16.12.2004 Official Journal of the European Union C 310/1 EN TREATY ESTABLISHING A CONSTITUTION FOR EUROPE 16.12.2004 Official Journal of the European Union C 310/3 EN PREAMBLE HIS MAJEST Y THE KING OF THE BELGIANS, THE PRESIDENT OF THE CZECH REPUBLIC, HER MAJEST Y THE QUEEN OF DENMARK, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE REPUBLIC OF ESTONIA, THE PRESIDENT OF THE HELLENIC REPUBLIC, HIS MAJEST Y THE KING OF SPAIN, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF IRELAND, THE PRESIDENT OF THE ITALIAN REPUBLIC, THE PRESIDENT OF THE REPUBLIC OF CYPRUS, THE PRESIDENT OF THE REPUBLIC OF LAT VIA, THE PRESIDENT OF THE REPUBLIC OF LITHUANIA, HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG, THE PRESIDENT OF THE REPUBLIC OF HUNGARY, THE PRESIDENT OF MALTA, HER MAJEST Y THE QUEEN OF THE NETHERLANDS, THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA, THE PRESIDENT OF THE REPUBLIC OF POLAND, THE PRESIDENT OF THE PORTUGUESE REPUBLIC, THE PRESIDENT OF THE REPUBLIC OF SLOVENIA, THE PRESIDENT OF THE SLOVAK REPUBLIC, THE PRESIDENT OF THE REPUBLIC OF FINLAND, THE GOVERNMENT OF THE KINGDOM OF SWEDEN, HER MAJEST Y THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, BELIEVING that Europe, reunited after bitter experiences, intends to continue along the path of civilisation, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived; that it wishes to remain a continent open to culture, learning and social progress; and that it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world, CONVINCED that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny, CONVINCED that, thus `United in diversity', Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Ear th, the great venture which makes of it a special area of human hope, DETERMINED to continue the work accomplished within the framework of the Treaties establishing the European Communities and the Treaty on European Union, by ensuring the continuity of the Community acquis, GRATEFUL to the members of the European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe, C 310/4 Official Journal of the European Union 16.12.2004 EN HAVE DESIGNATED AS THEIR PLENIPOTENTIARIES: HIS MAJEST Y THE KING OF THE BELGIANS, Guy VERHOFSTADT Prime Minister Karel DE GUCHT Minister for Foreign Affairs THE PRESIDENT OF THE CZECH REPUBLIC, Stanislav GROSS Prime Minister Cyril SVOBODA Minister for Foreign Affairs HER MAJEST Y THE QUEEN OF DENMARK, Anders Fogh RASMUSSEN Prime Minister Per Stig MŘLLER Minister for Foreign Affairs THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, Gerhard SCHRÖDER Federal Chancellor Joseph FISCHER Federal Minister for Foreign Affairs and Deputy Federal Chancellor 16.12.2004 Official Journal of the European Union C 310/5 EN THE PRESIDENT OF THE REPUBLIC OF ESTONIA, Juhan PARTS Prime Minister Kristiina OJULAND Minister for Foreign Affairs THE PRESIDENT OF THE HELLENIC REPUBLIC, Kostas KARAMANLIS Prime Minister Petros G. MOLYVIATIS Minister of Foreign Affairs HIS MAJEST Y THE KING OF SPAIN, José Luis RODRÍGUEZ ZAPATERO President of the Government Miguel Angel MORATINOS CUYAUBÉ Minister for External Affairs and Cooperation THE PRESIDENT OF THE FRENCH REPUBLIC, Jacques CHIRAC President Jean-Pierre RAFFARIN Prime Minister Michel BARNIER Minister for Foreign Affairs C 310/6 Official Journal of the European Union 16.12.2004 EN THE PRESIDENT OF IRELAND, Ber tie AHERN Taoiseach Dermot AHERN Minister for Foreign Affairs THE PRESIDENT OF THE ITALIAN REPUBLIC, Silvio BERLUSCONI Prime Minister Franco FRATTINI Minister for Foreign Affairs THE PRESIDENT OF THE REPUBLIC OF CYPRUS, Tassos PAPADOPOULOS President George IACOVOU Minister for Foreign Affairs THE PRESIDENT OF THE REPUBLIC OF LAT VIA, Vaira VE FREIBERGA President Indulis EMSIS Prime Minister Ar tis PABRIKS Minister for Foreign Affairs 16.12.2004 Official Journal of the European Union C 310/7 EN THE PRESIDENT OF THE REPUBLIC OF LITHUANIA, Valdas ADAMKUS President Algirdas Mykolas BRAZAUSKAS Prime Minister Antanas VALIONIS Minister of Foreign Affairs HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG, Jean-Claude JUNCKER Prime Minister, Ministre d'Etat Jean ASSELBORN Deputy Prime Minister, Minister for Foreign Affairs and Immigration THE PRESIDENT OF THE REPUBLIC OF HUNGARY, Ferenc GYURCSÁNY Prime Minister László KOVÁCS Minister for Foreign Affairs THE PRESIDENT OF MALTA, The Hon Lawrence GONZI Prime Minister The Hon Michael FRENDO Minister for Foreign Affairs C 310/8 Official Journal of the European Union 16.12.2004 EN HER MAJEST Y THE QUEEN OF THE NETHERLANDS, Dr. J. P. BALKENENDE Prime Minister Dr. B. R. BOT Minister for Foreign Affairs THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA, Dr. Wolfgang SCHÜSSEL Federal Chancellor Dr. Ursula PLASSNIK Federal Minister for Foreign Affairs THE PRESIDENT OF THE REPUBLIC OF POLAND, Marek BELKA Prime Minister Wlodzimierz CIMOSZEWICZ Minister for Foreign Affairs THE PRESIDENT OF THE PORTUGUESE REPUBLIC, Pedro Miguel DE SANTANA LOPES Prime Minister António Victor MARTINS MONTEIRO Minister for Foreign Affairs and the Portuguese Communities 16.12.2004 Official Journal of the European Union C 310/9 EN THE PRESIDENT OF THE REPUBLIC OF SLOVENIA, Anton ROP President of the Government Ivo VAJGL Minister for Foreign Affairs THE PRESIDENT OF THE SLOVAK REPUBLIC, Mikulás DZURINDA Prime Minister Eduard KUKAN Minister for Foreign Affairs THE PRESIDENT OF THE REPUBLIC OF FINLAND, Matti VANHANEN Prime Minister Erkki TUOMIOJA Minister for Foreign Affairs THE GOVERNMENT OF THE KINGDOM OF SWEDEN, Göran PERSSON Prime Minister Laila FREIVALDS Minister for Foreign Affairs C 310/10 Official Journal of the European Union 16.12.2004 EN HER MAJEST Y THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, The Rt. Hon Tony BLAIR Prime Minister The Rt. Hon Jack STRAW Secretary of State for Foreign and Commonwealth Affairs WHO, having exchanged their full powers, found in good and due form, have agreed as follows: 16.12.2004 Official Journal of the European Union C 310/11 EN PART I TITLE I DEFINITION AND OBJECTIVES OF THE UNION Article I-1 Establishment of the Union 1. Ref lecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common. The Union shall coordinate the policies by which the Member States aim to achieve these objectives, and shall exercise on a Community basis the competences they confer on it. 2. The Union shall be open to all European States which respect its values and are committed to promoting them together. Article I-2 The Union's values The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Article I-3 The Union's objectives 1. The Union's aim is to promote peace, its values and the well-being of its peoples. 