data and information relevant to the investigation of offences should be improved, without in any way infringing the principles of subsidiarity or proportionality, or fundamental rights, in the Union.

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Amendment 11

Proposal for a regulationRecital 12 b (new)


(12b) The payment service providers of the payer, the payee and the intermediary service providers should have in place appropriate technical and organisational measures to protect personal data against accidental loss, alteration, unauthorised disclosure or access.

Amendment 12



(14) In order to check whether the required information on the payer and the payee accompanies transfers of funds, and to help to identify suspicious transactions, the payment service provider of the payee and the intermediary payment service provider should have effective procedures in place in order to detect whether information on the payer and the payee is missing.

(14) In order to check whether the required information on the payer and the payee accompanies transfers of funds, and to help to identify suspicious transactions, the payment service provider of the payee and the intermediary payment service provider should have effective procedures in place in order to detect whether information on the payer and the payee is missing or incomplete, in particular if numerous payment services are involved to improve the traceability of transfers of funds. Effective checks that the information is available and is complete, in particular where several payment service providers are involved, can help make investigation procedures less time consuming and more effective, which, in turn, improves the traceability of transfers of funds. Competent authorities in the Member States should thus ensure that payment service providers include the required transaction information with the wire transfer or related message throughout the payment chain.

8

Amendment 13



(15) Owing to the potential terrorist financing threat posed by anonymous transfers, it is appropriate to require payment service providers to request information on the payer and the payee. In line with the risk based approach developed by FATF, it is appropriate to identify areas of higher and lower risk with a view to better targeting money laundering and terrorist financing risks. Accordingly, the payment service provider of the payee and the intermediary service provider should establish effective risk-based procedures for cases where a transfer of funds lacks the required payer and payee information, in order to decide whether to execute, reject or suspend that transfer and what appropriate follow-up action to take. Where the payment service provider of the payer is established outside the territory of the Union, enhanced customer due diligence should be applied, in accordance with Directive [xxxx/yyyy], in respect of cross-border correspondent banking relationships with that payment service provider.

(15) Owing to the potential terrorist financing threat posed by anonymous transfers, it is appropriate to require payment service providers to request information on the payer and the payee. In line with the risk based approach developed by FATF, it is appropriate to identify areas of higher and lower risk with a view to better targeting money laundering and terrorist financing risks. Accordingly, the payment service provider of the payee and the intermediary service provider should establish effective risk-based procedures and assess and weigh risks so that resources can be explicitly steered towards high-risk areas of money laundering. Such effective risk-based procedures for cases where a transfer of funds lacks the required payer and payee information will help payment service providers to decide more effectively whether to execute, reject or suspend that transfer and what appropriate follow-up action to take. Where the payment service provider of the payer is established outside the territory of the Union, enhanced customer due diligence should be applied, in accordance with Directive [xxxx/yyyy], in respect of cross-border correspondent banking relationships with that payment service provider.

Amendment 14



(17) The provisions on transfers of funds where information on the payer or the payee is missing or incomplete apply without prejudice to any obligations on

(17) The provisions on transfers of funds where information on the payer or the payee is missing or incomplete apply without prejudice to any obligations on

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payment service providers and the intermediary payment service providers to suspend and/or reject transfers of funds which violate provisions of civil, administrative or criminal law.

payment service providers and the intermediary payment service providers to suspend and/or reject transfers of funds which violate provisions of civil, administrative or criminal law. The need for identity information on payer or the payee of individuals, legal persons, trusts, foundations, mutual societies, holdings and other similar existing or future legal arrangements is a key factor in tracing criminals who might otherwise hide their identity behind corporate structure.

Amendment 15



(18) Until technical limitations that may prevent intermediary payment service providers from satisfying the obligation to transmit all the information they receive on the payer are removed, those intermediary payment service providers should keep records of that information. Such technical limitations should be removed as soon as payment systems are upgraded.

(18) Until technical limitations that may prevent intermediary payment service providers from satisfying the obligation to transmit all the information they receive on the payer are removed, those intermediary payment service providers should keep records of that information. Such technical limitations should be removed as soon as payment systems are upgraded. In order to overcome technical limitations, the use of the SEPA credit transfer scheme could be encouraged in interbank transfers between Member States and third countries.

Amendment 16



(19) Since in criminal investigations it may not be possible to identify the data required or the individuals involved until many months, or even years, after the original transfer of funds and in order to be able to have access to essential evidence in the context of investigations, it is appropriate to require payment service providers to

(19) Since in criminal investigations it may not be possible to identify the data required or the individuals involved until many months, or even years, after the original transfer of funds and in order to be able to have access to essential evidence in the context of investigations, it is appropriate to require payment service providers to

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keep records of information on the payer and the payee for the purposes of preventing, investigating and detecting money laundering or terrorist financing. This period should be limited.

keep records of information on the payer and the payee for the purposes of preventing, investigating and detecting money laundering or terrorist financing. This period should be limited to five years, after which all personal data should be deleted, unless national law provides otherwise. Such further retention should be permitted only if necessary for the prevention, detection or investigation of money laundering and terrorist financing and should not exceed ten years. Payment service providers should ensure that data retained under this Regulation is used only for the purposes described herein.

Amendment 17



(23) In order to ensure uniform conditions for the implementation of Articles XXX 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 Member States of the Commission's exercise of implementing powers24.

(23) In order to ensure uniform conditions for the implementation of Chapter V 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 Council24.

__________________ __________________24 OJ L 55, 28.2.2011, p. 13. 24 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 Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

Amendment 18

Proposal for a regulationArticle 2 – paragraph 1 – point 3

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(3) ‘payer’ means a natural or legal person who either carries out a transfer of funds from his or her own account or who places an order for a transfer of funds;

(3) 'payer' means a payer as defined in Article 4(7) of Directive 2007/64/EC of the European Parliament and of the Council1a;

_______________1a Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ L 187, 18.7.2009, p. 5).

Amendment 19



(4) ‘payee’ means a natural or legal person who is the intended recipient of transferred funds;

(4) 'payee' means a payee as defined in Article 4(8) of Directive 2007/64/EC;

Amendment 20



(5) ‘payment service provider’ means a natural or legal person who provides the service of transferring funds in his or her professional capacity;

(5) 'payment service provider' means a payment service provider as defined in Article 4(9) of Directive 2007/64/EC;

Amendment 21



(7) ‘transfer of funds’ means any transaction carried out by electronic means on behalf of a payer through a payment

(7) ‘transfer of funds’ means any transaction carried out by electronic means on behalf of a payer through a payment

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service provider, with a view to making funds available to a payee through a payment service provider, irrespective of whether the payer and the payee are the same person;

service provider, with a view to making funds available to a payee through a payment service provider, in particular ‘money remittance services’ and ‘direct debit’ within the meaning of Directive 2007/64/EC, irrespective of whether the payer and the payee are the same person;

Amendment 22



(10) ‘a person-to-person’ transfer of funds means a transaction between two natural persons.

(10) 'a person-to-person' transfer of funds means a transaction between two natural persons, who, as consumers, act for purposes other than their trade, business or profession.

Amendment 23

Proposal for a regulationArticle 3 – paragraph 2 – subparagraph 1 – introductory part


2. This Regulation shall not apply to transfers of funds carried out using a credit or debit card, or a mobile telephone or any other digital or information technology (IT) device, where the following conditions are fulfilled:

2. This Regulation shall not apply to transfers of funds carried out using a credit, debit or prepaid card or voucher, or a mobile telephone, e-money, or any other digital or information technology (IT) device defined in Directive 2014/.../EU [PSD], where the following conditions are fulfilled:

Amendment 24

Proposal for a regulationArticle 3 – paragraph 2 – subparagraph 1 – point a


(a) the card or device is used to pay goods and services;

(a) the card or device is used to pay goods and services to a company within professional trade or business;

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Amendment 25

Proposal for a regulationArticle 3 – paragraph 2 – subparagraph 2


However, this Regulation shall apply when a credit or debit card, or a mobile telephone, or any other digital or IT device is used in order to effect a person-to-person transfer of funds.

However, this Regulation shall apply when a credit, debit or prepaid card or voucher, or a mobile telephone, e-money or any other digital or information technology (IT) device is used in order to effect a person-to-person transfer of funds.

Amendment 26

Proposal for a regulationArticle 3 – paragraph 3 – subparagraph 1 a (new)


This Regulation shall not apply to natural or legal persons who have no activity other than to convert paper documents into electronic data and who act under a contract with a payment service provider as well as any natural or legal persons who have no activity other than to provide payment service providers with messaging or other support systems for transmitting funds or with clearing and settlement systems.

Amendment 27

Proposal for a regulationArticle 4 – paragraph 1 – point c


(c) the payer's address, or national identity number, or customer identification number, or date and place of birth.

(c) the payer's address, or customer identification number, or date and place of birth.

Amendment 28

Proposal for a regulationArticle 4 – paragraph 3

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3. Before transferring the funds, the payment service provider of the payer shall verify the accuracy of the information referred in paragraph 1 on the basis of documents, data or information obtained from a reliable and independent source.

3. Before transferring the funds, the payment service provider of the payer shall apply customer due diligence measures in accordance with Directive (xxxx/yyyy) and shall verify the accuracy and completeness of the information referred in paragraph 1 on the basis of documents, data or information obtained from a reliable and independent source.

Amendment 29



5. However, by way of derogation from paragraph 3, in the case of transfers of funds not made from an account, the payment service provider of the payer shall not verify the information referred to in paragraph 1 if the amount does not exceed EUR 1 000 and it does not appear to be linked to other transfers of funds which, together with the transfer in question, exceed EUR 1 000.

5. However, by way of derogation from paragraph 3, in the case of transfers of funds not made from an account, the payment service provider of the payer is required to verify at least the name of the payer for transfers of funds of up to EUR 1 000, but shall verify the complete information relating to the payer and the payee referred to in paragraph 1 where the transaction is carried out in several operations that appear to be linked or where they exceed EUR 1 000.

Amendment 30



1. By way of derogation from Article 4(1) and (2), where the payment service provider(s) of both the payer and the payee are established in the Union, only the account number of the payer or his unique transaction identifier shall be provided at the time of the transfer of funds.

1. By way of derogation from Article 4(1) and (2), where the payment service provider(s) of both the payer and the payee are established in the Union, only the full name and the account number of the payer and the payee or the unique transaction identifier shall be required to be provided at the time of the transfer of funds, without prejudice to the information requirements laid down in Article 5(2)(b) and (3)(b) of

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Regulation (EU) No 260/2012.

Amendment 31



2. Notwithstanding paragraph 1, the payment service provider of the payer shall, upon request from the payment service provider of the payee or the intermediary payment service provider, make available the information on the payer or the payee in accordance with Article 4, within three working days of receiving that request.

2. Notwithstanding paragraph 1, the payment service provider of the payer shall, in the case of an identified higher risk as referred to in the Article 16(2) or (3) of, or in Annex III to, Directive [xxxx/yyyy], require the complete information relating to the payer and to the payee or, upon request from the payment service provider of the payee or the intermediary payment service provider, make available the information on the payer or the payee in accordance with Article 4, within three working days of receiving that request.

Amendment 32

Proposal for a regulationArticle 6 – paragraph 2 – subparagraph 1 – introductory part


By way of derogation from Article 4(1) and (2), where the payment service provider of the payee is established outside the Union, transfers of funds amounting to EUR 1 000 or less shall be accompanied only by:

By way of derogation from Article 4(1) and (2), where the payment service provider of the payee is established outside the Union, transfers of funds amounting to EUR 1 000 or less shall be accompanied by:

Amendment 33



1. The payment service provider of the payee shall detect whether the fields relating to the information on the payer and the payee in the messaging system or the payment and settlement system used to

1. The payment service provider of the payee shall detect whether the fields relating to the information on the payer and the payee in the messaging system or the payment and settlement system used to

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effect the transfer of funds, have been filled in using the characters or inputs admissible within the conventions of that system.

effect the transfer of funds, have been filled in using the characters or inputs admissible to the internal risk-based established anti-abuse procedures within the conventions of that messaging or payment and settlement system.

Amendment 34



4. For transfers amounting to EUR 1 000 or less, where the payment service provider of the payer is established outside the Union, the payment service provider of the payee need not verify the information pertaining to the payee, unless there is a suspicion of money laundering or terrorist financing.

4. For transfers amounting to EUR 1 000 or less, where the payment service provider of the payer is established outside the Union, the payment service provider of the payee need not verify the information pertaining to the payee, unless there is a suspicion of money laundering or terrorist financing.

Member States may reduce or waive the threshold where the national risk assessment has advised that checks of transfers of funds not made from an account be intensified. Member States making use of this derogation shall inform the Commission thereof.

Amendment 35

Proposal for a regulationArticle 7 – paragraph 4 a (new)


4a. Where the payment service provider of the payer is established in a third country which presents an increased level of risk, enhanced customer due diligence shall be applied, in accordance with Directive [xxxx/yyyy], in respect of cross-border correspondent banking relationships with that payment service provider.

Amendment 36


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1. The payment service provider of the payee shall establish effective risk-based procedures for determining when to execute, reject or suspend a transfer of funds lacking the required payer and payee information and the appropriate follow up action.

1. The payment service provider of the payee shall establish effective risk-based procedures, based on the identified risks in Article 16(2) of, and Annex III to, Directive [xxxx/yyyy], for determining when to execute, reject or suspend a transfer of funds lacking the required complete payer and payee information and the appropriate follow up action.

Amendment 37

Proposal for a regulationArticle 8 – paragraph 1 – subparagraph 1 a (new)


1a. In any event, the payment service provider of the payer and the payment service provider of the payee shall comply with any applicable law or administrative provisions relating to money laundering and terrorist financing, in particular Regulation (EC) No 2580/2001, Regulation (EC) No 881/2002 and Directive [xxxx/yyyy].

Amendment 38



If the payment service provider of the payee becomes aware, when receiving transfers of funds, that information on the payer and the payee required under Articles 4(1) and (2), 5(1) and 6 is missing or incomplete, it shall either reject the transfer or ask for complete information on the payer and the payee.

If the payment service provider becomes aware, when receiving transfers of funds, that information on the payer and the payee required under Articles 4(1) and (2), 5(1) and 6 is missing or incomplete or has not been completed using the characters or inputs admissible within the conventions of the messaging or payment and settlement system, it shall either reject the transfer or suspend it and ask for complete information on the payer and the payee before executing the payment transaction.

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Amendment 39



2. Where a payment service provider regularly fails to supply the required information on the payer, the payment service provider of the payee shall take steps, which may initially include the issuing of warnings and setting of deadlines, before either rejecting any future transfers of funds from that payment service provider or deciding whether or not to restrict or terminate its business relationship with that payment service provider.

2. Where a payment service provider regularly fails to supply the required complete information on the payer, the payment service provider of the payee shall take steps, which may initially include the issuing of warnings and setting of deadlines, before either rejecting any future transfers of funds from that payment service provider or deciding whether or not to restrict or terminate its business relationship with that payment service provider.

Amendment 40

Proposal for a regulationArticle 9


The payment service provider of the payee shall consider missing or incomplete information on the payer and the payee as a factor in assessing whether the transfer of funds, or any related transaction, is suspicious, and whether it must be reported to the Financial Intelligence Unit.

The payment service provider of the payee shall in accordance with the payment service providers risk-based procedures consider missing or incomplete information on the payer and the payee as one of the factors in assessing whether the transfer of funds, or any related transaction, is suspicious, and whether it must be reported to the Financial Intelligence Unit. The payment service provider shall, in its effective risk-based procedures, also focus on, and take appropriate measures regarding, other risk factors as identified in Article 16(3) of, and Annex III to, Directive [xxxx/yyyy].

Amendment 41

Proposal for a regulationArticle 11 – paragraph 2 – introductory part

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2. The intermediary payment service provider shall have effective procedures in place in order to detect whether the following information on the payer and the payee is missing:

2. The intermediary payment service provider shall have effective procedures in place in order to detect whether the following information on the payer and the payee is missing or incomplete:

Amendment 42



1. The intermediary payment service provider shall establish effective risk-based procedures for determining when to execute, reject or suspend a transfer of funds lacking the required payer and payee information and the appropriate follow up action.

1. The intermediary payment service provider shall establish effective risk-based procedures for determining whether the information received on the payer and the payee is missing or incomplete and shall undertake appropriate follow up action.

Amendment 43



If the intermediary payment service provider becomes aware, when receiving transfers of funds, that information on the payer and the payee required under Articles 4(1) and (2), 5(1) and 6 is missing or incomplete, it shall either reject the transfer or ask for complete information on the payer and the payee.

If the intermediary payment service provider becomes aware, when receiving transfers of funds, that information on the payer and the payee required under Articles 4(1) and (2), 5(1) and 6 is missing or incomplete or has not been completed using the characters or inputs admissible in accordance with the conventions of the messaging or payment and settlement system, it shall either reject the transfer or suspend it and ask for complete information on the payer and the payee before executing the payment transaction.

Amendment 44

Proposal for a regulationArticle 15 – title

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Cooperation obligations Cooperation obligations and equivalence

Amendment 45



1. Payment service providers shall respond fully and without delay, in accordance with the procedural requirements established in the national law of the Member State in which they are established, to enquiries from the authorities responsible for combating money laundering or terrorist financing of that Member State concerning the information required under this Regulation.

1. Payment service providers and intermediary payment service providers shall respond fully and without delay, in accordance with the procedural requirements established in the national law of the Member State in which they are established, to enquiries exclusively from the authorities responsible for combating money laundering or terrorist financing of that Member State concerning the information required under this Regulation. Specific safeguards shall be put in place in order to ensure that such exchanges of information comply with data protection requirements. No other external authorities or parties shall have access to the data stored by the payment service providers.

Amendment 46

Proposal for a regulationArticle 15 – paragraph 1 – point 1 a (new)


1a. Because a great proportion of illicit financial flows ends up in tax havens, the Union should increase its pressure on those countries to cooperate in order to combat such illicit financial flows and improve transparency.

Amendment 47

Proposal for a regulationArticle 15 – paragraph 1 b (new)

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1b. Payment service providers established in the Union shall apply this Regulation with regard to their subsidiaries and branches operating in third countries that are not deemed equivalent.

The Commission shall be empowered to adopt delegated acts in accordance with Article 22a concerning the recognition of the legal and supervisory framework of jurisdictions outside the Union as equivalent to the requirements of this Regulation.

Amendment 48

Proposal for a regulationArticle 15 a (new)


Article 15a

Data Protection

1. With regard to the processing of personal data within the framework of this Regulation, payment service providers shall carry out their tasks for the purposes of this Regulation in accordance with national law transposing Directive 95/46/EC.

2. Payment service providers shall ensure that data retained under this Regulation is used only for the purposes described herein and that it is in no case used for commercial purposes.

3. Data protection authorities shall have powers, including the indirect access powers, to investigate, either ex officio or based on a complaint, any claims as regards problems with personal data processing. This should include particularly access to the data file at the payment service provider and competent national authorities.

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Amendment 49

Proposal for a regulationArticle 15 b (new)


Article 15b

Transfer of personal data to third countries or international organisations

The transfer of personal data to a third country, or to an international organisation, which does not ensure an adequate level of protection within the meaning of Article 25 of Directive 95/46/EC, may take place only if:

(a) appropriate data protection measures and safeguards are put in place; and

(b) the supervisory authority has, after assessing those measure and safeguards, given prior authorisation for the transfer.

Amendment 50



The payment service provider of the payer and the payment service provider of the payee shall keep records of the information referred to in Articles 4, 5, 6 and 7 for five years. In the cases referred to in Article 14(2) and (3), the intermediary payment service provider must keep records of all information received for five years. Upon expiry of this period, personal data must be deleted, unless otherwise provided for by national law, which shall determine under which circumstances payment service providers may or shall further retain data. Member States may allow or require further retention only if necessary for the prevention, detection or investigation of money laundering and terrorist financing. The maximum retention period following carrying-out of the transfer of funds shall

Information on the payer and the payee shall not be kept any longer than strictly necessary. The payment service provider of the payer and the payment service provider of the payee shall keep records of the information referred to in Articles 4, 5, 6 and 7 for a maximum period of five years. In the cases referred to in Article 14(2) and (3), the intermediary payment service provider must keep records of all information received for five years. Upon expiry of this period, personal data must be deleted. Member States may allow or require retention for a further period only in exceptional situations, where justified and where reasons have been given, and only if necessary for the prevention, detection or investigation of money laundering and terrorist financing. The

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not exceed ten years. maximum retention period following carrying-out of the transfer of funds shall not exceed ten years and the storage of personal data shall comply with national law transposing Directive 95/46/EC.

Amendment 51



The payment service providers of the payer, the payee and the intermediary service providers, shall have in place appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access.

Amendment 52



The information collected on the payer or the payee by the payment service providers of the payer, the payee and the intermediary payment service providers shall be deleted following expiry of the retention period.

Amendment 53



Article 16a

Access to information and confidentiality

1. Payment service providers shall ensure that the information collected for the purposes of this Regulation is accessible

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only to designated persons or limited to persons strictly necessary for the completion of the undertaken risk.

2. Payment service providers shall ensure that the confidentiality of the data processed is respected.

3. Individuals who have access to and who are dealing with personal data of the payer or the payee, shall respect the confidentiality of the data processes as well as the data protection requirements.

4. Competent authorities shall ensure that specific data protection training is provided to persons who regularly collect or process personal data.

Amendment 54

Proposal for a regulationArticle 18 – paragraph 1 – point a


(a) repeated non-inclusion of required information on the payer and payee, in breach of Articles 4, 5 and 6;

(a) repeated non-inclusion of required information on the payer and payee by a payment service provider, in breach of Articles 4, 5 and 6;

Amendment 55

Proposal for a regulationArticle 18 – paragraph 1 – point c a (new)


(ca) serious failure by intermediary payment service providers to comply with Articles 11 and 12.

Amendment 56



Administrative sanctions and measures imposed in the cases referred to in Articles

The competent authorities shall publish administrative sanctions and measures

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17 and 18(1) shall be published without undue delay including information on the type and nature of the breach and the identity of persons responsible for it, unless such publication would seriously jeopardise the stability of financial markets.

imposed in the cases referred to in Articles 17 and 18(1) without undue delay including information on the type and nature of the breach and the identity of persons responsible for it if necessary and proportionate after a case-by-case evaluation.

Amendment 57



2a. Where the competent authority of a Member State imposes or applies an administrative penalty or other measure in accordance with Articles 17 and 18, it shall notify EBA of that penalty or measure and of the circumstances under which it was imposed or applied. EBA shall include such notification in the central database of administrative penalties established in accordance with Article 69 of Directive 2013/36/EU of the European Parliament and of the Council1a and shall apply to it the same procedures as for all other published penalties.

_____________________1a Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).

Amendment 58



1. Member States shall establish effective mechanisms to encourage reporting of

1. Member States shall establish effective mechanisms to encourage reporting of

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breaches of the provisions of this Regulation to competent authorities.

breaches of the provisions of this Regulation to competent authorities. Appropriate technical and organisational measures shall be implemented to protect data against accidental or unlawful destruction, accidental loss, alteration, or unlawful disclosure.

Amendment 59

Proposal for a regulationArticle 21 – paragraph 2 – point b


(b) appropriate protection for persons who report potential or actual breaches;

(b) appropriate protection for whistleblowers and persons who report potential or actual breaches;

Amendment 60



3. The payment service providers shall establish appropriate procedures for their employees to report breaches internally through a specific channel.

3. The payment service providers in cooperation with the competent authorities shall establish internal appropriate procedures for their employees to report breaches internally through a secure, independent and anonymous channel.

Amendment 61



Member States shall require competent authorities to effectively monitor, and take necessary measures with a view to ensuring, compliance with the requirements of this Regulation.

Member States shall require competent authorities to effectively monitor, and take necessary measures with a view to ensuring, compliance with the requirements of this Regulation. EBA may issue guidelines, in accordance with Article 16 of Regulation (EU) No 1093/2010, on the processes for

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implementing this Regulation, taking into account the best practices of Member States.

Amendment 62



1a. The Commission shall coordinate and carefully monitor the application of this Regulation with regard to payment service providers outside the Union and shall strengthen cooperation, where appropriate, with third-country authorities responsible for investigating and penalising breaches under Article 18.

Amendment 63



1b. By 1 January 2017, the Commission shall submit a report to the European Parliament and to the Council on the application of Chapter IV, with particular regard to cross-border cases, third-country payment service providers and their national competent authorities’ execution of investigatory and penalising powers. Should there be a risk of a breach relating to the storage of data, the Commission shall take appropriate and effective action, including submitting a proposal to amend this Regulation.

Amendment 64



Article 22a

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Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 15(1a) shall be conferred on the Commission for an indeterminate period of time from the date referred to in Article 26.

3. The delegation of power referred to in Article 15(1a) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of that decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 15(1a) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council.

Amendment 65



2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No

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182/2011 shall apply. 182/2011 shall apply, provided that implementing provisions adopted under the procedure set out therein do not alter the basic provisions of this Regulation.

Amendment 66

Proposal for a regulationArticle 24 – title


Agreements with territories or countries mentioned in Article 355 of the Treaty

Agreements with territories or countries not mentioned in Article 355 of the Treaty

Amendment 67



1. The Commission may authorise any Member State to conclude agreements with a country or territory which does not form part of the territory of the Union mentioned in Article 355 of the Treaty, which contain derogations from this Regulation, in order to allow for transfers of funds between that country or territory and the Member State concerned to be treated as transfers of funds within that Member State.

1. Without prejudice to Article 15(1a), the Commission may, in cases in which equivalence has been substantiated, authorise any Member State to conclude agreements with a country or territory which does not form part of the territory of the Union mentioned in Article 355 of the Treaty, which contain derogations from this Regulation, in order to allow for transfers of funds between that country or territory and the Member State concerned to be treated as transfers of funds within that Member State.

Amendment 68



3a. For authorised decisions relating to dependent or associated territories already in place, uninterrupted continuation shall be ensured, namely Commission Implementing Decision 2012/43/EU1a, Commission Decision 2010/259/EC1b, and

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Commission Decision 2008/982/EC1c.

______________1a Commission Implementing Decision 2012/43/EU of 25 January 2012 authorising the Kingdom of Denmark to conclude agreements with Greenland and the Faeroe Islands for transfers of funds between Denmark and each of these territories to be treated as transfers of funds within Denmark, pursuant to Regulation (EC) No 1781/2006 of the European Parliament and of the Council (OJ L 24, 27.1.2012, p. 12).1b Commission Decision 2010/259/EC of 4 May 2010 authorising the French Republic to conclude an agreement with the Principality of Monaco for transfers of funds between the French Republic and the Principality of Monaco to be treated as transfers of funds within the French Republic, pursuant to Regulation (EC) No 1781/2006 of the European Parliament and of the Council (OJ L 112, 5.5.2010, p. 23).1c Commission Decision 2008/982/EC of 8 December 2008 authorising the United Kingdom to conclude an agreement with the Bailwick of Jersey, the Bailiwick of Guernsey and the Isle of Man for transfers of funds between the United Kingdom, pursuant to Regulation (EC) No 1781/2006 of the European Parliament and of the Council (OJ L 352, 31.12.2008, p. 34).

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P7_TA-PROV(2014)0191

Prevention of the use of the financial system for the purpose of money laundering and terrorist financing ***I

European Parliament legislative resolution of 11 March 2014 on the proposal for a directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (COM(2013)0045) – C7-0032/2013 – 2013/0025(COD))



– having regard to the Commission proposal to Parliament and the Council (COM(2013/0045)),



– having regard to the opinion of the European Central Bank of 17 May 20131

– having regard to the opinion of the European Economic and Social Committee of 23 May 20132,

– having regard to commitments made at the G8 Summit of June 2013 in Northern Ireland;

– having regard to the Commission's recommendations of 6 December 2012 on aggressive tax planning;

– having regard to the OECD Secretary General Progress Report to the G20 on 5 September 2013;

– having regard to the opinion of the Economic and Monetary Affairs Committee of 9 December 2013 on the proposal for a directive amending Council Directive 78/660/EEC and 84/349/EEC as regards disclosure and non-financial and diversity information by certain large companies as groups;

– having regard to Rule 55 of its Rules of Procedure,

– having regard to the joint deliberations of the Committee on Economic and Monetary Affairs and the Committee on Civil Liberties, Justice and Home Affairs under Rule 51 of the Rules of Procedure,

1 OJ C 166, 12.6.2013, p. 2.2 OJ C 271, 19.9.2013, p. 31.

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– having regard to the report of the Committee on Economic and Monetary Affairs and the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Development and the Committee on Legal Affairs (A7-0150/2014),




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Amendment 1

Proposal for a directiveRecital 1


(1) Massive flows of dirty money can damage the stability and reputation of the financial sector and threaten the single market, and terrorism shakes the very foundations of our society. In addition to the criminal law approach, a preventive effort via the financial system can produce results.

(1) Massive flows of illicit money can damage the stability and reputation of the financial sector and threaten the single market and international development. Terrorism shakes the very foundations of our society. The key facilitators of illicit money flows are secretive corporate structures operating in and through secrecy jurisdiction, often also referred to as tax havens. In addition to further developing the criminal law approach at Union level, prevention via the financial system is indispensable and can produce complementary results. However, the preventive approach should be targeted and proportional, and should not result in the establishment of a comprehensive system for controlling the entire population.

Amendment 2



(2) The soundness, integrity and stability of credit and financial institutions and confidence in the financial system as a whole could be seriously jeopardised by the efforts of criminals and their associates either to disguise the origin of criminal proceeds or to channel lawful or unlawful money for terrorist purposes. In order to facilitate their criminal activities, money launderers and terrorist financers could try to take advantage of the freedom of capital movements and the freedom to supply financial services which the integrated financial area entails, if certain coordinating measures are not adopted at

(2) The soundness, integrity and stability of credit and financial institutions and confidence in the financial system as a whole could be seriously jeopardised by the efforts of criminals and their associates either to disguise the origin of criminal proceeds or to channel lawful or unlawful money for terrorist purposes. In order to facilitate their criminal activities, money launderers and terrorist financers could try to take advantage of the freedom of capital movements and the freedom to supply financial services which the integrated financial area entails. Therefore, certain coordinating measures are necessary at

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Union level. Union level. At the same time, the objectives of protection of society from criminals and protection of the stability and integrity of the European financial system should be balanced against the need to create a regulatory environment that allows companies to grow their businesses without incurring disproportionate compliance costs. Any requirement imposed on obliged entities to fight money laundering and terrorist financing should therefore be justified and proportionate.

Amendment 3



(3) The current proposal is the fourth Directive to deal with the threat of money laundering. Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering25 defined money laundering in terms of drugs offences and imposed obligations solely on the financial sector. Directive 2001/97/EC of the European Parliament and of the Council of December 2001 amending Council Directive 91/308/EEC26 extended the scope both in terms of the crimes covered and the range of professions and activities covered. In June 2003 the Financial Action Task Force (hereinafter referred to as the FATF) revised its Recommendations to cover terrorist financing, and provided more detailed requirements in relation to customer identification and verification, the situations where a higher risk of money laundering may justify enhanced measures and also situations where a reduced risk may justify less rigorous controls. These changes were reflected in Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money

(3) The current proposal is the fourth Directive to deal with the threat of money laundering. Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering25 defined money laundering in terms of drugs offences and imposed obligations solely on the financial sector. Directive 2001/97/EC of the European Parliament and of the Council of December 2001 amending Council Directive 91/308/EEC26 extended the scope both in terms of the crimes covered and the range of professions and activities covered. In June 2003 the Financial Action Task Force (hereinafter referred to as the FATF) revised its Recommendations to cover terrorist financing, and provided more detailed requirements in relation to customer identification and verification, the situations where a higher risk of money laundering may justify enhanced measures and also situations where a reduced risk may justify less rigorous controls. These changes were reflected in Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money

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laundering and terrorist financing27 and Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis28.

laundering and terrorist financing27 and Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis28. In implementing the FATF Recommendations, the Union should fully respect its data protection law, as well as the Charter of Fundamental Rights of the European Union and of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

__________________ __________________25 OJ L 166, 28.6.1991, p. 77. 25 OJ L 166, 28.6.1991, p. 77.26 OJ L 344, 28.12.2001, p. 76. 26 OJ L 344, 28.12.2001, p. 76.27 OJ L 309, 25.11.2005, p. 15. 27 OJ L 309, 25.11.2005, p. 15.28 OJ L 214, 4.8.2006, p. 29. 28 OJ L 214, 4.8.2006, p. 29.

Amendment 4



(4) Money laundering and terrorist financing are frequently carried out in an international context. Measures adopted solely at national or even European Union level, without taking account of international coordination and cooperation, would have very limited effects. The measures adopted by the European Union in this field should therefore be consistent with other action undertaken in other international fora. The European Union action should continue to take particular account of the Recommendations of the FATF, which constitutes the foremost international body active in the fight against money laundering and terrorist financing. With the view to reinforce the

(4) Money laundering and terrorist financing are frequently carried out in an international context. Measures adopted solely at national or even European Union level, without taking account of international coordination and cooperation, would have very limited effects. The measures adopted by the European Union in this field should therefore be compatible with and at least as stringent as other action undertaken in the international fora. Avoiding tax and mechanisms of non-disclosure and concealment can be used as strategies employed in money laundering and terrorist financing in order to avoid detection. The European Union action should continue to take

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efficacy of the fight against money laundering and terrorist financing, Directives 2005/60/EC and 2006/70/EC should be aligned with the new FATF Recommendations adopted and expanded in February 2012.

particular account of the Recommendations of the FATF, and other international bodies active in the fight against money laundering and terrorist financing. With the view to reinforce the efficacy of the fight against money laundering and terrorist financing, Directives 2005/60/EC and 2006/70/EC should, where appropriate, be aligned with the new FATF Recommendations adopted and expanded in February 2012. However, it is essential for such an alignment with the non-binding FATF Recommendations to be carried out in full compliance with Union law, especially as regards Union data protection law and the protection of fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union.

Amendment 5

Proposal for a directiveRecital 4 a (new)


(4a) Particular attention should be paid to the fulfilment of the obligations set out in Article 208 of the Treaty on the Functioning of the European Union, which requires coherence in development cooperation policy, in order to stem the increasing trend of money laundering activities being moved from developed countries to developing countries with less stringent anti-money laundering legislation.

Amendment 6

Proposal for a directiveRecital 4 b (new)


(4b) In view of the fact that illicit financial flows, and in particular money laundering, represent, in developing countries, between 6 and 8,7 % of their

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GDP28a, which is an amount 10 times larger than the assistance by the Union and its Member States to the developing world, the measures taken to combat money laundering and terrorist financing need to be coordinated and to take into account the Union's and the Member States' development strategy and policies which aim to fight against capital flight.

____________28a Sources: "Tax havens and development. Status, analyses and measures", NOU, Official Norwegian Reports, 2009.

Amendment 7



(5) Furthermore, the misuse of the financial system to channel criminal or even clean money to terrorist purposes poses a clear risk to the integrity, proper functioning, reputation and stability of the financial system. Accordingly, the preventive measures of this Directive should cover not only the manipulation of money derived from crime but also the collection of money or property for terrorist purposes.

(5) Furthermore, the misuse of the financial system to channel criminal or even clean money to terrorist purposes poses a clear risk to the integrity, proper functioning, reputation and stability of the financial system. Accordingly, the preventive measures of this Directive should cover the manipulation of money derived from serious crime and the collection of money or property for terrorist purposes.

Amendment 8



(5a) Irrespective of the penalties provided for in the Member States, the primary objective of all measures taken under this Directive should be to combat all practices which result in substantial illegal profits being generated. It should do so by taking all possible steps to prevent the financial system from being used to launder these

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profits.

Amendment 9



(6) The use of large cash payments is vulnerable to money laundering and terrorist financing. In order to increase vigilance and mitigate the risks posed by cash payments natural or legal persons trading in goods should be covered by this Directive to the extent that they make or receive cash payments of EUR 7 500 or more. Member States may decide to adopt stricter provisions including a lower threshold.

(6) The use of large cash payments is vulnerable to money laundering and terrorist financing. In order to increase vigilance and mitigate the risks posed by cash payments natural or legal persons should be covered by this Directive to the extent that they make or receive cash payments of EUR 7 500 or more. Member States may decide to adopt stricter provisions including a lower threshold.

Amendment 10



(6a) Electronic money products are increasingly used as a substitute for having a bank account. The issuers of such products should be under a strict obligation to prevent money laundering and terrorist financing. However, electronic money products may be exempted from customer due diligence, if certain accumulative conditions are fulfilled. The use of electronic money that is issued without performing customer due diligence should only be allowed for the purchase of goods and services from merchants and providers who are identified and whose identification is verified by the electronic money issuer. For person-to-person transfers, the use of electronic money without performing customer due diligence should not be allowed. The amount stored electronically should be sufficiently small in order to avoid loopholes and to make sure that a

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person cannot obtain an unlimited amount of anonymous electronic money products.

Amendment 11



(6b) Real estate agents are active in many different ways in the field of property transactions in the Member States. In order to reduce the risk of money-laundering in the property sector they should be included in the scope of this Directive if they are involved in financial transactions relating to property as part of their professional activities.

Amendment 12



(9) It is important to expressly highlight that ‘tax crimes’ related to direct and indirect taxes are included in the broad definition of ‘criminal activity’ under this Directive in line with the revised FATF Recommendations.

(9) It is important to expressly highlight that ‘tax crimes’ related to direct and indirect taxes are included in the definition of ‘criminal activity’ under this Directive in line with the revised FATF Recommendations. The European Council of 23 May 2013 stated the need to deal with tax evasion and fraud and to fight money laundering in a comprehensive manner, both within the internal market and vis-à-vis non-cooperative third countries and jurisdictions. Agreeing on a definition of tax crimes is an important step in detecting those crimes, as too is public the disclosure of certain financial information by large companies operating in the Union on a country-by-country basis. It is also important to ensure that obliged entities and legal professionals, as defined by Member States, do not seek to frustrate the intent of this Directive or to facilitate or to engage in aggressive tax

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planning.

Amendment 13



(9a) Member States should introduce General Anti-Avoidance Rules (GAAR) on tax matters with a view to curbing aggressive tax planning and avoidance in accordance with the European Commission's recommendations on Aggressive Tax Planning on December 12th 2012 and the OECD Progress Report to the G20 on 5 September 2013.

Amendment 14



(9b) When they are performing or facilitating commercial or private transactions, entities which have a specific role in the financial system, such as the European Investment Bank, the European Bank for Reconstruction and Development, the Central Banks of the Member States and Central Settlement Systems should, as far as possible, observe the rules applicable to other obliged entities adopted pursuant to this Directive.

Amendment 15



(10) There is a need to identify any natural person who exercises ownership or control over a legal person. While finding a percentage shareholding will not automatically result in finding the

(10) There is a need to identify any natural person who exercises ownership or control over a legal person. While finding a specific percentage shareholding will not automatically result in finding the

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beneficial owner, it is an evidential factor to be taken into account. Identification and verification of beneficial owners should, where relevant, extend to legal entities that own other legal entities, and should follow the chain of ownership until the natural person who exercises ownership or control of the legal person that is the customer is found.

beneficial owner, it is one factor among others for the identification of the beneficial owner. Identification and verification of beneficial owners should, where relevant, extend to legal entities that own other legal entities, and should follow the chain of ownership until the natural person who exercises ownership or control of the legal person that is the customer is found.

Amendment 16



(11) The need for accurate and up-to-date information on the beneficial owner is a key factor in tracing criminals who might otherwise hide their identity behind a corporate structure. Member States should therefore ensure that companies retain information on their beneficial ownership and make this information available to competent authorities and obliged entities. In addition, trustees should declare their status to obliged entities.

(11) It is important to ensure, and to enhance, the traceability of payments. The existence of accurate and up-to-date information on the beneficial owner of any legal entity, such as legal persons, trusts, foundations, holdings and all other similar existing or future legal arrangements is a key factor in tracing criminals who might otherwise hide their identity behind a corporate structure. Member States should therefore ensure that companies retain information on their beneficial ownership and make adequate, accurate and up-to-date information available through central public registers, accessible on-line and in an open and secure data format, in accordance with Union data protection rules and the right to privacy as enshrined in the Charter of Fundamental Rights of the European Union. Access to such registers should be granted to competent authorities, in particular FIUs and obliged entities, as well as to the public subject to prior identification of the person wishing to access the information and to the possible payment of a fee. In addition, trustees should declare their status to obliged entities.

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Amendment 17



(11a) The establishment of beneficial ownership registers by Member States would significantly improve the fight against money laundering, terrorist financing, corruption, tax crimes, fraud and other financial crimes. This could be achieved by improving the operations of the existing business registers in the Member States. It is vital that registers are interconnected if effective use is to be made of the information contained therein, due to the cross-border nature of business transactions. The interconnection of business registers across the Union is already required by Directive 2012/17/EU of the European Parliament and of the Council28b and should be further developed.