2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistor ted. 3. The Union shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. C 310/12 Official Journal of the European Union 16.12.2004 EN It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced. 4. In its relations with the wider world, the Union shall uphold and promote its values and interests. It shall contribute to peace, security, the sustainable development of the Ear th, solidarity and mutual respect among peoples, free and fair trade, eradication of pover ty and the protection of human rights, in par ticular the rights of the child, as well as to the strict obser vance and the development of international law, including respect for the principles of the United Nations Char ter. 5. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Constitution. Article I-4 Fundamental freedoms and non-discrimination 1. The free movement of persons, ser vices, goods and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the Constitution. 2. Within the scope of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited. Article I-5 Relations between the Union and the Member States 1. The union shall respect the equality of Member States before the constitution as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. it shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. 2. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which f low from the Constitution. The Member States shall take any appropriate measure, general or par ticular, to ensure fulfilment of the obligations arising out of the Constitution or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives. Article I-6 Union law The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States. 16.12.2004 Official Journal of the European Union C 310/13 EN Article I-7 Legal personality The Union shall have legal personality. Article I-8 The symbols of the Union The f lag of the Union shall be a circle of twelve golden stars on a blue background. The anthem of the Union shall be based on the `Ode to Joy' from the Ninth Symphony by Ludwig van Beethoven. The motto of the Union shall be: `United in diversity'. The currency of the Union shall be the euro. Europe day shall be celebrated on 9 May throughout the Union. TITLE II FUNDAMENTAL RIGHTS AND CITIZENSHIP OF THE UNION Article I-9 Fundamental rights 1. The Union shall recognise the rights, freedoms and principles set out in the Char ter of Fundamental Rights which constitutes Par t II. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Constitution. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. Article I-10 Citizenship of the Union 1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it. C 310/14 Official Journal of the European Union 16.12.2004 EN 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Constitution's languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Constitution and by the measures adopted thereunder. TITLE III UNION COMPETENCES Article I-11 Fundamental principles 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and propor tionality. 2. Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution. Competences not conferred upon the Union in the Constitution remain with the Member States. 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and propor tionality. National Parliaments shall ensure compliance with that principle in accordance with the procedure set out in that Protocol. 4. Under the principle of propor tionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Constitution. 16.12.2004 Official Journal of the European Union C 310/15 EN The institutions of the Union shall apply the principle of propor tionality as laid down in the Protocol on the application of the principles of subsidiarity and propor tionality. Article I-12 Categories of competence 1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts. 2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. 3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Par t III, which the Union shall have competence to provide. 4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy. 5. In cer tain areas and under the conditions laid down in the Constitution, the Union shall have competence to carry out actions to suppor t, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions in Par t III relating to these areas shall not entail harmonisation of Member States' laws or regulations. 6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Par t III. Article I-13 Areas of exclusive competence 1. The Union shall have exclusive competence in the following areas: (a) customs union; (b) the establishing of the competition rules necessary for the functioning of the internal market; (c) monetary policy for the Member States whose currency is the euro; (d) the conser vation of marine biological resources under the common fisheries policy; C 310/16 Official Journal of the European Union 16.12.2004 EN (e) common commercial policy. 2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope. Article I-14 Areas of shared competence 1. The Union shall share competence with the Member States where the Constitution confers on it a competence which does not relate to the areas referred to in Ar ticles I-13 and I-17. 2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in Par t III; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conser vation of marine biological resources; (e) environment; (f) consumer protection; (g) transpor t; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in Par t III. 3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in par ticular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs. 4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs. 16.12.2004 Official Journal of the European Union C 310/17 EN Article I-15 The coordination of economic and employment policies 1. The Member States shall coordinate their economic policies within the Union. To this end, the Council of Ministers shall adopt measures, in par ticular broad guidelines for these policies. Specific provisions shall apply to those Member States whose currency is the euro. 2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in par ticular by defining guidelines for these policies. 3. The Union may take initiatives to ensure coordination of Member States' social policies. Article I-16 The common foreign and security policy 1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence. 2. Member States shall actively and unreser vedly suppor t the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area. They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness. Article I-17 Areas of suppor ting, coordinating or complementary action The Union shall have competence to carry out suppor ting, coordinating or complementary action. The areas of such action shall, at European level, be: (a) protection and improvement of human health; (b) industry; (c) culture; (d) tourism; (e) education, youth, spor t and vocational training; (f) civil protection; (g) administrative cooperation. C 310/18 Official Journal of the European Union 16.12.2004 EN Article I-18 Flexibility clause 1. If action by the Union should prove necessary, within the framework of the policies defined in Par t III, to attain one of the objectives set out in the Constitution, and the Constitution has not provided the necessary powers, the Council of Ministers, acting unanimously on a proposal from the European Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. 2. Using the procedure for monitoring the subsidiarity principle referred to in Ar ticle I-11(3), the European Commission shall draw national Parliaments' attention to proposals based on this Ar ticle. 3. Measures based on this Ar ticle shall not entail harmonisation of Member States' laws or regulations in cases where the Constitution excludes such harmonisation. TITLE IV THE UNION'S INSTITUTIONS AND BODIES CHAPTER I THE INSTITUTIONAL FRAMEWORK Article I-19 The Union's institutions 1. The Union shall have an institutional framework which shall aim to: -- promote its values, -- advance its objectives, -- ser ve its interests, those of its citizens and those of the Member States, -- ensure the consistency, effectiveness and continuity of its policies and actions. This institutional framework comprises: -- The European Parliament, -- The European Council, -- The Council of Ministers (hereinafter referred to as the `Council'), 16.12.2004 Official Journal of the European Union C 310/19 EN -- The European Commission (hereinafter referred to as the `Commission'), -- The Cour t of Justice of the European Union. 2. Each institution shall act within the limits of the powers conferred on it in the Constitution, and in conformity with the procedures and conditions set out in it. The institutions shall practise mutual sincere cooperation. Article I-20 The European Parliament 1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Constitution. It shall elect the President of the Commission. 2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number. Representation of citizens shall be degressively propor tional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats. The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a European decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph. 3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot. 4. The European Parliament shall elect its President and its officers from among its members. Article I-21 The European Council 1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions. 2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The Union Minister for Foreign Affairs shall take par t in its work. 3. The European Council shall meet quar terly, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council. 4. Except where the Constitution provides other wise, decisions of the European Council shall be taken by consensus. C 310/20 Official Journal of the European Union 16.12.2004 EN Article I-22 The European Council President 1. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end his or her term of office in accordance with the same procedure. 2. The President of the European Council: (a) shall chair it and drive for ward its work; (b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council; (c) shall endeavour to facilitate cohesion and consensus within the European Council; (d) shall present a repor t to the European Parliament after each of the meetings of the European Council. The President of the European Council shall, at his or her level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the Union Minister for Foreign Affairs. 3. The President of the European Council shall not hold a national office. Article I-23 The Council of Ministers 1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Constitution. 2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote. 3. The Council shall act by a qualified majority except where the Constitution provides other wise. Article I-24 Conf igurations of the Council of Ministers 1. The Council shall meet in different configurations. 2. The General Affairs Council shall ensure consistency in the work of the different Council configurations. 16.12.2004 Official Journal of the European Union C 310/21 EN It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission. 3. The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent. 4. The European Council shall adopt by a qualified majority a European decision establishing the list of other Council configurations. 5. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council. 6. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two par ts, dealing respectively with deliberations on Union legislative acts and non-legislative activities. 7. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established by a European decision of the European Council. The European Council shall act by a qualified majority. Article I-25 Def inition of qualif ied majority within the European Council and the Council 1. A qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. 2. By way of derogation from paragraph 1, when the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union. 3. Paragraphs 1 and 2 shall apply to the European Council when it is acting by a qualified majority. 4. Within the European Council, its President and the President of the Commission shall not take par t in the vote. Article I-26 The European Commission 1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Constitution, and measures adopted by the institutions pursuant to the Constitution. It shall oversee the application of Union law under the control of the Cour t of Justice of the European Union. It shall execute the budget and manage C 310/22 Official Journal of the European Union 16.12.2004 EN programmes. It shall exercise coordinating, executive and management functions, as laid down in the Constitution. With the exception of the common foreign and security policy, and other cases provided for in the Constitution, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements. 2. Union legislative acts may be adopted only on the basis of a Commission proposal, except where the Constitution provides other wise. Other acts shall be adopted on the basis of a Commission proposal where the Constitution so provides. 3. The Commission's term of office shall be five years. 4. The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt. 5. The first Commission appointed under the provisions of the Constitution shall consist of one national of each Member State, including its President and the Union Minister for Foreign Affairs who shall be one of its Vice-Presidents. 