________________28b Directive 2012/17/EU of the European Parliament and of the Council of 13 June 2012 amending Council Directive 89/666/EEC and Directives 2005/56/EC and 2009/101/EC of the European Parliament and of the Council as regards the interconnection of central, commercial and companies register (OJ L 156, 16.6.2012, p. 1).

Amendment 18



(11b) Technological progress has provided tools which enable obliged entities to verify the identity of their customers when certain transactions occur. Such technological improvements provide time-effective and cost-effective

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solutions to businesses and to customers and should therefore be taken into account when evaluating risk. The competent authorities of Member States and obliged entities should be proactive in combating new and innovative ways of money laundering, while respecting fundamental rights, including the right to privacy and data protection.

Amendment 19



(12a) The representatives of the Union in the governing bodies of the EBRD should encourage the EBRD to implement the provisions of this Directive and to publish on its website an anti-money laundering policy, containing detailed procedures that would give effect to this Directive.

Amendment 20



(13) The use of the gambling sector to launder the proceeds of criminal activity is of concern. In order to mitigate the risks related to the sector and to provide parity amongst the providers of gambling services, an obligation for all providers of gambling services to conduct customer due diligence for single transactions of EUR 2 000 or more should be laid down. Member States should consider applying this threshold to the collection of winnings as well as wagering a stake. Providers of gambling services with physical premises (e.g. casinos and gaming houses) should ensure that customer due diligence, if it is taken at the point of entry to the premises, can be linked to the transactions conducted by the customer on those premises.

(13) The use of the gambling sector to launder the proceeds of criminal activity is of concern. In order to mitigate the risks related to the sector and to provide parity amongst the providers of gambling services, an obligation for providers of gambling services to conduct customer due diligence for single transactions of EUR 2 000 or more should be laid down. When carrying out that due diligence a risk based approach should be adopted that reflects the different risks for different types of gambling services and whether they represent a high or low risk for money laundering. The special characteristics of different types of gambling should also be taken into account, by, for example, differentiating

44

between casinos, on-line gambling or other providers of gambling services. Member States should consider applying this threshold to the collection of winnings as well as wagering a stake. Providers of gambling services should ensure that customer due diligence, if it is taken at the point of entry can be linked to the transactions conducted by the customer.

Amendment 21



(13a) Money laundering is becoming increasingly sophisticated and also includes illegal, and sometimes legal, betting, in particular in relation to sporting events. New forms of lucrative organised crime like match-fixing have arisen and have developed into a profitable form of criminal activity related to money laundering.

Amendment 22



(14) The risk of money laundering and terrorist financing is not the same in every case. Accordingly, a risk-based approach should be used. The risk-based approach is not an unduly permissive option for Member States and obliged entities. It involves the use of evidence-based decision making to better target the money laundering and terrorist financing risks facing the European Union and those operating within it.

(14) The risk of money laundering and terrorist financing is not the same in every case. Accordingly, a holistic risk-based approach based on minimum standards should be used. The risk-based approach is not an unduly permissive option for Member States and obliged entities. It involves the use of evidence-based decision making to better target the money laundering and terrorist financing risks facing the European Union and those operating within it.

45

Amendment 23



(15) Underpinning the risk-based approach is a need for Member States to identify, understand and mitigate the money laundering and terrorist financing risks it faces. The importance of a supra-national approach to risk identification has been recognised at international level, and the European Supervisory Authority (European Banking Authority) (hereinafter ‘EBA’), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC29 ; the European Supervisory Authority (European Insurance and Occupational Pensions Authority) (hereinafter ‘EIOPA’), established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC30 ; and the European Supervisory Authority (European Securities and Markets Authority) (hereinafter ‘ESMA’), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC31, should be tasked with issuing an opinion on the risks affecting the financial sector.

(15) Underpinning the risk-based approach is a need for Member States and the Union to identify, understand and mitigate the money laundering and terrorist financing risks it faces. The importance of a supra-national approach to risk identification has been recognised at international level, and the European Supervisory Authority (European Banking Authority) (hereinafter ‘EBA’), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC29 ; the European Supervisory Authority (European Insurance and Occupational Pensions Authority) (hereinafter ‘EIOPA’), established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC30 ; and the European Supervisory Authority (European Securities and Markets Authority) (hereinafter ‘ESMA’), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC31, should be tasked with issuing an opinion on the risks affecting the financial sector and, in cooperation with Member States, should develop minimum standards for risk assessments carried out

46

by the competent national authorities. That process should, as far as possible, involve relevant stakeholders through public consultations.

__________________ __________________29 OJ L 331, 15.12.2010, p. 12. 29 OJ L 331, 15.12.2010, p. 12.30 OJ L 331, 15.12.2010, p. 48. 30 OJ L 331, 15.12.2010, p. 48.31 OJ L 331, 15.12.2010, p. 84. 31 OJ L 331, 15.12.2010, p. 84.

Amendment 24



(16) The results of risk assessments at Member State level should, where appropriate, be made available to obliged entities to enable them to identify, understand and mitigate their own risks.

(16) The results of risk assessments should, where appropriate, be made available in a timely manner to obliged entities to enable them to identify, understand and mitigate their own risks.

Amendment 25



(17) In order to better understand and mitigate risks at European Union level, Member States should share the results of their risk assessments with each other, the Commission and EBA, EIOPA and ESMA, where appropriate.

(17) In order to better understand and mitigate risks at European Union level, a supranational risk analysis should be carried out, so that the risks of money laundering and terrorist financing to which the internal market is exposed can be identified effectively. The Commission should require the Member States to deal with scenarios considered to be high-risk in an effective way. Furthermore, Member States should share the results of their risk assessments with each other, the Commission and EBA, EIOPA, ESMA and Europol, where appropriate.

Amendment 26


47


(21) This is particularly true of business relationships with individuals holding, or having held, important public positions, particularly those from countries where corruption is widespread. Such relationships may expose the financial sector in particular to significant reputational and legal risks. The international effort to combat corruption also justifies the need to pay special attention to such cases and to apply appropriate enhanced customer due diligence measures in respect of persons who hold or have held prominent functions domestically or abroad and senior figures in international organisations.

(21) This is particularly true of relationships with individuals holding, or having held, important public positions, particularly those from countries where corruption is widespread, within the Union and internationally. Such relationships may expose the financial sector in particular to significant reputational and legal risks. The international effort to combat corruption also justifies the need to pay special attention to such cases and to apply appropriate enhanced customer due diligence measures in respect of persons who hold or have held prominent functions domestically or abroad and senior figures in international organisations.

Amendment 27



(21a) The need for enhanced customer due diligence measures in respect of persons who hold or have held prominent functions, whether domestically or abroad, and senior figures in international organisations should not, however, lead to a situation in which lists containing information on such persons are traded for commercial purposes. Member States should take appropriate measures to prohibit such activity.

Amendment 28



(22a) It is essential for the Union to develop a common approach and a common policy to deal with non-cooperative jurisdictions that perform

48

poorly in combating money laundering and terrorist financing. To that end, the Member States should act on and apply directly any lists of countries published by the FATF in their national systems to combat money laundering and terrorist financing. Furthermore, the Member States and the Commission should identify other non-cooperative jurisdictions on the basis of all information available. The Commission should develop a common approach to measures to be used to protect the integrity of the internal market against these non-cooperative jurisdictions.

Amendment 29



(24) In the case of agency or outsourcing relationships on a contractual basis between obliged entities and external natural or legal persons not covered by this Directive, any anti money laundering and anti-terrorist financing obligations for those agents or outsourcing service providers as part of the obliged entities, may only arise from contract and not from this Directive. The responsibility for complying with this Directive should remain with the obliged entity covered hereby.

(24) In the case of agency or outsourcing relationships on a contractual basis between obliged entities and external natural or legal persons not covered by this Directive, any anti money laundering and anti-terrorist financing obligations for those agents or outsourcing service providers as part of the obliged entities, may only arise from contract and not from this Directive. The responsibility for complying with this Directive should primarily remain with the obliged entity. In addition, Member States should ensure that any such third parties may be held liable for breaches of national provisions adopted pursuant to this Directive.

Amendment 30



(25) All Member States have, or should, set up financial intelligence units (hereinafter referred to as FIUs) to collect and analyse

(25) All Member States have, or should, set up operationally independent and autonomous financial intelligence units

49

the information which they receive with the aim of establishing links between suspicious transactions and underlying criminal activity in order to prevent and combat money laundering and terrorist financing. Suspicious transactions should be reported to the FIUs, which should serve as a national centre for receiving, analysing and disseminating to the competent authorities suspicious transaction reports and other information regarding potential money laundering or terrorist financing. This should not compel Member States to change their existing reporting systems where the reporting is done through a public prosecutor or other law enforcement authorities, as long as the information is forwarded promptly and unfiltered to FIUs, allowing them to perform their tasks properly, including international cooperation with other FIUs.

(hereinafter referred to as FIUs) to collect and analyse the information which they receive with the aim of establishing links between suspicious transactions and underlying criminal activity in order to prevent and combat money laundering and terrorist financing. Suspicious transactions should be reported to the FIUs, which should serve as a national centre for receiving, analysing and disseminating to the competent authorities suspicious transaction reports and other information regarding potential money laundering or terrorist financing. This should not compel Member States to change their existing reporting systems where the reporting is done through a public prosecutor or other law enforcement authorities, as long as the information is forwarded promptly and unfiltered to FIUs, allowing them to perform their tasks properly, including international cooperation with other FIUs. It is important that Member States provide FIUs with the necessary resources to ensure that they have full operational capacity to deal with the current challenges posed by money laundering and terrorist financing, while respecting fundamental rights, including the right to privacy and data protection.

Amendment 31



(26a) Since a huge proportion of illicit financial flows ends up in tax havens, the Union should increase the pressure it brings to bear on those countries to cooperate, in order to combat money laundering and terrorist financing.

Amendment 32


50


(29) There have been a number of cases of employees who report their suspicions of money laundering being subjected to threats or hostile action. Although this Directive cannot interfere with Member States' judicial procedures, this is a crucial issue for the effectiveness of the anti-money laundering and anti-terrorist financing system. Member States should be aware of this problem and should do whatever they can to protect employees from such threats or hostile action.

(29) There have been a number of cases of individuals, including employees and representatives who report their suspicions of money laundering being subjected to threats or hostile action. Although this Directive cannot interfere with Member States' judicial procedures, this is a crucial issue for the effectiveness of the anti-money laundering and anti-terrorist financing system. Member States should be aware of this problem and should do whatever they can to protect individuals, including employees and representatives from such threats or hostile action, as well as from other adverse treatment or adverse consequences, making it easier for them to report suspicions, thereby strengthening the fight against money laundering.

Amendment 33



(30a) Regulation (EC) No 45/2001 of the European Parliament and of the Council31a is applicable to the processing of personal data by the Union institutions and bodies for the purposes of this Directive.

________________31a 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 (OJ L 8, 12.1.2001, p. 1).

51

Amendment 34



(31) Certain aspects of the implementation of this Directive involve the collection, analysis, storage and sharing of data. The processing of personal data should be permitted in order to comply with the obligations laid down in this Directive, including carrying out of customer due diligence, ongoing monitoring, investigation and reporting of unusual and suspicious transactions, identification of the beneficial owner of a legal person or legal arrangement, sharing of information by competent authorities and sharing of information by financial institutions. The personal data collected should be limited to what is strictly necessary for the purpose of complying with the requirements of this Directive and not further processed in a way inconsistent with Directive 95/46/EC. In particular, further processing of personal data for commercial purposes should be strictly prohibited.

(31) Certain aspects of the implementation of this Directive involve the collection, analysis, storage and sharing of data. The processing of personal data should be permitted in order to comply with the obligations laid down in this Directive, including carrying out of customer due diligence, ongoing monitoring, investigation and reporting of unusual and suspicious transactions, identification of the beneficial owner of a legal person or legal arrangement, identification of a politically exposed person, sharing of information by competent authorities and sharing of information by financial institutions and obliged entities. The personal data collected should be limited to what is strictly necessary for the purpose of complying with the requirements of this Directive and not further processed in a way inconsistent with Directive 95/46/EC. In particular, further processing of personal data for commercial purposes should be strictly prohibited.

Amendment 35



(32) The fight against money-laundering and terrorist financing is recognised as an important public interest ground by all Member States.

(32) The fight against money-laundering and terrorist financing is recognised as an important public interest ground by all Member States. The eradication of such phenomena requires a resolute political will and cooperation at all levels.

Amendment 36


52


(32a) It is of the utmost importance that investment that is co-financed by the Union budget fulfils the highest standards in order to prevent financial crimes including corruption and tax evasion. In 2008, the European Investment Bank therefore adopted an internal guideline entitled "Policy on preventing and deterring prohibited conduct in European Investment Bank activities" with Article 325 TFEU, Article 18 of the EIB Statute and Council Regulation (EC, Euratom) No 1605/2002 as its legal basis. Following the adoption of the policy, the EIB should report on suspicions or alleged cases of money laundering affecting EIB supported projects, operations and transactions to the Luxembourg Financial Intelligence Unit.

Amendment 37



(33) This Directive is without prejudice to the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, including the provisions of Framework decision 977/2008/JHA.

deleted

Amendment 38



(34) The rights of access of the data subject are applicable to the personal data processed for the purpose of this Directive. However, access by the data subject to information contained in a suspicious transaction report would seriously

(34) The rights of access of the data subject are applicable to the personal data processed for the purpose of this Directive. However, access by the data subject to information contained in a suspicious transaction report would seriously

53

undermine the effectiveness of the fight against money laundering and terrorist financing. Limitations to this right in accordance with the rules laid down in Article 13 of Directive 95/46/EC may therefore be justified.

undermine the effectiveness of the fight against money laundering and terrorist financing. Limitations to this right in accordance with the rules laid down in Article 13 of Directive 95/46/EC may therefore be justified. However, such limitations have to be counterbalanced by the effective powers granted to the data protection authorities, including indirect access powers, laid down in Directive 95/46/EC, enabling them to investigate, either ex officio or on the basis of a complaint, any claims concerning problems with personal data processing. This should in particular include access to the data file at the obliged entity.

Amendment 39



(37) Feedback should, where practicable, be made available to obliged entities on the usefulness and follow-up of the suspicious transactions reports they present. To make this possible, and to be able to review the effectiveness of their systems to combat money laundering and terrorist financing Member States should keep and improve the relevant statistics. To further enhance the quality and consistency of the statistical data collected at Union level, the Commission should keep track of the EU-wide situation with respect to the fight against money laundering and terrorist financing and publish regular overviews.

(37) Feedback should, whenever possible, be made available to obliged entities on the usefulness and follow-up of the suspicious transactions reports they present. To make this possible, and to be able to review the effectiveness of their systems to combat money laundering and terrorist financing Member States should keep and improve the relevant statistics. To further enhance the quality and consistency of the statistical data collected at Union level, the Commission should keep track of the EU-wide situation with respect to the fight against money laundering and terrorist financing and publish regular overviews. The Commission should also include in its overviews an evaluation of national risk assessments. The first overview by the Commission should be carried out within one year from the date of entry into force of this Directive.

Amendment 40


54


(37a) Member States should not only ensure that obliged entities comply with the relevant rules and guidelines, but should also have systems in place that actually minimise the risks of money laundering within those entities.

Amendment 41



(37b) To be able to review the effectiveness of their systems to combat money laundering and terrorist financing, Member States should keep and improve the relevant statistics. In order further to enhance the quality and consistency of the statistical data collected at Union level, the Commission should keep track of the Union-wide situation with respect to the fight against money laundering and terrorist financing and should publish regular overviews.

Amendment 42



(40) Improving the exchange of information between FIUs within the EU is of particular importance to face the transnational character of money laundering and terrorist financing. The use of secure facilities for the exchange of information, especially the decentralised computer network FIU.net and the techniques offered by that network should be encouraged by Member States.

(40) Improving the exchange of information between FIUs within the EU is of particular importance to face the transnational character of money laundering and terrorist financing. The use of secure facilities for the exchange of information and the techniques offered by such facilities should be encouraged by Member States.

55

Amendment 43



(41) The importance of combating money laundering and terrorist financing should lead Member States to lay down effective, proportionate and dissuasive sanctions in national law for failure to respect the national provisions adopted pursuant to this Directive. Member States currently have a diverse range of administrative measures and sanctions for breaches of the key preventative measures. This diversity could be detrimental to the efforts put in combating money laundering and terrorist financing and the Union's response is at risk of being fragmented. This Directive should therefore include a range of administrative measures and sanctions that Member States shall have available for systematic breaches of the requirements relating to customer due diligence measures, record keeping, reporting of suspicious transactions and internal controls of obliged entities. This range should be sufficiently broad to allow Member States and competent authorities to take account of the differences between obliged entities, in particular between financial institutions and other obliged entities, as regards their size, characteristics and areas of activity. In the application of this Directive, Member States should ensure that the imposition of administrative measures and sanctions in accordance with this Directive and of criminal sanctions in accordance with national law does not breach the principle of ne bis in idem.

(41) The importance of combating money laundering and terrorist financing should lead Member States to lay down effective, proportionate and dissuasive sanctions in national law for failure to respect the national provisions adopted pursuant to this Directive. Member States currently have a diverse range of administrative measures and sanctions for breaches of the key preventative measures. This diversity could be detrimental to the efforts put in combating money laundering and terrorist financing and the Union's response is at risk of being fragmented. This Directive should therefore include a range of administrative measures and sanctions that Member States shall have available for systematic breaches of the requirements relating to customer due diligence measures, record keeping, reporting of suspicious transactions and internal controls of obliged entities. This range should be sufficiently broad to allow Member States and competent authorities to take account of the differences between obliged entities, in particular between financial institutions and other obliged entities, as regards their size, characteristics, level of risk and areas of activity. In the application of this Directive, Member States should ensure that the imposition of administrative measures and sanctions in accordance with this Directive and of criminal sanctions in accordance with national law does not breach the principle of ne bis in idem.

Amendment 44


56


(42a) To allow competent authorities and obliged entities to better evaluate the risks arising from certain transactions, the Commission should draw up a list of the jurisdictions outside the Union that have implemented rules and regulations similar to those laid down in this Directive.

Amendment 45



(46) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular, the respect for private and family life, the right to protection of personal data, the freedom to conduct a business, the prohibition of discrimination, the right to an effective remedy and to a fair trial, and the right of defence.

(46) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular, the respect for private and family life, the presumption of innocence, the right to protection of personal data, the freedom to conduct a business, the prohibition of discrimination, the right to an effective remedy and to a fair trial, and the right of defence.

Amendment 46



(48a) Member States and obliged entities, when applying this Directive or national law implementing this Directive, are bound by Council Directive 2000/43/EC33a.

_________________33a Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, p. 22).

57

Amendment 47

Proposal for a directiveArticle 1 – paragraph 2 – point a


(a) the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action;

(a) the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of avoiding freezing or confiscation orders or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action;

Amendment 48

Proposal for a directiveArticle 2 – paragraph 1 – point 3 – point b – point v


(v) creation, operation or management of trusts, companies or similar structures;

(v) creation, operation or management of trusts, foundations, mutuals, companies or similar structures;

Amendment 49

Proposal for a directiveArticle 2 – paragraph 1 – point 3 – point d


(d) real estate agents, including letting agents;

(d) real estate agents, including letting agents, in so far as they are involved in financial transactions;

Amendment 50

Proposal for a directiveArticle 2 – paragraph 1 – point 3 – point e


(e) other natural or legal persons trading in goods, only to the extent that payments are made or received in cash in an amount of

(e) other natural or legal persons trading in goods or services, only to the extent that payments are made or received in cash in

58

EUR 7 500 or more, whether the transaction is executed in a single operation or in several operations which appear to be linked;

an amount of EUR 7 500 or more, whether the transaction is executed in a single operation or in several operations which appear to be linked;

Amendment 153

Proposal for a directiveArticle 2 – paragraph 1 – point 3 – point f


(f) providers of gambling services. (f) providers of gambling services. With the exception of casinos, Member States may decide to exempt in full or in part certain gambling services from national provisions transposing this Directive on the basis of the low risk posed by the nature of the services on the basis of risk assessments. Before applying any such exemption, the Member State concerned shall seek the approval of the Commission.

Amendment 52

Proposal for a directiveArticle 3 – point 4 – point f


(f) all offences, including tax crimes related to direct taxes and indirect taxes, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards those States which have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months;

(f) all offences, including tax offences related to direct taxes and indirect taxes, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards those States which have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months;

This linguistic change is proposed to align in particular the English language version with other language versions making clear that criminal law tax offences are addressed.

59

Amendment 53

Proposal for a directiveArticle 3 – point 4 a (new)


(4a) "self-regulatory body" means a body that has the power, recognised by national law, to establish the obligations and rules governing a certain profession or a certain field of economic activity, which must be complied with by natural or legal persons in that profession or field;

Amendment 54

Proposal for a directiveArticle 3 – point 5


(5) "beneficial owner" means any natural person(s) who ultimately owns or controls the customer and/or the natural person on whose behalf a transaction or activity is being conducted. The beneficial owner shall at least include:

(5) "beneficial owner" means any natural person(s) who ultimately owns or controls the customer and/or the natural person on whose behalf a transaction or activity is being conducted. The beneficial owner shall at least include:

(a) in the case of corporate entities: (a) in the case of corporate entities:

(i) the natural person(s) who ultimately owns or controls a legal entity through direct or indirect ownership or control over a sufficient percentage of the shares or voting rights in that legal entity, including through bearer share holdings, other than a company listed on a regulated market that is subject to disclosure requirements consistent with European Union legislation or subject to equivalent international standards.

(i) the natural person(s) who ultimately owns or controls a legal entity through direct or indirect ownership or control over a sufficient percentage of the shares or voting rights in that legal entity, including through bearer share holdings, other than a company listed on a regulated market that is subject to disclosure requirements consistent with European Union legislation or subject to equivalent international standards.

A percentage of 25% plus one share shall be evidence of ownership or control through shareholding and applies to every level of direct and indirect ownership;

in any event, a shareholding of 25 % plus one share by a natural person is evidence of direct ownership; a shareholding of 25 % plus one share in the customer, held by a corporate entity, which is under the control of a natural persons, or by multiple corporate entities, which are under the control of the same natural person, shall be an indication of indirect

60

ownership; the notion of control shall be determined, inter alia, in accordance with the criteria laid down in Article 22(1) to (5) of Directive 2013/34/EU of the European Parliament and of the Council42a; however, this applies without prejudice to the right for Member States to decide that a lower percentage may be evidence of ownership or control;

(ii) if there is any doubt that the person(s) identified in point (i) are the beneficial owner(s), the natural person(s) who exercises control over the management of a legal entity through other means;

(ii) if there is any doubt that the person(s) identified in point (i) are the beneficial owner(s) or if after taking all the necessary measures no person can be identified under point (i), the natural person(s) who exercises control over the management of a legal entity through other means, which person(s) may include the senior management;

(iia) where no natural person is identified under point (i) or (ii), the natural person(s) who holds the position of senior managing official, in which case, the obliged entities shall keep records of the actions taken in order to identify the beneficial ownership under point (i) and (ii) in order to prove the inability to identify such persons;

(b) in the case of legal entities, such as foundations, and legal arrangements, such as trusts, which administer and distribute funds:

(b) in the case of legal entities, such as foundations, and legal arrangements, such as trusts or mutuals, which administer and distribute funds:

(i) the natural person(s) who exercises control over 25 % or more of the property of a legal arrangement or entity; and

(i) the natural person(s) who exercises control over 25 % or more of the property of a legal arrangement or entity; and

(ii) where the future beneficiaries have already been determined, the natural person(s) who is the beneficiary of 25 % or more of the property of a legal arrangement or entity; or

(ii) where the future beneficiaries have already been determined, the natural person(s) who is the beneficiary of 25 % or more of the property of a legal arrangement or entity; or

(iii) where the individuals that benefit from the legal arrangement or entity have yet to be determined, the class of persons in whose main interest the legal arrangement or entity is set up or operates. For beneficiaries of trusts that are designated by characteristics or by class, obliged entities shall obtain sufficient information

(iii) where the individuals that benefit from the legal arrangement or entity have yet to be determined, the class of persons in whose main interest the legal arrangement or entity is set up or operates. For beneficiaries of trusts that are designated by characteristics or by class, obliged entities shall obtain sufficient information

61

concerning the beneficiary to satisfy itself that it will be able to establish the identity of the beneficiary at the time of the payout or when the beneficiary intends to exercise vested rights;

concerning the beneficiary to satisfy itself that it will be able to establish the identity of the beneficiary at the time of the payout or when the beneficiary intends to exercise vested rights;

(iiia) for trusts, the identity of the settlor, trustee(s), the protector (if any), the beneficiary or class of beneficiaries and any other natural person exercising ultimate effective control over the trust (including through a chain of control or ownership);

________________42a Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).

Amendment 55

Proposal for a directiveArticle 3 – point 7 – point b


(b) "domestic politically exposed persons" means natural persons who are or who have been entrusted by a Member State with prominent public functions;

(b) "domestic politically-exposed persons" means natural persons who are, or who have been, entrusted by the Member State with prominent public functions;

Linguistic amendment

Amendment 56

Proposal for a directiveArticle 3 – point 7 – point d – point ii


(ii) members of parliaments; (ii) members of parliaments or similar legislative bodies;

62

Amendment 57

Proposal for a directiveArticle 3 – point 7 – point d – point vi


(vi) members of the administrative, management or supervisory bodies of State owned enterprises.

(vi) senior members of the administrative, management or supervisory bodies of State owned enterprises.

Amendment 58

Proposal for a directiveArticle 3 – point 7 – point e – point iii


(iii) the children and their spouses or partners;

deleted

Amendment 59

Proposal for a directiveArticle 3 – point 7 – point e – point iv


(iv) the parents; deleted

Amendment 60

Proposal for a directiveArticle 3 – – point 7 – point f – point ii


(ii) any natural person who has sole beneficial ownership of a legal entity or legal arrangement which is known to have been set up for the benefit de facto of the person referred to in points (7)(a) to (7)(d) above;

(ii) any natural person who has beneficial ownership of a legal entity or legal arrangement which is known to have been set up for the benefit de facto of the person referred to in points (7)(a) to (7)(d) above;

Amendment 61


63


(10a) ‘betting transaction’ in the sense of Article 12 of this Directive means all the stages in the commercial relationship between, on the one hand, the gambling service provider and, on the other, the customer and the beneficiary of the registration of the bet and the stake until the payout of any winnings;

Amendment 62



(11a) 'non-face to-face' when used in relation to business relationships or transactions means the carrying out of a contract or a transaction, without the simultaneous physical presence of the contractor or intermediary and the consumer, by making exclusive use of one or more of the following the internet, telemarketing or other electronic means of communication up to and including the time at which the contract is concluded;

Amendment 63

Proposal for a directiveArticle 4 – paragraph 1


1. Member States shall ensure that the provisions of this Directive are extended in whole or in part to professions and to categories of undertakings, other than the obliged entities referred to in Article 2(1), which engage in activities which are particularly likely to be used for money laundering or terrorist financing purposes.

1. Member States shall, in accordance with the risk-based approach, ensure that the provisions of this Directive are extended in whole or in part to professions and to categories of undertakings, other than the obliged entities referred to in Article 2(1), which engage in activities which are particularly likely to be used for money laundering or terrorist financing purposes.

64

Amendment 64

Proposal for a directiveArticle 5


The Member States may adopt or retain in force stricter provisions in the field covered by this Directive to prevent money laundering and terrorist financing.

The Member States may adopt or retain in force stricter provisions in the field covered by this Directive to prevent money laundering and terrorist financing, provided that such provisions are in full compliance with Union law, especially as regards Union data protection rules and the protection of fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. Such provisions shall not unduly prevent consumers from accessing financial services and shall not constitute an obstacle to the functioning of the Single Market.

Amendment 65



1. The European Banking Authority (hereinafter ‘EBA’), European Insurance and Occupational Pensions Authority (hereinafter ‘EIOPA’) and European Securities and Markets Authority (hereinafter ‘ESMA’) shall provide a joint opinion on the money laundering and terrorist financing risks affecting the internal market.

1. The Commission shall produce an assessment on the money laundering and terrorist financing risks affecting the internal market, with particular reference to cross-border activities. In order to produce such an assessment, the Commission shall consult the Member States, the European Banking Authority (hereinafter "EBA"), the European Insurance and Occupational Pensions Authority (hereinafter "EIOPA"), the European Securities and Markets Authority (hereinafter "ESMA"), the EDPS, Article 29 Working Party, Europol and other relevant authorities.

The risk assessment referred to in the first subparagraph shall cover at least the following aspects:

(a) the overall extent of money laundering

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and the areas of the internal market that are at greater risk;

(b) the risks associated with each relevant sector, in particular the non-financial sectors and the gambling sector;

(c) the most widespread means used by criminals to launder illicit proceeds;

(d) the recommendations to the competent authorities on the effective deployment of resources;

(e) the role of EUR notes in criminal activities and money laundering.

The risk assessment shall also include proposals for minimum standards for risk assessments to be conducted by competent national authorities. Those minimum standards shall be developed in cooperation with Member States and shall involve the industry and other relevant stakeholders through public consultations and private stakeholders meetings as appropriate.

The opinion shall be provided within 2 years from the date of entry into force of this Directive.

The risk assessment shall be provided within one year from the date of entry into force of this Directive and shall be updated on a biannual basis or more frequently if appropriate.

2. The Commission shall make the opinion available to assist Member States and obliged entities to identify, manage and mitigate the risk of money laundering and terrorist financing.

2. The Commission shall make the risk assessment available to assist Member States and obliged entities to identify, manage and mitigate the risk of money laundering and terrorist financing, and to allow other stakeholders, including national legislators, the European Parliament, Europol, the Committee of European Financial Intelligence Units, EBA, EIOPA and ESMA, to better understand the risks. A summary of the assessment shall be publicly available. That summary shall not contain classified information.

2a. The Commission shall submit an annual report to the European Parliament and the Council on the findings resulting from the regular risk assessments and the action taken based on those findings.

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Amendment 66

Proposal for a directiveArticle 6 a (new)


Article 6a

1. Without prejudice to the infringement proceedings provided for in the TFEU, the Commission shall ensure that national legislation to combat money laundering and terrorist financing, adopted by Member States on the basis of this Directive is implemented effectively and is consistent with the European framework.

2. For the application of paragraph 1, the Commission shall be assisted, where appropriate, by Europol, the Committee of European Financial Intelligence Units, EBA, EIOPA, ESMA and by any other competent European authority.

3. Assessments of national legislation to combat money laundering and terrorist financing provided for in paragraph 1 shall be without prejudice to those conducted by the Financial Action Task Force or Moneyval.

Amendment 67



1. Each Member State shall take appropriate steps to identify, assess, understand and mitigate the money laundering and terrorist financing risks affecting it, and keep the assessment up-to-date.

1. Each Member State shall take appropriate steps to identify, assess, understand and mitigate the money laundering and terrorist financing risks affecting it, as well as any data protection concerns in that regard, and keep the assessment up-to-date.

2. Each Member State shall designate an authority to co-ordinate the national response to the risks referred to in paragraph 1. The identity of that authority shall be notified to the Commission, EBA,

2. Each Member State shall designate an authority to co-ordinate the national response to the risks referred to in paragraph 1. The identity of that authority shall be notified to the Commission, EBA,

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EIOPA and ESMA and other Member States.

EIOPA, ESMA, Europol and other Member States.

3. In carrying out the assessments referred to in paragraph 1, Member States may make use of the opinion referred to in Article 6(1).

3. In carrying out the assessments referred to in paragraph 1, Member States shall make use of the risk assessment referred to in Article 6(1).

4. Each Member State shall carry out the assessment referred to in paragraph 1 and:

4. Each Member State shall carry out the assessment referred to in paragraph 1 and:

(a) use the assessment(s) to improve its anti-money laundering and combating terrorist financing regime, in particular by identifying any areas where obliged entities shall apply enhanced measures and, where appropriate, specifying the measures to be taken;

(a) use the assessment(s) to improve its anti-money laundering and combating terrorist financing regime, in particular by identifying any areas where obliged entities shall apply enhanced measures and, where appropriate, specifying the measures to be taken;

(aa) identify, where appropriate, sectors or areas of negligible, lower or greater risk of money laundering and terrorist financing;

(b) use the assessment(s) to assist it in the allocation and prioritisation of resources to combat money laundering and terrorist financing;

(b) use the assessment(s) to assist it in the allocation and prioritisation of resources to combat money laundering and terrorist financing;

(ba) use the assessment(s) to ensure that appropriate rules are drawn up for each sector or area, in accordance with the risk of money laundering;

(c) make appropriate information available to obliged entities to carry out their own money laundering and terrorist financing risk assessments.

(c) make appropriate information available in a timely manner to obliged entities to enable them to carry their own money laundering and terrorist financing risk assessments.

5. Member States shall make the results of their risk assessments available to the other Member States, the Commission, and EBA, EIOPA and ESMA upon request.

5. Member States shall make the results of their risk assessments available to the other Member States, the Commission, and EBA, EIOPA and ESMA upon request. A summary of the assessment shall be made publicly available. That summary shall not contain classified information.

Amendment 68


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2. The assessments referred to in paragraph 1 shall be documented, kept up to date and be made available to competent authorities and self-regulatory bodies.

2. The assessments referred to in paragraph 1 shall be documented, kept up to date and be made available upon request to competent authorities and self-regulatory bodies.

Amendment 69



3. Member States shall ensure that obliged entities have policies, controls and procedures to mitigate and manage effectively the money laundering and terrorist financing risks identified at Union level, Member State level, and at the level of obliged entities. Policies, controls and procedures should be proportionate to the nature and size of those obliged entities.

3. Member States shall ensure that obliged entities have policies, controls and procedures to mitigate and manage effectively the money laundering and terrorist financing risks identified at Union level, Member State level, and at the level of obliged entities. Policies, controls and procedures should be proportionate to the nature and size of those obliged entities and the risk of money laundering and terrorist financing and should respect data protection rules.

Amendment 70



(a) the development of internal policies, procedures and controls, including customer due diligence, reporting, record keeping, internal control, compliance management (including, when appropriate to the size and nature of the business, the appointment of a compliance officer at management level) and employee screening;

(a) the development of internal policies, procedures and controls, including model risk management practices, customer due diligence, reporting, record keeping, internal control, compliance management (including, when appropriate to the size and nature of the business, the appointment of a compliance officer at management level) and employee screening. Those measures shall not allow the obliged entities to ask consumers to provide more personal data than necessary;

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Amendment 71



Article 8a

1. In order to develop a common approach and common policies against non-cooperative jurisdictions with deficiencies in the field of combating money laundering, Member States shall periodically endorse and adopt the lists of countries published by the FATF.

2. The Commission shall coordinate preparatory work at the European level on the identification of third countries with grave strategic deficiencies in their money laundering systems that pose significant risks to the financial system of the Union, taking into account the criteria set out in paragraph 3 of Annex III.

3. The Commission shall be empowered to adopt delegated acts in order to establish a list of countries as defined in paragraph 2.

4. The Commission shall monitor on a regular basis the evolution of the situation in the countries defined in paragraph 2 on the basis of criteria set out in paragraph 3 of Annex III and, where appropriate, shall review the list referred to in paragraph 3 of this Article.

Amendment 72



Member States shall prohibit their credit and financial institutions from keeping anonymous accounts or anonymous passbooks. Member States shall in all cases require that the owners and beneficiaries of existing anonymous accounts or

Member States shall prohibit their credit and financial institutions from keeping anonymous accounts, anonymous passbooks or from issuing anonymous electronic payment cards which do not fulfil the conditions listed in Article 10a.

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anonymous passbooks be made the subject of customer due diligence measures as soon as possible and in any event before such accounts or passbooks are used in any way.

Member States shall in all cases require that the owners and beneficiaries of existing anonymous accounts, anonymous passbooks or anonymous payment cards be made the subject of customer due diligence measures as soon as possible and in any event before such accounts or passbooks are used in any way.

Amendment 73

Proposal for a directiveArticle 10 – paragraph 1 – point d


(d) for providers of gambling services, when carrying out occasional transactions amounting to EUR 2 000 or more, whether the transaction is carried out in a single operation or in several operations which appear to be linked;

(d) for casinos, when carrying out occasional transactions amounting to EUR 2 000 or more, whether the transaction is carried out in a single operation or in several operations which appear to be linked;

(da) for on-line gambling when establishing the business relationship;

(db) for other providers of gambling services, when paying out winnings of EUR 2 000 or more;

Amendment 74

Proposal for a directiveArticle 10 – paragraph 1 – point f a (new)


(fa) whenever a company is established.

Amendment 75



Article 10a

Member States may, on the basis of proven low risk, apply exemptions to obliged entities from customer due

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diligence with respect to electronic money as defined in Article 2(2) of Directive 2009/110/EC, if the following conditions are fulfilled:

(a) the payment instrument is not reloadable;

(b) the maximum amount stored electronically does not exceed EUR 250; Member States may increase this limit up to EUR 500 for payment instruments that can only be used in that one particular Member State;

(c) the payment instrument is used exclusively to purchase goods or services;

(d) the payment instrument cannot be funded with electronic money;

(e) redemption in cash and cash withdrawal are forbidden unless identification and verification of the identity of the holder, adequate and appropriate policies and procedures on redemption in cash and cash withdrawal, and record keeping obligations are performed.

2. Member States shall ensure that customer due diligence measures are always applied before redemption of the monetary value of the electronic money exceeding EUR 250.

3. This Article shall not prevent Member States from allowing obliged entities to apply simplified customer due diligence measures in respect of electronic money in accordance with Article 13 of this Directive if the conditions provided for in this Article are not fulfilled.

Amendment 76



1. Customer due diligence measures shall comprise:

1. Customer due diligence measures shall comprise:

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(a) identifying the customer and verifying the customer's identity on the basis of documents, data or information obtained from a reliable and independent source;

(a) identifying the customer and verifying the customer's identity on the basis of documents, data or information obtained from a reliable and independent source;

(b) identifying the beneficial owner and taking reasonable measures to verify his identity so that the institution or person covered by this Directive is satisfied that it knows who the beneficial owner is, including, as regards legal persons, trusts and similar legal arrangements, taking reasonable measures to understand the ownership and control structure of the customer;

(b) in addition to the identification of the beneficial owner listed in a register pursuant to Article 29, taking reasonable measures to verify his identity so that the institution or person covered by this Directive is satisfied that it knows who the beneficial owner is, including, as regards legal persons, trusts, foundations, mutuals, holdings and all other similar existing or future legal arrangements, taking all necessary measures to understand the ownership and control structure of the customer, assessing and, as appropriate, obtaining information on the purpose and intended nature of the business relationship;

(c) assessing and, as appropriate, obtaining information on the purpose and intended nature of the business relationship;

(c) assessing and, as appropriate, obtaining information on the purpose and intended nature of the business relationship;

(d) conducting ongoing monitoring of the business relationship including scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the institution's or person's knowledge of the customer, the business and risk profile, including, where necessary, the source of funds and ensuring that the documents, data or information held are kept up-to-date.

(d) conducting ongoing monitoring of the business relationship including scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the institution's or person's knowledge of the customer, the business and risk profile, including the source of funds and ensuring that the documents, data or information held are kept up-to-date.

Amendment 77

Proposal for a directiveArticle 11 – paragraph 1 a (new)


1a. When performing the measures in points (a) and (b) of paragraph 1, obliged entities shall also be required to verify that any person purporting to act on behalf of the customer is so authorised to do so and shall be required to identify and

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verify the identity of that person.

Amendment 78



2. By way of derogation from paragraph 1, Member States may allow the verification of the identity of the customer and the beneficial owner to be completed during the establishment of a business relationship if this is necessary not to interrupt the normal conduct of business and where there is little risk of money laundering or terrorist financing occurring. In such situations these procedures shall be completed as soon as practicable after the initial contact.

2. By way of derogation from paragraph 1, Member States may allow the verification of the identity of the customer and the beneficial owner to be completed during the establishment of a business relationship or during the execution of the transaction for entities subject to the obligations referred to in Article 2(1) and, in any event, at the time when any winnings are paid out, if this is necessary not to interrupt the normal conduct of business and where there is little risk of money laundering or terrorist financing occurring. In such situations these procedures shall be completed as soon as practicable after the initial contact.

Amendment 79



3. Member States shall ensure that obliged entities carry out sufficient monitoring of the transaction or business relationship to enable the detection of unusual or suspicious transactions.

3. Member States shall ensure that obliged entities carry out sufficient monitoring of the transactions or business relationships to enable the detection of unusual or suspicious transactions.

Amendment 80



When assessing the money laundering and terrorist financing risks relating to types of customers, countries or geographic areas, and particular products, services,

When assessing the money laundering and terrorist financing risks relating to types of customers, countries or geographic areas, and particular products, services,

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transactions or delivery channels, Member States and obliged entities shall take into account at least the factors of potentially lower risk situations set out in Annex II.

transactions or delivery channels, Member States and obliged entities shall take into account at least the factors relating to customer and product, service, transaction or delivery channel as potentially lower risk situations set out in Annex II.