6. As from the end of the term of office of the Commission referred to in paragraph 5, the Commission shall consist of a number of members, including its President and the Union Minister for Foreign Affairs, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number. The members of the Commission shall be selected from among the nationals of the Member States on the basis of a system of equal rotation between the Member States. This system shall be established by a European decision adopted unanimously by the European Council and on the basis of the following principles: (a) Member states shall be treated on a strictly equal footing as regards determination of the sequence of, and the time spent by, their nationals as members of the commission; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one; (b) subject to point (a), each successive Commission shall be so composed as to ref lect satisfactorily the demographic and geographical range of all the Member States. 7. In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Ar ticle I-28(2), the members of the Commission shall neither seek nor take instructions from any government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks. 8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Ar ticle III-340, the European Parliament may vote on a censure motion on the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the Union Minister for Foreign Affairs shall resign from the duties that he or she carries out in the Commission. 16.12.2004 Official Journal of the European Union C 310/23 EN Article I-27 The President of the European Commission 1. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he or she does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure. 2. The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in Ar ticle I-26 (4) and (6), second subparagraph. The President, the Union Minister for Foreign Affairs and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority. 3. The President of the Commission shall: (a) lay down guidelines within which the Commission is to work; (b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body; (c) appoint Vice-Presidents, other than the Union Minister for Foreign Affairs, from among the members of the Commission. A member of the Commission shall resign if the President so requests. The Union Minister for Foreign Affairs shall resign, in accordance with the procedure set out in ar ticle I-28(1), if the President so requests. Article I-28 The Union Minister for Foreign Affairs 1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the Union Minister for Foreign Affairs. The European Council may end his or her term of office by the same procedure. 2. The Union Minister for Foreign Affairs shall conduct the Union's common foreign and security policy. He or she shall contribute by his or her proposals to the development of that policy, which he or she shall carry out as mandated by the Council. The same shall apply to the common security and defence policy. 3. The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council. C 310/24 Official Journal of the European Union 16.12.2004 EN 4. The Union Minister for Foreign Affairs shall be one of the Vice-Presidents of the Commission. He or she shall ensure the consistency of the Union's external action. He or she shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the Union Minister for Foreign Affairs shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3. Article I-29 The Cour t of Justice of the European Union 1. The Cour t of Justice of the European Union shall include the Cour t of Justice, the General Cour t and specialised cour ts. It shall ensure that in the interpretation and application of the Constitution the law is obser ved. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. 2. The Cour t of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General. The General Cour t shall include at least one judge per Member State. The Judges and the Advocates-General of the Cour t of Justice and the Judges of the General Cour t shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Ar ticles III-355 and III-356. They shall be appointed by common accord of the governments of the Member States for six years. Retiring Judges and Advocates-General may be reappointed. 3. The Cour t of Justice of the European Union shall in accordance with Par t III: (a) rule on actions brought by a Member State, an institution or a natural or legal person; (b) give preliminary rulings, at the request of cour ts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions; (c) rule in other cases provided for in the Constitution. 16.12.2004 Official Journal of the European Union C 310/25 EN CHAPTER II THE OTHER UNION INSTITUTIONS AND ADVISORY BODIES Article I-30 The European Central Bank 1. The European Central Bank, together with the national central banks, shall constitute the European System of Central Banks. The European Central Bank, together with the national central banks of the Member States whose currency is the euro, which constitute the Eurosystem, shall conduct the monetary policy of the Union. 2. The European System of Central Banks shall be governed by the decision-making bodies of the European Central Bank. The primary objective of the European System of Central Banks shall be to maintain price stability. Without prejudice to that objective, it shall suppor t the general economic policies in the Union in order to contribute to the achievement of the latter's objectives. It shall conduct other Central Bank tasks in accordance with Par t III and the Statute of the European System of Central Banks and of the European Central Bank. 3. The European Central Bank is an institution. It shall have legal personality. It alone may authorise the issue of the euro. It shall be independent in the exercise of its powers and in the management of its finances. Union institutions, bodies, offices and agencies and the governments of the Member States shall respect that independence. 4. The European Central Bank shall adopt such measures as are necessary to carry out its tasks in accordance with Ar ticles III-185 to III-191 and Ar ticle III-196, and with the conditions laid down in the Statute of the European System of Central Banks and of the European Central Bank. In accordance with these same Ar ticles, those Member States whose currency is not the euro, and their central banks, shall retain their powers in monetary matters. 5. Within the areas falling within its responsibilities, the European Central Bank shall be consulted on all proposed Union acts, and all proposals for regulation at national level, and may give an opinion. 6. The decision-making organs of the European Central Bank, their composition and operating methods are set out in Ar ticles III-382 and III-383, as well as in the Statute of the European System of Central Banks and of the European Central Bank. Article I-31 The Cour t of Auditors 1. The Cour t of Auditors is an institution. It shall carry out the Union's audit. 2. It shall examine the accounts of all Union revenue and expenditure, and shall ensure good financial management. C 310/26 Official Journal of the European Union 16.12.2004 EN 3. It shall consist of one national of each Member State. Its members shall be completely independent in the performance of their duties, in the Union's general interest. Article I-32 The Union's advisory bodies 1. The European Parliament, the Council and the Commission shall be assisted by a Committee of the Regions and an Economic and Social Committee, exercising advisory functions. 2. The Committee of the Regions shall consist of representatives of regional and local bodies who either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly. 3. The Economic and Social Committee shall consist of representatives of organisations of employers, of the employed, and of other par ties representative of civil society, notably in socio- economic, civic, professional and cultural areas. 4. The members of the Committee of the Regions and the Economic and Social Committee shall not be bound by any mandatory instructions. They shall be completely independent in the performance of their duties, in the Union's general interest. 5. Rules governing the composition of these Committees, the designation of their members, their powers and their operations are set out in Ar ticles III386 to III392. The rules referred to in paragraphs 2 and 3 governing the nature of their composition shall be reviewed at regular inter vals by the Council to take account of economic, social and demographic developments within the Union. The Council, on a proposal from the Commission, shall adopt European decisions to that end. TITLE V EXERCISE OF UNION COMPETENCE CHAPTER I COMMON PROVISIONS Article I-33 The legal acts of the Union 1. To exercise the Union's competences the institutions shall use as legal instruments, in accordance with Par t III, European laws, European framework laws, European regulations, European decisions, recommendations and opinions. 16.12.2004 Official Journal of the European Union C 310/27 EN A European law shall be a legislative act of general application. It shall be binding in its entirety and directly applicable in all Member States. A European framework law shall be a legislative act binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A European regulation shall be a non-legislative act of general application for the implementation of legislative acts and of cer tain provisions of the Constitution. It may either be binding in its entirety and directly applicable in all Member States, or be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force. 2. When considering draft legislative acts, the European Parliament and the Council shall refrain from adopting acts not provided for by the relevant legislative procedure in the area in question. Article I-34 Legislative acts 1. European laws and framework laws shall be adopted, on the basis of proposals from the Commission, jointly by the European Parliament and the Council under the ordinary legislative procedure as set out in Ar ticle III-396. If the two institutions cannot reach agreement on an act, it shall not be adopted. 2. In the specific cases provided for in the Constitution, European laws and framework laws shall be adopted by the European Parliament with the par ticipation of the Council, or by the latter with the par ticipation of the European Parliament, in accordance with special legislative procedures. 3. In the specific cases provided for in the Constitution, European laws and framework laws may be adopted at the initiative of a group of Member States or of the European Parliament, on a recommendation from the European Central Bank or at the request of the Cour t of Justice or the European Investment Bank. Article I-35 Non-legislative acts 1. The European Council shall adopt European decisions in the cases provided for in the Constitution. 2. The Council and the Commission, in par ticular in the cases referred to in ar ticles I-36 and I-37, and the European Central Bank in the specific cases provided for in the constitution, shall adopt European regulations and decisions. C 310/28 Official Journal of the European Union 16.12.2004 EN 3. The Council shall adopt recommendations. It shall act on a proposal from the Commission in all cases where the Constitution provides that it shall adopt acts on a proposal from the Commission. It shall act unanimously in those areas in which unanimity is required for the adoption of a Union act. The Commission, and the European Central Bank in the specific cases provided for in the Constitution, shall adopt recommendations. Article I-36 Delegated European regulations 1. European laws and framework laws may delegate to the Commission the power to adopt delegated European regulations to supplement or amend cer tain nonessential elements of the law or framework law. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the European laws and framework laws. The essential elements of an area shall be reser ved for the European law or framework law and accordingly shall not be the subject of a delegation of power. 2. European laws and framework laws shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows: (a) the European Parliament or the Council may decide to revoke the delegation; (b) the delegated European regulation may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the European law or framework law. For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority. Article I-37 Implementing acts 1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts. 2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Ar ticle I-40, on the Council. 3. For the purposes of paragraph 2, European laws shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers. 4. Union implementing acts shall take the form of European implementing regulations or European implementing decisions. 16.12.2004 Official Journal of the European Union C 310/29 EN Article I-38 Principles common to the Union's legal acts 1. Where the Constitution does not specify the type of act to be adopted, the institutions shall select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of propor tionality referred to in Ar ticle I11. 2. Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Constitution. Article I-39 Publication and entry into force 1. European laws and framework laws adopted under the ordinary legislative procedure shall be signed by the President of the European Parliament and by the President of the Council. In other cases they shall be signed by the President of the institution which adopted them. European laws and framework laws shall be published in the Official Journal of the European Union and shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following their publication. 2. European regulations, and European decisions which do not specify to whom they are addressed, shall be signed by the President of the institution which adopted them. European regulations, and European decisions when the latter do not specify to whom they are addressed, shall be published in the Official Journal of the European Union and shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. 