Amendment 81



EBA, EIOPA and ESMA shall issue guidelines addressed to competent authorities and the obliged entities referred to in Article 2(1)(1) and (2) in accordance with Article 16 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010, and of Regulation (EU) No 1095/2010, on the risk factors to be taken into consideration and/or the measures to be taken in situations where simplified due diligence measures are appropriate. Specific account should be taken of the nature and size of the business, and where appropriate and proportionate, specific measures should be foreseen. These guidelines shall be issued within 2 years of the date of entry into force of this Directive.

EBA, EIOPA and ESMA shall issue guidelines addressed to competent authorities and the obliged entities referred to in Article 2(1)(1) and (2) in accordance with Article 16 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010, and of Regulation (EU) No 1095/2010, on the risk factors to be taken into consideration and/or the measures to be taken in situations where simplified due diligence measures are appropriate. Specific account should be taken of the nature and size of the business, and where appropriate and proportionate, specific measures should be foreseen. These guidelines shall be issued within one year of the date of entry into force of this Directive.

Amendment 82



2. Member States shall require obliged entities to examine, as far as reasonably possible, the background and purpose of all complex, unusual large transactions, and all unusual patterns of transactions, which have no apparent economic or lawful purpose. In particular, they shall increase the degree and nature of monitoring of the business relationship, in order to determine

2. Member States shall require obliged entities to examine the background and purpose of all complex, unusual large transactions, and all unusual patterns of transactions, which have no apparent economic or lawful purpose, or which constitute tax offences within the meaning of Article 3(4)(f). In particular, they shall increase the degree and nature of

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whether those transactions or activities appear unusual or suspicious.

monitoring of the business relationship, in order to determine whether those transactions or activities appear unusual or suspicious. Where an obliged entity determines such unusual or suspicious transaction or activity, it shall, without delay, inform the FIUs of all Member States that might be concerned.

Amendment 83



3. When assessing the money laundering and terrorist financing risks, Member States and obliged entities shall take into account at least the factors of potentially higher-risk situations set out in Annex III.

3. When assessing the money laundering and terrorist financing risks, Member States and obliged entities shall take into account at least the factors relating to customer and product, service, transaction or delivery channel as potentially higher-risk situations set out in Annex III.

Amendment 84



4. EBA, EIOPA and ESMA shall issue guidelines addressed to competent authorities and the obliged entities referred to Article 2(1)(1) and (2) in accordance with Article 16 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010, and of Regulation (EU) No 1095/2010 on the risk factors to be taken into consideration and/or the measures to be taken in situations where enhanced due diligence measures need to be applied. Those guidelines shall be issued within 2 years of the date of entry into force of this Directive.

4. EBA, EIOPA and ESMA shall issue guidelines addressed to competent authorities and the obliged entities referred to Article 2(1)(1) and (2) in accordance with Article 16 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010, and of Regulation (EU) No 1095/2010 on the risk factors to be taken into consideration and/or the measures to be taken in situations where enhanced due diligence measures need to be applied. Those guidelines shall be issued within one year of the date of entry into force of this Directive.

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Amendment 85



Article 19a

The Commission, in cooperation with Member States and international organisations, shall draw a list of domestic politically exposed persons and persons who are residents of the Member States, who are or have been entrusted with a prominent function by an international organisation. The list shall be accessible by competent authorities and by obliged entities.

The Commission shall notify the persons concerned that they have been placed on or removed from the list.

The requirements in this Article shall not exempt obliged entities from their customer due diligence obligations, and obliged entities shall not rely exclusively on that information as sufficient to fulfil those obligations.

Member States shall take all appropriate measures to prevent the trade of information on politically exposed persons for commercial purposes.

Amendment 86

Proposal for a directiveArticle 20 – introductory part


Obliged entities shall take reasonable measures to determine whether the beneficiaries of a life or other investment related insurance policy and/or, where required, the beneficial owner of the beneficiary are politically exposed persons. Those measures shall be taken at the latest at the time of the payout or at the time of the assignment, in whole or in part, of the

Obliged entities shall take reasonable measures, in accordance with the risk-based approach, to determine whether the beneficiaries of a life or other investment related insurance policy and/or, where required, the beneficial owner of the beneficiary are politically exposed persons. Those measures shall be taken at the latest at the time of the payout or at the time of

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policy. Where there are higher risks identified, in addition to taking normal customer due diligence measures, Member States shall require obliged entities to:

the assignment, in whole or in part, of the policy. Where there are higher risks identified, in addition to taking normal customer due diligence measures, Member States shall require obliged entities to:

Amendment 87



The measures referred to in Articles 18, 19 and 20 shall also apply to family members or persons known to be close associates of such politically exposed persons.

The measures referred to in Articles 18, 19 and 20 with the exception of Article 19a shall also apply to family members or persons who, as indicated by evidence, are close associates of such politically exposed persons.

Amendment 88



Where a person referred to in Articles 18, 19 and 20 has ceased to be entrusted with a prominent public function by a Member State or a third country or with a prominent function by an international organisation, obliged entities shall be required to consider the continuing risk posed by that person and to apply such appropriate and risk-sensitive measures until such time as that person is deemed to pose no further risk. This period of time shall not be less than 18 months.

Where a person referred to in Articles 18, 19 and 20 has ceased to be entrusted with a prominent public function by a Member State or a third country or with a prominent function by an international organisation, obliged entities shall be required to consider the continuing risk posed by that person and to apply such appropriate and risk-sensitive measures until such time as that person is deemed to pose no further risk. This period of time shall not be less than 12 months.

Amendment 89



Member States may permit the obliged entities to rely on third parties to meet the requirements laid down in Article 11(1)(a),

Member States may permit the obliged entities to rely on third parties to meet the requirements laid down in Article 11(1)(a),

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(b) and (c). However, the ultimate responsibility for meeting those requirements shall remain with the obliged entity which relies on the third party.

(b) and (c). However, the ultimate responsibility for meeting those requirements shall remain with the obliged entity which relies on the third party. In addition, Member States shall ensure that any such third parties may also be held liable for breaches of national provisions adopted pursuant to this Directive.

Amendment 90



1. For the purposes of this Section, "third parties" shall mean obliged entities who are listed in Article 2, or other institutions and persons situated in Member States or a third country, who apply customer due diligence requirements and record keeping requirements equivalent to those laid down in this Directive and their compliance with the requirements of this Directive is supervised in accordance with Section 2 of Chapter VI.

1. For the purposes of this Section, "third parties" shall mean (a) obliged entities who are listed in Article 2, and (b) other institutions and persons situated in Member States or a third country, who apply customer due diligence requirements and record keeping requirements equivalent to those laid down in this Directive and their compliance with the requirements of this Directive is supervised in accordance with Section 2 of Chapter VI.

2. The Member States shall consider information available on the level of geographical risk when deciding if a third country meets the conditions laid down in paragraph 1 and shall inform each other, the Commission and EBA, EIOPA and ESMA to the extent relevant for the purposes of this Directive and in accordance with the relevant provisions of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010, and of Regulation (EU) No 1095/2010, of cases where they consider that a third country meets such conditions.

2. The Commission shall consider information available on the level of geographical risk when deciding if a third country meets the conditions laid down in paragraph 1 and shall inform the Member States, the obliged entities and EBA, EIOPA and ESMA to the extent relevant for the purposes of this Directive and in accordance with the relevant provisions of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010, and of Regulation (EU) No 1095/2010, of cases where they consider that a third country meets such conditions.

2a. The Commission shall provide a list of jurisdictions having anti-money laundering measures equivalent to provisions of this Directive and other related rules and regulations of the Union.

2b. The list referred to in paragraph 2a

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shall be regularly reviewed and updated according to the information received from Member States pursuant to paragraph 2.

Amendment 91

Proposal for a directiveArticle 27 – paragraph 1 – point c


(c) the effective implementation of requirements referred to in point (b) is supervised at group level by a competent authority.

(c) the effective implementation of requirements referred to in point (b) is supervised at group level by a home competent authority in cooperation with host competent authorities.

Amendment 92



1a. EBA, EIOPA and ESMA shall issue guidelines on the implementation of the supervisory regime by the competent authorities in the relevant Member States for group entities to ensure coherent and effective group level supervision. Those guidelines shall be issued within one year of the date of entry into force of this Directive.

Amendment 93



1. Member States shall ensure that corporate or legal entities established within their territory obtain and hold adequate, accurate and current information on their beneficial ownership.

1. Member States shall ensure that companies and other entities having legal personality, including trusts or entities with a similar structure or function to trusts, foundations, holdings and all other similar, in terms of structure or function, existing or future legal arrangements established or incorporated within their

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territory, or governed under their law obtain, hold and transmit to a public central register, commercial register or companies register within their territory adequate, accurate, current and up-to-date information on them and on their beneficial ownership, at the moment of establishment as well as any changes thereof.

1a. The register shall contain the minimum information to clearly identify the company and its beneficial owner, namely the name, number, legal form and status of the entity, proof of incorporation, address of the registered office (and of the principal place of business if different from the registered office), the basic regulatory powers (such as those contained in the Memorandum and Articles of Association), the list of directors (including their nationality and date of birth) and shareholder/beneficial owner information, such as the names, dates of birth, nationality or jurisdiction of incorporation, contact details, number of shares, categories of shares (including the nature of the associated voting rights) and proportion of shareholding or control, if applicable.

The requirements stipulated in this Article shall not exempt obliged entities from their customer due diligence obligations, and obliged entities shall not rely exclusively on that information as sufficient to fulfil those obligations.

1b. Regarding trusts or other types of legal entities and arrangements, existing or future, with a similar structure or function, the information shall include the identity of the settlor, of the trustee(s), of the protector (if relevant), of the beneficiaries or class of beneficiaries, and of any other natural person exercising effective control over the trust. Member States shall ensure that trustees disclose their status to obliged entities when, as a trustee, the trustee forms a business relationship or carries out an occasional transaction above the threshold set out in

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points (b), (c) and (d) of Article 10. The information held should include the date of birth and nationality of all individuals. Member States shall follow the risk-based approach when publishing the trust deed and letter of wishes and shall ensure where applicable and while respecting the protection of personal information, that information is disclosed to competent authorities, in particular FIUs, and to obliged entities.

2. Member States shall ensure that the information referred to in paragraph 1 of this Article can be accessed in a timely manner by competent authorities and by obliged entities.

2. The information referred to in paragraphs 1, 1a and 1b of this Article shall be accessible by competent authorities, in particular FIUs, and by obliged entities of all Member States in a timely manner. Member States shall make the registers referred to in paragraph 1 of this Article publicly available following prior identification of the person wishing to access the information through basic online registration. The information shall be available online to all persons in an open and secure data format, in line with data protection rules, in particular as regards the effective protection of the rights of the data subject to access personal data and the rectification or deletion of inaccurate data. The fees charged for obtaining the information shall not exceed the administrative costs thereof. Any changes to the information displayed shall be clearly indicated in the register without delay and at the latest within 30 days.

The company registers referred to in paragraph 1 of this Article shall be interconnected by means of the European platform, the portal and optional access points established by the Member States pursuant to Directive 2012/17/EU. Member States, with the support of the Commission, shall ensure that their registers are interoperable within the system of register networking through the European platform.

2a. The Commission, in cooperation with Member States, shall rapidly, constructively and effectively seek

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cooperation with third countries to encourage that equivalent central registers containing beneficial ownership information are established and information referred to in paragraphs 1 and 1a of this Article in their countries is made publically accessible.

Priority shall be given to third countries that host a significant number of corporate or legal entities, including trusts, foundations, holdings and all other bodies that are similar in terms of structure or function and that hold shares indicating direct ownership pursuant to Article 3(5) of this Directive in corporate or legal entities established in the Union.

2b. Member States shall lay down the rules on effective, proportionate and dissuasive penalties for natural or legal persons applicable to infringements of the national provisions adopted pursuant to this Article and shall take all measures necessary to ensure that such penalties are applied. For the purposes of this Article, Member States shall establish effective anti-abuse measures with view to preventing misuse based on bearer shares and bearer share warrants.

2c. The Commission shall submit to the European Parliament and to the Council within three years after the entry into force of this Directive a report on the application and mode of functioning of the requirements pursuant to this Article, if appropriate, accompanied, where appropriate by a legislative proposal.

Amendment 94



Article 30 deleted

1. Member States shall ensure that trustees of any express trust governed under their law obtain and hold adequate,

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accurate and current information on beneficial ownership regarding the trust. This information shall include the identity of the settlor, of the trustee(s), of the protector (if relevant), of the beneficiaries or class of beneficiaries, and of any other natural person exercising effective control over the trust.

2. Member States shall ensure that trustees disclose their status to obliged entities when, as a trustee, the trustee forms a business relationship or carries out an occasional transaction above the threshold set out in points (b), (c) and (d) of Article 10.

3. Member States shall ensure that the information referred to in paragraph 1 of this Article can be accessed in a timely manner by competent authorities and by obliged entities.

4. Member States shall ensure that measures corresponding to those in paragraphs 1, 2 and 3 apply to other types of legal entity and arrangement with a similar structure and function to trusts.

Amendment 95



1a. The persons referred to in Article 2(1)(3)(a), (b), and (d), shall inform the FIU and / or the appropriate self-regulatory body of the profession concerned, as detailed in Article 33(1), if they suspect, or have reasonable grounds to suspect that their services are being misused for the purpose of criminal activity.

Amendment 96


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3. The FIU shall be established as a central national unit. It shall be responsible for receiving (and to the extent permitted, requesting), analysing and disseminating to the competent authorities, disclosures of information which concern potential money laundering or associated predicate offences, potential terrorist financing or are required by national legislation or regulation. The FIU shall be provided with adequate resources in order to fulfil its tasks.

3. The FIU shall be established as an operationally independent and autonomous central national unit. It shall be responsible for receiving and analysing suspicious transaction reports and other information relevant to potential money laundering, associated predicate offences or potential terrorist financing. The FIU shall be responsible for disseminating the results of its analysis to all competent authorities, when there are grounds to suspect money laundering or associated predicate offences or terrorist financing. It shall be able to obtain relevant additional information from obliged entities for the abovementioned purposes. The FIU shall be provided with adequate financial, technical and human resources in order to fulfil its tasks. Member States shall ensure that the FIU is free from undue interference.

Amendment 97



4. Member States shall ensure that the FIU has access, directly or indirectly, on a timely basis, to the financial, administrative and law enforcement information that it requires to properly fulfil its tasks. In addition, FIUs shall respond to requests for information by law enforcement authorities in their Member State unless there are factual reasons to assume that the provision of such information would have a negative impact on ongoing investigations or analyses, or, in exceptional circumstances, where divulgation of the information would be clearly disproportionate to the legitimate interests of a natural or legal person or irrelevant with regard to the purposes for which it has been requested.

4. Member States shall ensure that the FIU has access, directly or indirectly, on a timely basis, to the financial, administrative and law enforcement information that it requires to properly fulfil its tasks. In addition, FIUs shall respond to requests for information by law enforcement authorities in their Member State unless there are factual reasons to assume that the provision of such information would have a negative impact on ongoing investigations or analyses, or, in exceptional circumstances, where divulgation of the information would be clearly disproportionate to the legitimate interests of a natural or legal person or irrelevant with regard to the purposes for which it has been requested. When the

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FIU receives such a request, the decision to conduct analysis and/or dissemination of information to the requesting law enforcement authority should remain within the FIU. Member States shall require law enforcement authorities to provide feedback to the FIU about the use made of the information provided.

Amendment 98



2. The information referred to in paragraph 1 of this Article shall be forwarded to the FIU of the Member State in whose territory the institution or person forwarding the information is situated. The person or persons designated in accordance with the procedures provided for in Article 8(4) shall forward the information.

2. The information referred to in paragraph 1 of this Article shall be forwarded to the FIU of the Member State in whose territory the institution or person forwarding the information is situated and to the FIU of the Member State where the obliged entity is established. The person or persons designated in accordance with the procedures provided for in Article 8(4) shall forward the information.

Amendment 99



By way of derogation from Article 32(1), Member States may, in the case of the persons referred to in Article 2(1)(3)(a), (b), and (d) designate an appropriate self-regulatory body of the profession concerned as the authority to receive the information referred to in Article 32(1).

By way of derogation from Article 32(1), Member States may, in the case of the persons referred to in Article 2(1)(3)(a), (b), (d) and (e) and those professions and categories of undertaking referred to in Article 4, designate an appropriate self-regulatory body of the profession concerned as the authority to receive the information referred to in Article 32(1).

In all circumstances, Member States shall provide for the means, and manner in which, to achieve the protection of professional secrecy, confidentiality and privacy.

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Amendment 100



Member States shall take all appropriate measures in order to protect employees of the obliged entity who report suspicions of money laundering or terrorist financing either internally or to the FIU from being exposed to threats or hostile action.

Member States shall ensure that individuals, including employees and representatives of the obliged entity who report suspicions of money laundering or terrorist financing either internally or to the FIU are duly protected from being exposed to threats or hostile action, adverse treatment and adverse consequences, and in particular from adverse or discriminatory employment actions. Member States shall guarantee legal aid free of charge for such persons and shall provide secure communication channels for persons to report their suspicions of money laundering or terrorist financing. Such channels shall ensure that the identity of persons providing information is known only to the ESAs or the FIU. Member States shall ensure that there are adequate witness protection programmes.

Amendment 101



2. The prohibition laid down in paragraph 1 shall not include disclosure to the competent authorities of Member States, including the self-regulatory bodies, or disclosure for law enforcement purposes.

2. The prohibition laid down in paragraph 1 shall not include disclosure to the competent authorities of Member States, including the self-regulatory bodies, data protection authorities or disclosure for law enforcement purposes.

Amendment 102

Proposal for a directiveArticle 38 – paragraph 4 – subparagraph 2


For the purposes of the first subparagraph, For the purposes of the first subparagraph,

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a ‘network’ shall mean the larger structure to which the person belongs and which shares common ownership, management or compliance control.

a "network" shall mean the larger structure to which the person belongs and which shares common ownership, management, standards, methods or compliance control.

Amendment 103



5a. For the purposes of this Article, third-country requirements equivalent to those laid down in this Directive shall include data protection rules.

Amendment 104

Proposal for a directiveChapter 5 – title


RECORD KEEPING AND STATISTICAL DATA

DATA PROTECTION, RECORD KEEPING AND STATISTICAL DATA

Amendment 105



Member States shall require obliged entities to store the following documents and information in accordance with national law for the purpose of the prevention, detection and investigation of possible money laundering or terrorist financing by the FIU or by other competent authorities:

1. Member States shall require obliged entities to store the following documents and information in accordance with national law for the purpose of the prevention, detection and investigation of possible money laundering or terrorist financing by the FIU or by other competent authorities:

(a) in the case of the customer due diligence, a copy or the references of the evidence required, for a period of five years after the business relationship with their customer has ended. Upon expiration of this period, personal data shall be deleted unless otherwise provided for by

(a) in the case of the customer due diligence, a copy or the references of the evidence required, for a period of five years after the business relationship with their customer has ended or after the date of the occasional transaction. Upon expiration of this period, personal data

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national law, which shall determine under which circumstances obliged entities may or shall further retain data. Member States may allow or require further retention only if necessary for the prevention, detection or investigation of money laundering and terrorist financing. The maximum retention period after the business relationship has ended shall not exceed ten years;

shall be deleted unless otherwise provided for by national law, which shall determine under which circumstances obliged entities may or shall further retain data. Member States may allow or require further retention only if necessary for the prevention, detection or investigation of money laundering and terrorist financing and if the extension of the data retention period is justified on a case by case basis. The maximum extension of the retention period is five additional years;

(b) in the case of business relationships and transactions, the supporting evidence and records, consisting of the original documents or copies admissible in court proceedings under the applicable national legislation for a period of five years following either the carrying-out of the transactions or the end of the business relationship, whichever period is the shortest. Upon expiration of this period, personal data shall be deleted, unless otherwise provided for by national law, which shall determine under which circumstances obliged entities may or shall further retain data. Member States may allow or require further retention only if necessary for the prevention, detection or investigation of money laundering and terrorist financing. The maximum retention period following either the carrying-out of the transactions or the end of the business relationship, whichever period ends first, shall not exceed ten years.

(b) in the case of business relationships and transactions, the supporting evidence and records, consisting of the original documents or copies admissible in court proceedings under the applicable national legislation for a period of five years following either the carrying-out of the transactions or the end of the business relationship, whichever period is the shortest. Upon expiration of this period, personal data shall be deleted, unless otherwise provided for by national law, which shall determine under which circumstances obliged entities may or shall further retain data. Member States may allow or require further retention only if necessary for the prevention, detection or investigation of money laundering and terrorist financing and if the extension of the data retention period is justified on a case by case basis. The maximum extension of the retention period is five additional years.

2. Any personal data retained shall not be used for any purpose other than the purpose for which it has been retained, and under no circumstances shall it be used for commercial purposes.

Amendment 106



Article 39a

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1. With regard to the processing of personal data carried out by Member States within the framework of this Directive, the provisions of Directive 95/46/EC apply. With regard to the processing of personal data by the European supervisory authorities, the provisions of Regulation (EC) No 45/2001 apply. The collection, processing and transfer of information for anti-money laundering purposes shall be considered as a public interest under those legal acts.

2. Personal data shall only be processed on the basis of this Directive for the sole purpose of the prevention of money laundering and terrorist financing. Obliged entities shall inform new clients of the possible use of the personal data for money laundering prevention purposes before establishing a business relationship. Processing sensitive categories of data shall be done in accordance with Directive 95/46/EC.

3. The processing of data collected on the basis of this Directive for commercial purposes shall be prohibited.

4. The affected person to whom disclosure of information on processing his or her data is denied by an obliged entity or competent authority, shall have the right to request through his or her data protection authority any verifications of, access and corrections to or erasure of his or her personal data, as well as the right to lodge a judicial procedure.

5. Access by the data subject to information contained in a suspicious transaction report shall be prohibited. The prohibition laid down in this paragraph shall not include disclosure to the data protection authorities.

6. Member States shall require the obliged entities and competent authorities to recognise and comply with the effective powers of data protection authorities in accordance with Directive 95/46/EC as

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regards the security of the processing and accuracy of personal data, either ex officio or based on a complaint of the person concerned.

Amendment 107



-1. Member States shall have national centralised mechanisms enabling them to identify, in a timely manner, whether natural or legal persons hold or control bank accounts kept by financial institutions on their territory.

-1a. Member States shall also have mechanisms providing the competent authorities with a means of identifying property without giving prior notice to the owner.

Member States shall require that their obliged entities have systems in place that enable them to respond fully and rapidly to enquiries from the FIU, or from other authorities, in accordance with their national law, as to whether they maintain or have maintained during the previous five years a business relationship with specified natural or legal persons and on the nature of that relationship.

1. Member States shall require that their obliged entities have systems in place that enable them to respond fully and rapidly to enquiries from the FIU, or from other authorities, in accordance with their national law, as to whether they maintain or have maintained during the previous five years a business relationship with specified natural or legal persons and on the nature of that relationship, through secure channels and in a manner that ensures full confidentiality of the enquiries.

Amendment 108



Article 40a

The collection, processing and transfer of information for anti-money laundering purposes shall be considered to be a

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matter of public interest under Directive 95/46/EC.

Amendment 109

Proposal for a directiveArticle 41 – paragraph 2 – point b a (new)


(ba) data identifying the number and percentage of reports resulting in further investigation, with annual report to obliged institutions detailing the usefulness and follow-up of the reports they presented;

Amendment 110

Proposal for a directiveArticle 41 – paragraph 2 – point b b (new)


(bb) data regarding the number of cross-border requests for information that were made by the FIU, received by the FIU, declined by the FIU and responded to in full or in part by the FIU.

Amendment 111


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5. EBA, EIOPA and ESMA shall develop draft regulatory technical standards specifying the type of additional measures referred to in paragraph 4 of this Article and the minimum action to be taken by obliged entities referred to Article 2(1)(1) and (2) where the legislation of the third country does not permit application of the measures required under paragraphs 1 and 2. EBA, EIOPA and ESMA shall submit those draft regulatory technical standards to the Commission within two years of the date of entry into force of this Directive.

5. EBA, EIOPA and ESMA shall develop draft regulatory technical standards specifying the type of additional measures referred to in paragraph 4 of this Article and the minimum action to be taken by obliged entities referred to Article 2(1)(1) and (2) where the legislation of the third country does not permit application of the measures required under paragraphs 1 and 2. EBA, EIOPA and ESMA shall submit those draft regulatory technical standards to the Commission within 18 months of the date of entry into force of this Directive.

Amendment 112



3. Member States shall ensure that, wherever practicable, timely feedback on the effectiveness of and follow-up to reports of suspected money laundering or terrorist financing is provided.

3. Member States shall ensure that, wherever practicable, timely feedback on the effectiveness of and follow-up to reports of suspected money laundering or terrorist financing is provided to obliged entities.

Amendment 113



3a. Member States shall require that obliged entities appoint the member(s) of the management board who are responsible for the implementation of the laws, regulations and administrative provisions necessary to comply with this Directive.

Amendment 114


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3. In respect of the obliged entities referred to in Article 2(1)(3)(a), (b), (d) and (e), Member States shall ensure that competent authorities take the necessary measures to prevent criminals or their associates from holding or being the beneficial owner of a significant or controlling interest, or holding a management function in those obliged entities.

3. In respect of the obliged entities referred to in Article 2(a), (b), (d), (e) and (g), Member States shall ensure that competent authorities and self-regulatory bodies take the necessary measures to prevent convicted criminals in the abovementioned areas or their associates from holding or being the beneficial owner of a significant or controlling interest, or holding a management function in those obliged entities.

Amendment 115



3. In the case of credit and financial institutions and providers of gambling services, competent authorities shall have enhanced supervisory powers, notably the possibility to conduct on-site inspections.

3. In the case of credit and financial institutions and providers of gambling services, competent authorities shall have enhanced supervisory powers, notably the possibility to conduct on-site inspections. Competent authorities in charge of supervising credit and financial institutions shall monitor the adequacy of the legal advice they receive with a view to reducing legal and regulatory arbitrage in the case of aggressive tax planning and avoidance.

Amendment 116



4. Member States shall ensure that obliged entities that operate branches or subsidiaries in other Member States respect the national provisions of that other Member State pertaining to this Directive.

4. Member States shall require that obliged entities that operate branches or subsidiaries in other Member States respect the national provisions of that other Member State pertaining to this Directive.

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Amendment 117

Proposal for a directiveArticle 45 – paragraph 6 – introductory part


6. Member States shall ensure that competent authorities that apply a risk-sensitive approach to supervision:

6. Member States shall ensure that when applying a risk-based approach to supervision, competent authorities:

Amendment 118



Member States shall ensure that policy makers, the FIU, law enforcement authorities, supervisors and other competent authorities involved in anti-money laundering and combating terrorist financing have effective mechanisms to enable them to co-operate and co-ordinate domestically concerning the development and implementation of policies and activities to combat money laundering and terrorist financing.

Member States shall ensure that policy makers, the FIU, law enforcement authorities, supervisors, data protection authorities and other competent authorities involved in anti-money laundering and combating terrorist financing have effective mechanisms to enable them to co-operate and co-ordinate domestically concerning the development and implementation of policies and activities to combat money laundering and terrorist financing.

Amendment 119



The competent authorities shall provide EBA, EIOPA and ESMA with all the information necessary to carry out their duties under this Directive.

Without prejudice to data protection rules, the competent authorities shall provide EBA, EIOPA and ESMA with all the relevant information necessary to carry out their duties under this Directive.

Amendment 120


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The Commission may lend such assistance as may be needed to facilitate coordination, including the exchange of information between FIUs within the Union. It may regularly convene meetings with representatives from Member States' FIUs to facilitate co-operation and to exchange views on co-operation related issues.

The Commission shall lend such assistance as may be needed to facilitate coordination, including the exchange of information between FIUs within the Union. It shall regularly convene meetings of the EU FIUs' Platform composed of representatives from Member States' FIUs and, where appropriate, meetings of the EU FIUs' Platform with EBA, EIOPA or ESMA. The EU FIUs' Platform has been set up to formulate guidance on implementation issues relevant for FIUs and reporting entities, to facilitate the FIUs' activities, particularly those concerning international cooperation and joint analysis, to share information on trends and risk factors in the internal market, and to ensure the participation of the FIUs in the governance of the FIU.net system.

Amendment 121



Member States shall ensure that their FIUs co-operate with each other to the greatest extent possible irrespective of whether they are administrative, law enforcement or judicial or hybrid authorities.

Member States shall ensure that their FIUs co-operate with each other and with FIUs from non-Member States, to the greatest extent possible irrespective of whether they are administrative, law enforcement or judicial or hybrid authorities, without prejudice to Union data protection rules.

Amendment 122



1. Member States shall ensure that FIUs exchange, spontaneously or upon request, any information that may be relevant for the processing or analysis of information or

1. Member States shall ensure that FIUs exchange with both Member State FIUs and non-Member State FIUs, automatically or upon request, any

96

investigation by the FIU regarding financial transactions related to money laundering or terrorist financing and the natural or legal person involved. A request shall contain the relevant facts, background information, reasons for the request and how the information sought will be used.

information that may be relevant for the processing or analysis of information or investigation by the FIU regarding financial transactions related to money laundering or terrorist financing and the natural or legal person involved. A request shall contain the relevant facts, background information, reasons for the request and how the information sought will be used.

Amendment 123



2. Member States shall ensure that the FIU to whom the request is made is required to use the whole range of its powers which it has domestically available for receiving and analysing information when it replies to a request for information referred to in paragraph 1 from another FIU based in the Union. The FIU to whom the request is made shall respond in a timely manner and both the requesting and requested FIU shall use secure digital means to exchange information, wherever possible.

2. Member States shall ensure that the FIU to whom the request is made is required to use the whole range of its powers which it has domestically available for receiving and analysing information when it replies to a request for information referred to in paragraph 1 from another FIU. The FIU to whom the request is made shall respond in a timely manner and both the requesting and requested FIU shall use secure digital means to exchange information, wherever possible.

Amendment 124

Proposal for a directiveArticle 50 – paragraph 2 – subparagraph 1 a (new)


In particular, when a FIU based in the Union wants to obtain additional information from an obliged entity of another Member State which operates on its territory, the request shall be addressed to the FIU of the Member State in whose territory the obliged entity is situated. This FIU shall transfer requests and answers promptly and without any filter.

Amendment 125

Proposal for a directive

97

Article 53 – paragraph 1


1. Member States shall encourage their FIUs to use protected channels of communication between FIUs and to use the decentralised computer network FIU.net.

1. Member States shall require their FIUs to use protected channels of communication between themselves.

Amendment 126



2. Member States shall ensure that, in order to fulfil their tasks as laid down in this Directive, their FIUs co-operate to apply sophisticated technologies. These technologies shall allow FIUs to match their data with other FIUs in an anonymous way by ensuring full protection of personal data with the aim to detect subjects of the FIU's interests in other Member States and identify their proceeds and funds.

2. Member States shall ensure that, in order to fulfil their tasks as laid down in this Directive, their FIUs co-operate among themselves and, within its mandate, with Europol, to apply sophisticated technologies. These technologies shall allow FIUs to match their data with other FIUs in an anonymous way by ensuring full protection of personal data with the aim to detect subjects of the FIU's interests in other Member States and identify their proceeds and funds.

Amendment 127



Member States shall ensure that their FIUs cooperate with Europol regarding analyses carried out having a cross-border dimension concerning at least two Member States.

Member States shall encourage their FIUs to cooperate with Europol regarding analyses of on-going cases carried out having a cross-border dimension concerning at least two Member States.

Amendment 128


98


Article 54a

The Commission should increase the pressure that it brings to bear on the tax havens to improve their cooperation and exchange of information in order to combat money laundering and terrorist financing.

Amendment 129



1. Member States shall ensure that obliged entities can be held liable for breaches of the national provisions adopted pursuant to this Directive.

1. Member States shall ensure that obliged entities can be held liable for breaches of the national provisions adopted pursuant to this Directive. The penalties shall be effective, proportionate and dissuasive.

Amendment 130



(a) a public statement which indicates the natural or legal person and the nature of the breach;

(a) a public statement which indicates the natural or legal person and the nature of the breach, if necessary and proportionate after a case-by-case evaluation;

Amendment 131

Proposal for a directiveArticle 56 – paragraph 2 – subparagraph 2


For the purpose of point (e), where the legal person is a subsidiary of a parent undertaking, the relevant total annual turnover shall be the total annual turnover resulting from the consolidated account of the ultimate parent undertaking in the

For the purpose of point (e), where the legal person is a subsidiary of a parent undertaking, the relevant total annual turnover shall be the total annual turnover resulting from the account of the subsidiary.

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preceding business year.

Amendment 132



1. Member States shall ensure that competent authorities publish any sanction or measure imposed for breach of the national provisions adopted in the implementation of this Directive without undue delay including information on the type and nature of the breach and the identity of persons responsible for it, unless such publication would seriously jeopardise the stability of financial markets. Where publication would cause a disproportionate damage to the parties involved, competent authorities shall publish the sanctions on an anonymous basis.

1. Member States shall ensure that competent authorities publish any sanction or measure imposed for breach of the national provisions adopted in the implementation of this Directive, if necessary and proportionate after a case by case evaluation, without undue delay including information on the type and nature of the breach and the identity of persons responsible for it. Where publication would cause a disproportionate damage to the parties involved, competent authorities may publish the sanctions on an anonymous basis.

Amendment 133



3. EBA, EIOPA, and ESMA shall issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010 on types of administrative measures and sanctions and level of administrative pecuniary sanctions applicable to obliged entities referred to in Article 2(1)(1) and (2). These guidelines shall be issued within 2 years of the date of entry into force of this Directive.

3. In order to ensure their consistent application and dissuasive effect across the Union, EBA, EIOPA, and ESMA shall issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010 on types of administrative measures and sanctions and level of administrative pecuniary sanctions applicable to obliged entities referred to in Article 2(1)(1) and (2). These guidelines shall be issued within one year of the date of entry into force of this Directive.

Amendment 134


100

Article 58 – paragraph 2 – point b a (new)


(ba) appropriate protection for the accused person;

Amendment 135



The Commission shall submit to the European Parliament and to the Council within one year of the entry into force of this Directive a report on the provisions concerning serious tax offences and punishments in the Member States, on the cross-border significance of tax offences and on the possible need for a coordinated approach in the Union, accompanied if appropriate by a legislative proposal.

Amendment 136

Proposal for a directiveAnnex II – point 1 – point c a (new)


(ca) beneficial owners of pooled accounts held by notaries and other independent legal professionals from the Member States, or from third countries provided that they are subject to requirements to combat money laundering or terrorist financing consistent with international standards and are supervised for compliance with those requirements, and provided that the information on the identity of the beneficial owner is available, on request, to the institutions that act as depository institutions for the pooled accounts;

Amendment 137


101

Annex II – point 1 – point c b (new)


(cb) obliged entities where they are subject to requirements to combat money laundering and terrorist financing under this Directive and have effectively implemented those requirements.

Amendment 138

Proposal for a directiveAnnex II – point 2 – point e a (new)


(ea) long-term purpose-orientated savings agreements, serving for instance as a safeguard for retirement provisions or for the acquisition of self-used real estate and where the incoming payments originate from a payment account which is identified in accordance with Articles 11 and 12 of this Directive;

Amendment 139

Proposal for a directiveAnnex II – point 2 – point e b (new)


(eb) financial products low in value where repayment is conducted through a bank account in the name of the customer;

Amendment 140

Proposal for a directiveAnnex II – point 2 – point e c (new)


(ec) financial products which relate to financial physical assets in the form of leasing agreements or of low value consumer credit, provided the transactions are carried out through bank

102

accounts.

Amendment 141

Proposal for a directiveAnnex II – point 2 – point e d (new)


(ed) non-face-to-face business relationships or transactions where the identity is capable of being verified electronically;

Amendment 142

Proposal for a directiveAnnex II – point 2 – point e f (new)


(ef) such products, services and transactions identified as low risk by the competent authorities of the home Member State of the obliged entities.

Amendment 143

Proposal for a directiveAnnex II – point 3 – point a


(a) other EU Member States; (a) EU Member States;

Amendment 144

Proposal for a directiveAnnex II – point 3 – point b


(b) third countries having effective anti-money laundering/combating terrorist financing systems;

(b) third countries identified, by credible sources, such FATF public statements, mutual evaluation or detailed assessment reports or published follow-up reports, as having effective anti-money laundering/combating terrorist financing systems;

103

Amendment 145

Proposal for a directiveAnnex II – point 3 – point d a (new)


(da) jurisdictions identified by the Commission having anti-money laundering measures equivalent to those laid down by this Directive and other related rules and regulations of the Union;

Amendment 146

Proposal for a directiveAnnex III – point 2 – point b


(b) products or transactions that might favour anonymity;

(b) products or transactions that might favour or that allow for anonymity;

Amendment 147

Proposal for a directiveAnnex III – point 2 – point c


(c) non-face-to-face business relationships or transactions;

(c) non-face-to-face business relationships or transactions, without certain safeguards, e.g. electronic signatures;

Amendment 148

Proposal for a directiveAnnex III – point 2 – point e


(e) new products and new business practices, including new delivery mechanism, and the use of new or developing technologies for both new and pre-existing products.

deleted

104

Amendment 149

Proposal for a directiveAnnex III – point 3 – point c


(c) countries subject to sanctions, embargos or similar measures issued by, for example, the United Nations;

(c) countries subject to sanctions, embargos or similar measures issued by, for example, the United Nations and the European Union;

Amendment 150

Proposal for a directiveAnnex III a (new)


Annex IIIa

The following are types of enhanced due diligence measures that Member States should as a minimum implement for the application of Article 16:

- Obtaining additional information on the customer (e.g. occupation, volume of assets, information available through public databases, internet, etc.), and updating more regularly the identification data of customer and beneficial owner.

- Obtaining additional information on the intended nature of the business relationship;

- Obtaining information on the customer’s source of funds or source of wealth of the customer;

- Obtaining information on the reasons for intended or performed transactions;

- Obtaining the approval of senior management to commence or continue the business relationship;

- Conducting enhanced monitoring of the business relationship, by increasing the number and timing of controls applied, and selecting patterns of transactions that need further examination;

105

- Requiring the first payment to be carried out through an account opened in the customer's name with a bank subject to similar CDD standards.

106

P7_TA-PROV(2014)0192

EU guarantee to EIB against losses under financing operations supporting investment projects outside the Union ***I

European Parliament legislative resolution of 11 March 2014 on the proposal for a decision of the European Parliament and of the Council on granting an EU guarantee to the European Investment Bank against losses under financing operations supporting investment projects outside the Union (COM(2013)0293 – C7-0145/2013 – 2013/0152(COD))




– having regard to Article 294(2) and Articles 209 and 212 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0145/2013),


– having regard to the undertaking given by the Council representative by letter of 20 December 2013 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union, and the related statement attached to the Coreper minutes, notified to Parliament by letter of the same date,


– having regard to the report of the Committee on Budgets and the opinions of the Committee on Foreign Affairs, the Committee on Development, the Committee on International Trade and the Committee on Economic and Monetary Affairs (A7-0392/2013),




107

P7_TC1-COD(2013)0152

Position of the European Parliament adopted at first reading on 11 March 2014 with a view to the adoption of Decision No .../2014/EU of the European Parliament and of the Council granting an EU guarantee to the European Investment Bank against losses under financing operations supporting investment projects outside the Union

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular

Articles 209 and 212 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure ▌1,

1 Position of the European Parliament of 11 March 2014.

108

Whereas ▌

(1) In addition to its core mission of financing investment in the European Union, which

remains its main task and objective, the European Investment Bank (EIB) undertakes

financing operations outside the Union in support of the Union's external policies. This

allows the budget funds of the Union available to the external regions to be

complemented by the financial strength of the EIB for the benefit of the targeted third

countries. In undertaking such financing operations, the EIB indirectly contributes to

the general principles and policy objectives of the Union, which include reducing

poverty through inclusive growth and sustainable economy, environmental and

social development and the prosperity of the Union in changing global economic

circumstances.

(2) Article 209(3) of the Treaty on the Functioning of the European Union (TFEU), in

conjunction with Article 208 thereof, provides that the EIB is to contribute, under the

terms laid down in its Statute, to the implementation of the measures necessary to

further the objectives of Union development cooperation policy.

(3) With a view to supporting Union external action, and in order to enable the EIB to

finance investments outside the Union without affecting the credit standing of the EIB,

the majority of its operations outside the Union have benefited from an EU budgetary

guarantee (‘EU guarantee’) administered by the Commission. This further supports

EIB’s creditworthiness towards the financial markets, which is of primary

importance.

109

(4) The latest EU guarantee for EIB financing operations signed during the period from 1

February 2007 to 31 December 2013 was established by Decision No 1080/2011/EU

of the European Parliament and of the Council ▌1. An EU guarantee for EIB financing

operations outside the Union in support of Union policies should be established for the

2014-2020 multiannual financial framework.