3. European decisions other than those referred to in paragraph 2 shall be notified to those to whom they are addressed and shall take effect upon such notification. CHAPTER II SPECIFIC PROVISIONS Article I-40 Specif ic provisions relating to the common foreign and security policy 1. The European Union shall conduct a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an everincreasing degree of convergence of Member States' actions. C 310/30 Official Journal of the European Union 16.12.2004 EN 2. The European Council shall identify the Union's strategic interests and determine the objectives of its common foreign and security policy. The Council shall frame this policy within the framework of the strategic guidelines established by the European Council and in accordance with Par t III. 3. The European Council and the Council shall adopt the necessary European decisions. 4. The common foreign and security policy shall be put into effect by the Union Minister for Foreign Affairs and by the Member States, using national and Union resources. 5. Member States shall consult one another within the European Council and the Council on any foreign and security policy issue which is of general interest in order to determine a common approach. Before under taking any action on the international scene or any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to asser t its interests and values on the international scene. Member States shall show mutual solidarity. 6. European decisions relating to the common foreign and security policy shall be adopted by the European Council and the Council unanimously, except in the cases referred to in Par t III. The European Council and the Council shall act on an initiative from a Member State, on a proposal from the Union Minister for Foreign Affairs or on a proposal from that Minister with the Commission's suppor t. European laws and framework laws shall be excluded. 7. The European Council may, unanimously, adopt a European decision authorising the Council to act by a qualified majority in cases other than those referred to in Par t III. 8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common foreign and security policy. It shall be kept informed of how it evolves. Article I-41 Specif ic provisions relating to the common security and defence policy 1. The common security and defence policy shall be an integral par t of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civil and military assets. The Union may use them on missions outside the Union for peace-keeping, conf lict prevention and strengthening international security in accordance with the principles of the United Nations Char ter. The performance of these tasks shall be under taken using capabilities provided by the Member States. 2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements. 16.12.2004 Official Journal of the European Union C 310/31 EN The policy of the Union in accordance with this Ar ticle shall not prejudice the specific character of the security and defence policy of cer tain Member States, it shall respect the obligations of cer tain Member States, which see their common defence realised in the Nor th Atlantic Treaty Organisation, under the Nor th Atlantic Treaty, and be compatible with the common security and defence policy established within that framework. 3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy. Member States shall under take progressively to improve their military capabilities. An Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency) shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to par ticipate in defining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities. 4. European decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Ar ticle, shall be adopted by the Council acting unanimously on a proposal from the Union Minister for Foreign Affairs or an initiative from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate. 5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and ser ve its interests. The execution of such a task shall be governed by Ar ticle III-310. 6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Ar ticle III-312. It shall not affect the provisions of Ar ticle III-309. 7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Ar ticle 51 of the United Nations Char ter. This shall not prejudice the specific character of the security and defence policy of cer tain Member States. Commitments and cooperation in this area shall be consistent with commitments under the Nor th Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation. 8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy. It shall be kept informed of how it evolves. C 310/32 Official Journal of the European Union 16.12.2004 EN Article I-42 Specif ic provisions relating to the area of freedom, security and justice 1. The Union shall constitute an area of freedom, security and justice: (a) by adopting European laws and framework laws intended, where necessary, to approximate laws and regulations of the Member States in the areas referred to in Par t III; (b) by promoting mutual confidence between the competent authorities of the Member States, in par ticular on the basis of mutual recognition of judicial and extrajudicial decisions; (c) by operational cooperation between the competent authorities of the Member States, including the police, customs and other ser vices specialising in the prevention and detection of criminal offences. 2. National Parliaments may, within the framework of the area of freedom, security and justice, par ticipate in the evaluation mechanisms provided for in Ar ticle III-260. They shall be involved in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Ar ticles III-276 and III-273. 3. Member States shall have a right of initiative in the field of police and judicial cooperation in criminal matters, in accordance with Ar ticle III-264. Article I-43 Solidarity clause 1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to: (a) -- prevent the terrorist threat in the territory of the Member States; -- protect democratic institutions and the civilian population from any terrorist attack; -- assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster. 2. The detailed arrangements for implementing this Ar ticle are set out in Ar ticle III-329. 16.12.2004 Official Journal of the European Union C 310/33 EN CHAPTER III ENHANCED COOPERATION Article I-44 Enhanced cooperation 1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Constitution, subject to the limits and in accordance with the procedures laid down in this Ar ticle and in Ar ticles III-416 to III-423. Enhanced cooperation shall aim to fur ther the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Ar ticle III-418. 2. The European decision authorising enhanced cooperation shall be adopted by the Council as a last resor t, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least one third of the Member States par ticipate in it. The Council shall act in accordance with the procedure laid down in Ar ticle III-419. 