(5) The Guarantee Fund for external actions ("Guarantee Fund"), established by

Council Regulation (EC, Euratom) No 480/20092, provides a liquidity cushion for

the Union budget against losses incurred on EIB financing operations and on

macro-financial assistance and Euratom loans outside the Union.

(6) A list of countries potentially eligible for EIB financing under the EU guarantee should

be established. It is also appropriate to establish a list of countries actually eligible for

EIB financing under the EU guarantee.

1 Decision No 1080/2011/EU of the European Parliament and of the Council of 25 October 2011 granting an EU guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Union and repealing Decision No 633/2009/EC (OJ L 280, 27.10.2011, p. 1).

2 Council Regulation (EC, Euratom) No 480/2009 of 25 May 2009 establishing a Guarantee Fund for external actions (OJ L 145, 10.6.2009, p. 10).

110

(7) Bhutan should be added to the list of countries actually eligible for EIB financing

and Myanmar/Burma should be added to both lists following the recent developments

which allowed the Union to open a new chapter in its relations with Bhutan and

Myanmar/Burma ▌ in order to support the ongoing political and economic reforms in

both countries.

(8) In order to reflect significant policy developments, the list of countries actually eligible

for EIB financing operations under the EU guarantee should be reviewed as

appropriate and the power to adopt acts in accordance with Article 290 TFEU should

be delegated to the Commission in respect of amendments to Annex III to this

Decision. The Commission’s amendments to Annex III should be based on an

overall assessment including economic, social, environmental and political aspects,

in particular those related to the democracy, human rights and fundamental

freedoms. It is of particular importance that the Commission carry out appropriate

consultations during its preparatory work, including at expert level. The Commission,

when preparing and drawing up delegated acts, should ensure a simultaneous, timely

and appropriate transmission of all relevant documents to the European Parliament and

to the Council.

111

(9) In order to cater for the potential evolution of the actual provisioning needs of the

Guarantee Fund in accordance with Regulation (EC, Euratom) No 480/2009, the

maximum ceiling of the EU guarantee should be broken down into a fixed ceiling of a

maximum amount of EUR 27 000 000 000 and an optional additional amount of EUR

3 000 000 000. The provisioning of the Guarantee Fund in the general budget of the

Union (budget line 01 03 06) is made ex-post on the basis of the outturn figures for

outstanding guaranteed external lending at the end of year n-2. In view of the

proposal for a Regulation of the European Parliament and of the Council amending

Regulation (EC) No 1638/2006 laying down general provisions establishing a

European Neighbourhood and Partnership Instrument, "reflows" deriving from

Mediterranean risk capital and loan investments under operations concluded before

2007 using Union budget funds have been accumulated in a fiduciary account

established for the Facility for Euro-Mediterranean Investment and Partnership

(FEMIP). Part of these reflows should be used for the Guarantee Fund as an

exceptional measure to ensure that the ceilings of EIB financing operations under

this Decision are sustained at an appropriate level for the 2014-2020 period. The

remaining funds should be returned to the general budget of the Union.

112

(10) Issues to be considered for the activation, in whole or in part, of the optional

additional amount should include: progress in the implementation of this Decision

by the EIB, in particular the results of EIB operations based on information from,

amongst others, the Results Measurement framework (REM), including the

development impact; the provisioning needs of the Guarantee Fund taking into

account past and future outstanding amounts on all activities covered by the

Guarantee Fund; the macro-economic, financial and political situation of the

eligible regions and countries at the time of the mid-term review.

(11) The amounts covered by the EU guarantee in each region should continue to represent

ceilings for the EIB financing under the EU guarantee and not targets that the EIB is

required to meet. The ceilings should be evaluated as part of the mid-term review of

this Decision, in particular in light of possible changes to the list of regions and

countries actually eligible for EIB financing.

(12) EIB financing operations should be consistent with the beneficiary country's own

strategies. Against this background, in order to enhance the coherence and the focus

of the EIB external financing activity on supporting Union policies, and for the

maximum benefit of beneficiaries, Decision No 1080/2011/EU sets out general

objectives for EIB financing operations across all eligible regions and countries, i.e.

local private sector development, in particular in support of small and medium-sized

enterprises (SMEs), social and economic infrastructure and climate change mitigation

and adaptation, building on the comparative strengths of the EIB in areas where it has

a well-proven track record. These objectives should be maintained in this Decision to

further promote sustainable growth and job creation.

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(13) Improving access to financing for SMEs, including SMEs from the Union investing in

the regions covered by this Decision, can play an essential role in stimulating

economic development and in combating unemployment. In order to effectively reach

out to SMEs, the EIB financing operations should be result-oriented. The EIB

should, where possible, invest in research and innovation by SMEs as a means of

supporting local development. The EIB should cooperate with local financial

intermediary institutions in the eligible countries, which should be integrated into the

local economy, in particular to ensure that part of the financial benefits is passed on to

their clients and that added value is provided compared to other sources of finance.

The EIB should also, as far as possible, increase the diversification of its financial

partners in the countries in which it operates. During its due diligence, the EIB

should assess if financing operations supporting SMEs via a financial intermediary

are in line with the regional technical operational guidelines, the REM and the EIB

standards. The EIB should establish a reporting mechanism to make sure that the

funds dedicated to SMEs are used for their benefit. A consolidated report on SMEs

financing under this Decision should be provided by the EIB as part of its

contribution to the mid-term review.

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(14) The coverage of the EU guarantee, which is limited to risks of a sovereign and political

nature, is not sufficient in itself to ensure a meaningful EIB activity in support of

micro-finance. Therefore such activity, where appropriate, should be carried out in

connection with budgetary resources available under other instruments and via

intermediary institutions including at local level as a means to promote growth and

contribute indirectly to reducing poverty in poorer countries.

(15) The EIB should continue to finance investment projects in the areas of social,

environmental, and economic infrastructure, including transport and energy, and

should consider increasing its activity in support of health and education infrastructure

when there is clear added value in doing so.

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(16) To reinforce the climate change dimension of the EU guarantee, an overall volume

of operations target and a system allowing to ex-ante assess greenhouse gas

emissions of projects supported under the EU guarantee should be introduced. EIB

financing operations in support of climate change mitigation and adaptation should

represent at least 25% of total EIB financing operations in order to further the

promotion of the Union's climate goals on a global scale. The EIB should provide its

technical expertise in cooperation with the Commission to support public and private

counterparties benefitting from EIB financing operations in order to address the

challenge of climate change and to make the best possible use of available

financing. Concessional funding should be available for mitigation and adaptation

projects. EIB financing operations should, where possible and appropriate, be

complemented by funds from the general budget of the Union through the efficient

and appropriate blending of grants and loans for climate change financing in the

context of Union external assistance. In this regard, the Commission's annual report

to the European Parliament and the Council should contain a detailed report on the

financial instruments used for financing these projects, identifying the amounts of

EIB financing operations and the corresponding amounts of grants.

116

(17) Within the areas covered by the general objectives, regional integration among

countries, in particular economic integration between Pre-accession countries,

Neighbourhood countries and the Union, should be an underlying objective for EIB

financing operations. In that context, the EIB should be able to support partner

countries within areas covered by the general objectives through foreign direct

investments by companies from the Union that promote economic integration with the

Union and that contribute to promoting technology and knowledge transfer, provided

that appropriate consideration has been given during the investment projects' due

diligence to minimise the risks that EIB financing operations lead to negative

repercussions on employment in the Union. The EIB should also be encouraged to

support foreign direct investment in partner countries by companies from the Union at

its own risk, taking into account the EIB's risk-bearing capacity.

(18) The EIB should regularly conduct ex post or mid-term evaluations of supported

activities under this Decision with a view to assessing their relevance, performance

and development effects and to identify aspects that could improve future activities.

Such evaluations should contribute to accountability and analysis of sustainability.

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(19) The practical measures for linking the general objectives of the EU guarantee and their

implementation are to be set out in regional technical operational guidelines. Such

guidelines should be consistent with the wider Union regional policy framework,

including the differentiation principle in the European Neighbourhood Policy. The

regional technical operational guidelines should be reviewed following the adoption of

this Decision and further updated following the mid-term review ▌in order to adapt to

the developments in the Union external policies and priorities. The update of the

regional operational technical guidelines should, among other considerations, take

into account relevant developments in the eligible countries.

(20) In accordance with Protocol No 5 on the Statute of the European Investment Bank

annexed to the Treaty on European Union (TEU) and the TFEU, applications made

directly to the EIB for EIB financing operations to be carried out under this Decision

are to be submitted to the Commission for an opinion on the conformity with relevant

Union legislation and policies. In the case of EIB financing operations falling under

this Decision, where the Commission delivers a negative opinion on any such

operation, that operation should not be covered by the EU guarantee.

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(21) While the EIB's strength remains its distinctive model as a publicly owned investment

bank whose remit is that of providing long-term lending so as to meet the policy

goals set by its shareholders, EIB financing operations should contribute to the

general principles guiding Union external action, as referred to in Article 21 TEU, of

▌consolidating and supporting democracy and the rule of law, human rights and

fundamental freedoms, and to the implementation of international commitments and

agreements, including environmental agreements to which the Union is a party. In

particular, the EIB should contribute to economic, financial and technical

cooperation with third countries in accordance with Article 212 TFEU.

Furthermore, EIB actions should be in line with international law, including respect

for the principles of the Charter of the United Nations. EIB actions should also be in

line with the United Nations Economic Commission for Europe Convention on

Access to Information, Public Participation in Decision-Making and Access to

Justice in Environmental Matters (Aarhus Convention) at relevant stages of the

project cycle. In relation to developing countries, EIB financing operations should

foster their sustainable economic, social and environmental development, particularly

in the most disadvantaged amongst them, their smooth and gradual integration into the

world economy, ▌as well as compliance with objectives approved by the Union in the

context of the United Nations and other relevant international organisations. While

contributing to the implementation of the measures necessary to further the objectives

of Union development cooperation policy in accordance with Article 209(3) TFEU,

the EIB should strive to support indirectly the achievement of the United Nations' 2015

Millennium Development Goals, and after 2015 the achievement of any new

development targets which might modify or replace the Millennium Development

Goals, in all regions where it is active.

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(22) The EIB activity under this Decision should support the implementation of the

European Consensus on Development, of the Agenda for Change and of the principles

of aid effectiveness outlined in the Paris Declaration of 2005, the Accra Agenda for

Action of 2008 and the Busan Partnership Agreement of 2011. Furthermore, it should

be coherent with the EU Strategic Framework and Action Plan on Human Rights and

Democracy adopted by the Council on 25 June 2012 and international environmental

agreements including biodiversity commitments. It should be implemented through a

number of concrete measures, in particular by reinforcing the EIB's capacity to

appraise environmental, social ▌, development aspects of investment projects,

including human rights, fundamental freedoms and conflict-related risks, and by

promoting local consultation with public authorities and civil society. In this context,

the EIB should implement and further develop its REM which provides a detailed set

of performance indicators measuring the economic, environmental, social, and

development impact of its financing operations throughout the EIB project cycle. The

implementation of the REM should be evaluated as part of the mid-term review of this

Decision. When carrying out due diligence in respect of an investment project, the EIB

should, where appropriate and in line with the Union's social and environmental

principles and international best practices, as well as Union law and the national law

of the beneficiary country, require the investment project promoter to carry out local

consultations and disclose their results to the public in order to take account of the

impact of projects on the relevant stakeholders. The EIB should remain in

communication with the project promoters and beneficiaries of the projects

throughout the project programming process. Finance contracts signed during the

period covered by this Decision for EIB financing operations involving public

counterparties should explicitly include the possibility to suspend disbursements in

case of revocation of eligibility under this Decision of the country in which the

investment project takes place.

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(23) At all levels, from upstream strategic planning to downstream investment project

development, it should be ensured that EIB financing operations comply with and

support Union external policies and the general objectives set out in this Decision.

With a view to increasing the coherence of Union external action, dialogue on policy

and strategy should be further strengthened between the Commission and the EIB,

including the European External Action Service (EEAS), while keeping the European

Parliament and the Council duly informed. EIB offices outside the Union should

whenever possible be located within Union delegations in order to foster such

cooperation while sharing operating costs. The Memorandum of Understanding

between the European Commission and the European Investment Bank in respect of

cooperation and coordination in the regions covered by the External Mandate,

which was revised in 2013 enhancing cooperation and early mutual exchange of

information between the Commission, the EEAS and the EIB at operational level,

should continue to be applied. Cooperation in the framework of the Memorandum of

Understanding should in particular include a regular review of the application of

the differentiation principle in Neighbourhood countries. It is of particular

importance to have an early and systematic exchange of views between the

Commission and the EIB, including the EEAS, as appropriate, in the process of

preparing relevant programming documents in order to maximise synergies between

their activities. The cooperation in relation to the respect of human rights,

fundamental freedoms and conflict prevention issues should also be reinforced. The

EIB should be encouraged to cooperate with Union delegations during the EIB

project cycle.

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(24) Union external relations should be supported by several instruments in particular by

Regulation (EU) No …/2014 of the European Parliament and of the Council 1. With a

view to enhancing the coherence of overall Union support in the regions concerned,

opportunities should be seized to combine EIB financing with Union budgetary

resources when and as appropriate, in the form of financial instruments provided for in

Title VIII of Regulation (EU, Euratom) No 966/2012 of the European Parliament and

of the Council 2 and technical assistance for project preparation and implementation,

through the Instrument for Pre-Accession Assistance II established by Regulation (EU)

No …/2014 of the European Parliament and of the Council 3, the European

Neighbourhood Instrument established by Regulation (EU) No …/2014 of the

European Parliament and of the Council 4, the Development Cooperation Instrument

established by Regulation (EU) No …/2014 of the European Parliament and of the

Council 5, the Partnership Instrument for cooperation with third countries

established by Regulation (EU) No …/2014 of the European Parliament and of the

Council 6, the Instrument for the promotion of Democracy and Human Rights

worldwide established by Regulation (EU) No …/2014 of the European Parliament and

OJ: please insert number of Regulation set out in PE-CONS 130/13 [2011/0415(COD)] and complete text of related footnote.

1 Regulation (EU) No …/2014 of the European Parliament and of the Council of … laying down common rules and procedures for the implementation of the Union's instruments for financing external action (OJ L …).

2 Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).


3 Regulation (EU) No …/2014 of the European Parliament and of the Council of … establishing an Instrument for Pre-accession Assistance (IPA II) (OJ L …).


4 Regulation (EU) No …/2014 of the European Parliament and of the Council of … establishing a European Neighbourhood Instrument (OJ L …).


5 Regulation (EU) No …/2014 of the European Parliament and of the Council of … establishing a financing instrument for development cooperation for the period 2014-2020 (OJ L …).


6 Regulation (EU) No …/2014 of the European Parliament and of the Council of … establishing a Partnership Instrument for cooperation with third countries (OJ L …).

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of the Council 1, the Instrument contributing to stability and peace established by

Regulation (EU) No …/2014 of the European Parliament and of the Council 2,

and the Instrument for Nuclear Safety Cooperation established by Council Regulation

(EU) No …/2014 3.Following Decision No 1080/2011/EU, the Commission

established an EU Platform for Blending in External Cooperation with a view to

optimising the functioning of mechanisms for the blending of grants and loans outside

the Union in particular in implementing the general budget of the Union and EIB

loans respectively, and exchanging best practices on governance and on evaluation

criteria at project level. The participation of the EIB and other financial institutions

in blending mechanisms should be fully in line with the Union’s external objectives,

aid effectiveness and transparency.


1 Regulation (EU) No …/2014 of the European Parliament and of the Council of … establishing a financing instrument for democracy and human rights worldwide (OJ L …).


2 Regulation (EU) No …/2014 of the European Parliament and of the Council of … establishing an instrument contributing to stability and peace (OJ L …).

OJ: please insert number of Regulation set out in doc. 16737/13 [2011/0414(CNS)] and complete text of related footnote.

3 Council Regulation (Euratom) No …/2014 of … establishing an Instrument for Nuclear Safety Cooperation (OJ L …).

123

(25) In its financing operations outside the Union that fall within the scope of this Decision,

the EIB should endeavour further to enhance coordination and cooperation with

European and international financial institutions, in particular those participating in

the EU Platform for Blending in External Cooperation. This cooperation includes,

where appropriate, cooperation on sector conditionality and mutual reliance on

procedures, use of ▌ co-financing and participation in global initiatives, such as those

promoting aid coordination and effectiveness. Such coordination and cooperation

should strive to minimise possible duplication of costs and unnecessary overlap.

Cooperation should be based on the principle of reciprocity. Reciprocal access by the

EIB to financial instruments set up by other European and international financial

institutions should be promoted, as appropriate. The tripartite memorandum of

understanding between the Commission, the EIB Group and the European Bank for

Reconstruction and Development (EBRD) in respect of cooperation outside the Union,

which allows the EIB Group and the EBRD to act in a complementary way by relying

on their respective comparative advantages, was updated in 2012 to cover the

extension of EBRD's geographical scope to the Mediterranean region and should

continue to be applied. The principles set out in this Decision should also be applied

when EIB financing is implemented through cooperation agreements with other

European and international financial institutions.

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(26) The EIB should be encouraged to continue to finance operations outside the Union

also at its own risk, including in support of Union economic interests, in countries and

in favour of investment projects having a sufficient creditworthiness according to the

assessment of the EIB and taking into account its own risk absorption capacity, so that

the use of the EU guarantee can be focused on countries and investment projects

where the EU guarantee provides added value on the basis of EIB own assessment,

including in terms of sustainable economic, social and environmental development.

(27) The EIB should expand the range of innovative financial instruments it offers,

including by focusing more on developing guarantee instruments. Moreover, the EIB

should actively seek to participate in risk sharing instruments and debt capital market

financing of projects with stable and predictable cash flow generation. In particular, it

should consider supporting debt capital market instruments issued or granted for the

benefit of an investment project carried out in the eligible countries. In addition, the

EIB should increase its provision of loans in local currencies and issue bonds in local

markets, provided that beneficiary countries put in place the necessary structural

reforms, in particular in the financial sector, as well as other measures to facilitate EIB

activities. In the diversification and expansion of capital market instruments, special

care should be taken to ensure that such instruments do not lead to risky financial

practices and indebtedness and therefore could threaten financial stability.

125

(28) The Commission should report annually to the European Parliament and the

Council. The report should assess EIB financing operations and their compliance

with this Decision, their added value and contribution to the Union external policies,

their quality, their development impact drawing on the EIB's REM and the financial

benefits transferred to beneficiaries. The report should also include information on

calls on the EU guarantee, on climate change and biodiversity financing under this

Decision, on the follow-up of the functioning of the Memorandum of Understanding

between the EIB and the European Ombudsman, and a description of the

cooperation with the Commission and other European and international financial

institutions, including co-financing. The report should be made public in order to

allow relevant stakeholders, including civil society, to express their views.

126

(29) The EIB financing operations in support of Union external policies should continue to

be conducted in accordance with the principles of sound banking practice. They should

continue to be managed in accordance with the EIB's own rules and procedures, which

should reflect those principles, including appropriate control measures and

compliance with the EIB's statement on social and environmental standards, as well as

with the relevant rules and procedures concerning the Court of Auditors and the

European Anti-Fraud Office (OLAF). In its financing operations the EIB should

adequately implement its policies towards weakly regulated or non-cooperative

jurisdictions identified as such by the Union, the United Nations, the Organisation

for Economic Cooperation and Development or the Financial Action Task Force in

order to contribute to the international fight against tax fraud, tax evasion and money-

laundering. In the interests of transparency, the EIB should draw up, to the extent

possible, in cooperation with the local financial intermediaries, a list of the final

borrowers.

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(30) The EIB should take appropriate measures ensuring that, when financing operations

subject to the EU guarantee, the financial interests of the Union are protected by the

application of preventive measures against fraud, corruption, money laundering and

any other illegal activities and that OLAF is entitled to conduct on-the-spot checks and

inspections in the premises of the beneficiaries. The EIB should, in line with its

Policy on preventing and deterring prohibited conduct in European Investment

Bank activities (the "EIB anti-fraud policy"), which was adopted in 2008 and

revised in 2013, cooperate closely with the competent Union and Member States'

authorities in order to strengthen the anti-money laundering and anti-terrorist

financing measures in force and help improve their enforcement. In line with its

Whistleblowing Policy, the EIB should also pay particular attention to information

by whistleblowers regarding potential cases of fraud, corruption or other illegal

activity, allowing for a proper follow-up, feedback and protection against retaliation.

(31) The EIB governing bodies should be encouraged to take the necessary measures to

adapt the EIB activity to contribute to the Union's external policies in an effective

manner, and to adequately meet the requirements set out in this Decision,

HAVE ADOPTED THIS DECISION:

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Article 1

EU guarantee

1. The Union shall grant the European Investment Bank (EIB) a budgetary guarantee for

financing operations carried out outside the Union ("EU guarantee"). The EU

guarantee shall be granted as a global guarantee in respect of payments due to the EIB,

but not received by it, in connection with loans, loan guarantees, and debt capital

market instruments granted for or issued for the benefit of EIB investment projects that

are eligible in accordance with paragraph 2.

2. Eligible for the EU guarantee shall be the EIB loans, loan guarantees, and debt capital

market instruments that are granted for or issued for the benefit of investment projects

carried out in eligible countries in accordance with the EIB's own rules and procedures,

including the EIB's statement on environmental and social principles and standards,

and in support of the relevant Union external policy objectives, where EIB financing

has been granted in accordance with a signed agreement which has neither expired nor

been cancelled ('EIB financing operations').

3. The EIB financing operations in support of Union external policies shall continue to

be managed in accordance with the principles of sound banking practices.

129

4. The EU guarantee shall be restricted to 65% of the aggregate amount disbursed and

guaranteed under EIB financing operations, less amounts reimbursed, plus all related

amounts.

5. The EU guarantee shall cover EIB financing operations signed during the period from

1 January 2014 to 31 December 2020.

6. If, on expiry of the period referred to in paragraph 5, the European Parliament and the

Council have not adopted a decision granting a new EU guarantee to the EIB against

losses under its financing operations outside the Union, that period shall be

automatically extended once by six months.

Article 2

Ceilings for EIB financing operations under EU guarantee

1. The maximum ceiling of the EIB financing operations under EU guarantee throughout

the period 2014-2020 shall not exceed EUR 30 000 000 000. Amounts initially

earmarked for financing operations but subsequently cancelled shall not count

against the ceiling.

This maximum ceiling shall be broken down into:

(a) a fixed ceiling of a maximum amount of EUR 27 000 000 000;

130

(b) an optional additional amount of EUR 3 000 000 000.

The European Parliament and the Council shall decide in accordance with the

ordinary legislative procedure on the activation in whole or in part of the amount

referred to in point (b) and its regional distribution ▌following the mid-term review as

set out in Article 19.

2. The fixed ceiling referred to in point (a) of paragraph 1 shall be broken down into

regional ceilings and sub-ceilings as laid down in Annex I. Within the regional

ceilings, the EIB shall progressively ensure a balanced country distribution within the

regions covered by the EU guarantee.

Article 3

General objectives and principles

1. The EU guarantee shall be granted only for EIB financing operations which have

added value on the basis of the EIB's own assessment, and support any of the

following general objectives:

(a) local private sector development, in particular support to SMEs;

(b) development of social ▌ and economic infrastructure, including transport,

energy, environmental infrastructure, and information and communication

technology;

(c) climate change mitigation and adaptation.

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2. Whilst preserving the EIB's distinct character as an investment bank, EIB financing

operations carried out under this Decision shall contribute to the general EU interest,

in particular the principles guiding Union external action, as referred to in Article 21

TEU and shall contribute to the implementation of international environmental

agreements to which the Union is a party. The EIB governing bodies are encouraged

to take the necessary measures to adapt the EIB activity to contribute to the Union

external policies in an effective manner, and to adequately meet the requirements set

out in this Decision.

3. Regional integration among countries, including in particular economic integration

between Pre-accession countries, Neighbourhood countries and the Union, shall be an

underlying objective for EIB financing operations within areas covered by the general

objectives set out in paragraph 1. The EIB shall undertake financing operations in

beneficiary countries within areas covered by the general objectives by supporting

foreign direct investments that promote economic integration with the Union.

4. In developing countries, as defined in the Organisation for Economic Cooperation and

Development list of official development assistance recipients, the EIB financing

operations shall contribute, in accordance with Articles 208 and 209 TFEU, indirectly

to the objectives of the Union ▌development cooperation policy, such as reducing

poverty through inclusive growth and sustainable economy, environmental and

social development.

132

5. To ensure that private sector investments have the greatest development impact, the

EIB shall endeavour to strengthen the local private sector in beneficiary countries

through support to local investment as provided for in point (a) of paragraph 1. EIB

financing operations supporting the general objectives set out in paragraph 1 shall

endeavour to also include support to investment projects by SMEs from the Union. In

order to effectively monitor the use of funds for the benefit of the SMEs concerned,

the EIB shall establish adequate contractual requirements with financial

intermediaries, including standards for reporting to be provided by the beneficiaries.

The EIB shall cooperate with financial intermediaries that can support the specific

needs of SMEs in the countries of operation and that do not participate in EIB

financing operations implemented in an eligible country through vehicles located in

a foreign non-cooperative jurisdiction referred to in Article 13.

6. EIB financing operations supporting the general objective set out in point (b) of

paragraph 1 shall support investment projects predominantly in the areas of transport,

energy, environmental infrastructure, information and communication technology,

health and education. This includes production and integration of energy from

renewable sources, energy systems transformation enabling a switch to lower carbon

intensive technologies and fuels, sustainable energy security and energy infrastructure,

including for gas production and transportation to Union energy market, as well as

electrification of rural areas, environmental infrastructure such as water and

sanitation and green infrastructure, ▌telecommunications and broadband network

infrastructure ▌.

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7. EIB financing operations supporting the general objectives set out in point (c) of

paragraph 1 shall support investment projects in climate change mitigation and

adaptation which contribute to the overall objective of the United Nations Framework

Convention on Climate Change, in particular by avoiding or reducing greenhouse gas

emissions in the areas of renewable energy, energy efficiency and sustainable

transport, or by increasing resilience to the adverse impacts of climate change on

vulnerable countries, sectors and communities. The eligibility criteria for climate

action projects are defined in the EIB climate change strategy which shall be

updated before the end of 2015. To this end, an analysis of the carbon footprint

ought to be included in the environmental assessment procedure to determine

whether project proposals optimise energy-efficiency improvements. Over the period

covered by this Decision, the volume of those operations shall represent at least 25%

of total EIB financing operations.

8. In line with Union and international climate change objectives, before the end of 2015

the EIB, in cooperation with the Commission ▌, shall update its climate change

strategy as regards EIB financing operations. This update shall inter alia integrate

concrete actions to ensure that investment projects under this Decision are in line

with Union's climate change objectives and to step up efforts to support renewable

energy sources and energy efficiency.

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9. The EU guarantee shall cover only EIB financing operations carried out in eligible

countries that have concluded a framework agreement with the EIB establishing the

legal conditions under which such operations are to be carried out.

Article 4

Countries covered

1. The list of countries potentially eligible for EIB financing under EU guarantee is set

out in Annex II. The list of countries eligible for EIB financing under EU guarantee is

set out in Annex III and shall include no countries other than those listed in Annex II.

For countries not listed in Annex II, eligibility for EIB financing under the EU

guarantee shall be decided on a case-by-case basis in accordance with the ordinary

legislative procedure.

2. The Commission shall be empowered to adopt delegated acts in accordance with

Article 18 concerning amendments to Annex III. The Commission's decisions shall be

based on an overall assessment, including economic, social, environmental and

political ▌aspects, in particular those related to the democracy, human rights and

fundamental freedoms as well as the relevant European Parliament resolutions and

Council decisions and conclusions.

3. Delegated acts amending Annex III shall not affect the EU guarantee coverage of EIB

financing operations signed before the entry into force of those delegated acts, subject

to paragraph 4.

4. Disbursements on EIB financing operations benefiting from a Comprehensive

Guarantee as referred to in Article 8(1) shall not be made in countries not listed in

Annex III.

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▌

5. The EU guarantee shall not cover EIB financing operations in a specific country with

which the agreement concerning such operations has been signed after that country's

accession to the Union.

Article 5

Contribution of EIB financing operations to Union policies

1. The Commission shall update, together with the EIB, the existing regional technical

operational guidelines for EIB financing operations within one year following the

entry into force of this Decision.

The regional technical operational guidelines shall be consistent with the wider Union

regional policy framework set out in Annex IV. In particular, the regional technical

operational guidelines shall ensure that EIB financing under this Decision is

complementary to corresponding Union assistance policies, programmes and

instruments in the different regions.

In updating the regional technical operational guidelines, the Commission and the EIB

shall take into account relevant European Parliament resolutions and Council decisions

and conclusions. The regional technical operational guidelines shall be consistent

with the priorities contained in the national or regional programmes, where

available, drawn up by the beneficiary countries, taking due account of any

consultation with local civil society in the process of drawing up those programmes.

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The Commission shall transmit to the European Parliament and to the Council the

updated regional technical operational guidelines, as soon as they are established.

Within the framework set out by the regional technical operational guidelines, the EIB

shall define corresponding financing strategies and ensure their implementation.

EIB financing operations shall be consistent with the regional technical operational

guidelines and the strategies of the beneficiary country.

The regional technical operational guidelines shall be reviewed following the mid-term

review referred to in Article 19.

2. Within the framework of the procedure provided for in Article 19 of Protocol No 5,

the Commission delivers an opinion on EIB financing operations. In the case of EIB

financing operations falling under this Decision, where the Commission delivers an

unfavourable opinion, that operation shall not be covered by the EU guarantee.

137

Article 6

Cooperation with the Commission and the EEAS

1. The consistency of EIB external actions with Union external policy objectives shall be

further strengthened, with a view to maximising synergies between EIB financing

operations and Union budgetary resources, in particular through the updating of the

regional technical operational guidelines referred to in Article 5, for which the EEAS

shall be consulted on policy issues, as appropriate, as well as through regular and

systematic dialogue and early exchange of information on:

(a) strategic documents prepared by the Commission or the EEAS as appropriate,

such as country and regional strategy papers, indicative programmes, action

plans and pre-accession documents;

(b) the EIB's strategic planning documents, investment project pipelines and EIB

annual reporting to the Commission;

(c) other policy and operational aspects.

2. The cooperation shall be carried out on a region-by-region basis, including at Union

delegation level, taking into consideration the EIB's role as well as the policies of the

Union in each region.

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Article 7

Cooperation with other European and international financial institutions

1. EIB financing operations shall be carried out, where appropriate, in cooperation with

other European multilateral and Member States' financial institutions ("European

financial institutions ▌") and international financial institutions, including regional

development banks ("international financial institutions") in order to maximise

synergies, cooperation and efficiency, to develop jointly innovative financial

instruments, to ensure prudent and reasonable sharing of risks and coherent investment

project and sector conditionality, and in order to minimise possible duplication of costs

and unnecessary overlap.

2. The cooperation referred to in paragraph 1 shall be facilitated by coordination between

the Commission, the EIB and the relevant European and international financial

institutions operating in the different regions, carried out where appropriate in the

context of memoranda of understanding or other Union regional cooperation

frameworks.

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Article 8

Coverage and terms of the EU guarantee

1. For EIB financing operations, except those consisting of debt capital market

instruments, entered into with a State, or guaranteed by a State, and for other EIB

financing operations entered into with regional or local authorities, or public

enterprises or institutions owned or controlled by a State, where such other EIB

financing operations have an appropriate EIB credit risk assessment taking into

account the credit risk situation of the country concerned, the EU guarantee shall cover

all payments due to the EIB, but not received by it ("Comprehensive Guarantee").

2. For the purposes of paragraph 1, ▌Palestine is represented by the Palestinian Authority

and Kosovo1 is represented by the Authorities of Kosovo.

1 This designation is without prejudice to positions on status, and is in line with the United Nations Security Council Resolution 1244(1999) and the International Court of Justice opinion on Kosovo's declaration of independence.

140

3. For EIB financing operations other than those referred to in paragraph 1 ▌, the EU

guarantee shall cover all payments due to the EIB but not received by it, where the

non-receipt has been caused by the realisation of one of the following political risks

("Political Risk Guarantee"):

(a) non-transfer of currency;

(b) expropriation;

(c) war or civil disturbance;

(d) denial of justice upon breach of contract.

4. For EIB financing operations consisting of debt capital market instruments, only the

Political Risk Guarantee shall apply.

5. Financing agreements with individual promoters relating to EIB financing

operations shall also include appropriate environmental and social provisions in

accordance with the EIB’s own rules and procedures.

▌

141

6. The Commission and the EIB shall set out in the guarantee agreement referred to in

Article 14 a clear and transparent allocation policy allowing the EIB to identify,

within its external activity, the operations to be financed under this Decision in order

to ensure the most effective use of the EU guarantee. The allocation policy shall be

based on the creditworthiness of EIB financing operations as assessed by the EIB, the

▌ ceilings as defined in Annex I, the nature of the counterparty, ,whether a sovereign

State or a sub-sovereign entity falling under paragraph 1 of this Article or a private

entity, EIB risk absorption capacity and other relevant criteria, including added value

of the EU guarantee. The European Parliament and the Council shall be informed

on the allocation policy in accordance with Article 14.

7. When the EU guarantee is called, the Union shall be subrogated to any relevant rights

of the EIB in respect of any obligation in connection to its financing operations, in

accordance with the guarantee agreement referred to in Article 14.

142

Article 9

EIB assessment and monitoring of investment projects

1. The EIB shall carry out thorough due diligence and, ▌ where appropriate, shall require

project promoters to carry out local public consultation, in line with Union social and

environmental principles, with the relevant national and local stakeholders, as well

as with civil society, at project planning stage and implementation stage on social,

human rights, environmental, economic and development-related aspects of

investment projects covered by the EU guarantee, and to provide information relevant

for the assessment of the contribution to the fulfilment of Union external policy and

strategic objectives.

Where appropriate, this appraisal shall include an assessment of how the capacities of

the beneficiaries of EIB financing can be reinforced throughout the project cycle with

technical assistance. The EIB's own rules and procedures shall include the necessary

provisions on assessment of environmental and social impact of investment projects

and of aspects related to human rights and conflict prevention, to ensure that

▌investment projects supported under this Decision are environmentally and socially

sustainable ▌.

143

2. In addition to the ex-ante assessment of development-related aspects, the EIB shall

monitor the implementation of financing operations. In particular, it shall require the

project promoters to carry out thorough monitoring during project implementation

until completion, inter alia, on the economic, development, social, environmental and

human rights impact of the investment project. The EIB shall verify on a regular basis

the information provided by the project promoters and make it publicly available if

the project promoter agrees. Where possible, project completion reports related to

EIB financing operations shall be published excluding confidential information.

3. The EIB monitoring shall also endeavour to cover the implementation of

intermediated operations and the performance of financial intermediaries in support of

SMEs.

4. The EIB shall establish a comprehensive ▌ system to ex-ante assess relative and

absolute greenhouse gas emissions related to EIB financing operations where those

emissions meet significant thresholds, as defined in a relevant methodology included

in the EIB climate change strategy, and where data is available.

5. The results of monitoring shall, where possible, be disclosed, subject to

confidentiality requirements and the agreement of relevant parties.

144

Article 10

External assigned revenue for the Guarantee Fund

Repayments and revenues for an amount of EUR 110 000 000, originating from operations

concluded before 2007, including capital repayments, guarantees released, and repayments

of the principal of loans, dividends, capital gains, guarantee fees and interest on loans and

on amounts on fiduciary accounts, paid back to the fiduciary account established for the

Facility for Euro-Mediterranean Investment and Partnership and attributable to the support

from the general budget of the Union, shall constitute external assigned revenue in

accordance with Article 21(4) of Regulation (EU, Euratom) No 966/2012 and shall be used

for the Guarantee Fund.

Amounts exceeding EUR 110 000 000 which have been paid back to the fiduciary account

established for the Facility for Euro-Mediterranean Investment and Partnership shall be

entered in the general budget of the Union after deduction of management costs and fees.

Article 11

Annual reporting and accounting

1. The Commission shall report annually to the European Parliament and to the Council

on EIB financing operations carried out under this Decision. The report shall be made

public and include:

(a) an assessment of EIB financing operations at project, sector, country and

regional levels and their compliance with this Decision;

▌

145

(b) an assessment of the added value ▌, the estimated outputs, outcomes and

development impact of EIB financing operations at an aggregated basis, drawing

on the EIB's Results Measurement framework annual report. To that effect,

the EIB shall use performance indicators in relation to development,

environmental and social aspects, including human right aspects, of projects

funded, taking into account the relevant indicators under the Paris

Declaration of 2005 for Aid Effectiveness. Indicators for environmental

aspects of projects shall include criteria for clean technology which are

oriented in principle at energy efficiency and technologies for reducing

emissions;

(c) an assessment of the contribution of EIB financing operations to the fulfilment

of Union external policy and strategic objectives, taking into account the

regional technical operational guidelines referred to in Article 5;

(d) an assessment of the financial benefit transferred to beneficiaries of EIB

financing operations on an aggregated basis;

(e) an assessment of the quality of EIB financing operations, in particular, the extent

to which the EIB has taken into account environmental and social sustainability

in the due diligence and monitoring of the investment projects financed;

146

(f) detailed information on calls on the EU guarantee;

(g) information on the climate change and biodiversity financing volumes under this

Decision, the impact on absolute and relative greenhouse gas emissions referred

to in Article 9(4) on an aggregated basis as well as the number of projects

assessed against the climate risk;

(h) a description of the cooperation with the Commission and other European and

international financial institutions, including co-financing. The report shall in

particular include a breakdown of Union financial resources and resources of

other European and international financial institutions used in combination with

EIB financing, thus giving an overview of the overall investment supported by

EIB financing operations carried out under this Decision. The report shall also

mention the conclusion of new memoranda of understanding between the EIB

and other European or international financial institutions having a bearing on

EIB financing operations under this Decision;

(i) information on the follow up of the functioning of the Memorandum of

Understanding between the EIB and the European Ombudsman in so far as that

Memorandum concerns EIB financing operations covered by this Decision.

147

2. For the purposes of the Commission's reporting referred to in paragraph 1, the EIB

shall provide the Commission with yearly reports on EIB financing operations carried

out under this Decision including all necessary elements allowing the Commission to

report in accordance with paragraph 1. The EIB may also provide to the Commission

additional information relevant for the European Parliament and the Council to have a

comprehensive overview of EIB external activity.

3. The EIB shall provide the Commission with statistical, financial and accounting data

on each EIB financing operation, as well as any additional information necessary to

fulfil the Commission's reporting duties or requests by the Court of Auditors and an

auditor's certificate on the outstanding amounts of the EIB financing operations. EIB

shall also provide the Commission any other necessary documents in line with

Regulation (EU, Euratom) No 966/2012.

4. For the purposes of the Commission's accounting and reporting of the risks covered by

the EU guarantee, the EIB shall provide the Commission with the EIB's risk

assessment and grading information concerning EIB financing operations.

148

5. The EIB shall provide the Commission, at least on a yearly basis, an indicative

multiannual programme of the planned volume of signatures of EIB financing

operations, so as to ensure compatibility of the EIB's forecast financing with the

ceilings established in this Decision and for the Commission to ensure appropriate

budgetary planning for provisioning the Guarantee Fund. The Commission shall take

account of this forecast when preparing the draft general budget of the Union.

6. The EIB shall on a regular basis provide the European Parliament, the Council and

the Commission with all its independent evaluation reports which assess the practical

results achieved by the specific activities of the EIB under this Decision and other

external mandates.

7. The EIB shall provide the information referred to in paragraphs 2 to 6 at its own

expense. The EIB shall also make publicly available the information referred to in

paragraphs 2, 3 and 6, in general terms and excluding any confidential information.

149

Article 12

Transparency and public disclosure of information

1. In accordance with its own transparency policy and Union principles on access to

documents and information, and progressively with International Aid Transparency

Initiative standards, the EIB shall make publicly available on its website information

relating to:

(a) all EIB financing operations carried out under this Decision, after the project

approval stage, in particular indicating whether an investment project is covered

by the EU guarantee and how it contributes to the goals of the Union external

action, noting in particular its economic, social and environmental impact;

(b) unless confidentiality requirements apply, any memoranda of understanding

between the EIB and other European or international financial institutions having

a bearing on EIB financing operations under this Decision;

(c) where possible and appropriate, existing framework agreements between the

EIB and a recipient country. When signing new agreements or amending

existing ones, the EIB shall endeavour to make possible their disclosure;

(d) the EIB's allocation policy.

2. The Commission shall make publicly available on its website specific information

relating to all cases of recoveries under the guarantee agreement referred to in Article

14, and the agreement laying down the detailed provisions and procedures relating

to recovery of claims referred to in Article 15(2), unless confidentiality requirements

apply.

150

Article 13

Non-cooperative jurisdictions

In its financing operations, the EIB shall not tolerate any activities carried out for illegal

purposes, including money laundering, financing of terrorism, tax fraud and tax evasion,

corruption, and fraud affecting the financial interests of the Union. In particular the EIB shall

not participate in any financing operation implemented in an eligible country through a foreign

vehicle located in a non-cooperative jurisdiction identified as such by the Union, the United

Nations, the Organisation for Economic Cooperation and Development or the Financial

Action Task Force ▌.

In its financing operations, the EIB shall apply the principles and standards set out in Union

law on the prevention of the use of the financial system for the purpose of money laundering

and terrorist financing , including a requirement to take reasonable measures to identify the

beneficial owners where applicable.

Article 14

Guarantee agreement

The Commission and the EIB shall sign a guarantee agreement laying down the detailed

provisions and procedures relating to the EU guarantee as set out in Article 8, and shall inform

the European Parliament and the Council accordingly.

151

Article 15

Recovery of payments made by the Commission

1. Where the Commission makes any payment under the EU guarantee, the EIB shall, in

the name and on behalf of the Commission, pursue the recovery of claims for the

amounts paid.

2. No later than the date of signature of the guarantee agreement referred to in Article 14,

the Commission and the EIB shall sign a separate agreement laying down the detailed

provisions and procedures relating to recovery of claims.

Article 16

Auditing by the Court of Auditors

The EU guarantee and the payments and recoveries under it attributable to the general budget of

the Union shall be audited by the Court of Auditors.

152

Article 17

Anti-fraud measures

1. The EIB shall notify OLAF promptly and provide it with the necessary information

when, at any stage of the preparation, implementation or closure of projects subject to

the EU guarantee, it has grounds to suspect that there is a potential case of fraud,

corruption, money laundering or other illegal activity that may affect the financial

interests of the Union.

2. OLAF may carry out investigations, including on-the-spot checks and inspections, in

accordance with the provisions and procedures laid down in Regulation (EU,

Euratom) No 883/2013 of the European Parliament and of the Council1, Council

Regulation (Euratom, EC) No 2185/962 and Council Regulation (EC, Euratom) No

2988/953 in order to protect the financial interests of the Union, with a view to

establishing whether there has been fraud, corruption, money laundering or any other

illegal activity affecting the financial Interests of the Union in connection with any

financing operations. OLAF may transmit to the competent authorities of the

Member States concerned information obtained in the course of investigations.

Where such illegal activities are proven, the EIB shall assist recovery efforts with

respect to its financing operations and within its scope of responsibilities.

1 Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).

2 Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

3 Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ L 312, 23.12.1995, p. 1).

153

3. Financing agreements signed in relation to projects supported under this Decision

shall include clauses allowing suspension of EIB financing operations and, if

necessary, appropriate recovery measures in cases of fraud, corruption or other

illegal activity. The decision whether to suspend or cancel the EIB financing shall be

taken by the EIB after due consideration of all circumstances and risks.

4. The EIB shall continue to rely on its single point of contact for anti-corruption and

anti-fraud for EIB staff and all stakeholders.

5. In its financing operations, the EIB shall implement its exclusion mechanism for

debarment of counterparties involved in fraud and corruption which includes the

exclusion criteria of the Union's Central Exclusion Database ensuring that rights of

all parties are respected.

Article 18

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the

conditions laid down in this Article.

2. The delegation of power referred to in Article 4 shall be conferred on the Commission

for an indeterminate period of time from ….

OJ: please insert date of entry into force of this Decision,

154

3. The delegation of power referred to in Article 4 may be revoked at any time by the

European Parliament or by the Council. A decision of revocation shall put an end to

the delegation of the power specified in that decision. It shall take effect the day

following the publication of the decision in the Official Journal of the European Union

or at a later date specified therein. It shall not affect the validity of any delegated acts

already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to

the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 4 shall enter into force only if no objection

has been expressed either by the European Parliament or by the Council within a

period of two months of notification of that act to the European Parliament and to the

Council or if, before the expiry of that period, the European Parliament and the

Council have both informed the Commission that they will not object. That period

shall be extended by two months at the initiative of the European Parliament or of the

Council.

155

Article 19

Mid-term review

By 31 December 2016, the Commission, in cooperation with the EIB, shall submit to the

European Parliament and the Council a mid-term report evaluating the application of this

Decision in the first years accompanied, where appropriate, by a proposal for its amendment.

The mid-term report shall draw upon an independent external evaluation and contribution from

the EIB.

The report shall include in particular :

(a) an assessment of the application of the allocation policy;

(b) an assessment of EIB reporting and where appropriate recommendations on how to

improve it;

(c) an assessment of the REM, including performance indicators and criteria, and their

contribution to the achievement of the objectives of this Decision;

(d) a detailed account of the criteria considered for the recommendation concerning the

potential activation in whole or in part of the optional additional amount.

156

Article 20

Final reporting

By 31 December 2021, the Commission shall present to the European Parliament and to the

Council a final report on the application of this Decision.

Article 21

Entry into force

This Decision shall enter into force on the third day following that of its publication in the

Official Journal of the European Union.

▌

Done at ...

For the European Parliament For the Council

The President The President

157

ANNEX I

REGIONAL CEILINGS

A. Pre-accession countries: EUR 8 739 322 000;

B. Neighbourhood and Partnership countries: EUR 14 437 225 000, broken down into the

following indicative sub-ceilings:

(i) Mediterranean countries: EUR 9 606 200 000;

(ii) Eastern Europe, Southern Caucasus and Russia: EUR 4 831 025 000;

C. Asia and Latin America: EUR 3 407 295 000, broken down into the following

indicative sub-ceilings:

(i) Latin America: EUR 2 288 870 000;

(ii) Asia: EUR 936 356 000;

(iii) Central Asia: EUR 182 069 000;

D. South Africa: EUR 416 158 000.

Within the overall fixed ceiling, the EIB governing bodies may decide, after consulting the

Commission ▌, to reallocate an amount of up to 20 % of the sub-regional ceilings within

regions and up to 10 % of the regional ceilings between regions.

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ANNEX II

POTENTIALLY ELIGIBLE REGIONS AND COUNTRIES

A. Pre-accession countries

1. Candidates

Iceland, former Yugoslav Republic of Macedonia, Montenegro, Serbia, Turkey

2. Potential candidates

Albania, Bosnia and Herzegovina, Kosovo

B. Neighbourhood and Partnership countries

1. Mediterranean countries

Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia

2. Eastern Europe, Southern Caucasus and Russia

Eastern Europe: Belarus, Republic of Moldova, Ukraine

Southern Caucasus: Armenia, Azerbaijan, Georgia

Russia

159

C. Asia and Latin America

1. Latin America

Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador,

Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay,

Venezuela

2. Asia

Afghanistan, Bangladesh, Bhutan, Brunei, Cambodia, China (including Hong Kong

and Macao Special Administrative Regions), India, Indonesia, Iraq, Laos, Malaysia,

Maldives, Mongolia, Myanmar/Burma, Nepal, Pakistan, Philippines, Singapore, South

Korea, Sri Lanka, Taiwan, Thailand, Vietnam, Yemen

3. Central Asia

Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan

D. South Africa

South Africa

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ANNEX III

ELIGIBLE REGIONS AND COUNTRIES

A. Pre-accession countries

1. Candidates

Iceland, former Yugoslav Republic of Macedonia, Montenegro, Serbia, Turkey

2. Potential candidates

Albania, Bosnia and Herzegovina, Kosovo

B. Neighbourhood and Partnership countries

1. Mediterranean countries

Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine, Tunisia

2. Eastern Europe, Southern Caucasus and Russia

Eastern Europe: Republic of Moldova, Ukraine

Southern Caucasus: Armenia, Azerbaijan, Georgia

Russia

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C. Asia and Latin America

1. Latin America

Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador,

Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay,

Venezuela

2. Asia

Bangladesh, Brunei, Bhutan, Cambodia, China (including Hong Kong and Macao

Special Administrative Regions), India, Indonesia, Iraq, Laos, Malaysia, Maldives,

Mongolia, Myanmar/Burma, Nepal, Pakistan, Philippines, Singapore, South Korea, Sri

Lanka, Thailand, Vietnam, Yemen

3. Central Asia

Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan

D. South Africa

South Africa

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ANNEX IV

REGIONAL POLICY FRAMEWORK

EIB activity in partners participating in the pre-accession process takes place in the framework

established in the Accession and European Partnerships which set out the priorities for

candidates and potential candidates with a view to making progress in moving closer to the

Union, and which provide a framework for Union assistance. The Stabilisation and Association

Process is the Union policy framework for the Western Balkans. It is based on progressive

partnership, in which the Union offers trade concessions, economic and financial assistance and

contractual relationships through Stabilisation and Association Agreements. Pre-accession

financial assistance helps the candidates and potential candidates prepare for the obligations and

challenges of membership of the Union. This assistance supports the reform process, including

preparations for eventual membership. It focuses on institution-building, alignment with the

acquis of the Union, preparation for Union policies and instruments and promotion of measures

to achieve economic convergence.

EIB activity in Neighbourhood countries takes place in the framework of the new European

Neighbourhood Policy set out in the Joint Communication entitled "A new response to a

changing Neighbourhood ", adopted by the High Representative of the Union for Foreign

Affairs and Security Policy and the Commission on 25 May 2011, and the Council conclusions

adopted on 20 June 2011, which calls notably for greater support to partners committed to

building democratic societies and undertaking reforms, in line with the “more for more” and

"mutual accountability" principles, and provides the strategic policy framework for the Union

relations with the neighbours. In the framework of this cooperation, EIB financing under this

Decision will also be targeted at policies promoting inclusive growth and job creation

contributing to social stability in line with an incentive-based approach supporting Union

external policy objectives, including in relation to migration issues.

163

In order to achieve these objectives the Union and its partners implement jointly agreed

bilateral action plans defining a set of priorities including on political and security issues, trade

and economic matters, environmental and social concerns and integration of transport and

energy networks.

The Union for the Mediterranean, the Eastern Partnership, the Black Sea Synergy, the Union

Strategy for the Danube Region and the Union Strategy for the Baltic Sea Region are

multilateral and regional initiatives aimed at fostering cooperation between the Union and the

respective group of Neighbourhood partner countries facing common challenges and/or sharing

a common geographical environment. The Union for the Mediterranean aims to relaunch the

Euro-Mediterranean integration process by supporting mutual economic, social and

environmental development on both sides of the Mediterranean and supports improved socio-

economic development, solidarity, regional integration, sustainable development and

knowledge building, underlining the need to increase financial cooperation to support regional

and trans-national projects. The Union for the Mediterranean supports, in particular, the

creation of maritime and land highways, the de-pollution of the Mediterranean, the

Mediterranean solar energy plan, the Mediterranean Business Development Initiative, civil

protection initiatives and the Euro-Mediterranean university.

164

The Eastern Partnership aims to create the necessary conditions to accelerate political

association and further economic integration between the Union and Eastern partner

countries. The Eastern Partnership will provide additional impetus to the economic and

social and regional development of the partner countries. It will facilitate good governance,

including in the financial sector, promote regional development and social cohesion and help

to reduce partner countries' socioeconomic disparities.

The Union Strategy for the Baltic Sea Region supports a sustainable environment and optimal

economic and social development in the Baltic Sea region. The Union Strategy for the Danube

Region supports, in particular, the development of transport, energy connections and security,

sustainable environment and socio-economic development in the Danube region. The Eastern

Partnership aims to create the necessary conditions to accelerate political association and

further economic integration between the Union and Eastern partner countries. Russia and the

Union have a wide-ranging strategic partnership, distinct from the European Neighbourhood

Policy and expressed through the Common Spaces and Roadmaps. These are complemented at

multilateral level by the Northern Dimension which provides a framework for cooperation

between the Union, Russia, Norway and Iceland (Belarus, Canada and the United States are

observers to the Northern Dimension).

165

EIB activity in Latin America takes place in the framework of the Union, Latin America and

the Caribbean Strategic Partnership. As highlighted in the 30 September 2009 Commission

Communication from the Commission to the European Parliament and the Council entitled

"The European Union and Latin America: Global Players in Partnership", the Union's priorities

in the field of cooperation towards Latin America are the promotion of regional integration and

the eradication of poverty and social inequality in order to promote sustainable economic and

social development. These policy objectives will be fostered taking into account the different

level of development of Latin American countries. Bilateral dialogue and cooperation will be

pursued in areas of common interest for both regions, including environment, climate change,

disaster risk reduction and energy, science, research, higher education, technology and

innovation.

In Asia, the Union is deepening its strategic partnerships with China and India and negotiations

are progressing on new partnership and free trade agreements with South-East Asian countries.

At the same time, development cooperation remains high on the Union's agenda with Asia; the

Union development strategy for the Asian region aims at eradicating poverty by supporting

broad-based sustainable economic growth, promoting a conducive environment and conditions

for trade and integration within the region, enhancing governance, increasing political and

social stability, and supporting the achievement of the 2015 Millennium Development Goals.

Policies are being put in place jointly to address common challenges, such as climate change,

sustainable development, security and stability, governance and human rights, as well as the

prevention of, and response to, natural and humanitarian disasters.

166

The Union Strategy for a new partnership with Central Asia adopted by the European Council

of 21-22 June 2007 has strengthened regional and bilateral dialogue and Union cooperation

with Central Asian countries on major issues facing the region, such as poverty reduction,

sustainable development and stability. The implementation of the strategy has brought about

important advances in the fields of human rights, the rule of law, good governance and

democracy, education, economic development, trade and investment, energy and transport and

environmental policies.

EIB activity in South Africa takes place in the framework of the Joint EU Country Strategy

Paper for South Africa. The main focal areas identified in that Strategy Paper are employment

creation and capacity development for service delivery and social cohesion. EIB activities in

South Africa have taken place in high complementarity with the Union development

cooperation programme, namely through the EIB focus on private sector support and

investments in expansion of infrastructure and social services (housing, electric power, drinking

water purification and municipal infrastructure). The mid-term review of the EU Country

Strategy Paper for South Africa conducted in 2009-2010 has proposed the strengthening of

actions in the area of climate-change through activities supporting the creation of green jobs.

For the period 2014-2020, EIB activity is expected to support in a complementary fashion

Union external cooperation policies, programmes and instruments by continuing to focus on

key EU-South Africa priorities in order to promote equitable and sustainable economic growth,

contribute to employment creation and capacity development, and support the sustainable

provision and equitable access to basic infrastructure and services.

167

P7_TA-PROV(2014)0193

Genetic Resources ***I

European Parliament legislative resolution of 11 March 2014 on the proposal for a regulation of the European Parliament and of the Council on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union (COM(2012)0576 – C7-0322/2012 – 2012/0278(COD))




– having regard to Article 294(2) and Article 192(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0322/2012),


– having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the French Senate, the Italian Senate and the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 20 March 20131,

– after consulting the Committee of the Regions,

– having regard to the undertaking given by the Council representative by letter of 11 December 2013 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,


– having regard to the report of the Committee on the Environment, Public Health and Food Safety and the opinions of the Committee on Development, the Committee on Agriculture and Rural Development and the Committee on Fisheries (A7-0263/2013),

1. Adopts its position at first reading hereinafter set out2;


1 OJ C 161, 6.6.2013, p. 73.2 This position replaces the amendments adopted on 12 September 2013 (Texts adopted

P7_TA(2013)0373).

168


169

P7_TC1-COD(2012)0278

Position of the European Parliament adopted at first reading on 11 March 2014 with a view to the adoption of Regulation (EU) No .../2014 of the European Parliament and of the Council on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union

(Text with EEA relevance)


Having regard to the Treaty on the Functioning of the European Union, and in particular

Article 192(1) thereof,



Having regard to the opinion of the European Economic and Social Committee1,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure2,

1 OJ C 161, 6.6.2013, p. 73.2 Position of the European Parliament of 11 March 2014.

170

Whereas:

(1) The main international instrument providing a general framework for the

conservation and sustainable use of biological diversity and the fair and equitable

sharing of the benefits arising from the utilisation of genetic resources is the

Convention on Biological Diversity, approved on behalf of the Union in accordance

with Council Decision 93/626/EEC1 (the "Convention") .

(2) The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable

Sharing of Benefits Arising from Their Utilization to the Convention on Biological

Diversity2 (the "Nagoya Protocol") is an international treaty adopted on 29 October

2010 by the Parties to the Convention. The Nagoya Protocol further elaborates upon

the general rules of the Convention on access to genetic resources and sharing of

monetary and non-monetary benefits arising from the utilisation of genetic resources

and traditional knowledge associated with genetic resources ("access and benefit-

sharing"). In accordance with Council Decision …/2014/EU3, the Nagoya Protocol

was approved on behalf of the Union.

1 Council Decision 93/626/EEC of 25 October 1993 concerning the conclusion of the Convention on Biological Diversity (OJ L 309, 13.12.1993, p. 1).

2 Annex I to Document UNEP/CBD/COP/DEC/X/1 of 29 October 2010.3 Council Decision …/2014/EU of … on the conclusion, on behalf of the Union, of

the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (OJ …).

OJ: please insert the number, date and the publication reference for the Decision in doc. 6852/13.

171

(3) A broad range of users and suppliers in the Union, including academic, university and

non-commercial researchers and companies from different sectors of industry, use

genetic resources for research, development and commercialisation purposes. Some

also use traditional knowledge associated with genetic resources.

(4) Genetic resources represent the gene pool in both natural and domesticated or

cultivated species and play a significant and growing role in many economic sectors,

including food production, forestry, and the development of medicines, cosmetics and

bio-based sources of ▌energy. Furthermore, genetic resources play a significant role

in the implementation of strategies designed to restore damaged ecosystems and

safeguard endangered species.

(5) Traditional knowledge that is held by indigenous and local communities could provide

important lead information for the scientific discovery of interesting genetic or

biochemical properties of genetic resources.Such traditional knowledge includes

knowledge, innovations and practices, of indigenous and local communities

embodying traditional lifestyles, relevant for the conservation and sustainable use of

biological diversity.

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(6) The Convention recognises that States have sovereign rights over natural resources

found within their jurisdiction and the authority to determine access to their genetic

resources. The Convention imposes an obligation on all Parties thereto to endeavour to

create conditions to facilitate access to genetic resources, over which they exercise

sovereign rights, for environmentally sound uses by other Parties to the Convention .

The Convention also makes it mandatory for all Parties thereto to take measures with

the aim of sharing in a fair and equitable way the results of research and development

and the benefits arising from commercial and other utilisation of genetic resources

with the Party to the Convention that provided those resources. Such sharing is to take

place upon mutually agreed terms. The Convention also addresses access and benefit-

sharing in relation to the knowledge, innovations and practices of indigenous and local

communities, which are relevant for the conservation and sustainable use of biological

diversity.

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(7) Genetic resources should be preserved in situ and utilised in sustainable ways, and

the benefits arising from their utilisation should be shared fairly and equitably, in

order to contribute to poverty eradication and, thereby, to achieving the United

Nations Millennium Development Goals, as acknowledged in the preamble of the

Nagoya Protocol. The implementation of the Nagoya Protocol should also aim to

realise that potential.

(8) The Nagoya Protocol applies to genetic resources, over which States exercise

sovereign rights, falling within the scope of Article 15 of the Convention as opposed

to the wider scope of Article 4 of the Convention. That implies that thee Nagoya

Protocol does not extend to the full jurisdictional scope of Article 4 of the

Convention, such as to activities taking place in marine areas beyond national

jurisdiction. Research on genetic resources is gradually being extended into new

areas, especially the oceans which are still the planet's least explored and least well-

known environments. The deep ocean in particular represents the last great frontier

on the planet and is attracting growing interest in terms of research, prospecting and

resource exploration.

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(9) It is important to set out a clear and sound framework for implementing the Nagoya

Protocol that should contribute to the conservation of biological diversity and the

sustainable use of its components, the fair and equitable sharing of the benefits

arising from the utilisation of genetic resources and poverty eradication, while at the

same time enhancing opportunities available for nature-based research and

development activities in the Union. It is also essential to prevent the utilisation in the

Union of genetic resources or traditional knowledge associated with genetic resources,

which were not accessed in accordance with the national access and benefit-sharing

legislation or regulatory requirements of a Party to the Nagoya Protocol, and to

support the effective implementation of benefit-sharing commitments set out in

mutually agreed terms between providers and users. It is also essential to improve the

conditions for legal certainty in connection with the utilisation of genetic resources

and traditional knowledge associated with genetic resources.

(10) The framework created by this Regulation will contribute to maintaining and

increasing trust between Parties to the Nagoya Protocol as well as other

stakeholders, including indigenous and local communities, involved in access and

benefit-sharing of genetic resources.

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(11) In order to ensure legal certainty, it is important that the rules implementing the

Nagoya Protocol apply only ▌to genetic resources over which States exercise

sovereign rights within the scope of Article 15 of the Convention, and to traditional

knowledge associated with genetic resources within the scope of the Convention,

which are accessed after the entry into force of the Nagoya Protocol for the Union.

(12) The Nagoya Protocol requires each Party thereto, in the development and

implementation of its access and benefit-sharing legislation or regulatory

requirements, to consider the importance of genetic resources for food and

agriculture ("GRFA") and their special role for food security. In accordance with

Council Decision 2004/869/EC1, the International Treaty on Plant Genetic Resources

for Food and Agriculture (ITPGRFA) was approved ▌on behalf of the Union. The

ITPGRFA constitutes a specialised international access and benefit-sharing instrument

within the meaning of Article 4(4) of the Nagoya Protocol that should not be affected

by the rules implementing the Nagoya Protocol.

1 Council Decision 2004/869/EC of 24 February 2004 concerning the conclusion, on behalf of the European Community, of the International Treaty on Plant Genetic Resources for Food and Agriculture (OJ L 378, 23.12.2004, p. 1).

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(13) Many Parties to the Nagoya Protocol, in the exercise of their sovereign rights, have

decided that Plant Genetic Resources for Food and Agriculture (PGRFA) under

their management and control and in the public domain, not listed in Annex I to the

ITPGRFA, are also to be subject to the terms and conditions of the standard

material transfer agreement (sMTA) for the purposes set out under the ITPGRFA.

(14) The Nagoya Protocol should be implemented in a manner that is mutually

supportive with other international instruments that do not run counter to the

Protocol's objectives or to those of the Convention.

(15) In Article 2 of the Convention, the terms "domesticated species" are defined as any

species in which the evolutionary process has been influenced by humans to meet

their needs and "biotechnology" as any technological application that uses

biological systems, living organisms, or derivatives thereof, to make or modify

products or processes for specific use. In Article 2 of the Nagoya Protocol, the term

"derivatives" is defined as a naturally occurring biochemical compound resulting

from the genetic expression or metabolism of biological or genetic resources, even if

it does not contain functional units of heredity.

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(16) The Nagoya Protocol requires each Party thereto to pay due regard to cases of

present or imminent emergencies that threaten or damage human, animal or plant

health, as determined nationally or internationally. On 24 May 2011, the Sixty-

fourth World Health Assembly adopted the Pandemic Influenza Preparedness

Framework for the sharing of influenza viruses and access to vaccines and other

benefits (the "PIP Framework"). The PIP Framework applies only to influenza

viruses with human pandemic potential and specifically does not apply to seasonal

influenza viruses. The PIP Framework constitutes a specialised international access

and benefit-sharing instrument that is consistent with the Nagoya Protocol and that

should not be affected by the rules implementing the Nagoya Protocol.

(17) It is important to include in this Regulation the definitions from the Nagoya

Protocol and the Convention that are necessary for the implementation of this

Regulation by users. . It is important that the new definitions contained in this

Regulation, which are not included in the Convention or in the Nagoya Protocol, are

consistent with the definitions of the Convention and the Nagoya Protocol. In

particular, the term “user” should be consistent with the definition of “utilization of

genetic resources” from the Nagoya Protocol.

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(18) The Nagoya Protocol lays down an obligation to promote and encourage research

related to biological diversity, in particular research with non-commercial intent.

▌

(19) It is important to recall paragraph 2 of Decision II/11 of the Conference of the

Parties to the Convention which reaffirms that human genetic resources are not

included within the framework of the Convention.

(20) There is currently no internationally-agreed definition of "traditional knowledge

associated with genetic resources". Without prejudice to the competence and

responsibility of the Member States for matters relating to traditional knowledge

associated with genetic resources and the implementation of measures to safeguard

indigenous and local communities' interests, in order to ensure flexibility and legal

certainty for providers and users, this Regulation should make reference to traditional

knowledge associated with genetic resources as described in benefit-sharing

agreements.

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(21) With a view to ensuring the effective implementation of the Nagoya Protocol, all users

of genetic resources and traditional knowledge associated with genetic resources

should ▌exercise due diligence to ascertain whether ▌genetic resources and

▌traditional knowledge associated with genetic resources have been accessed in

accordance with applicable legal or regulatory requirements and to ensure that, where

relevant, benefits are fairly and equitably shared. In that context, competent

authorities should accept internationally-recognised certificates of compliance as

evidence that the genetic resources covered were legally accessed and that mutually

agreed terms were established for the user and the utilisation specified therein. The

specific choices made by users as regards the tools and measures to apply in order to

exercise due diligence should be supported through the recognition of best practices, as

well as complementary measures in support of sectoral codes of conduct, model

contractual clauses ▌and guidelines with a view to increasing legal certainty and

reducing costs. The obligation on users to keep information which is relevant for

access and benefit-sharing should be limited in time and in accordance with the time-

frame for potential innovation.

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(22) The successful implementation of the Nagoya Protocol depends on users and

providers of genetic resources or of traditional knowledge associated with genetic

resources negotiating mutually agreed terms that lead to fair and equitable benefit-

sharing and contribute to the Nagoya Protocol's wider objective of contributing to

the conservation and sustainable use of biological diversity. Users and providers are

also encouraged to raise awareness of the importance of genetic resources and of

traditional knowledge associated with genetic resources.

(23) The due diligence obligation should apply to all users irrespective of their size,

including ▌micro, small and medium-sized enterprises. This Regulation should offer a

range of measures and tools to enable micro, small and medium-sized enterprises to

comply with their obligations at an affordable cost and with a high level of legal

certainty.

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(24) Best practices developed by users should play an important role in identifying due

diligence measures that are particularly suitable for achieving compliance with the

system of implementation of the Nagoya Protocol at an affordable cost and with a

high level of legal certainty ▌. Users should ▌build on existing access and benefit-

sharing codes of conduct developed for the academic, university and non-commercial

research sectors and different industries. Associations of users should be able to

request that the Commission determine whether it is possible for a specific

combination of procedures, tools or mechanisms overseen by an association to be

recognised as best practice. Competent authorities of the Member States should

consider that the implementation of a recognised best practice by a user reduces that

user's risk of non-compliance and justifies a reduction in compliance checks. The same

should apply to best practices adopted by ▌the Parties to the Nagoya Protocol.

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(25) Under the Nagoya Protocol check-points must be effective and should be relevant to

the utilisation of genetic resources. At identified points in the chain of activities that

constitute utilisation, users should declare and provide evidence, when requested,

that they have exercised due diligence. One suitable point for such a declaration is

when research funds are received. Another suitable point is at the final stage of

utilisation, meaning at the stage of final development of a product before requesting

market approval for a product developed via the utilisation of genetic resources or

traditional knowledge associated with such resources, or, where market approval is

not required, at the stage of final development of a product before first placing it on

the Union market. In order to ensure the effectiveness of check-points, while at the

same time increasing legal certainty for users, implementing powers should be

conferred on the Commission in accordance with Article 291(2) of the Treaty of the

Functioning of the European Union. The Commission should make use of those

implementing powers to determine the stage of final development of a product, in

accordance with the Nagoya Protocol, in order to identify the final stage of

utilisation in different sectors.

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(26) It is important to acknowledge that the Access and Benefit-Sharing Clearing House

would play an important role in implementing the Nagoya Protocol. In accordance

with Articles 14 and 17 of the Nagoya Protocol, information would be submitted to

the Access and Benefit-Sharing Clearing House as part of the internationally-

recognised certificate of compliance process. The competent authorities should

cooperate with the Access and Benefit-Sharing Clearing House to ensure that the

information is exchanged to facilitate the monitoring by the competent authorities of

the compliance of users.

(27) The collection of genetic resources in the wild is mostly undertaken for non-

commercial purposes by academic, university and non-commercial researchers or

collectors. In the vast majority of cases and in almost all sectors, ▌newly-collected

genetic resources are accessed through intermediaries, collections, or agents that

acquire genetic resources in third countries.

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(28) Collections are major suppliers of genetic resources and traditional knowledge

associated with genetic resources utilised in the Union. As suppliers they can play an

important role in helping other users in the chain of custody to comply with their

obligations. In order to do so, a system of registered collections within the Union

should be put in place through the establishment of a voluntary register of collections

to be maintained by the Commission. Such a system would ensure that collections

included in the register ▌effectively apply measures restricting the supply of samples

of genetic resources to third persons with documentation providing evidence of legal

access, and ensure the establishment of mutually agreed terms, where required. A

system of registered collections within the Union should substantially lower the risk

that genetic resources which were not accessed in accordance with the national

access and benefit- sharing legislation or regulatory requirements of a Party to the

Nagoya Protocol are utilised in the Union. The competent authorities of Member

States should verify if a collection meets the requirements for recognition as a

collection for inclusion in the register. Users that obtain a genetic resource from a

collection included in the ▌register should be considered to have exercised due

diligence as regards the seeking of all necessary information. This should prove

particularly beneficial for academic, university and non-commercial researchers as

well as small and medium-sized enterprises and should contribute to a reduction in

administrative and compliance requirements.

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(29) Competent authorities of Member States should check whether users comply with their

obligations, have obtained prior informed consent and have established mutually

agreed terms ▌. Competent authorities should also keep records of the checks made,

and relevant information should be made available in accordance with Directive

2003/4/EC of the European Parliament and of the Council1.

(30) Member States should ensure that infringements of the rules implementing the Nagoya

Protocol ▌are sanctioned by means of effective, proportionate and dissuasive

penalties.

(31) Taking into account the international character of access and benefit-sharing

transactions, competent authorities of the Member States should cooperate with each

other, with the Commission, and with the competent national authorities of third

countries in order to ensure that users comply with this Regulation and support an

effective application of the rules implementing the Nagoya Protocol.

(32) The Union and the Member States should act in a proactive manner to ensure that

the objectives of the Nagoya Protocol are achieved in order to increase resources to

support the conservation of biological diversity and the sustainable use of its

components globally.

▌

(33) The Commission and the Member States should take appropriate complementary

measures to enhance the effectiveness of the implementation of this Regulation and to

lower costs, particularly where this would benefit academic, university and non-

commercial researchers and small and medium-sized enterprises.

▌

1 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, p. 26).

186

(34) 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 Council1.

(35) Since the objective of this Regulation, namely to support the fair and equitable sharing

of the benefits arising from the utilisation of genetic resources in accordance with the

Nagoya Protocol, cannot be sufficiently achieved by the Member States ▌but can

rather, by reason of its scale and the need to ensure the functioning of the internal

market, 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 Regulation does not go beyond what is necessary to achieve that

objective.

(36) The date of entry into force of this Regulation should be directly correlated to the

entry into force of the Nagoya Protocol for the Union in order to ensure equal

conditions at Union and global level in activities relating to access and benefit-

sharing of genetic resources,

HAVE ADOPTED THIS REGULATION:

1 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 (OJ L 55, 28.2.2011, p. 13).

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CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

Subject matter

This Regulation establishes rules governing compliance with access and benefit-sharing for

genetic resources and traditional knowledge associated with genetic resources in accordance

with the provisions of the Nagoya Protocol on Access to Genetic Resources and the Fair and

Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological

Diversity (the "Nagoya Protocol"). The effective implementation of this Regulation will also

contribute to the conservation of biological diversity and the sustainable use of its

components, in accordance with the provisions of the ▌Convention on Biological Diversity

(the "Convention").

Article 2

Scope

1. This Regulation applies to genetic resources over which States exercise sovereign

rights and to traditional knowledge associated with genetic resources that are accessed

after the entry into force of the Nagoya Protocol for the Union. It also applies to the

benefits arising from the utilisation of such genetic resources and ▌traditional

knowledge associated with genetic resources.

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2. This Regulation does not apply to genetic resources for which access and benefit-

sharing is governed by ▌specialised international instruments that are consistent with,

and do not run counter to the objectives of the Convention and the Nagoya Protocol.

3. This Regulation is without prejudice to Member States' rules on access to genetic

resources over which they exercise sovereign rights within the scope of Article 15 of

the Convention, and to Member States' provisions on Article 8(j) of the Convention

concerning traditional knowledge associated with genetic resources.

4. This Regulation applies to genetic resources and traditional knowledge associated

with genetic resources to which access and benefit-sharing legislation or regulatory

requirements of a Party to the Nagoya Protocol are applicable.

5. Nothing in this Regulation shall oblige a Member State to supply information the

disclosure of which it considers contrary to the essential interests of its security.

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Article 3

Definitions

For the purposes of this Regulation, the definitions of the Convention and the Nagoya

Protocol as well as the following definitions apply:

▌

(1) "genetic material" means any material of plant, animal, microbial or other origin

containing functional units of heredity;

(2) "genetic resources" means genetic material of actual or potential value;

(3) "access" means the acquisition of genetic resources or of traditional knowledge

associated with genetic resources in a Party to the Nagoya Protocol▌;

(4) "user" means a natural or legal person that utilises genetic resources or traditional

knowledge associated with genetic resources;

(5) "utilisation of genetic resources" means to conduct research and development on the

genetic and/or biochemical composition of genetic resources, including through the

application of biotechnology as defined in Article 2 of the Convention;

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(6) "mutually agreed terms" means the contractual arrangements concluded between a

provider of genetic resources, or of traditional knowledge associated with genetic

resources, and a user ▌, that set out specific conditions for the fair and equitable

sharing of benefits arising from the utilisation of genetic resources or of traditional

knowledge associated with genetic resources, and that may also include further

conditions and terms for such utilisation as well as subsequent applications and

commercialisation;

(7) "traditional knowledge associated with genetic resources" means traditional knowledge

held by an indigenous or local community that is relevant for the utilisation of genetic

resources and that is as such described in the mutually agreed terms applying to the

utilisation of genetic resources;

(8) "illegally accessed genetic resources" means genetic resources and traditional

knowledge associated with genetic resources which were not accessed in accordance

with the national access and benefit-sharing legislation or regulatory requirements

of the provider country that is a Party to the Nagoya Protocol requiring prior

informed consent;

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(9) "collection" means a set of collected samples of genetic resources and related

information that is accumulated and stored, ▌whether held by public or private

entities;

(10) "association of users" means an organisation, established in accordance with the

requirements of the Member State in which it is located, that represents the interests

of users and that is involved in developing and overseeing the best practices referred

to in Article 8 ▌of this Regulation;

(11) "internationally recognised certificate of compliance" means a permit or its equivalent

issued at the time of access as evidence that the genetic resource it covers has been

accessed in accordance with the decision to grant prior informed consent, and that

mutually agreed terms have been established for the user and the utilisation

specified therein by a competent ▌authority in accordance with Article 6(3)(e) and

Article 13(2) of the Nagoya Protocol, that is made available to the Access and Benefit-

sharing Clearing House established under Article 14(1) of that Protocol.

▌

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CHAPTER IIUSER COMPLIANCE

Article 4

Obligations of users

1. Users shall exercise due diligence to ascertain that genetic resources and traditional

knowledge associated with genetic resources which they utilise have been accessed in

accordance with applicable access and benefit-sharing legislation or regulatory

requirements, and that ▌benefits are fairly and equitably shared upon mutually agreed

terms, in accordance with any applicable legislation or regulatory requirements.

2. Genetic resources and traditional knowledge associated with genetic resources shall

only be transferred and utilised in accordance with mutually agreed terms if they are

required by applicable legislation or regulatory requirements.

3. For the purposes of paragraph 1, users shall ▌seek, keep and transfer to subsequent

users ▌:

(a) the internationally-recognised certificate of compliance, as well as information

on the content of the mutually agreed terms relevant for subsequent users; or

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(b) where no internationally-recognised certificate of compliance is available,

information and relevant documents on:

(i) the date and place of access of genetic resources or of traditional

knowledge associated with genetic resources;

(ii) the description of the genetic resources or of traditional knowledge

associated with genetic resources utilised;

(iii) the source from which the genetic resources or traditional knowledge

associated with genetic resources were directly obtained, as well as

subsequent users of genetic resources or traditional knowledge associated

with genetic resources;

(iv) the presence or absence of rights and obligations relating to access and

benefit-sharing including rights and obligations regarding subsequent

applications and commercialisation;

(v) access permits, where applicable;

(vi) mutually agreed terms, including benefit-sharing arrangements, where

applicable.

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4. Users acquiring Plant Genetic Resources for Food and Agriculture (PGRFA) in a

country that is a Party to the Nagoya Protocol which has determined that PGRFA

under its management and control and in the public domain, not contained in

Annex I to the International Treaty on Plant Genetic Resources for Food and

Agriculture (ITPGRFA), will also be subject to the terms and conditions of the

standard material transfer agreement for the purposes set out under the ITPGRFA,

shall be considered to have exercised due diligence in accordance with paragraph 3

of this Article.

5. When the information in their possession is insufficient or uncertainties about the

legality of access and utilisation persist, users shall obtain an access permit or its

equivalent and establish mutually agreed terms, or discontinue utilisation.

▌

6. Users shall keep the information relevant to access and benefit-sharing for twenty

years after the end of the period of utilisation.

7. Users obtaining a genetic resource from a collection included in the ▌register of

▌collections within the Union referred to in Article 5(1) shall be considered to have

exercised due diligence as regards the seeking of information listed in paragraph 3 of

this Article.

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8. Users acquiring a genetic resource that is determined to be, or is determined as

likely to be, the causing pathogen of a present or imminent public health emergency

of international concern, within the meaning of the International Health

Regulations (2005), or of a serious cross-border threat to health as defined in the

Decision No 1082/2013/EU of the European Parliament and of the Council1, for the

purpose of public health emergency preparedness in not yet affected countries and

response in affected countries, shall fulfil the obligations listed in paragraph 3 or 6

of this Article at the latest:

(a) one month after the imminent or present threat to public health is terminated,

or

(b) three months after commencement of utilisation of the genetic resource,

whichever is the earlier .

Should the obligations listed in paragraph 3 or 6 of this Article not be fulfilled by the

deadlines laid down in points (a) and (b) of the first subparagraph of this paragraph,

utilisation shall be discontinued.

In the event of a request for market approval or the placing on the market of

products deriving from utilisation of a genetic resource as referred to in the first

subparagraph, the obligations listed in paragraph 3 or 6 shall apply entirely and

without delay.

1 Decision No 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health and repealing Decision No 2119/98/EC (OJ L 293, 5.11.2013, p. 1).

196

In the absence of prior informed consent having been obtained in a timely manner

and mutually agreed terms having been established, and until an agreement is

reached with the provider country concerned, no exclusive rights of any kind will be

claimed by such a user to any developments made via the use of such pathogens.

Specialised international access and benefit-sharing instruments as mentioned in

Article 2 remain unaffected.

Article 5

Register of collections

1. The Commission shall establish and maintain a ▌register of ▌collections within the

Union ("the register"). The Commission shall ensure that the register is internet-

based and is easily accessible to users. The register shall include the references of the

collections of genetic resources, or of parts of those collections, identified as meeting

the criteria set out in paragraph 3.

2. A Member State shall, upon request by a collection holder under its jurisdiction,

consider the inclusion of that collection, or a part of it, in the ▌register. After

verifying that the collection, or a part of it, meets the criteria set out in paragraph 3,

the Member State shall notify the Commission without undue delay of the name and

contact details of the collection and of its holder, and of the type of collection

concerned. The Commission shall without delay include the information received in

the ▌register ▌.

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3. In order for a collection or a part of a collection to be included in the ▌register ▌, a

collection ▌shall demonstrate its capacity to:

(a) apply standardised procedures for exchanging samples of genetic resources and

related information with other collections, and for supplying samples of genetic

resources and related information to third persons for their utilisation in line

with the Convention and the Nagoya Protocol;

(b) supply genetic resources and related information ▌to third persons for their

utilisation only with documentation providing evidence that the genetic

resources and the related information were accessed in accordance with

applicable access and benefit-sharing legislation or regulatory requirements

and, where relevant, with mutually agreed terms ▌;

(c) keep records of all samples of genetic resources and related information supplied

to third persons for their utilisation;

(d) establish or use unique identifiers, where possible, for samples of genetic

resources supplied to third persons; and

(e) use appropriate tracking and monitoring tools for exchanging samples of genetic

resources and related information with other collections.

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4. The Member States shall regularly verify that each collection or part of a collection

under their jurisdiction included in the ▌register meets the criteria set out in paragraph

3.

▌

Where there is evidence, on the basis of information provided pursuant to paragraph

3, that a collection or a part of a collection included in the ▌register ▌does not meet

the criteria set out in paragraph 3, the Member State concerned shall, in dialogue with

the ▌collection holder concerned and without undue delay, identify remedial actions

or measures.

A Member State which determines that a collection or a part of a collection within

its jurisdiction no longer complies with paragraph 3 shall inform the Commission

thereof without undue delay.