3. All members of the Council may par ticipate in its deliberations, but only members of the Council representing the Member States par ticipating in enhanced cooperation shall take par t in the vote. Unanimity shall be constituted by the votes of the representatives of the par ticipating Member States only. A qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. By way of derogation from the third and four th subparagraphs, where the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the required qualified majority shall be defined as at least 72 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. 4. Acts adopted in the framework of enhanced cooperation shall bind only par ticipating Member States. They shall not be regarded as par t of the acquis which has to be accepted by candidate States for accession to the Union. C 310/34 Official Journal of the European Union 16.12.2004 EN TITLE VI THE DEMOCRATIC LIFE OF THE UNION Article I-45 The principle of democratic equality In all its activities, the Union shall obser ve the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Article I-46 The principle of representative democracy 1. The functioning of the Union shall be founded on representative democracy. 2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 3. Every citizen shall have the right to par ticipate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 4. Political par ties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. Article I-47 The principle of par ticipatory democracy 1. The institutions shall, by appropriate means, give citizens and representative associations the oppor tunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3. The Commission shall carry out broad consultations with par ties concerned in order to ensure that the Union's actions are coherent and transparent. 16.12.2004 Official Journal of the European Union C 310/35 EN 4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come. Article I-48 The social par tners and autonomous social dialogue The Union recognises and promotes the role of the social par tners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social par tners, respecting their autonomy. The Tripar tite Social Summit for Growth and Employment shall contribute to social dialogue. Article I-49 The European Ombudsman A European Ombudsman elected by the European Parliament shall receive, examine and repor t on complaints about maladministration in the activities of the Union institutions, bodies, offices or agencies, under the conditions laid down in the Constitution. The European Ombudsman shall be completely independent in the performance of his or her duties. Article I-50 Transparency of the proceedings of Union institutions, bodies, off ices and agencies 1. In order to promote good governance and ensure the par ticipation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible. 2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act. 3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have, under the conditions laid down in Par t III, a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium. European laws shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents. 4. Each institution, body, office or agency shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European laws referred to in paragraph 3. C 310/36 Official Journal of the European Union 16.12.2004 EN Article I-51 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. European laws or framework laws shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities. Article I-52 Status of churches and non-confessional organisations 1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. 2. The Union equally respects the status under national law of philosophical and non-confessional organisations. 3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations. TITLE VII THE UNION'S FINANCES Article I-53 Budgetary and f inancial principles 1. All items of Union revenue and expenditure shall be included in estimates drawn up for each financial year and shall be shown in the Union's budget, in accordance with Par t III. 2. The revenue and expenditure shown in the budget shall be in balance. 3. The expenditure shown in the budget shall be authorised for the annual budgetary period in accordance with the European law referred to in Ar ticle III-412. 4. The implementation of expenditure shown in the budget shall require the prior adoption of a legally binding Union act providing a legal basis for its action and for the implementation of the corresponding expenditure in accordance with the European law referred to in Ar ticle III-412, except in cases for which that law provides. 5. With a view to maintaining budgetary discipline, the Union shall not adopt any act which is likely to have appreciable implications for the budget without providing an assurance that the expenditure arising from such an act is capable of being financed within the limit of the Union's own 16.12.2004 Official Journal of the European Union C 310/37 EN resources and in compliance with the multiannual financial framework referred to in Ar ticle I-55. 6. The budget shall be implemented in accordance with the principle of sound financial management. Member States shall cooperate with the Union to ensure that the appropriations entered in the budget are used in accordance with this principle. 7. The Union and the Member States, in accordance with Ar ticle III-415, shall counter fraud and any other illegal activities affecting the financial interests of the Union. Article I-54 The Union's own resources 1. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies. 2. Without prejudice to other revenue, the Union's budget shall be financed wholly from its own resources. 3. A European law of the Council shall lay down the provisions relating to the system of own resources of the Union. In this context it may establish new categories of own resources or abolish an existing category. The Council shall act unanimously after consulting the European Parliament. That law shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements. 4. A European law of the Council shall lay down implementing measures of the Union's own resources system insofar as this is provided for in the European law adopted on the basis of paragraph 3. The Council shall act after obtaining the consent of the European Parliament. Article I-55 The multiannual f inancial framework 1. The multiannual financial framework shall ensure that Union expenditure develops in an orderly manner and within the limits of its own resources. It shall determine the amounts of the annual ceilings of appropriations for commitments by category of expenditure in accordance with Ar ticle III- 402. 2. A European law of the Council shall lay down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members. 3. The annual budget of the Union shall comply with the multiannual financial framework. 