Upon receipt of that information, the Commission shall remove the collection or the

part of the collection concerned from the register.

5. The Commission shall ▌adopt implementing acts to establish the procedures for

implementing paragraphs 1 to 4 of this Article. Those implementing acts shall be

adopted in accordance with the examination procedure referred to in Article 14(2).

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Article 6

Competent authorities and focal point

1. Each Member State shall designate one or more competent authorities to be

responsible for the application of this Regulation. Member States shall notify the

Commission of the names and addresses of their competent authorities as of the date of

entry into force of this Regulation. Member States shall inform the Commission

without undue delay of any changes to the names or addresses of the competent

authorities.

2. The Commission shall make public, including via the internet, a list of the competent

authorities of the Member States. The Commission shall keep the list up-to-date.

3. The Commission shall designate a focal point on access and benefit-sharing

responsible for liaising with the Secretariat of the Convention with regard to matters

covered by this Regulation.

4. The Commission shall ensure that the Union bodies established under Council

Regulation (EC) No 338/971 contribute to the achievement of the objectives of

this Regulation.

1 Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ L 61, 3.3.1997, p. 1).

200

Article 7

Monitoring user compliance

1. The Member States and the Commission shall request all recipients of ▌research

funding involving the utilisation of genetic resources and traditional knowledge

associated with genetic resources to declare that they ▌exercise due diligence in

accordance with Article 4.

2. At the stage of final development of a product developed via the utilisation of genetic

resources or traditional knowledge associated with such resources, users shall declare

to the competent authorities referred to in Article 6(1) that they have fulfilled the

obligations under Article 4 and shall simultaneously submit:

(a) the relevant information from the internationally-recognised certificate of

compliance, or

(b) the related information as referred to in Article 4(3)(b) (i)-(v) and Article 4(5),

including information that mutually agreed terms were established, where

applicable.

Users shall further provide evidence to the competent authority upon request.

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3. The competent authorities shall transmit the information received on the basis of

paragraphs 1 and 2 of this Article to the Access and Benefit-Sharing Clearing House,

established under Article 14(1) of the Nagoya Protocol, to the Commission and,

where appropriate, to the competent national authorities referred to in Article 13(2)

of the Nagoya Protocol. ▌

4. The competent authorities shall cooperate with the Access and Benefit-Sharing

Clearing House to ensure the exchange of the information listed in Article 17(2) of

the Nagoya Protocol for monitoring the compliance of users.

5. The competent authorities shall take due account of the respect of confidentiality of

commercial or industrial information where such confidentiality is provided for by

Union or national law to protect a legitimate economic interest, in particular

concerning the designation of the genetic resources and the designation of

utilisation.


implementing paragraphs 1, 2 and 3 of this Article. In those implementing acts, the

Commission shall determine the stage of final development of a product in order to

identify the final stage of utilisation in different sectors. Those implementing acts

shall be adopted in accordance with the examination procedure referred to in

Article 14(2).

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Article 8

Best practices

1. Associations of users or other interested parties may submit an application to the

Commission to have a combination of procedures, tools or mechanisms, developed

and overseen by them, recognised as a best practice in accordance with the

requirements of this Regulation. The application shall be supported by evidence and

information.

2. Where, on the basis of evidence and information provided pursuant to paragraph 1 of

this Article, the Commission determines that the specific combination of procedures,

tools or mechanisms, when effectively implemented by a user, enables that user to

comply with its obligations under Articles 4 and 7, ▌it shall grant recognition as best

practice.

3. An association of users or other interested parties shall inform the Commission of any

changes or updates made to a ▌best practice for which recognition was granted ▌in

accordance with paragraph 2.

4. If there is evidence of repeated or significant cases where users implementing a best

practice have failed to comply with their obligations under this Regulation, the

Commission shall examine, in dialogue with the relevant association of users or other

interested parties, whether those cases ▌indicate possible deficiencies in the best

practice.

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5. The Commission shall withdraw the recognition of a best practice ▌when it has

determined that changes to the best practice compromise a user's ability to comply with

its obligations under Articles 4 and 7, or when repeated or significant cases of non-

compliance by users relate to deficiencies in the best practice.

6. The Commission shall establish and keep up-to-date an internet-based register of

recognised best practices. That register shall , in one section, list the best practices

recognised by the Commission in accordance with paragraph 2 of this Article, and , in

another section, list the best practices adopted on the basis of Article 20(2) of the

Nagoya Protocol.


implementing paragraphs 1 to 5 of this Article. Those implementing acts shall be

adopted in accordance with the examination procedure referred to in Article 14(2).

204

Article 9

Checks on user compliance

1. The competent authorities referred to in Article 6(1) shall carry out checks to verify

whether users comply with their obligations under Articles 4 and 7, taking into

account that the implementation by a user of a best practice in relation to access and

benefit-sharing, recognised under Article 8(2) of this Regulation or under Article

20(2) of the Nagoya Protocol, may reduce that user's risk of non-compliance.

2. Member States shall ensure that the checks carried out pursuant to paragraph 1 are

effective, proportionate, dissuasive and detect cases of user non-compliance with this

Regulation.

▌

3. The checks referred to in paragraph 1 shall be conducted :

(a) in accordance with a periodically reviewed plan developed using a risk-based

approach; (b) when a competent authority is in possession of relevant

information, including on the basis of substantiated concerns provided by third

parties, regarding a user's non-compliance ▌with this Regulation. Special

consideration shall be given to such concerns raised by provider countries.

205

4. The checks referred to in paragraph 1 of this Article may include an examination of ▌:

(a) the measures taken by a user to exercise due diligence in accordance with Article

4;

(b) documentation and records that demonstrate the exercise of due diligence in

accordance with Article 4 in relation to specific use activities;

▌

(d) instances where a user was obliged to make declarations under Article 7.

On-the-spot checks may also be carried out, as appropriate.

▌

5. Users shall offer all assistance necessary to facilitate the performance of the checks

referred to in paragraph 1 ▌.

6. Without prejudice to Article 11, where, following the checks referred to in paragraph 1

of this Article ▌, shortcomings have been detected, the competent authority shall issue

a notice of remedial action or measures to be taken by the user.

Depending on the nature of the shortcomings ▌, Member States may also take

immediate interim measures ▌.

▌

206

Article 10

Records of checks

1. The competent authorities shall keep, for at least five years, records of the checks

referred to in Article 9(1), indicating, in particular, their nature and results, as well as

records of any remedial actions and measures taken under Article 9(6) ▌. ▌

2. The information referred to in paragraph 1 shall be made available in accordance with

Directive 2003/4/EC.

Article 11

Penalties

1. Member States shall lay down the rules on penalties applicable to infringements ▌of

Articles 4 and 7 ▌and shall take all the measures necessary to ensure that they are

applied.

2. The penalties provided for shall be effective, proportionate and dissuasive. ▌

▌

3. By…, Member States shall notify to the Commission the rules referred to in paragraph

1 ▌and any subsequent amendments thereto without delay.

OJ: please insert the date: one year after the date of entry into force of this Regulation.

207

CHAPTER III

FINAL PROVISIONS

Article 12

Cooperation

▌The competent authorities referred to in Article 6(1) shall:

(a) cooperate with each other and with the Commission in order to ensure that users

comply with this Regulation;

(b) consult, if appropriate, with stakeholders on the implementation of the Nagoya

Protocol and this Regulation;

(c) cooperate with the competent national authorities referred to in Article 13(2) of the

Nagoya Protocol in order to ensure that users comply with this Regulation;

(d) inform the competent authorities of other Member States and the Commission of any

serious shortcomings, detected by means of the checks referred to in Article 9(1),

and of the types of penalties imposed in accordance with Article 11;

(e) exchange information on the organisation of their system of checks for monitoring

user compliance with this Regulation.

208

▌

Article 13

Complementary measures

The Commission and ▌Member States shall, as appropriate:

(a) promote and encourage information, awareness-raising ▌and training activities to

help stakeholders and interested parties to understand their obligations arising from

the implementation of this Regulation, and of the relevant provisions of the

Convention and the Nagoya Protocol in the Union;

(b) encourage the development of sectoral codes of conduct, model contractual clauses,

guidelines and best practices, particularly where they would benefit academic,

university and non-commercial researchers and small and medium-sized enterprises;

(c) promote the development and use of cost-effective communication tools and systems

in support of monitoring and tracking the utilisation of genetic resources and

traditional knowledge associated with genetic resources by collections and users;

(d) provide technical and other guidance to users, taking into account the situation of

academic, university and non-commercial researchers and of small and medium-sized

enterprises, in order to facilitate compliance with the requirements of this Regulation;

209

(e) encourage users and providers to direct benefits from the utilisation of genetic

resources towards the conservation of biological diversity and the sustainable use of

its components in accordance with the provisions of the Convention;

(f) promote measures in support of collections that contribute to the conservation of

biological diversity and cultural diversity.

Article 14

Committee procedure

1. The Commission shall be assisted by a committee. That committee shall be a

committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011

shall apply.

▌

3. Where the committee delivers no opinion, the Commission shall not adopt the draft

implementing act and the third subparagraph of Article 5(4) of Regulation (EU)

No 182/2011 shall apply.

210

Article 15

Consultation forum

The Commission shall ensure a balanced participation of representatives of the Member

States and other interested parties in issues related to the implementation of this Regulation.

They shall meet in a consultation forum. The rules of procedure of that consultation forum

shall be established by the Commission.

Article 16

Reports and review

1. Unless an alternative interval for reports is determined, as referred to in Article 29

of the Nagoya Protocol, Member States shall submit to the Commission ▌a report on

the application of this Regulation by … and every five years thereafter.

2. Not later than one year after the time-limit for submission of ▌ reports referred to in

paragraph 1, the Commission shall submit to the European Parliament and to the

Council a report on the application of this Regulation, including a first assessment of

the effectiveness of this Regulation.

OJ: please insert the date: three years after the date of entry into force of this Regulation.

211

3. Every ten years after its first report the Commission shall, on the basis of reporting on,

and experience with the application of, this Regulation, review the functioning and

effectiveness of this Regulation in achieving the objectives of the Nagoya Protocol. In

its review the Commission shall, in particular, consider the administrative

consequences for public research institutions, micro, small or medium-sized

enterprises and specific sectors. It shall also consider the need to review the

implementation of the provisions of this Regulation in light of developments in other

relevant international organisations.

4. The Commission shall report to the Conference of the Parties to the Convention

serving as the meeting of the Parties to the Nagoya Protocol on the measures taken by

the Union ▌ to implement compliance measures in respect of the Nagoya Protocol.

212

Article 17

Entry into force and application

1. ▌This Regulation shall enter into force on the twentieth day following that of its

publication in the Official Journal of the European Union.

2. As soon as possible following the deposit of the Union's instrument of acceptance of

the Nagoya Protocol, the Commission shall publish a notice in the Official Journal

of the European Union specifying the date on which the Nagoya Protocol will enter

into force for the Union. This Regulation shall apply from that date.

3. Articles 4, 7, and 9 of this Regulation shall apply one year after the date of entry into

force of the Nagoya Protocol for the Union.

▌

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …,



213

P7_TA-PROV(2014)0194

Roadworthiness tests for motor vehicles and their trailers ***I

European Parliament legislative resolution of 11 March 2014 on the proposal for a regulation of the European Parliament and of the Council on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC (COM(2012)0380 – C7-0186/2012 – 2012/0184(COD))






– having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the French Senate, the Cypriot House of Representatives, the Netherlands House of Representatives, the Netherlands Senate and the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 12 December 20121,

– after consulting the Committee of the Regions,

– having regard to the undertaking given by the Council representative by letter of 19 December 2013 to approve Parliament's position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,


– having regard to the report of the Committee on Transport and Tourism and the opinions of the Committee on Industry, Research and Energy and the Committee on the Internal Market and Consumer Protection (A7-0210/2013),

1. Adopts its position at first reading hereinafter set out2;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its 1 OJ C 44, 15.2.2013, p. 128.2 This position replaces the amendments adopted on 2 July 2013 (Texts adopted

P7_TA(2013)0297).

214

proposal substantially or replace it with another text;


215

P7_TC1-COD(2012)0184

Position of the European Parliament adopted at first reading on 11 March 2014 with a view to the adoption of Directive 2014/.../EU of the European Parliament and of the Council on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC

(Text with EEA relevance)


Having regard to the Treaty on the Functioning of the European Union, and in particular Article

91 thereof,

216



Having regard to the opinion of the European Economic and Social Committee1,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure2,

Whereas:

(1) In its White Paper of 28 March 2011 entitled 'Roadmap to a Single European Transport

Area – Towards a competitive and resource efficient transport system', the

Commission set out a 'zero-vision' objective whereby the Union should move close to

zero fatalities in road transport by 2050. With a view to attaining that objective,

vehicle technology is expected to contribute greatly to improvement of the safety

record of road transport.

1 OJ C 44, 15.2.2013, p. 128.2 Position of the European Parliament of 11 March 2014.

217

(2) In its Communication entitled 'Towards a European road safety area: policy

orientations on road safety 2011-20201', the Commission proposed a further halving of

the overall number of road fatalities in the Union by 2020, starting from 2010. With a

view to attaining that goal, the Commission set out seven strategic objectives, and

identified actions for safer vehicles, a strategy to reduce the number of injuries and

measures to improve the safety of vulnerable road users, in particular motorcyclists.

(3) Roadworthiness testing is a part of a wider regime designed to ensure that vehicles are

kept in a safe and environmentally acceptable condition during their use. That regime

should cover periodic roadworthiness testing of vehicles and technical roadside

inspection of vehicles used for commercial road transport activities, as well as

providing for a vehicle registration procedure allowing for the suspension of a

vehicle's authorisation to be used in road traffic where the vehicle constitutes an

immediate risk to road safety. Periodic testing should be the main tool to ensure

roadworthiness. Technical roadside inspections of commercial vehicles should

merely be complementary to periodic testing.

1 COM(2010)0389.

218

(4) Member States should be allowed to set higher test standards than those required by

this Directive.

(5) Enforcement of roadworthiness measures may include awareness campaigns

focusing on vehicle owners and aimed at developing good practices and habits

resulting from basic checks on their vehicles.

219

(6) Vehicles with malfunctioning technical systems have an impact on road safety and

may contribute to road crashes involving injuries or fatalities. That impact could be

reduced if adequate improvements to the roadworthiness testing system were put in

place. Early disclosure of a deficiency in the roadworthiness of a vehicle would help

to remedy that deficiency and hence prevent accidents.

(7) Vehicles with malfunctioning emission control systems have a greater impact on the

environment than properly maintained vehicles. Therefore, a periodic regime of

roadworthiness tests would ▌contribute to improving the environment by reducing

average vehicle emissions.

(8) Member States should consider appropriate measures to prevent adverse

manipulation of, or tampering with, vehicle parts and components that could have a

negative bearing on required safety and environmental characteristics of the vehicle,

in particular through the periodic roadworthiness test, including effective,

proportionate, dissuasive and non-discriminatory penalties.

220

(9) During the last two decades, requirements in respect of vehicle emissions for type-

approval have been continuously strengthened. However, air quality has not

improved as much as predicted with the tightening of emission standards for

vehicles, especially in respect of nitrogen oxides (NOx) and fine particulate matter.

Possibilities for improving test cycles to match on-road conditions should be closely

examined in order to develop future solutions, including the establishment of test

methods for the measurement of NOx levels and of limit values for NOx emissions.

(10) For vehicles complying with emission classes Euro 6 and EuroVI, on-board

diagnostics systems (OBD) are becoming more effective in assessing emissions,

justifying their use as an equivalent to standard emission testing for the purpose of

roadworthiness tests. With a view to providing for the use of OBD in roadworthiness

tests for vehicles up to emission classes Euro 5 and Euro V, Member States should

be able to allow this testing method in accordance with the manufacturer's

recommendations and other requirements for such vehicles where the equivalence,

taking into account any relevant type-approval legislation, where appropriate, has

been independently verified.

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▌

(11) A number of technical standards and requirements in respect of vehicle safety have

been adopted in the Union. It is ▌ necessary to ensure, through a regime of periodic

roadworthiness tests, that ▌ vehicles continue to meet safety standards▌. That regime

should apply to certain categories of vehicles as defined in ▌Directive 2002/24/EC of

the European Parliament and of the Council1, Directive 2003/37/EC of the European

Parliament and of the Council2 and Directive 2007/46/EC of the European Parliament

and of the Council3.

(12) Wheeled tractors with a maximum design speed exceeding 40 km/h are increasingly

used to replace trucks in local transport activities and for commercial road haulage

purposes. Their risk potential is comparable to that of trucks, and vehicles in that

category, which are used mainly on public roads, should therefore be subject to

roadworthiness testing.

(13) Vehicles of historical interest are supposed to conserve the heritage of the period

during which they were constructed, and are considered to be hardly used on public

roads. It should be left to Member States to determine the periodicity of

roadworthiness testing for such vehicles. It should also be for Member States to

regulate roadworthiness testing for other types of specialised vehicles.

(14) Vehicles used exclusively on remote territories of Member States, in particular on

small islands with fewer than 5 000 inhabitants or in sparsely populated areas with a

population density below five persons per square kilometre, are used under

conditions that may require a specific roadworthiness testing regime. Member States

should therefore be empowered to exempt such vehicles from the application of this

Directive.1 Directive 2002/24/EC of the European Parliament and of the Council of 18 March 2002

relating to the type-approval of two or three-wheel motor vehicles and repealing Council Directive 92/61/EEC (OJ L 124, 9.5.2002, p. 1).

2 Directive 2003/37/EC of the European Parliament and of the Council of 26 May 2003 on type-approval of agricultural or forestry tractors, their trailers and interchangeable towed machinery, together with their systems, components and separate technical units and repealing Directive 74/150/EEC (OJ L 171, 9.7.2003, p. 1).

3 Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval for motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (OJ L 263, 9.10.2007, p. 1).

222

(15) Roadworthiness testing is a sovereign activity and should therefore be carried out by

the Member States or by public or private bodies entrusted to carry out such testing

under their supervision. Member States should invariably remain responsible for

roadworthiness testing, even where the national system allows for private bodies,

including those which also perform vehicle repairs, to carry out roadworthiness

testing.

(16) Member States should be empowered to designate testing centres located outside

their territory to carry out roadworthiness tests for vehicles registered in their

territory, if those testing centres have already been authorised to carry out tests on

vehicles by the Member State in which they are located.

(17) For the inspection of vehicles, and especially for their electronic safety components, it

is crucial to have access to the technical specifications of each individual vehicle.

Consequently, vehicle manufacturers should ▌provide ▌the data needed for

verification of the functionality of safety and environment-related components. The

provisions concerning access to repair and maintenance information should likewise be

applied for that purpose, allowing inspection centres to have access to all information

necessary for roadworthiness testing. The data should include the details that allow

the functionality of the vehicle safety systems to be monitored in a way that allows

such systems to be tested in a periodic technical inspection environment. This is of

crucial importance, especially in the field of electronically controlled systems, and

should cover all elements that have been installed by the manufacturer.

223

(18) Vehicles used on public roads are required to be roadworthy when they are used.

The holder of the registration certificate and, where applicable, the operator of the

vehicle should be responsible for keeping the vehicle in a roadworthy condition.

(19) It is important for road safety and for its impact on society that vehicles used on

roads should be in a proper technical condition. Therefore, Member States should

not be prevented from allowing, on a voluntary basis, additional roadworthiness

tests.

(20) To allow for a degree of flexibility for holders of a registration certificate and

operators, Member States should be able to specify a period of several weeks in which

the periodic roadworthiness test is to be performed.

(21) Testing during the life cycle of a vehicle should be relatively simple, quick and

inexpensive, while at the same time effective in achieving the objectives of this

Directive.

(22) Roadworthiness tests should cover all items relevant to the specific design,

construction and equipment of the tested vehicle. Compatibility between parts and

components, such as between wheels and wheel hubs, should be treated as a critical

safety item and should be checked during roadworthiness testing. In the context of

those items, and considering the current state of vehicle technology, modern electronic

systems should be included in the list of items to be tested. With a view to harmonising

roadworthiness testing, recommended testing methods should be established for each

of the test items. Those items should be updated to take account of evolving research

and technical progress in the field of vehicle safety.

(23) In order to facilitate harmonisation and to ensure consistency of standards, a non-

exhaustive list of the main reasons for failure should be provided in respect of all test

items. To achieve consistency in the judgement of the condition of the tested vehicle,

detected failures should be assessed to a common standard.

224

(24) With a view to better applying the principle of freedom of movement within the

Union, for the purpose of re-registration of a vehicle, Member States should

recognise roadworthiness certificates issued by other Member States. This should

not affect the right of a Member State to verify the roadworthiness certificate and the

vehicle identification during re-registration and to require a new roadworthiness test

to be carried out under the conditions laid down in this Directive.

(25) Odometer fraud should be regarded as an offence liable to a penalty, because

manipulation of an odometer may lead to an incorrect evaluation of the

roadworthiness of a vehicle. ▌The recording of mileage in the roadworthiness

certificate and access for inspectors to that information should facilitate the detection

of odometer tampering or manipulation. The exchange of information on odometer

readings between the competent authorities of Member States should be examined

by the Commission.

(26) A roadworthiness certificate should be issued after each test. This should include, inter

alia, information concerning the identity of the vehicle and the results of the test. The

test results should be made available electronically. With a view to ensuring a proper

follow-up of roadworthiness tests, Member States should collect and retain such

information in a database, in particular for the purposes of analysis of the results of

the periodic roadworthiness tests.

(27) The holder of the registration certificate and, where applicable, the operator of a

vehicle subject to a roadworthiness test during which deficiencies are found, in

particular those which represent a risk to road safety, should rectify such deficiencies

without delay. In the case of dangerous deficiencies, it may be necessary to restrict the

use of the vehicle until those deficiencies are fully rectified.

(28) Where a tested vehicle belongs to a vehicle category which is not subject to

registration in the Member State where it has been put into service, that Member

State should be allowed to require that the proof of test be displayed in a visible

manner on the vehicle.

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(29) In order to achieve a high quality of testing throughout the Union, test equipment to be

used during testing, its maintenance and its calibration should be verified with

reference to specifications provided by the Member States or by manufacturers.

(30) It should be possible for alternative equipment reflecting technological progress and

innovation to be used, provided that an equivalent high-quality level of testing is

ensured.

(31) When authorising testing centres on their territory, Member States should take into

account the fact that Directive 2006/123/EC of the European Parliament and of the

Council on services in the internal market1 excludes from its scope services of

general interest in the field of transport.

(32) Testing centres should ensure the objectivity and the high quality of the vehicle

testing. Therefore, in order to meet minimum requirements in terms of quality

management, testing centres should comply with the requirements laid down by the

authorising Member State.

1 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

226

(33) High standards of roadworthiness testing require that testing personnel have a high

level of skills and competences ▌. A training system including initial training and

periodic refreshers or an appropriate examination should be introduced. Provision

should be made for a transitional period to allow for a smooth transition of existing

testing personnel into the periodic training or examination regime. In order to ensure

high standards of training, competence and testing, Member States should be

allowed to lay down additional competence and corresponding training

requirements.

(34) Inspectors, when carrying out roadworthiness tests, should act independently and their

judgement should not be affected by conflicts of interest, including those of an

economic or personal nature. There should therefore be no direct correlation

between the reward of inspectors and the results of roadworthiness tests. It should be

possible for Member States to prescribe requirements regarding the separation of

activities or to authorise a private body to carry out both roadworthiness tests and

vehicle repairs, even on the same vehicle in cases where the supervising body has

established to its satisfaction that a high level of objectivity is maintained.

227

(35) The results of a roadworthiness test should not be altered for commercial purposes.

Only if the findings of a roadworthiness test performed by an inspector are manifestly

incorrect should the supervising body be able to modify the results of that test.

(36) With a view to ensuring that a high quality of testing is maintained over time, Member

States should ▌set up a quality assurance system that covers the processes of

authorisation, supervision, withdrawal, suspension or cancellation of authorisation to

carry out roadworthiness tests.

(37) Accreditation of testing centres under Regulation (EC) No 765/2008 of the

European Parliament and of the Council1 should not constitute an obligation for the

Member States.

▌

1 Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30).

228

(38) In several Member States, a high number of private authorised testing centres carry out

roadworthiness tests. In order to ensure the efficient exchange of information between

Member States in this regard, national contact points should be designated ▌.

(39) Roadworthiness testing forms part of a wider regulatory scheme, governing vehicles

throughout their lifetime from approval via registrations and inspections until

scrapping. Sharing of the information contained in national and manufacturers'

electronic vehicle databases should in principle help to improve the efficiency of the

entire chain of vehicle administration and should help to reduce costs and

administrative burdens. The Commission should examine the feasibility, costs and

benefits of establishing an electronic vehicle information platform by taking

advantage of existing and already implemented IT solutions with regard to

international data exchange, so as to minimise costs and avoid duplication. In

carrying out its examination of this issue, the Commission should consider the most

appropriate way to link the existing national systems with a view to exchanges of

information on data relating to roadworthiness testing and odometer readings

between the competent authorities of Member States responsible for testing,

registration and vehicle approval, testing centres, test equipment manufacturers and

vehicle manufacturers. The Commission should also examine the feasibility, costs

and benefits of collection and storage of available information concerning the main

safety-related components of vehicles which have been involved in serious accidents

as well as the possibility of making information on accident history and odometer

readings available in anonymised form to vehicle inspectors, holders of registration

certificates and accident researchers.

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(40) In order to ensure uniform conditions for the implementation of this Directive,

implementing powers should be conferred on the Commission. Those powers should

be exercised in accordance with Regulation (EU) No 182/2011 of the European

Parliament and of the Council1.

(41) The Commission should not adopt implementing acts relating to the information to

be made accessible by vehicle manufacturers for roadworthiness testing where the

committee established pursuant to this Directive delivers no opinion on the draft

implementing act presented by the Commission.

(42) In order to update the vehicle category designations in Article 2(1) and Article 5(1)

and (2), to update point 3 of Annex I in respect of methods, and to adapt point 3 of

Annex I, in respect of the list of test items, methods and assessment of deficiencies,

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. It is of

particular importance that the Commission carry out appropriate consultations during

its preparatory work, including at expert level. The Commission, when preparing and

drawing up delegated acts, should ensure a simultaneous, timely and appropriate

transmission of relevant documents to the European Parliament and to the Council.

1 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 (OJ L 55, 28.2.2011, p. 13).

230

(43) Roadworthiness has a direct impact on road safety and should therefore be reviewed

periodically. The Commission should report on the effectiveness of the provisions of

this Directive, including those relating to its scope, the frequency of testing, further

enhancement of the roadworthiness system through electronic information

exchange and the potential in the future for mutual recognition of roadworthiness

certificates.

(44) Testing facilities and equipment used in testing centres should fulfil the requirements

set out for carrying out roadworthiness tests. Since this necessitates substantial

investment and adaptations which it may not be possible to carry out immediately, a

period of five years should be granted to comply with those requirements. A period of

five years should likewise be granted to enable supervisory bodies to fulfil all the

criteria and requirements concerning the authorisation and supervision of testing

centres.

(45) Since the objective of this Directive, namely to improve road safety by laying down

minimum common requirements and harmonised rules concerning roadworthiness

tests of vehicles within the Union, cannot be sufficiently achieved by the Member

States but can rather, by reason of the scale of the action, 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.

231

(46) This Directive respects fundamental rights and observes the principles recognised in

particular by the Charter of Fundamental Rights of the European Union as referred to

in Article 6 of the Treaty on European Union.

(47) This Directive integrates and updates the rules contained in Commission

Recommendation 2010/378/EU1 with a view to better regulating roadworthiness

testing outcomes.

(48) This Directive updates the technical requirements laid down in Directive 2009/40/EC

of the European Parliament and of the Council2 and enlarges its scope in order to

include, in particular, provisions concerning the setting-up of testing centres and of

their supervisory bodies as well as the designation of inspectors entrusted to carry out

roadworthiness tests. Therefore, that Directive should be repealed,

HAVE ADOPTED THIS DIRECTIVE:

1 Commission Recommendation 2010/378/EU of 5 July 2010 on the assessment of defects during roadworthiness testing in accordance with Directive 2009/40/EC (OJ L 173, 8.7.2010, p. 74).

2 Directive 2009/40/EC of the European Parliament and of the Council of 6 May 2009 on roadworthiness tests for motor vehicles and their trailers (OJ L 141, 6.6.2009, p. 12).

232

CHAPTER I

SUBJECT MATTER, DEFINITIONS AND SCOPE

Article 1

Subject matter

This Directive establishes minimum requirements for a regime of periodic roadworthiness tests

of vehicles used on public roads.

Article 2

Scope

1. This Directive shall apply to vehicles with a design speed exceeding 25 km/h of the

following categories, as referred to inDirective 2002/24/EC, Directive 2003/37/EC and

Directive 2007/46/EC:

– motor vehicles designed and constructed primarily for the carriage of persons

and their luggage comprising not more than eight seating positions in addition

to the driver's seating position – vehicle category M1;

233

– motor vehicles designed and constructed primarily for the carriage of persons

and their luggage comprising more than eight seating positions in addition to

the driver's seating position – vehicle categories M2 and M3;

– motor vehicles designed and constructed primarily for the carriage of goods,

having a maximum ▌ mass not exceeding 3,5 tonnes – vehicle category N1;

– motor vehicles designed and constructed primarily for the carriage of goods,

having a maximum ▌ mass exceeding 3,5 tonnes – vehicle categories N2 and N3;

▌

– trailers designed and constructed for the carriage of goods or persons, as well

as for the accommodation of persons, having a maximum mass exceeding 3,5

tonnes – vehicle categories O3 and O4;

– from 1 January 2022, two- or three-wheel vehicles – vehicle categories L3e,

L4e, L5e and L7e, with an engine displacement of more than 125 cm3;

– wheeled tractors of category T5, the use of which mainly takes place on public

roads with a maximum design speed exceeding 40 km/h ▌.

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2. Member States may exclude the following vehicles registered in their territory from

the scope of application of this Directive:

– vehicles operated or used in exceptional conditions and vehicles which are

never, or hardly ever, used on public roads, such as vehicles of historical

interest or competition vehicles;

– vehicles covered by diplomatic immunity;

– vehicles used by armed forces, forces responsible for law and order, fire

services, civil protection service and emergency or rescue services;

– vehicles used for agricultural, horticultural, forestry, farming or fishery

purposes only on the territory of the Member State concerned and mainly on

the terrain where such activity takes place, including agricultural roads,

forestry roads or agricultural fields;

– vehicles used exclusively in small islands or sparsely populated areas;

235

– specialised vehicles transporting circus and funfair equipment, with a maximum

design speed not exceeding 40 km/h, and only operating on the territory of the

Member State concerned;

– vehicles in categories L3e, L4e, L5e and L7e, with an engine displacement of

more than 125 cm3, where the Member State has put in place effective

alternative road safety measures for two- or three-wheel vehicles, taking into

account in particular relevant road safety statistics covering the last five years.

Member States shall notify such exemptions to the Commission.

3. Member States may introduce national requirements concerning roadworthiness tests

for vehicles ▌ registered in their territory which are not covered by the scope of this

Directive and for vehicles listed in paragraph 2.

236

Article 3

Definitions

The following definitions shall only apply for the purposes of this Directive:

(1) 'vehicle' means any not rail-borne motor vehicle or its trailer;

(2) 'motor vehicle' means any power-driven vehicle on wheels which is moved by its own

means with a maximum design speed exceeding 25 km/h;

(3) 'trailer' means any non-self propelled vehicle on wheels which is designed and

constructed to be towed by a motor vehicle;

(4) 'semi-trailer' means any trailer designed to be coupled to a motor vehicle in such a way

that part of it rests on the motor vehicle and a substantial part of its mass and the mass

of its load is borne by the motor vehicle;

(5) 'two- or three-wheel vehicle' means any power-driven vehicle on two wheels, with or

without a sidecar, and any tricycle or quadricycle;

237

(6) 'vehicle registered in a Member State' means a vehicle which is registered or put into

service in a Member State;

(7) 'vehicle of historical interest' means any vehicle which is considered to be historical

by the Member State of registration or one of its appointed authorising bodies and

which fulfils all the following conditions:

– it was manufactured or registered for the first time at least 30 years ago;

– its specific type, as defined in the relevant Union or national law, is no longer

in production;

– it is historically preserved and maintained in its original state and has not

undergone substantial changes in the technical characteristics of its main

components ▌;

(8) 'holder of a registration certificate' means the legal or natural person in whose name

the vehicle is registered;

(9) 'roadworthiness test' means an inspection in accordance with Annex I designed to

ensure that a vehicle is safe to be used on public roads and that it complies with

required and mandatory safety and environmental characteristics ▌;

238

(10) 'approval' means a procedure whereby a Member State certifies that a vehicle

satisifies the relevant administrative provisions and technical requirements referred

to in Directive 2002/24/EC, Directive 2003/37/EC and Directive 2007/46/EC;

(11) 'deficiencies' means technical defects and other instances of non-compliance found

during a roadworthiness test;

(12) 'roadworthiness certificate' means a roadworthiness test report issued by the

competent authority or a testing centre containing the result of the roadworthiness test;

(13) 'inspector' means a person authorised by a Member State or by its competent authority

to carry out roadworthiness tests in a testing centre or, where appropriate, on behalf of

a competent authority;

(14) 'competent authority' means an authority or public body entrusted by a Member State

with responsibility for managing the ▌ system of roadworthiness testing, including,

where appropriate, the carrying-out of roadworthiness tests;

239

(15) 'testing centre' means a public or private body or establishment authorised by a

Member State to carry out roadworthiness tests;

(16) 'supervising body' means a body or bodies set up by a Member State, responsible for

the ▌supervision of testing centres. A supervising body can be part of the competent

authority or competent authorities;

(17) 'small island' means an island with fewer than 5 000 inhabitants which is not linked

to the other parts of territory by road bridges or road tunnels;

(18) 'sparsely populated area' means a predefined area with a population density of fewer

than five persons per square kilometre;

(19) 'public road' means a road that is of general public utility, such as a local, regional

or national road, highway, expressway or motorway.

240

CHAPTER II

GENERAL OBLIGATIONS

Article 4

Responsibilities

1. Each Member State shall ensure that vehicles registered in its territory are

periodically tested in accordance with this Directive by testing centres authorised by

the Member State in which those vehicles are registered.

2. Roadworthiness tests shall be carried out by the ▌ Member State of registration of the

vehicle, by a public body entrusted with the task by that Member State or by bodies

or establishments designated and supervised by that Member State, including

authorised private bodies.

241

3. In accordance with the principles laid down by Regulation (EC) No 715/2007 of the

European Parliament and of the Council1 and by Regulation (EC) No 595/2009 of

the European Parliament and of the Council2, the Commission shall, by means of

implementing acts, and before ...*, adopt:

(a) a set of technical information on braking equipment, steering, visibility, lamps,

reflectors, electrical equipment, axles, wheels, tyres, suspension, chassis,

chassis attachments, other equipment and nuisance necessary for

roadworthiness testing of the items to be tested and on the use of the

recommended test methods, in accordance with point 3 of Annex I, and

(b) the detailed rules concerning the data format and the procedures for accessing

the relevant technical information.

1 Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 171, 29.6.2007, p. 1).

2 Regulation (EC) No 595/2009 of the European Parliament and of the Council of 18 June 2009 on type-approval of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information and amending Regulation (EC) No 715/2007 and Directive 2007/46/EC and repealing Directives 80/1269/EEC, 2005/55/EC and 2005/78/EC (OJ L 188, 18.7.2009, p. 1).

* OJ: please insert the date 48 months after the entry into force of this Directive.

242

Those implementing acts shall be adopted in accordance with the examination

procedure referred to in Article 19(2).

The technical information referred to in point (a) of the first subparagraph shall be

made available, free of charge or at a reasonable price, by the manufacturers to

testing centres and relevant competent authorities, in a non-discriminatory manner.

The Commission shall examine the feasibility of establishing a single point of access

for that technical information.

4. Member States shall ensure that the responsibilities for keeping a vehicle in a safe

and roadworthy condition are defined in national law.

243

CHAPTER III

MINIMUM REQUIREMENTS CONCERNING ROADWORTHINESS TESTS

Article 5

Date and frequency of testing

1. Vehicles shall be subject to a roadworthiness test ▌ at least within the following

intervals, without prejudice to the period of flexibility applied in Member States

under paragraph 3:

(a) vehicles of category M1 and N1 ▌: four years after the date on which the vehicle

was first registered, and thereafter every two years;

(b) vehicles of category M1 used as taxis or ambulances, vehicles of categories M2,

M3, N2, N3, ▌ O3 and O4: one year after the date on which the vehicle was first

registered, and thereafter annually;

244

(c) vehicles of category T5 the use of which mainly takes place on public roads for

commercial road haulage purposes: four years after the date on which the

vehicle was first registered, and thereafter every two years.

2. Member States shall establish appropriate intervals within which vehicles of

categories L3e, L4e, L5e and L7e, with an engine displacement of more than

125 cm3, are to be subject to a roadworthiness test.

3. Member States or competent authorities may establish a reasonable period during

which the roadworthiness test is to be carried out, not exceeding the intervals laid

down in paragraph 1.

▌

4. Notwithstanding the date of a vehicle's last roadworthiness test, the Member State or

competent authority concerned may require it to undergo a roadworthiness test ▌

before the dates referred to in paragraphs 1 and 2 in the following cases:

245

– after an accident affecting the main safety-related components of the vehicle,

such as wheels, suspension, deformation zones, airbag systems, steering or

brakes;

– when the safety and environmental systems and components of the vehicle have

been altered or modified;

– where the holder of the registration certificate of a vehicle has changed;

– when the vehicle has reached a mileage of 160 000 km;

– in cases where road safety is seriously affected.

Article 6

Contents and methods of testing

1. For vehicle categories falling within the scope of this Directive, with the exception of

categories L3e, L4e, L5e and L7e with an engine displacement of more than

125 cm3, Member States shall ensure that roadworthiness tests ▌ cover at least the

areas referred to in point 2 of Annex I.

246

2. For each area referred to in paragraph 1, the competent authorities of the Member State

or the testing centre shall carry out a roadworthiness test covering at least the items

referred to in point 3 of Annex I, using the recommended or an equivalent method

approved by a competent authority applicable to the testing of those items, as set out

in point 3 of Annex I. The test may also include a verification as to whether the

respective parts and components of the vehicle correspond to the required safety and

environmental characteristics that were in force at the time of approval or, if

applicable, at the time of retrofitting.

The tests shall be carried out using techniques and equipment currently available

without the use of tools to dismantle or remove any part of the vehicle.

3. For vehicle categories L3e, L4e, L5e and L7e, with an engine displacement of more

than 125 cm3, Member States shall determine the areas, items and appropriate

methods of testing.

247

Article 7

Assessment of deficiencies

1. For each item to be tested, Annex I provides a minimum list of possible deficiencies

and their level of severity.

2. Deficiencies that are found during periodic testings of vehicles shall be categorised

in one of the following groups:

(a) minor deficiencies having no significant effect on the safety of the vehicle or

impact on the environment, and other minor non-compliances;

(b) major deficiencies that may prejudice the safety of the vehicle or have an impact

on the environment or put other road users at risk, or other more significant non-

compliances;

(c) dangerous deficiencies constituting a direct and immediate risk to road safety or

having an impact on the environment which justify that a Member State or its

competent authorities may prohibit the use of the vehicle on public roads.

248

3. A vehicle having deficiencies falling into more than one of the deficiency groups

referred to in paragraph 2 shall be classified in the group corresponding to the more

serious deficiency. A vehicle showing several deficiencies within the same inspection

area as identified in the scope of the test referred to in point 2 of Annex I, may be

classified in the next most serious deficiency group if it can be demonstrated that the

combined effect of those deficiencies results in a higher risk to road safety.

Article 8

Roadworthiness certificate

1. Member States shall ensure that testing centres or, if relevant, the competent

authorities, which have carried out a roadworthiness test on a vehicle issue a

roadworthiness certificate for that vehicle indicating at least the standardised elements

of the corresponding harmonised Union codes as laid down in Annex II.

2. Member States shall ensure that testing centres or, if relevant, the competent

authorities make the roadworthiness certificate or, in the case of an electronically

produced roadworthiness certificate, a ▌certified printout of such certificate available

to the person presenting the vehicle for testing ▌.

249

3. Without prejudice to Article 5, in the case of re-registration of a vehicle already

registered in another Member State, each Member State shall recognise the

roadworthiness certificate issued by that other Member State, as if it had itself issued

that certificate, provided that the roadworthiness certificate is still valid in terms of

the frequency intervals established for periodic roadworthiness tests by the re-

registering Member State. In cases of doubt, the re-registering Member State may

verify the validity of the the roadworthiness certificate before recognising it. Member

States shall communicate to the Commission a description of the roadworthiness

certificate before ...*. The Commission shall inform the Committee referred to in

Article 19. This paragraph shall not apply to vehicle categories L3e, L4e, L5e and

L7e.

4. Without prejudice to Article 5(4) and paragraph 3 of this Article, Member States

shall recognise, as a matter of principle, the validity of the roadworthiness certificate

in the event that the ownership of a vehicle - having a valid proof of periodic

roadworthiness test - changes.

* OJ: please insert the date: 48 months after the entry into force of this Directive.

250

5. As from ...* and at the latest by ...**, testing centres shall communicate electronically, to

the competent authority of the Member State concerned, the information mentioned in

the roadworthiness certificates which they issue. Such communication shall take place

within a reasonable time after each roadworthiness certificate is issued. Until the latter

date, testing centres may communicate the relevant information to the competent

authority by any other means. Member States shall determine the period during

which the competent authority is to retain that information. The duration of that

period shall not be less than 36 months, without prejudice to the national tax systems

of the Member States.

6. Member States shall ensure that, for the purposes of checking the odometer, where

an odometer is normally fitted, the information included in the previous

roadworthiness test is made available to the inspectors as soon as it is available

electronically. In cases where an odometer is found to have been manipulated with

the aim of reducing or misrepresenting the distance record of a vehicle, such

manipulation shall be punishable by effective, proportionate, dissuasive and non-

discriminatory penalties.

* OJ: please insert the date: 48 months after the entry into force of this Directive.* * OJ: please insert the date: seven years after the entry into force of this Directive.

251

7. Member States shall ensure that the results of the roadworthiness test are notified, or

made available electronically, as soon as possible to the authority responsible for

registration of the vehicle. That notification shall contain the information mentioned in

the roadworthiness certificate.

Article 9

Follow-up of deficiencies

1. In the case of minor deficiencies only, the test shall be deemed to have been passed,

the deficiencies shall be rectified, and the vehicle shall not ▌ be re-tested.

2. In the case of major deficiencies, the test shall be deemed to have been failed. The

Member State or the competent authority shall decide on the period during which the

vehicle in question may be used before it is required to undergo another

roadworthiness test. The subsequent test shall take place during a period defined by

the Member State or competent authority but not later than two months following

the initial test.

252

3. In the case of dangerous deficiencies, the test shall be deemed to have been failed.

The Member State or the competent authority may decide that the vehicle in question

is not to be used on public roads and that the authorisation for its use in road traffic

is to be suspended for a limited period of time, without requiring a new process of

registration, until such time as the deficiencies are rectified and a new roadworthiness

certificate is issued testifying that the vehicle is in a roadworthy condition.

Article 10

Proof of test

1. The testing centre or, if relevant, the competent authority of the Member State that has

carried out a roadworthiness test on a vehicle registered in its territory shall provide a

proof, such as an indication on the vehicle registration document, a sticker, a

certificate or any other easily accessible information, for each vehicle which has

passed such a test. The proof shall indicate the date by which the next roadworthiness

test is to take place.

253

Member States shall communicate to the Commission a description of that proof

before ...*. The Commission shall in turn inform the Committee referred to in Article

19.

2. Where the tested vehicle belongs to a vehicle category which is not subject to

registration in the Member State where it has been put into service, that Member

State may require the proof of test to be displayed in a visible manner on that

vehicle.

3. For the purpose of free circulation, each Member State shall recognise the proof

provided by a testing centre or competent authority of another Member State in

accordance with paragraph 1.

* OJ please insert the date: 48 months after the entry into force of this Directive

254

CHAPTER IV

ADMINISTRATIVE PROVISIONS

Article 11

Testing facilities and equipment

1. Member States shall ensure that testing facilities and equipment used for carrying out

roadworthiness tests comply with the minimum technical requirements laid down in

Annex III.

2. Member States shall ensure that the testing centres or, if relevant, the competent

authority ▌ maintain the testing facilities and equipment in accordance with the

specifications provided by the manufacturers.

3. ▌Equipment used for measurements shall be periodically calibrated in line with

Annex III and verified in accordance with the specifications provided by the Member

State concerned or by the manufacturer of the equipment.

255

Article 12

Testing centres

1. Testing centres in which inspectors perform roadworthiness tests shall be authorised

by a Member State or by its competent authority.

2. To meet minimum requirements in terms of quality management, testing centres

shall comply with the requirements laid down by the authorising Member State.

Testing centres shall ensure the objectivity and the high quality of the

roadworthiness tests .

Article 13

Inspectors

1. Member States shall ensure that roadworthiness tests are carried out by inspectors

fulfilling the minimum competence and training requirements laid down in Annex IV.

Member States may lay down additional requirements in respect of competence and

corresponding training.

256

2. The competent authorities or, where applicable, approved training centres shall

provide a certificate to inspectors who fulfil the minimum competence and training

requirements. That certificate shall include at least the information mentioned in point

3 of Annex IV.

3. Inspectors employed or authorised by competent authorities of the Member States or

by a testing centre at ...* shall be exempted from the requirements laid down in point 1

of Annex IV. ▌

4. When carrying out a roadworthiness test, the inspector shall be free from any conflict

of interests so as to ensure, to the satisfaction of the Member State or competent

authority concerned, that a high level of impartiality and objectivity is maintained.

5. The person presenting the vehicle for testing shall be informed of any deficiencies

identified in the vehicle which need to be rectified.

6. The results of a roadworthiness test ▌may only be modified, where appropriate, by the

supervising body, or in accordance with the procedure set up by the competent

authority, if the findings of the roadworthiness test are manifestly incorrect.


257

Article 14

▌Supervision of testing centres

1. Member States shall ensure that testing centres are supervised.

2. A supervising body shall perform at least the tasks provided for in point 1 of Annex V

and shall fulfil the requirements laid down in points 2 and 3 of that Annex.

Member States shall make publicly available the rules and procedures covering the

organisation, tasks and requirements, including the independence requirements

applicable to the personnel of a supervising body.

3. Testing centres directly operated by a competent authority shall be exempted from the

requirements regarding authorisation and supervision where the supervising body is

part of the competent authority.

4. The requirements mentioned in paragraphs 2 and 3 of this Article may be regarded

as fulfilled by Member States which require that testing centres be accredited under

Regulation (EC) No 765/2008.

258

CHAPTER V

COOPERATION AND EXCHANGE OF INFORMATION

Article 15

Administrative cooperation between Member States

1. Member States shall designate a national contact point responsible for exchanging

information with the other Member States and the Commission with regard to the

application of this Directive.

2. Member States shall forward to the Commission the names and contact details of their

national contact point by ...*, and shall inform it without delay of any changes thereto.

The Commission shall draw up a list of all contact points and forward it to the Member

States.

* OJ: please insert the date: one year after the entry into force of this Directive.

259

Article 16

Electronic vehicle information platform

The Commission shall examine the feasibility, costs and benefits of establishing an electronic

vehicle information platform by taking advantage of existing and already implemented IT

solutions with regard to international data exchange so as to minimise costs and avoid

duplication. In examining the matter, the Commission shall consider the most appropriate

way to link the existing national systems with a view to facilitating exchanges of information

on data relating to roadworthiness testing and odometer readings between the competent

authorities of Member States responsible for testing, registration and vehicle approval, testing

centres, test equipment manufacturers and vehicle manufacturers.

The Commission shall also examine the feasibility, costs and benefits of collecting and

storing available information concerning the main safety-related components of vehicles

which have been involved in serious accidents as well as the possibility of making

information on accident history and odometer readings available in an anonymised form to

inspectors, holders of registration certificates and accident researchers.

260

CHAPTER VI

DELEGATED AND IMPLEMENTING ACTS

Article 17

Delegated acts

The Commission shall be empowered to adopt delegated acts in accordance with Article 18 in

order to:

– update only the vehicle category designations referred to in Article 2(1) and

Article 5(1) and (2) as appropriate in the event of changes to the vehicle

categories stemming from amendments to the type-approval legislation referred

to in Article 2(1), without affecting the scope and frequency of testing;

– update point 3 of Annex I in respect of methods in the event that more efficient

and effective test methods become available, without extending the list of items

to be tested;

– adapt point 3 of Annex I, following a positive assessment of the costs and

benefits involved, in respect of the list of test items, methods, reasons for

failure and assessment of deficiencies in the event of a modification of

mandatory requirements relevant for type-approval in Union safety or

environmental legislation.

261

Article 18

Exercise of delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the

conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 17 shall be conferred on the

Commission for a period of five years from ...*. The Commission shall draw up a

report in respect of the delegation of power not later than nine months before the

end of the five-year period. The delegation of power shall be tacitly extended for

periods of an identical duration, unless the European Parliament or the Council

opposes such extension not later than three months before the end of each period.

3. The delegation of powers referred to in Article 17 may be revoked at any time by the

European Parliament or by the Council. A decision to revoke shall put an end to the

delegation of the power specified in that decision. It shall take effect the day following

the publication of the decision in the Official Journal of the European Union or at a

later date specified therein. It shall not affect the validity of any delegated acts already

in force.

* OJ: please insert the date of entry into force of this Directive.

262

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to

the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 17 shall enter into force only if no

objection has been expressed by either the European Parliament or the Council within

a period of two months of notification of that act to the European Parliament and the

Council or if, before the expiry of that period, the European Parliament and the

Council have both informed the Commission that they will not object. That period

shall be extended by two months at the initiative of the European Parliament or of the

Council.

Article 19

Committee Procedure

1. The Commission shall be assisted by a committee (the 'Roadworthiness Committee').

That committee shall be a committee within the meaning of Regulation (EU) No

182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011

shall apply. Where the committee delivers no opinion, the Commission shall not

adopt the draft implementing act and the third subparagraph of Article 5(4) of

Regulation (EU) No 182/2011 shall apply.

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Chapter VII

FINAL PROVISIONS

Article 20

Reporting

1. By ...*, the Commission shall submit a report to the European Parliament and the

Council on the implementation and effects of this Directive, in particular as regards

the level of harmonisation of periodic roadworthiness tests, the effectiveness of the

provisions on its scope, the frequency of testing, the mutual recognition of

roadworthiness certificates in cases of re-registration of vehicles originating from

another Member State and the results of the examination concerning the feasibility

of introducing an electronic vehicle information platform as referred to in Article

16. The report shall also analyse whether there is a need to update the Annexes,

particularly in the light of technical progress and practices. The report shall be

submitted after the consultation of the committee referred to in Article 19 and shall

be accompanied, if appropriate, by legislative proposals.

* OJ: please insert the date: six years from the date of publication of this Directive.

264

2. No later than ...*, the Commission shall submit to the European Parliament and to

the Council a report, based on independent studies, on the effectiveness of the

inclusion of light trailers and two- or three-wheel vehicles in the scope of this

Directive. The report shall assess the evolution of the road safety situation in the

Union and, for each subcategory of L-vehicles, compare the results of national road

safety measures, taking into account the average distance travelled by those vehicles.

In particular, the Commission shall assess whether the standards and costs of

periodic roadworthiness testing of each category of vehicle is proportionate to the

road safety objectives set. The report shall be accompanied by a detailed impact

assessment analysing the costs and benefits throughout the Union, including the

specificities of Member States. The report shall be made available at least six months

prior to the submission of any legislative proposal, if appropriate, to include new

categories within the scope of this Directive.

* OJ: please insert the date: five years from the date of publication of this Directive.

265

Article 21

Penalties

▌ The Member States shall lay down the rules on penalties applicable to infringements of the

provisions of this Directive and shall take all measures necessary to ensure that they are

implemented. Those penalties shall be effective, proportionate, dissuasive and non-

discriminatory.

▌

Article 22

Transitional provisions

1. Member States may authorise the use for a period of not more than five years after...*

of testing facilities and equipment referred to in Article 11 that do not comply with the

minimum requirements laid down in Annex III ▌ for carrying out roadworthiness tests.


266

2. Member States shall apply the requirements laid down in Annex V at the latest as from

1 January 2023.

Article 23

Transposition

1. Member States shall adopt and publish, by ...* , the laws, regulations and

administrative measures necessary to comply with this Directive. They shall

immediately inform the Commission thereof.

They shall apply those measures from ...**.

When Member States adopt those measures, they shall contain a reference to this

Directive or shall be accompanied by such reference on the occasion of their official

publication. The methods of making such reference shall be laid down by Member

States.

* OJ: please insert the date: 36 months after the entry into force of this Directive.* * OJ: please insert the date: 48 months after the entry into force of this Directive.

267

2. Member States shall communicate to the Commission the text of the main measures

of national law which they adopt in the field covered by this Directive.

Article 24

Repeal

Directive 2009/40/EC is repealed with effect from ...*.

Article 25

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the

Official Journal of the European Union.

Article 26

Addressees

This Directive is addressed to the Member States.

Done at ...,



* OJ: please insert the date 48 months after the entry into force of this Directive.

268

▌

ANNEX I

MINIMUM REQUIREMENTS CONCERNING THE CONTENTS AND RECOMMENDED METHODS OF TESTING

1. GENERAL

This Annex identifies the vehicle systems and components to be tested; it details the recommended methods for testing them and the criteria to be used when determining whether the condition of the vehicle is acceptable.

The test must cover at least the items listed in point 3 below provided that these relate to the equipment of the vehicle being tested in the Member State concerned. The test may also include a verification as to whether the relevant parts and components of that vehicle correspond to the required safety and environmental characteristics that were in force at the time of approval or, if applicable, at the time of retrofitting.

Where the design of the vehicle does not allow the application of the test methods laid down in this Annex, the test shall be conducted in accordance with the recommended test methods accepted by the competent authorities. The competent authority must be satisfied that safety and environmental standards will be maintained.

269

Testing of all the items listed below shall be considered as mandatory in the context of a periodic roadworthiness test, with the exception of those marked with the indication "X" which are related to the condition of the vehicle and its suitability for use on the road but which are not considered essential in the context of a roadworthiness test.

The "Reasons for failure" do not apply in cases where they refer to requirements that were not prescribed in the relevant vehicle approval legislation at the time of first registration or first entry into service, or in the retrofitting requirements.

Where a method of testing is indicated as visual, it means that, in addition to looking at the items concerned, the inspector shall also, if appropriate, handle them, evaluate their noise or use any other appropriate means of inspection not involving the use of equipment.

2. SCOPE OF TEST

The test shall cover at least the following areas:0) Identification of the vehicle;1) Braking equipment;2) Steering;3) Visibility;4) Lighting equipment and parts of the electrical system;5) Axles, wheels, tyres, suspension;6) Chassis and chassis attachments;7) Other equipment;8) Nuisance;9) Supplementary tests for passenger-carrying vehicles of categories M2 and M3.

270

3. CONTENTS AND METHODS OF TESTING; ASSESSMENT OF DEFICIENCIES OF VEHICLESThe test shall cover at least the items, and use the minimum standards and the recommended methods, listed in the following table.For each vehicle system and component subject to testing, the assessment of deficiencies shall be carried out in accordance with the criteria set out in that table, on a case-by-case basis.Deficiencies not listed in this Annex shall be assessed in terms of the risks that they pose to road safety.

271

Item Method Reasons for failure Assessment of deficienciesMino

rMajo

rDangerous

0. IDENTIFICATION OF THE VEHICLE

0.1. Registration number plates (if needed by requirements(1))

Visual inspection (a) Number plate(s) missing or so insecurely fixed that it is (they are) likely to fall off.

X

(b) Inscription missing or illegible X

(c) Not in accordance with vehicle documents or records. X

0.2. Vehicle identification/chassis/serial number

Visual inspection (a) Missing or can not be found. X

(b) Incomplete, illegible, obviously falsified, or does not match the vehicle documents.

X

(c) Illegible vehicle documents or clerical inaccuracies. X

1. BRAKING EQUIPMENT1.1. Mechanical condition and operation1.1.1. Service brake pedal/hand lever pivot

Visual inspection of the components while the braking system is operated.Note: Vehicles with power-assisted braking systems should be inspected with the engine switched off.

(a) Pivot too tight. X

(b) Excessive wear or play. X

1.1.2. Pedal/hand lever condition and travel of the brake operating device

Visual inspection of the components while the braking

(a) Excessive or insufficient reserve travel. X

272


rMajo

rDangerous

system is operatedNote: Vehicles with power-assisted braking systems should be inspected with the engine switched off.

(b) Brake control not releasing correctly.

If its functionality is affected.

X

X

(c) Anti-slip provision on brake pedal missing, loose or worn smooth.

X

1.1.3. Vacuum pump or compressor and reservoirs

Visual inspection of the components at normal working pressure. Check time required for vacuum or air pressure to reach safe working value and function of warning device, multi-circuit protection valve and pressure relief valve.

(a) Insufficient pressure/vacuum to give assistance for at least four brake applications after the warning device has operated (or gauge shows an unsafe reading);

at least two brake applications after the warning device has operated (or gauge shows an unsafe reading).

X

X

(b) Time taken to build up air pressure/vacuum to safe working value is too long according to the requirements(1)

X

(c) Multi-circuit protection valve or pressure relief valve not working.

X

(d) Air leak causing a noticeable drop in pressure or audible air leaks.

X

(e) External damage likely to affect the function of the braking system.

Secondary braking performance not met.

X

X

1.1.4. Low pressure warning gauge or indicator

Functional check Malfunctioning or defective gauge or indicator.

Low pressure not identifiable.

X

X

1.1.5. Hand-operated Visual inspection of (a) Control cracked, damaged or excessively worn. X

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brake control valve the components while the braking system is operated.

(b) Control insecure on valve or valve insecure. X

(c) Loose connections or leaks in system. X

(d) Unsatisfactory operation. X

1.1.6. Parking brake activator, lever control, parking brake ratchet, electronic parking brake

Visual inspection of the components while the braking system is operated.

(a) Ratchet not holding correctly. X

(b) ▌ Wear at lever pivot or in ratchet mechanism.

Excessive wear.

X

X

(c) Excessive movement of lever indicating incorrect adjustment. X

(d) Activator missing, damaged or inoperative. X

(e) Incorrect functioning, warning indicator shows malfunction X

1.1.7. Braking valves (foot valves, unloaders, governors)

Visual inspection of the components while the braking system is operated.

(a) Valve damaged or excessive air leak.


X

X

(b) Excessive oil discharge from compressor. X

(c) Valve insecure or inadequately mounted. X

(d) Hydraulic fluid discharge or leak.


X

X

1.1.8. Couplings for trailer brakes (electrical & pneumatic)

Disconnect and reconnect braking system coupling

(a) Tap or self sealing valve defective.


X

X

274


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between towing vehicle and trailer.

(b) Tap or valve insecure or inadequately mounted.


X

X

(c) Excessive leaks.


X

X

(d) Not functioning correctly.

Operation of brake affected.

X

X

1.1.9. Energy storage reservoir pressure tank

Visual inspection. (a) Tank slightly damaged or slightly corroded ▌.

Tank heavily damaged, corroded or leaking.

X

X

(b) Drain device operation affected.

Drain device inoperative.

X

X

(c) Tank insecure or inadequately mounted. X

1.1.10. Brake servo units, master cylinder (hydraulic systems)

Visual inspection of the components while the braking system is operated, if possible.

(a) Defective or ineffective servo unit.

If it is not operating.

X

X

(b) Master cylinder defective but brake still operating.

Master cylinder defective or leaking.

X

X

(c) Master cylinder insecure but brake still operating.

Master cylinder insecure.

X

X

275


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(d) Insufficient brake fluid below MIN mark

Brake fluid significantly below MIN mark

No brake fluid visible.

X

X

X

(e) Master cylinder reservoir cap missing. X

(f) Brake fluid warning light illuminated or defective. X

(g) Incorrect functioning of brake fluid level warning device. X

1.1.11. Rigid brake pipes Visual inspection of the components while the braking system is operated, if possible.

(a) Imminent risk of failure or fracture. X

(b) Pipes or connections leaking (air brake systems).

Pipes or connection leaking (hydraulic brake systems).

X

X

(c) Pipes damaged or excessively corroded.

Affecting the functioning of the brakes on account of blocking or imminent risk of leaking.

X

X

(d) Pipes misplaced.

Risk of damage.

X

X

1.1.12. Flexible brake hoses


(a) Imminent risk of failure or fracture. X

(b) Hoses damaged, chafing, twisted or too short.

Hoses damaged or chafing.

X

X

(c) Hoses or connections leaking (air brake systems) X

276


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Hoses or connections leaking (hydraulic brake systems). X

(d) Hoses bulging under pressure.

Cord impaired.

X

X

(e) Hoses porous. X

1.1.13. Brake linings and pads

Visual inspection. (a) Lining or pad excessively worn (minimum mark reached).

Lining or pad excessively worn (minimum mark not visible).

X

X

(b) Lining or pad contaminated (oil, grease etc.).

Braking performance affected.

X

X

(c) Lining or pad missing or wrongly mounted. X

1.1.14. Brake drums, brake discs

Visual inspection. (a) Drum or disc worn

Drum or disc excessively worn, excessively scored, cracked, insecure or fractured.

X

X

(b) Drum or disc contaminated (oil, grease, etc.).


X

X

(c) Drum or disc missing. X

(d) Back plate insecure. X

1.1.15. Brake cables, rods, levers, linkages

Visual inspection of the components while the braking

(a) Cable damaged or knotted.


X

X

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system is operated, if possible.

(b) Component excessively worn or corroded.


X

X

(c) Cable, rod or joint insecure. X

(d) Cable guide defective. X

(e) Restriction to free movement of the braking system. X

(f) Abnormal movement of the levers/linkage indicating maladjustment or excessive wear.

X

1.1.16. Brake actuators (including spring brakes or hydraulic cylinders)


(a) Actuator cracked or damaged.


X

X

(b) Actuator leaking.


X

X

(c) Actuator insecure or inadequately mounted.


X

X

(d) Actuator excessively corroded.

Likely to crack.

X

X

278


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(e) Insufficient or excessive travel of operating piston or diaphragm mechanism.

Braking performance affected (lack of reserve movement).

X

X

(f) ▌ Dust cover damaged.

Dust cover missing or excessively damaged.

X

X

1.1.17. Load sensing valve


(a) Defective linkage. X

(b) Linkage incorrectly adjusted. X

(c) Valve seized or inoperative (ABS functioning).

Valve seized or inoperative.

X

X

(d) Valve missing (if required). X

(e) Missing data plate. X

(f) Data illegible or not in accordance with requirements(1) X

1.1.18. Slack adjusters and indicators

Visual inspection. (a) Adjuster damaged, seized or having abnormal movement, excessive wear or incorrect adjustment.

X

(b) Adjuster defective. X

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(c) Incorrectly installed or replaced. X

1.1.19. Endurance braking system (where fitted or required)

Visual inspection. (a) Insecure connectors or mountings.


X

X

(b) System obviously defective or missing. X

1.1.20. Automatic operation of trailer brakes

Disconnect brake coupling between towing vehicle and trailer.

Trailer brake does not apply automatically when coupling disconnected.

X

1.1.21. Complete braking system

Visual inspection (a) Other system devices (e.g. anti-freeze pump, air dryer, etc.) damaged externally or excessively corroded in a way that adversely affects the braking system.


X

X

(b) Leakage of air or anti-freeze.

System functionality affected.

X

X

(c) Any component insecure or inadequately mounted. X

(d) Unsafe modification to any component (3)


X

X

1.1.22. Test connections (where fitted or required)

Visual inspection (a) Missing. X

(b) Damaged. ▌

Unusable or leaking.

X

X

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1.1.23. Overrun brake Visual inspection and by operation

Insufficient efficiency. X

1.2 Service braking performance and efficiency1.2.1. Performance During a test on a

brake tester or, if impossible, during a road test, apply the brakes progressively up to maximum effort.

(a) Inadequate braking effort on one or more wheels.

No braking effort on one or more wheels.

X

X

(b) Braking effort from any wheel is less than 70% of the maximum effort recorded from the other wheel on the same axle. Or, in the case of testing on the road, the vehicle deviates excessively from a straight line.

Braking effort from any wheel is less than 50% of the maximum effort recorded from the other wheel on the same axle in the case of steered axles.

X

X

(c) No gradual variation in brake effort (grabbing). X

(d) Abnormal lag in brake operation of any wheel. X

(e) Excessive fluctuation of brake force during each complete wheel revolution.

X

1.2.2. Efficiency Test with a brake tester or, if one cannot be used for technical reasons, by a road test using a deceleration recording instrument to establish the braking

Does not give at least the minimum figure as follows1:1. Vehicles registered for the first time after 1/1/2012:

– Category M1: 58 %

– Categories M2 and M3: 50 %

– Category N1: 50 %

X

1 The vehicle categories which are outside the scope of this Directive are included for guidance.281


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ratio which relates to the maximum authorised mass or, in the case of semi-trailers, to the sum of the authorised axle loads.

Vehicles or a trailer with a maximum permissible mass exceeding 3,5Tonnes has to be inspected following the standards given by ISO 21069 or equivalent methods.

Road tests should be carried out under dry conditions on a flat, straight road.

– Categories N2 and N3: 50 %

– Categories O2, O3 and O4:

- for semi-trailers: 45 %1

- for draw-bar trailers: 50 %

2. Vehicles registered for the first time before 1/1/2012:

– Categories M1, M2 and M3: 50 % 2

– Category N1: 45 %

– Categories N2 and N3: 43 % 3

– Categories O2,O3 and O4: 40 % 4

3. Other categories

- Categories L (both brakes together):

Category L1e: 42 %

Categories L2e, L6e: 40 %

Category L3e: 50 %

Category L4e: 46 %

Categories L5e, L7e: 44 %

X

X

1 43 % for semi-trailers approved before 1 January 2012.2 48 % for vehicles not fitted with ABS or type-approved before 1 October 1991.3 45 % for vehicles registered after 1988 or from the date specified in requirements, whichever is the later.4 43 % for semi-trailers and draw-bar trailers registered after 1988 or from the date specified in requirements, whichever is the later.

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- Category L (rear wheel brake):all categories: 25 % of the total vehicle mass

Less than 50% of the above values reached. X

1.3. Secondary (emergency) braking performance and efficiency (if met by separate system)

1.3.1. Performance If the secondary braking system is separate from the service braking system, use the method specified in 1.2.1.

(a) Inadequate braking effort on one or more wheels.No braking effort on one or more wheels.

XX

(b) Braking effort from any wheel is less than 70 % of the maximum effort recorded from another wheel on the same axle specified. Or, in the case of testing on the road, the vehicle deviates excessively from a straight line.

Braking effort from any wheel is less than 50 % of the maximum effort recorded from the other wheel on the same axle in the case of steered axles.

X

X

(c) No gradual variation in brake effort (grabbing). X

1.3.2. Efficiency If the secondary braking system is separate from the service braking system, use the method specified in 1.2.2.

Braking effort less than 50 %1 of the service brake performance defined in section 1.2.2 in relation to the maximum authorized mass.

Less than 50 % of the above braking effort values reached.

X

X

1.4. Parking braking performance and efficiency

1.4.1. Performance Apply the brake during a test on a brake tester. ▌

Brake inoperative on one side or, in the case of testing on the road, the vehicle deviates excessively from a straight line.

Less than 50 % of the braking effort values as referred to in point 1.4.2.

X

X

1 E.g. 2.5 m/s2 for N1, N2 and N3 vehicles registered for the first time after 1.1.2012. 283


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reached in relation to the vehicle mass during testing.1.4.2. Efficiency Test with a brake

tester. If not possible, then by a road test using either an indicating or deceleration recording instrument or with the vehicle on a slope of known gradient ▌.

Does not give, for all vehicles, a braking ratio of at least 16 % in relation to the maximum authorized mass or, for motor vehicles, of at least 12 % in relation to the maximum authorised combination mass of the vehicle, whichever is the greater.

Less than 50 % of the above braking effort values reached.

X

X

1.5. Endurance braking system performance

Visual inspection and, where possible, test whether the system functions.

(a) No gradual variation of efficiency (not applicable to exhaust brake systems).

X

(b) System not functioning. X

1.6. Anti-lock braking system (ABS)

Visual inspection and inspection of warning device and/or using electronic vehicle interface.

(a) Warning device malfunctioning. X

(b) Warning device shows system malfunction. X

(c) Wheel speed sensors missing or damaged. X

(d) Wirings damaged. X

(e) Other components missing or damaged. X

(f) System indicates failure via the electronic vehicle interface. X

1.7 Electronic brake system (EBS)

Visual inspection and inspection of warning device

(a) Warning device malfunctioning. X

(b) Warning device shows system malfunction. X

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and/or using electronic vehicle interface.

(c) System indicates failure via the electronic vehicle interface. X

1.8 Brake fluid Visual inspection Brake fluid contaminated or sedimented. Imminent risk of failure.

X

X

2. STEERING2.1. Mechanical condition

2.1.1. Steering gear condition

With the vehicle over a pit or on a hoist and with the road wheels off the ground or on turntables, rotate the steering wheel from lock to lock. Visual inspection of the operation of the steering gear.

(a) Roughness in operation of gear. X

(b) Sector shaft twisted or splines worn.

Affecting functionality.

X

X

(c) Excessive wear in sector shaft.


X

X

285


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(d) Excessive movement of sector shaft.


X

X

(e) Leaking.Formation of drops.

X

X2.1.2. Steering gear casing attachment

With vehicle on a pit or hoist and the weight of the vehicle road wheels on the ground, rotate steering / handle bar wheel clockwise and anticlockwise or using a specially adapted wheel play detector. Visual inspection of the attachment of gear casing to chassis.

(a) Steering gear casing not properly attached.

Attachments dangerously loose or relative movement to chassis/bodywork visible.

X

X

(b) Elongated fixing holes in chassis.

Attachments seriously affected.

X

X

(c) Missing or fractured fixing bolts.

Attachments seriously affected.

X

X

(d) Steering gear casing fractured.

Stability or attachment of casing affected.

X

X2.1.3. Steering linkage condition

With the vehicle over a pit or on a hoist and with the road wheel on the ground, rock steering wheel clockwise and anti-clockwise or using a specially adapted wheel play detector. Visual inspection of steering components

(a) Relative movement between components which should be fixed.

Excessive movement or likely to unlink.

X

X

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for wear, fractures and security.

(b) Excessive wear at joints.

A very serious risk of unlinking.

X

X

(c) Fractures or deformation of any component.

Affecting function.

X

X

(d) Absence of locking devices. X

(e) Misalignment of components (e.g. track rod or drag link). X

(f) Unsafe modification (3).

Affecting function.

X

X(g) Dust cover ▌ damaged or deteriorated.

Dust cover missing or severely deteriorated.

X

X2.1.4. Steering linkage operation

With the vehicle over a pit or on a hoist and with the road wheel ▌on the ground, rock steering wheel clockwise and anti-clockwise or using a specially adapted wheel play detector. Visual inspection of steering components for wear, fractures and security.

(a) Moving steering linkage fouling a fixed part of the chassis. X

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(b) Steering stops not operating or missing. X

2.1.5. Power steering Check steering system for leaks and hydraulic fluid reservoir level (if visible). With the road wheels on the ground and with the engine running, check that the power steering system is operating.

(a) Fluid leak or functions affected. X

(b) Insufficient fluid (below MIN mark).

Insufficient reservoir.

X

X

(c) Mechanism not working.

Steering affected.

X

X

(d) Mechanism fractured or insecure.

Steering affected.

X

X

(e) Misalignment or fouling of components.

Steering affected.

X

X

(f) Unsafe modification (3).

Steering affected.

X

X

(g) Cables/hoses damaged, excessively corroded. X

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Steering affected. X2.2. Steering wheel, column and handle bar

2.2.1. Steering wheel/handle bar condition

With the vehicle over a pit or on a hoist and the mass of the vehicle on the ground, push and pull the steering wheel in line with column, push steering wheel/handle bar in various directions at right angles to the column/forks ▌. Visual inspection of play, and condition of flexible couplings or universal joints.

(a) Relative movement between steering wheel and column indicating looseness.

Very serious risk of unlinking.

X

X

(b) Absence of retaining device on steering wheel hub.


X

X

(c) Fracture or looseness of steering wheel hub, rim or spokes.


X

X

2.2.2.Steering column/yokes and forks and steering dampers

With the vehicle over a pit or on a hoist and the mass of the vehicle on the ground, push and pull the steering

(a) Excessive movement of centre of steering wheel up or down. X

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wheel in line with column, push steering wheel/handle bar in various directions at right angles to the column/forks. Visual inspection of play, and condition of flexible couplings or universal joints.

(b) Excessive movement of top of column radially from axis of column.

X

(c) Deteriorated flexible coupling. X

(d) Attachment defective.


X

X(e) Unsafe modification ▌ (3) X

2.3.Steering play With the vehicle over a pit or on a hoist, the mass of the vehicle on the road wheels, the engine, if possible, running for vehicles with power steering and with the road wheels in the straight-ahead position, lightly turn the steering wheel clockwise and anti-

Free play in steering excessive (for example, movement of a point on the rim exceeding one fifth of the diameter of the steering wheel or not in accordance with the requirements(1).

Safe steering affected.

X

X

290


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clockwise as far as possible without moving the road wheels. Visual inspection of free movement.

291

292

2.4.Wheel alignment (X)(2)

Check alignment of steered wheels with suitable equipment.

Alignment not in accordance with vehicle manufacturer’s data or requirements(1).

Straight on driving affected; directional stability impaired.

X

X2.5. Trailer steered axle turntable

Visual inspection or using a specially adapted wheel play detector

(a) Component slightly damaged.

Component heavily damaged or cracked.

X

X

(b) Excessive play.

Straight on driving affected; directional stability impaired.

X

X

(c) Attachment defective.

Attachment seriously affected.

X

X2.6. Electronic Power Steering (EPS)

Visual inspection and consistency check between the angle of the steering wheel and the angle of the wheels when switching on/off the engine, and/or using the electronic vehicle interface

(a) EPS malfunction indicator lamp (MIL) indicates any kind of failure of the system.

X

(b) Inconsistency between the angle of the steering wheel and the angle of the wheels.

Steering affected.

X

X(c) Power assistance not working. X

(d) System indicates failure via the electronic vehicle interface. X

3. VISIBILITY

3.1. Field of vision

Visual inspection from driving seat.

Obstruction within driver’s field of view that materially affects his view in front or to the sides (outside cleaning area of windscreen wipers).

Inside cleaning area of windscreen wipers affected or outer mirrors not visible.

X

X

3.2. Condition of glass

Visual inspection. (a) Cracked or discoloured glass or transparent panel (if permitted) (outside cleaning area of windscreen wipers).

Inside cleaning area of windscreen wipers affected or outer

X

X

293

mirrors not visible.(b) Glass or transparent panel (including reflecting or tinted film)

that does not comply with specifications in the requirements (1), ▌ (outside cleaning area of windscreen wipers).

Inside cleaning area of windscreen wipers affected or outer mirrors not visible.

X

X

(c) Glass or transparent panel in unacceptable condition.

Visibility through inside cleaning area of windscreen wipers heavily affected.

X

X3.3. Rear-view mirrors or devices

Visual inspection. (a) Mirror or device missing or not fitted according to the requirements(1) (at least two rear-view devices available).

Fewer than two rear-view devices available.

X

X

(b) Mirror or device slightly damaged or loose.

Mirror or device inoperative, heavily damaged, loose or insecure.

X

X

(c) Necessary field of vision not covered. X

3.4. Windscreen wipers

Visual inspection and by operation.

(a) Wipers not operating or missing or not in accordance with the requirements (1)

X

(b) Wiper blade defective.

Wiper blade missing or obviously defective.

X

X3.5.Windscreen washers


Washers not operating adequately (lack of washing fluid but pump operating or water-jet misaligned).

Washers not operating.

X

X3.6 Demisting system (X)(2)


System inoperative or obviously defective. X

4. LAMPS, REFLECTORS AND ELECTRICAL EQUIPMENT

294

4.1. Headlamps

4.1.1. Condition and operation


(a) Defective or missing light / light source.(multiple light / light sources; in the case of LED, up to 1/3 not functioning).

Single light / light sources; in the case of LED, seriously affected visibility.

X

X

(b) Slightly defective ▌projection system (reflector and lens).

Heavily defective or missing projection system (reflector and lens).

X

X

(c) Lamp not securely attached. X

4.1.2. Alignment Determine the horizontal aim of each headlamp on dipped beam using a headlamp aiming device or using the electronic vehicle interface.

(a) Aim of a headlamp not within limits laid down in the requirements(1).

X

(b) System indicates failure via the electronic vehicle interface. X

4.1.3. Switching Visual inspection and by operation or using the electronic vehicle interface

(a) Switch does not operate in accordance with the requirements (1)

(Number of headlamps illuminated at the same time)

Maximum permitted light brightness to the front exceeded.

X

X

(b) Function of control device impaired. X(c) System indicates failure via the electronic vehicle interface. X

4.1.4. Compliance with requirements(1).


(a) Lamp, emitted colour, position, brightness or marking not in accordance with the requirements(1).

X

(b) Products on lens or light source which obviously reduce light brightness or change emitted colour.

X

(c) Light source and lamp not compatible. X

295

4.1.5. Levelling devices (where mandatory)

Visual inspection and by operation, if possible, or using the electronic vehicle interface.

(a) Device not operating. X

(b) Manual device cannot be operated from driver’s seat. X(c) System indicates failure via the electronic vehicle interface. X

4.1.6. Headlamp cleaning device (where mandatory)

Visual inspection and by operation if possible.

Device not operating.

In the case of gas-discharging lamps.

X

X

4.2. Front and rear position lamps, side marker lamps, end outline marker lamps and daytime running lamps



(a) Defective light source. X

(b) Defective lens. X

(c) Lamp not securely attached.

Very serious risk of falling off.

X

X

4.2.2 Switching Visual inspection and by operation.

(a) Switch does not operate in accordance with the requirements(1).

Rear position lamps and side marker lamps can be switched off when headlamps are on.

X

X

(b) Function of control device impaired. X

4.2.3. Compliance with requirements(1)



Red light to the front or white light to the rear; heavily reduced light brightness.

X

X

(b) Products on lens or light source which reduce light, brightness or change emitted colour.

Red light to the front or white light to the rear; heavily reduced light brightness.

X

X

296

4.3. Stop Lamps



(a) Defective light source(multiple light source in the case of LED up to 1/3 not functioning).

Single light sources; in the case of LED less than 2/3 functioning.

All light sources not functioning.

X

X

X

(b) Slightly defective lens (no influence on emitted light).

Heavily defective lens (emitted light affected).

X

X



X

X4.3.2. Switching Visual inspection and

by operation or using the electronic vehicle interface.

(a) Switch does not operate in accordance with the requirements(1).

Delayed operation.

No operation at all.

X

X

X(b) Function of control device impaired. X

(c) System indicates failure via the electronic vehicle interface. X

(d) Emergency brake light functions fail to operate, or do not operate correctly.

X

4.3.3.Compliance with requirements(1).


Lamp, emitted colour, position, brightness or marking not in accordance with the requirements(1).

White light to the rear; heavily reduced light brightness.

X

X

4.4. Direction indicator and hazard warning lamps4.4.1. Condition and operation


(a) Defective light source (multiple light source in the case of LED up to 1/3 not functioning).

X

297

Single light sources; in the case of LED less than 2/3 functioning.

X



X

X



X

X4.4.2. Switching Visual inspection and

by operation.Switch does not operate in accordance with the requirements(1).

No operation at all.

X

X4.4.3. Compliance with requirements(1).


Lamp, emitted colour, position, brightness or marking not in accordance with the requirements(1).

X

4.4.4. Flashing frequency


Rate of flashing not in accordance with the requirements (1).(frequency more than 25% deviating).

X

4.5. Front and rear fog lamps 4.5.1. Condition and operation


(a) Defective light source. (multiple light source in the case of LED up to 1/3 not functioning).

Single light sources; inthe case of LED less than 2/3 functioning.

X

X



X

X


Very serious risk of falling off or dazzling oncoming traffic.

X

X4.5.2 Alignment (X)(2)

By operation and using a headlamp aiming device

Front fog lamp out of horizontal alignment when the light pattern has cut-off line (cut-off line too low).

X

298

Cut-off line above that for dipped beam headlamps. X4.5.3. Switching Visual inspection and

by operation.Switch does not operate in accordance with the requirements(1).

Not operative.

X

X4.5.4. Compliance with requirements(1).


(a) Lamp, emitted colour, position, brightness or marking not in accordance with the requirements(1)

X

(b) System does not operate in accordance with the requirements(1) X

4.6. Reversing lamps



(a) Defective light source. X

(b) Defective lens. X



X

X4.6.2. Compliance with requirements(1)



X

(b) System does not operate in accordance with the requirements(1). X

4.6.3. Switching Visual inspection and by operation.

Switch does not operate in accordance with the requirements(1).

Reversing lamp can be switched on with gear not in reverse position.

X

X4.7. Rear registration plate lamp



(a) Lamp throwing direct or white light to the rear. X

(b) Defective light source. (Multiple light source).

Defective light source. (Single light source).

X

X

▌(c) Lamp not securely attached. X299

Very serious risk of falling off. X4.7.2.Compliance with requirements(1)


System does not operate in accordance with the requirements(1). X

4.8. Retro-reflectors, conspicuity (retro reflecting) markings and rear marking plates

4.8.1. Condition Visual inspection. (a) Reflecting equipment defective or damaged.

Reflecting affected.

X

X

(b) Reflector not securely attached.

Likely to fall off.

X

X4.8.2.

Compliance with requirements(1)

Visual inspection. Device, reflected colour or position not in accordance with the requirements(1).

Missing or reflecting red colour to the front or white colour to the rear.

X

X

4.9. Tell-tales mandatory for lighting equipment



Not operating.

Not operating for main beam headlamp or rear fog lamp.

X

X4.9.2. Compliance with requirements(1)


Not in accordance with the requirements(1). X

4.10. Electrical connections between towing vehicle and trailer or semi-trailer

Visual inspection: if possible examine the electrical continuity of the connection.

(a) Fixed components not securely attached.

Loose socket.

X

X

(b) Damaged or deteriorated insulation.

Likely to cause a short-circuit fault.

X

X

(c) Trailer or towing vehicle electrical connections not functioning correctly.

X

300

Trailer brake lights not working at all. X4.11.Electrical wiring

Visual inspection with vehicle over a pit or on a hoist, including inside the engine compartment ( if applicable).

(a) Wiring insecure or not adequately secured.

Fixings loose, touching sharp edges, connectors likely to be disconnected.

Wiring likely to touch hot parts, rotating parts or the ground, connectors disconnected (relevant parts for braking, steering).

X

X

X

(b) Wiring slightly deteriorated.

Wiring heavily deteriorated.

Wiring extremely deteriorated (relevant parts for braking, steering).

X

X

X

(c) Damaged or deteriorated insulation.

Likely to cause a short-circuit fault.

Imminent risk of fire, formation of sparks.

X

X

X4.12. Non obligatory lamps and retro-reflectors (X)(2)


(a) A lamp/retro-reflector fitted not in accordance with the requirements(1).

Emitting/reflecting red light to the front or white light to the rear.

X

X

(b) Lamp operation not in accordance with the requirements(1).

Number of headlights simultaneously operating exceeding permitted light brightness; Emitting red light to the front or white light to the rear.

X

X

(c) Lamp/retro-reflector not securely attached.


X

X

301

4.13. Battery(ies) Visual inspection. (a) Insecure.

Not properly attached; likely to cause a short-circuit fault.

X

X

(b) Leaking.

Loss of hazardous substances.

X

X

(c) Defective switch (if required). X

(d) Defective fuses (if required). X

(e) Inappropriate ventilation (if required). X

5. AXLES, WHEELS, TYRES AND SUSPENSION5.1. Axles

5.1.1. Axles Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum ▌ mass exceeding 3,5 tonnes

(a) Axle fractured or deformed. X

(b) Insecure fixing to vehicle.

Stability impaired, functionality affected: Extensive movement relative to its fixtures.

X

X

(c) Unsafe modification(3).

Stability impaired, functionality affected, insufficient clearance to other vehicle parts or to the ground.

X

X

5.1.2. Stub axles Visual inspection with vehicle over a pit or on a hoist. Wheel play

(a) Stub axle fractured. X

(b) Excessive wear in the swivel pin and/or bushes. X

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detectors may be used and are recommended for vehicles having a maximum ▌ mass exceeding 3,5 tonnes. Apply a vertical or lateral force to each wheel and note the amount of movement between the axle beam and stub axle.

Likelihood of loosening; directional stability impaired. X

(c) Excessive movement between stub axle and axle beam.

Likelihood of loosening; directional stability impaired.

X

X

(d) Stub axle pin loose in axle.


X

X

5.1.3. Wheel bearings

Visual inspection with the vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum ▌ mass exceeding 3,5 tonnes. Rock the wheel or apply a lateral force to each wheel and note the amount of upward movement of the wheel relative to the stub axle.

(a) Excessive play in a wheel bearing.

Directional stability impaired; danger of demolishment.

X

X

(b) Wheel bearing too tight, jammed.

Danger of overheating; danger of demolishment.

X

X

5.2. Wheels and tyres5.2.1. Road wheel hub

Visual inspection. (a) Any wheel nuts or studs missing or loose.

Missing fixing or loose to an extent which very seriously affects road safety.

X

X

(b) Hub worn or damaged.

Hub worn or damaged in such a way that secure fixing of wheels is affected.

X

X

303

5.2.2. Wheels Visual inspection of both sides of each wheel with vehicle over a pit or on a hoist.

(a) Any fracture or welding defect. X

(b) Tyre retaining rings not properly fitted.

Likely to come off.

X

X

(c) Wheel badly distorted or worn.

Secure fixing to hub affected; secure fixing of tyre affected.

X

X

(d) Wheel size, technical design, compatibility or type not in accordance with the requirements(1)and affecting road safety.

X

5.2.3. Tyres Visual inspection of the entire tyre by either rotating the road wheel with it off the ground and the vehicle over a pit or on a hoist, or by rolling the vehicle backwards and forwards over a pit.

(a) Tyre size, load capacity, approval mark or speed category not in accordance with the requirements(1) and affecting road safety.

Insufficient load capacity or speed category for actual use, tyre touches other fixed vehicle parts impairing safe driving.

X

X

(b) Tyres on same axle or on twin wheels of different sizes. X

(c) Tyres on same axle of different construction (radial / cross-ply). X

(d) Any serious damage or cut to tyre.

Cord visible or damaged.

X

X

(e) Tyre tread wear indicator becomes exposed.

Tyre tread depth not in accordance with the requirements(1).

X

X

(f) Tyre rubbing against other components (flexible anti spray devices).

Tyre rubbing against other components (safe driving not impaired)

X

X

(g) Re-grooved tyres not in accordance with requirements(1). X304

Cord protection layer affected. X

(h) Tyre pressure monitoring system malfunctioning or tyre obviously underinflated.

▌ Obviously inoperative.

X

X

5.3. Suspension system

5.3.1.Springs and stabiliser

Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum ▌ mass exceeding 3,5 tonnes

(a) Insecure attachment of springs to chassis or axle. X

Relative movement visible. fixings very seriously loose. X

(b) A damaged or fractured spring component.

Main spring (-leaf), or additional leafs very seriously affected.

X

X

(c) Spring missing

Main spring ( -leaf), or additional leafs very seriously affected.

X

X

(d) Unsafe modification (3)

Insufficient clearance to other vehicle parts; spring system inoperative.

X

X

5.3.2. Shock absorbers

Visual inspection with vehicle over a pit or on a hoist or using special equipment, if available.

(a) Insecure attachment of shock absorbers to chassis or axle.

Shock absorber loose.

X

X

(b) Damaged shock absorber showing signs of severe leakage or malfunction.

X

5.3.2.1 efficiency testing of damping (X)(2)

Use special equipment and compare left /right differences ▌

(a) Significant difference between left and right. X

(b) Given minimum values not reached. X

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5.3.3. Torque tubes, radius arms, wishbones and suspension arms


(a) Insecure attachment of component to chassis or axle.


X

X

(b) A damaged ▌ or excessively corroded component.

Stability of component affected or component fractured.

X

X

(c) Unsafe modification(3).

Insufficient clearance to other vehicle parts; system inoperative.

X

X

5.3.4.Suspension joints


(a) Excessive wear in swivel pin and/or bushes or at suspension joints.


X

X

(b) Dust cover ▌ severely deteriorated.

Dust cover missing or fractured.

X

X5.3.5. Air suspension

Visual inspection (a) System inoperable. X

(b) Any component damaged, modified or deteriorated in a way that would adversely affect the functioning of the system.

Functioning of system seriously affected.

X

X

(c) Audible system leakage. X

6. CHASSIS AND CHASSIS ATTACHMENTS6.1. Chassis or frame and attachments

6.1.1.General condition

Visual inspection with vehicle over a pit or on a hoist.

(a) Slight fracture or deformation of any side or cross-member.

Serious fracture or deformation of any side or cross-member.

X

X

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(b) Insecurity of strengthening plates or fastenings.

Majority of fastenings loose; insufficient strength of parts.

X

X

(c) Excessive corrosion which affects the rigidity of the assembly.

Insufficient strength of parts.

X

X

6.1.2. Exhaust pipes and silencers

Visual inspection with vehicle over a pit or on a hoist.

(a) Insecure or leaking exhaust system. X

(b) Fumes entering cab or passengers compartment.

Danger to health of persons on board.

X

X

6.1.3. Fuel tank and pipes (including heating fuel tank and pipes)

Visual inspection with vehicle over a pit or on a hoist, use of leak detecting devices in the case of LPG/CNG/LNG systems.

(a) Insecure tank or pipes, creating particular risk of fire. X

(b) Leaking fuel or missing or ineffective filler cap.

Risk of fire; excessive loss of hazardous material.

X

X

(c) ▌ Chafed pipes.

Damaged pipes.

X

X

(d) Fuel stopcock (if required) not operating correctly. X

(e) Fire risk due to:

– leaking fuel;

– fuel tank or exhaust not properly shielded;

– engine compartment condition.

X

(f) LPG/CNG/LNG or hydrogen system not in accordance with requirements; any part of the system defective (1)

X

307

6.1.4. Bumpers, lateral protection and rear underrun devices

Visual inspection. (a) Looseness or damage likely to cause injury when grazed or contacted.

Parts likely to fall off; functionality heavily affected.

X

X

(b) Device obviously not in compliance with the requirements(1) X

6.1.5. Spare wheel carrier (if fitted)

Visual inspection. (a) Carrier not in proper condition X

(b) Carrier fractured or insecure. X

(c) A spare wheel not securely fixed in carrier ▌


X

X

6.1.6. . Mechanical coupling and towing device

Visual inspection for wear and correct operation with special attention to any safety device fitted and /or use of measuring gauge.

(a) Component damaged, defective or cracked (if not in use).

Component damaged, defective or cracked (if in use)

X

X(b) Excessive wear in a component.

Below wear limit.

X

X

(c) Attachment defective.

Any attachment loose with a very serious risk of falling off.

X

X(d) Any safety device missing or not operating correctly. X

(e) Any coupling indicator not working. X

(f) Obstruct registration plate or any lamp (when not in use)

Registration plate not readable (when not in use).

X

X

(g) Unsafe modification(3)(secondary parts).

Unsafe modification(3)(primary parts).

X

X

308

(h) Coupling too weak. X

6.1.7. Transmission

Visual inspection. (a) Loose or missing securing bolts

Loose or missing securing bolts to such an extent that road safety is seriously endangered.

X

X

(b) Excessive wear in transmission shaft bearings.

Very serious risk of loosening or cracking.

X

X

(c) Excessive wear in universal joints or transmission chains/belts.


X

X

(d) Deteriorated flexible couplings.


X

X

(e) A damaged or bent shaft. X

(f) Bearing housing fractured or insecure.


X

X(g) Dust cover ▌severely deteriorated.

Dust cover missing or fractured.

X

X

(h) Illegal power-train modification. X

6.1.8. Engine mountings

Visual inspection not necessarily on a pit or hoist.

Deteriorated, obviously and severely damaged ▌ mountings.

Loose or fractured mountings.

X

X6.1.9 Engine performance (X) (2)

Visual inspection and/or using electronic interface

(a) Control unit ▌ modified affecting safety and/or the environment.

X

(b) ▌Engine modification affecting safety and/or the X

309

environment.

6.2. Cab and bodywork6.2.1. Condition Visual inspection (a) A loose or damaged panel or part likely to cause injury.

Likely to fall off.

X

X

(b) Insecure body pillar.

Stability impaired.

X

X

(c) Permitting entry of engine or exhaust fumes.


X

X

(d) Unsafe modification(3).

Insufficient clearance to rotating or moving parts and road.

X

X6.2.2. Mounting Visual inspection over

a pit or on a hoist.(a) Body or cab insecure.

Stability affected.

X

X(b) Body/cab obviously not located squarely on chassis. X

(c) Insecure or missing fixing of body/cab to chassis or cross-members and if symmetrical

Insecure or missing fixing of body/cab to chassis or cross-members to such an extent that road safety is very seriously endangered.

X

X

(d) Excessive corrosion at fixing points on integral bodies.

Stability impaired.

X

X6.2.3. Doors and door catches

Visual inspection. (a) A door will not open or close properly. X

(b) A door likely to open inadvertently or one that will not remain closed (sliding doors).

X

310

A door likely to open inadvertently or one that will not remain closed (turning doors).

X

(c) Door, hinges, catches or pillar ▌ deteriorated.

Door, hinges, catches or pillar missing or loose.

X

X

6.2.4. Floor Visual inspection over a pit or on a hoist.

Floor insecure or badly deteriorated.

Insufficient stability.

X

X6.2.5. Driver’s seat

Visual inspection. (a) ▌ Seat with defective structure.

Loose seat.

X

X(b) Adjustment mechanism not functioning correctly.

Seat moving or backrest not fixable.

X

X6.2.6. Other seats Visual inspection. (a) Seats in defective condition or insecure (secondary parts).

Seats in defective condition or insecure (main parts).

X

X

(b) Seats not fitted ▌ in accordance with requirements(1)..

Permitted number of seats exceeded; positioning not in compliance with approval.

X

X

6.2.7. Driving controls


Any control necessary for the safe operation of the vehicle not functioning correctly.

Safe operation affected.

X

X6.2.8. Cab steps Visual inspection. (a) Step or step rung insecure.

Insufficient stability.

X

X(b) Step or rung in a condition likely to cause injury to users. X

6.2.9. Other interior and exterior fittings

Visual inspection. (a) Attachment of other fitting or equipment defective. X

(b) Other fitting or equipment not in accordance with the requirements(1)..

X

311

and equipmentParts fitted likely to cause injuries; safe operation affected. X

(c) Leaking hydraulic equipment.

Extensive loss of hazardous material.

X

X6.2.10. Mudguards (wings), spray suppression devices

Visual inspection. (a) Missing, loose or badly corroded.

Likely to cause injuries; likely to fall off.

X

X

(b) Insufficient clearance to tyre/wheel (spray suppression).

Insufficient clearance to tyre/wheel (mudguards).

X

X

(c) Not in accordance with the requirements(1)..

Insufficient coverage of tread.

X

X6.2.11 Stand Visual inspection. (a) Missing, loose or badly corroded. X

X(b) Not in accordance with the requirements (1)

(c) Risk of unfolding when the vehicle is in motion. X6.2.12 Handgrips and footrests

Visual inspection. (a) Missing, loose or badly corroded. X

(b) Not in accordance with the requirements (1) X

7. OTHER EQUIPMENT7.1. Safety-belts/buckles and restraint systems

7.1.1. Security of safety-belts/buckles mounting

Visual inspection. (a) Anchorage point badly deteriorated.

Stability affected.

X

X

(b) Anchorage loose. X

7.1.2. Condition of safety-belts/buckl


(a) Mandatory safety-belt missing or not fitted. X

(b) Safety-belt damaged. X

312

es.Any cut or sign of overstretching. X

(c) Safety-belt not in accordance with the requirements(1). X

(d) Safety-belt buckle damaged or not functioning correctly. X

(e) Safety-belt retractor damaged or not functioning correctly. X

313

7.1.3. Safety belt load limiter

Visual inspection, and/or using electronic interface

(a) Load limiter obviously missing or not suitable with the vehicle.

(b) System indicates failure via the electronic vehicle interface.

X

X7.1.4. Safety belt Pre-tensioners


(a) Pre-tensioner obviously missing or not suitable with the vehicle.


X

X7.1.5. Airbag Visual inspection,

and/or using electronic interface

(a) Airbags obviously missing or not suitable with the vehicle.


X

X

(c) Airbag obviously non-operative. X

7.1.6. SRS Systems

Visual inspection of MIL, and/or using electronic interface

(a) SRS MIL indicates any kind of failure of the system.


X

X7.2. Fire extinguisher (X)(2)

Visual inspection. (a) Missing. X

(b) Not in accordance with the requirements(1)

If required (e.g. taxi, buses, coaches, etc).

X

X7.3. Locks and anti-theft device

Visual inspection and by operation

(a) Device not functioning to prevent vehicle being driven. X

(b) Defective ▌

Inadvertently locking or blocking.

X

X

314

315

7.4. Warning triangle (if required) (X)(2)

Visual inspection. (a) Missing or incomplete. X

(b) Not in accordance with the requirements(1). X

7.5. First aid kit. (if required) (X)(2)

Visual inspection. Missing, incomplete or not in accordance with the requirements(1). X

7.6. Wheel chocks (wedges) (if required) (X)(2)

Visual inspection. Missing or not in good condition, insufficient stability or dimension. X

7.7. Audible warning device


(a) Not working properly.

Not working at all.

X

X

(b) Control insecure. X

(c) Not in accordance with the requirements(1).

Emitted sound likely to be confused with official sirens.

X

X7.8.Speedometer Visual inspection or

by operation during road test or by electronical means.

(a) Not fitted in accordance with the requirements(1)..

Missing (if required).

X

X

(b) Operation impaired.

Not operational at all.

X

X

(c) Not capable of being sufficiently illuminated.

Not capable of being illuminated at all.

X

X7.9.Tachograph (if fitted/required)

Visual inspection. (a) Not fitted in accordance with the requirements(1).. X

(b) Not operational. X

316

(c) Defective or missing seals. X

(d) Installation plaque missing, illegible or out of date. X

(e) Obvious tampering or manipulation. X

(f) Size of tyres not compatible with calibration parameters. X

317

318

7.10. Speed limitation device (if fitted/required)

Visual inspection and by operation if equipment available.

(a) Not fitted in accordance with the requirements(1). X

(b) Obviously not operational. X

(c) Incorrect set speed (if checked). X

(d) Defective or missing seals. X

(e) ▌ Plaque missing or illegible ▌. X

(f) Size of tyres not compatible with calibration parameters. X

7.11 Odometer if available (X)(2)


(a) Obviously manipulated (fraud) to reduce or misrepresent the vehicle's distance record.

X

(b) Obviously inoperative. X

7.12 Electronic Stability Control (ESC) if fitted/required


(a) Wheel speed sensors missing or damaged. X

(b) Wirings damaged. X

(c) Other components missing or damaged. X

(d) Switch damaged or not functioning correctly. X

(e) ESC MIL indicates any kind of failure of the system. X

(f) System indicates failure via the electronic vehicle interface. X

8. NUISANCE8.1. Noise

8.1.1 Noise suppression system

Subjective evaluation (unless the inspector considers that the noise level may be

(a) Noise levels in excess of those permitted in the requirements(1). X

(b) Any part of the noise suppression system loose, ▌ damaged, X

319

borderline, in which case a measurement of noise emitted by stationary vehicle using a sound level meter may be conducted)

incorrectly fitted, missing or obviously modified in a way that would adversely affect the noise levels.Very serious risk of falling off. X

8.2. Exhaust emissions

8.2.1 Positive ignition ▌ engine emissions8.2.1.1 Exhaust emissions control equipment

Visual inspection (a) Emission control equipment fitted by the manufacturer absent, modified or obviously defective.

X

(b) Leaks which would affect emission measurements. X

8.2.1.2 Gaseous emissions

– For vehicles up to emission classes Euro 5 and Euro V1:

measurement using an exhaust gas analyser in accordance with the requirements(1) or reading of OBD. ▌ Tailpipe testing shall be the default method of exhaust emission assessment. On the basis of an assessment of equivalence, and by taking into account the relevant type-approval legislation,

(a) Either gaseous emissions exceed the specific levels given by the manufacturer;

X

(b) Or, if this information is not available, the CO emissions exceed,(i) for vehicles not controlled by an advanced emission

control system,

– 4.5%, or

– 3.5%

X

1 Type-approved in accordance with Directive 70/220/EEC, Regulation (EC) No 715/2007, Annex I, Table 1 (Euro 5), Directive 88/77/EEC and Directive 2005/55/EC.

320

Member States may authorise the use of OBD in accordance with the manufacturer's recommendations and other requirements.

– For vehicles as of emission classes Euro 6 and Euro VI1:

measurement using an exhaust gas analyser in accordance with the requirements(1) or reading of OBD in accordance with the manufacturer's recommendations and other requirements (1).

according to the date of first registration or use specified in requirements(1).

(ii) for vehicles controlled by an advanced emission control system,

– at engine idle: 0.5%

– at high idle: 0.3%

or

– at engine idle: 0.3%2

– at high idle: 0.2%

according to the date of first registration or use specified in requirements(1).

1 Type-approved in accordance with Regulation (EC) No 715/2007, Annex I, Table 2 (Euro 6) and Regulation (EC) No 595/2009 (Euro VI). 2 Type-approved in accordance with Directive 70/220/EEC, Regulation (EC) No 715/2007, Annex I, Table 1 (Euro 5), Directive 88/77/EEC and Directive 2005/55/EC

321

Measurements not applicable for two- stroke engines.

(c) Lambda coefficient outside the range 1± 0.03 or not in accordance with the manufacturer’s specification;

(d) OBD read-out indicating significant malfunction.

X

X

8.2.2 Compression ignition engine emissions8.2.2.1 Exhaust emission control equipment

Visual inspection (a) Emission control equipment fitted by the manufacturer absent or obviously defective.

X

(b) Leaks which would affect emission measurements. X

8.2.2.2 Opacity

Vehicles registered or put into service before 1 January 1980 are exempted from this requirement

- For vehicles up to emission classes Euro 5 and Euro V1:Exhaust gas opacity to be measured during free acceleration (no load from idle up to cut-off speed) with gear lever in neutral and clutch engaged or reading of OBD. The tailpipe testing shall be the default method of exhaust emission assessment. On the basis of an

(a) For vehicles registered or put into service for the first time after the date specified in requirements(1).

opacity exceeds the level recorded on the manufacturer’s plate on the vehicle;

X

1 Type-approved in accordance with Directive 70/220/EEC, Annex I, Table 1 (Euro 5) to Regulation (EC) No 715/2007, Directive 88/77/EEC and Directive 2005/55/EC.

322

assessment of equivalence, Member States may authorise the use of OBD in accordance with the manufacturer's recommendations and other requirements.- For vehicles as of emission classes Euro 6 and Euro VI1:.Exhaust gas opacity to be measured during free acceleration (no load from idle up to cut-off speed) with gear lever in neutral and clutch engaged or reading of OBD in accordance with the manufacturer's recommendations and other requirements (1).

Vehicle preconditioning:1. Vehicles may be tested without preconditioning, although for safety reasons checks should

1 Type-approved in accordance with Annex I, Table 2 (Euro 6) to Regulation (EC) No 715/2007, and Regulation (EC) No 595/2009 (Euro VI) 323

be made that the engine is warm and in a satisfactory mechanical condition.2. Precondition requirements:(i) Engine shall be fully warm, for instance the engine oil temperature measured by a probe in the oil level dipstick tube to be at least 80 ºC, or normal operating temperature if lower, or the engine block temperature measured by the level of infrared radiation to be at least an equivalent temperature. If, owing to the vehicle configuration, this measurement is impractical, the establishment of the engine's normal operating temperature may be made by other means, for example by the operation of the engine cooling fan.(ii) Exhaust system shall be purged by at least three free

324

acceleration cycles or by an equivalent method.

325

(b) Where this information is not available or requirements(1) do not allow the use of reference values, – for naturally aspirated engines: 2.5 m-1, – for turbo-charged engines: 3.0 m-1, or

– for vehicles identified in requirements(1) or first registered or put into service for the first time after the date specified in requirements(1):1.5 m-1. 1 or 0.7 m -1 2

X

1 Type-approved in accordance with limits in row B, section 5.3.1.4. of Annex I to Directive 70/220/EEC as amended by Directive 98/69/EC or later; row B1, B2 or C, section 6.2.1 of Annex I to Directive 88/77/EEC or first registered or put into service after 1 July 2008.

2 Type-approved in accordance with the Regulation (EC) No 715/2007, Table 2, Annex I(Euro 6). Type-approved in accordance with Regulation (EC) No 595/2009 (Euro VI).

326

Test procedure:1. Engine and any turbocharger fitted, to be at idle before the start of each free acceleration cycle. For heavy-duty diesels, this means waiting for at least 10 seconds after the release of the throttle.2. To initiate each free acceleration cycle, the throttle pedal must be fully depressed quickly and continuously (in less than one second) but not violently, so as to obtain maximum delivery from the injection pump.3. During each free acceleration cycle, the engine shall reach cut-off speed or, for vehicles with automatic transmissions, the speed specified by the manufacturer or, if this data is not available, then two thirds of the cut-off speed, before the throttle is released.

327

This could be checked, for instance, by monitoring engine speed or by allowing a sufficient time to elapse between initial throttle depression and release, which in the case of vehicles of categories M2, M3, N2 and N3, should be at least two seconds.

328

329

4. Vehicles shall only be failed if the arithmetic means of at least the last three free acceleration cycles are in excess of the limit value. This may be calculated by ignoring any measurement that departs significantly from the measured mean, or the result of any other statistical calculation that takes account of the scattering of the measurements. Member States may limit the number of test cycles.

5.To avoid unnecessary testing, Member States may fail vehicles which have measured values significantly in excess of the limit values after fewer than three free acceleration cycles or after the purging cycles. Equally to avoid unnecessary testing, Member States may pass vehicles which

330

have measured values significantly below the limits after fewer than three free acceleration cycles or after the purging cycles

8.3 Electromagnetic interference suppression

Radio interference (X)(2)

▌ Any requirements of the requirements(1) not met. X

8.4 Other items related to the environment

8.4.1 Fluid leaks ▌ Any excessive fluid leak, other than water, likely to harm the environment or to pose a safety risk to other road users.

Steady formation of drops that constitutes a very serious risk.

X

X9. SUPPLEMENTARY TESTS FOR PASSENGER-CARRYING VEHICLES CATEGORIES M2, M3

9.1. Doors9.1.1 Entrance and exit doors


(a) Defective operation. X

(b) Deteriorated condition.

Likely to cause injuries.

X

X

(c) Defective emergency control. X

(d) Remote control of doors or warning devices defective. X

(e) Not in accordance with the requirements(1).

Insufficient door width.

X

X

9.1.2 Emergency exits

Visual inspection and by operation (where appropriate)

(a) Defective operation. X

(b) Emergency exits signs ▌ illegible.

Emergency exits signs missing.

X

X

331

(c) Missing hammer to break glass. X

(d) Not in accordance with requirements(1).

Insufficient width or access blocked.

X

X

9.2. Demisting and defrosting system (X)(2)


(a) Not operating correctly.

Affecting safe operation of the vehicle.

X

X

(b) Emission of toxic or exhaust gases into driver’s or passenger compartment.


X

X

(c) Defective defrosting (if compulsory). X

9.3. Ventilation & heating system (X)(2)


(a) Defective operation.

Risk to health of persons on board.

X

X

(b) Emission of toxic or exhaust gases into driver’s or passenger compartment.


X

X9.4. Seats

9.4.1 Passenger seats (including seats for accompanying personnel)

Visual inspection Folding seats (if allowed) not working automatically.

Blocking an emergency exit.

X

X

9.4.2.Driver’s seat (additional requirements)

Visual inspection (a) Defective special devices such as anti-glare shield ▌.

Field of vision impaired.

X

X

(b) Protection for driver insecure or not in accordance with requirements(1).

X

X

332


9.5. Interior lighting and destination devices (X)(2)


Device defective or not in accordance with requirements(1).


X

X

9.6. Gangways, standing areas

Visual inspection (a) Insecure floor.

Stability affected.

X

X(b) Defective rails or grab handles.

Insecure or un-useable.

X

X

(c) Not in accordance with the requirements(1).

Insufficient width or space.

X

X9.7. Stairs and steps

Visual inspection and by operation (where appropriate)

(a) Deteriorated ▌ condition.

Damaged condition.

Stability affected.

X

X

X(b) Retractable steps not operating correctly. X

(c) Not in accordance with requirements(1)

Insufficient width or exceeding height.

X

X9.8. Passenger communication system (X)(2)


Defective system.


X

X

9.9. Notices (X)(2)

Visual inspection. (a) Missing, erroneous or illegible notice. X(b) Not in accordance with requirements(1).

False information.

X

X

9.10. Requirements regarding the transportation of children. (X)(2)

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9.10.1Doors Visual inspection Protection of doors not in accordance with the requirements(1). regarding this form of transport.

X

9.10.2 Signalling and special equipment

Visual inspection Signalling or special equipment absent or not in accordance with requirements(1)

X

9.11. Requirements regarding the transportation of persons with reduced mobility (X)(2)

9.11.1Doors, ramps and lifts

Visual inspection and ▌operation



X

X(b) Deteriorated condition.

Stability affected; likely to cause injuries.

X

X

(c) Defective control(s).


X

X

(d) Defective warning device(s).

Not operating at all.

X

X

(e) Not in accordance with the requirements(1). X

9.11.2 Wheelchair restraint system

Visual inspection and by operation if appropriate



X

X

(b) Deteriorated condition.

Stability affected; likely to cause injuries.

X

X(c) Defective control(s).


X

X

(d) Not in accordance with the requirements(1). X

9.11.3 Visual inspection Signalling or special equipment absent or not in accordance with X

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Signalling and special equipment

requirements(1).

9.12. Other special equipment (X)(2)

9.12.1. Installations for food preparation

Visual inspection (a) Installation not in accordance with the requirements(1). X

(b) Installation damaged to such an extent that it would be dangerous to use it.

X

9.12.2.Sanitary installation

Visual inspection Installation not in accordance with the requirements(1).


X

X9.12.3.Other devices (e.g. audio-visual systems)

Visual inspection Not in accordance with the requirements(1).

Safe operation of vehicle affected.

X

X

NOTES:(1) ‘Requirements’ are laid down by type-approval ▌ at the date of approval, first registration or first entry into service as well as by retrofitting

obligations or by national legislation in the country of registration. These reasons for failure apply only when compliance with requirements has been checked.

(2) (X) identifies items which relate to the condition of the vehicle and its suitability for use on the road but which are not considered essential in a roadworthiness test.

(3) Unsafe modification means a modification that adversely affects the road safety of the vehicle or has a disproportionately adverse effect on the environment.

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ANNEX II

MINIMUM CONTENTS OF A ROADWORTHINESS CERTIFICATE

The roadworthiness certificate issued following a roadworthiness test shall cover at least the

following elements preceded by the corresponding harmonised Union codes:

(1) Vehicle Identification Number (VIN number or chassis number)

(2) Registration plate number of the vehicle and country symbol of the State of registration

(3) Place and date of the test

(4) Odometer reading at the time of the test, if available

(5) Vehicle category, if available

(6) Identified deficiencies and their level of severity

(7) Result of the roadworthiness test

(8) Date of the next roadworthiness test or date of expiry of the current certificate, if this

information is not provided by other means

(9) Name of testing organisation or centre and signature or identification of the

inspector responsible for the test

(10) Other information

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ANNEX III

MINIMUM REQUIREMENTS CONCERNING ROADWORTHINESS FACILITIES AND

TEST EQUIPMENT

I – Facilities and equipment

Roadworthiness tests undertaken in accordance with the recommended methods specified in

Annex I shall be carried out by using appropriate facilities and equipment ▌. This may include,

where applicable, the use of mobile test units. The test equipment that is necessary will depend

on the vehicle categories to be tested, as described in Table I. Facilities and equipment shall

comply with the following minimum requirements:

(1) A test facility with adequate space for the evaluation of vehicles which meets the

necessary health and safety requirements ▌;

(2) A test lane of sufficient size for each test, a pit or lift and, for vehicles having a maximum

mass exceeding 3,5 tonnes, a device to lift a vehicle on one of the axles, equipped with

appropriate lighting and, where necessary, with aeration devices;

(3) For testing any vehicle, a roller brake tester capable of measuring, displaying and

recording the braking forces ▌ and the air pressure in air brake systems in accordance with

Annex A to standard ISO 21069-1 on the technical requirements of roller brake tester or

equivalent standards;

(4) For testing vehicles having a maximum mass not exceeding 3,5 tonnes, a roller brake

tester in accordance with item 3, which may not include the recording of braking forces,

pedal force and the air pressure in air brake systems and their display;

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or

A plate brake tester equivalent to the roller brake tester in accordance with item 3, which

may not include the recording capability of the braking forces, pedal force and the display

of air pressure in air brake systems;

(5) A deceleration recording instrument, while non-continuous measurement instruments must

record/store measurements at least 10 times per second;

(6) Facilities for the testing of air brake systems, such as manometers, connectors and hoses;

(7) A wheel/axle load measuring device to determine the axle loads (optional facilities for

measuring two-wheel loads, such as wheel weight pads and axle weight pads);

(8) A device for testing the wheel-axle suspension (wheel play detector) without lifting the

axis, meeting the following requirements:

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(a) The device must be equipped with at least two power-operated plates that can be

moved in opposite sense in both the longitudinal and the transversal directions;

(b) The movement of the plates must be controllable by the operator from the testing

position;

(c) For vehicles having a maximum mass exceeding 3,5 tonnes, the plates shall comply

with the following technical requirements:

- ▌Longitudinal and transversal movement of at least 95 mm,

- Longitudinal and transversal movement speed 5 cm / s to 15 cm / s;

▌

(9) A Class II sound level meter, if sound level is measured;

(10) A 4-gas analyser in accordance with Directive 2004/22/EC of the European Parliament and

of the Council1;

1 Directive 2004/22/EC of the European Parliament and of the Council of 31 March 2004 on measuring instruments (OJ L 135, 30.4.2004, p. 1).

339

(11) A device for measuring the absorption coefficient with sufficient accuracy;

(12) One headlamp aiming device allowing the setting of the headlight to be tested in

accordance with the provisions for the setting of headlights of motor vehicles (Directive

76/756/EEC); the light/dark boundary must be easily recognisable in daylight (without

direct sunlight);

(13) A device for measuring the tread depth of tyres;

▌

(14) A device to connect to the electronic vehicle interface, such as an OBD scan tool;

(15) A device to dectect LPG/CNG/LNG leakage, if such vehicles are tested.

Any of the above devices may be combined in one composite device, provided that this does not

affect the accuracy of each device.

II – Calibration of equipment used for measurements

Unless specified otherwise by the relevant Union legislation, the interval between two

successive calibrations may not exceed:

(i) 24 months for the measurement of weight, pressure and sound level,

(ii) 24 months for the measurement of forces,

(iii) 12 months for the measurement of gaseous emissions.

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TABLE I1

Minimum equipment required for the purpose of performing a roadworthiness test

Vehicles Category Equipment required for each item listed in section I Maximum mass 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

1. Motorcycles 1

L1e P x x x x x xL3e,L4e P x x x x x xL3e,L4e D x x x x x xL2e P x x x x x x xL2e D x x x x x x xL5e P x x x x x x xL5e D x x x x x x xL6e P x x x x x x xL6e D x x x x x x xL7e P x x x x x x xL7e D x x x x x x x

2. Vehicles for the carriage of persons

Up to 3500 kg M1,M2 P x x x x x x x x xUp to 3500 kg M1,M2 D x x x x x x x x› 3500 kg M2,M3 P x x x x x x x x x x x x x› 3500 kg M2,M3 D x x x x x x x x x x x x

3. Vehicles for the carriage of goods

Up to 3500 kg N1 P x x x x x x x x xUp to 3500 kg N1 D x x x x x x x x› 3500 kg N2,N3 P x x x x x x x x x x x x x› 3500 kg N2,N3 D x x x x x x x x x x x x

1 The vehicle categories which are outside the scope of this Directive are included for guidance.341

Vehicles Category Equipment required for each item listed in sectionI4. Special vehicles derived from a category N vehicle, T5

Up to 3500 kg N1 P x x x x x x x x xUp to 3500 kg N1 D x x x x x x x x

› 3500 kg N2,N3,T5 P x x x x x x x x x x x x x

› 3500 kg N2,N3,T5 D x x x x x x x x x x x x

5. Trailers Up to 750 kg O1 x x› 750 to 3500 kg O2 x x x x› 3500 kg O3,O4 x x x x x x x

1) P…petrol (positive ignition); D…diesel (compression ignition)

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ANNEX IV

MINIMUM REQUIREMENTS CONCERNING THE COMPETENCE, TRAINING AND

CERTIFICATION OF INSPECTORS

1. Competence

Before authorising an applicant for a position as inspector to carry out periodic roadworthiness

tests, Member States or competent authorities shall verify that that person:

(a) has a certified knowledge and understanding relevant for road vehicles ▌ in the

following areas:

– mechanics;

– dynamics;

– vehicle dynamics;

– combustion engines;

– material and material processing;

– electronics;

– electrics;

– electronic vehicle components;

– IT applications;

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(b) has at least three years of documented experience or equivalent, such as documented

mentorship or studies, and appropriate training in the road vehicle field set out

above.

2. Initial and refresher training

Member States or competent authorities shall ensure that inspectors receive the appropriate

initial and refresher training or undergo appropriate examination, including in theoretical and

practical elements, to enable them to be authorised to carry out roadworthiness tests.

The minimum contents of the initial and refresher training or appropriate examination shall

include the following topics:

(a) Initial training or appropriate examination

The initial training provided by the Member State or by an authorised training centre of the

Member State shall cover at least the following topics:

(i) vehicle technology:

- braking systems,

- steering systems,

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- fields of vision,

- light installation, lighting equipment and electronic components,

- axles, wheels and tyres,

- chassis and bodywork,

- nuisance and emissions,

- additional requirements for special vehicles,

(ii) testing methods;

(iii) assessment of deficiencies;

(iv) legal requirements applicable ▌ on the vehicle condition for approval;

(v) legal requirements ▌ relating to roadworthiness testing;

(vi) administrative provisions relating to vehicle approval, registration and

roadworthiness testing;

(vii) IT applications relating to testing and administration.

(b) Refresher training or appropriate examination

345

Member States shall ensure that inspectors regularly receive refresher training or undergo an

appropriate examination provided or set by the Member State or by an authorised training

centre of the Member State.

Member States shall ensure that the contents of the refresher training or appropriate

examination enable inspectors to maintain and refresh the requisite knowledge and skills in

relation to the topics referred to in point (a), (i) to (vii) above.

3. Certificate of competence

The certificate or equivalent documentation issued to an inspector authorised to carry out

roadworthiness tests shall include at least the following information ▌:

– identification of the inspector (first name, surname ▌);

– vehicle categories for which the inspector is authorised to carry out roadworthiness

tests;

▌

– name of the issuing authority;

– date of issue.

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ANNEX V

SUPERVISING BODIES

Rules and procedures concerning supervising bodies established by Member States in

accordance with Article 14 shall cover the following minimum requirements:

1. Tasks and activities of the supervising bodies

Supervising bodies shall perform at least the following tasks:

(a) Supervision of testing centres:

– checking whether the minimum requirements for premises and test equipment are

met;

– verifying the mandatory requirements of the authorised entity;

▌

(b) Verifying training and examination of inspectors:

– verifying the initial training of inspectors;

– verifying the periodic refresher training of inspectors;

▌

– periodic refresher training of supervising body examiners;

– conducting or supervising examinations.

347

(c) Auditing:

– pre-audit of testing centres prior to authorisation;

– periodic re-audit of testing centres;

– special audit in the case of irregularities;

– audit of training/examination centres.

(d) Monitoring, using ▌measures such as the following:

– re-testing of a statistically valid proportion of tested vehicles;

▌

– 'mystery shopper' checks (use of defective vehicle optional);

– analysis of results of roadworthiness tests (statistical methods);

– appeal tests;

– investigation of complaints.

(e) Validation of measurement results of roadworthiness tests.

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(f) Proposing the withdrawal or suspension of authorisation of testing centres and/or of

inspectors:

– where the centre or inspector concerned does not fulfil a significant authorisation

requirement;

– where major irregularities are detected;

– where there are continued negative audit results;

– where there is a loss of good repute on the part of the centre or inspector in

question.

2. Requirements concerning the supervising body

▌

Requirements applicable to the personnel employed by a supervising body shall cover

the following areas:

– technical competence;

– impartiality;

– standards of qualification and training.

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3. Contents of the rules and procedures

Each Member State or its competent authority shall lay down the relevant rules and

procedures ▌, which shall include at least the following items:

(a) Requirements concerning the authorisation and supervision of testing centres:

– application for authorisation to operate as a testing centre;

– responsibilities of testing centres;

– pre-authorisation visit, or visits, to verify that all requirements are complied with;

– authorisation of testing centres;

– periodic re-testing/audits of testing centres;

– periodic checks on testing centres to see whether they are continuing to comply

with the applicable rules and procedures;

– evidence-based unannounced special checks or audits of testing centres;

– analysis of test data to see whether evidence exists of non-compliance with the

applicable rules and procedures;

– withdrawal or suspension of authorisations granted to testing centres.

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(b) Inspectors of testing centres:

– requirements to become a certified inspector;

– initial training, refresher training and examinations;

– withdrawal or suspension of certification of inspectors.

(c) Equipment and premises:

– requirements for test equipment;

– requirements for testing premises;

– requirements for signage;

– requirements for maintenance and calibration of testing equipment;

– requirements for computerised systems.

(d) Supervising bodies:

– powers of the supervising bodies;

– requirements applicable to staff of supervising bodies;

– appeals and complaints.

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Inhaltsverzeichnis - European Parliament · Web view1a Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market