4. The European Council may, unanimously, adopt a European decision authorising the Council to act by a qualified majority when adopting the European law of the Council referred to in paragraph 2. C 310/38 Official Journal of the European Union 16.12.2004 EN Article I-56 The Union's budget A European law shall establish the Union's annual budget in accordance with Ar ticle III-404. TITLE VIII THE UNION AND ITS NEIGHBOURS Article I-57 The Union and its neighbours 1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation. 2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of under taking activities jointly. Their implementation shall be the subject of periodic consultation. TITLE IX UNION MEMBERSHIP Article I-58 Conditions of eligibility and procedure for accession to the Union 1. The Union shall be open to all European States which respect the values referred to in Ar ticle I-2, and are committed to promoting them together. 2. Any European State which wishes to become a member of the Union shall address its application to the Council. The European Parliament and national Parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament, which shall act by a majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements. Article I-59 Suspension of cer tain rights resulting from Union membership 1. On the reasoned initiative of one third of the Member States or the reasoned initiative of the European Parliament or on a proposal from the Commission, the Council may adopt a European decision determining that there is a clear risk of a serious breach by a Member State of the values 16.12.2004 Official Journal of the European Union C 310/39 EN referred to in Ar ticle I-2. The Council shall act by a majority of four fifths of its members after obtaining the consent of the European Parliament. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may address recommendations to that State. The Council shall regularly verify that the grounds on which such a determination was made continue to apply. 2. The European Council, on the initiative of one third of the Member States or on a proposal from the Commission, may adopt a European decision determining the existence of a serious and persistent breach by a Member State of the values mentioned in Ar ticle I-2, after inviting the Member State in question to submit its obser vations. The European Council shall act unanimously after obtaining the consent of the European Parliament. 3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may adopt a European decision suspending cer tain of the rights deriving from the application of the Constitution to the Member State in question, including the voting rights of the member of the Council representing that State. The Council shall take into account the possible consequences of such a suspension for the rights and obligations of natural and legal persons. In any case, that State shall continue to be bound by its obligations under the Constitution. 4. The Council, acting by a qualified majority, may adopt a European decision varying or revoking measures adopted under paragraph 3 in response to changes in the situation which led to their being imposed. 5. For the purposes of this Ar ticle, the member of the European Council or of the Council representing the Member State in question shall not take par t in the vote and the Member State in question shall not be counted in the calculation of the one third or four fifths of Member States referred to in paragraphs 1 and 2. Abstentions by members present in person or represented shall not prevent the adoption of European decisions referred to in paragraph 2. For the adoption of the European decisions referred to in paragraphs 3 and 4, a qualified majority shall be defined as at least 72 % of the members of the Council, representing the par ticipating Member States, comprising at least 65 % of the population of these States. Where, following a decision to suspend voting rights adopted pursuant to paragraph 3, the Council acts by a qualified majority on the basis of a provision of the Constitution, that qualified majority shall be defined as in the second subparagraph, or, where the Council acts on a proposal from the Commission or from the Union Minister for Foreign Affairs, as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. In the latter case, a blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 6. For the purposes of this Ar ticle, the European Parliament shall act by a two-thirds majority of the votes cast, representing the majority of its component members. C 310/40 Official Journal of the European Union 16.12.2004 EN Article I-60 Voluntary withdrawal from the Union 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Ar ticle III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not par ticipate in the discussions of the European Council or Council or in European decisions concerning it. A qualified majority shall be defined as at least 72 % of the members of the Council, representing the par ticipating Member States, comprising at least 65 % of the population of these States. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Ar ticle I-58. 16.12.2004 Official Journal of the European Union C 310/41 EN PART II THE CHARTER OF FUNDAMENTAL RIGHTS OF THE UNION PREAMBLE The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the hear t of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preser vation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, ser vices, goods and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Char ter. This Char ter reaffirms, with due regard for the powers and tasks of the Union and the principle of subsidiarity, the rights as they result, in par ticular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Char ters adopted by the Union and by the Council of Europe and the case-law of the Cour t of Justice of the European Union and of the European Cour t of Human Rights. In this context the Char ter will be interpreted by the cour ts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Char ter and updated under the responsibility of the Praesidium of the European Convention. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter. C 310/42 Official Journal of the European Union 16.12.2004 EN TITLE I DIGNIT Y Article II-61 Human dignity Human dignity is inviolable. It must be respected and protected. Article II-62 Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. Article II-63 Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in par ticular: (a) the free and informed consent of the person concerned, according to the procedures laid down by law; (b) the prohibition of eugenic practices, in par ticular those aiming at the selection of persons; (c) the prohibition on making the human body and its par ts as such a source of financial gain; (d) the prohibition of the reproductive cloning of human beings. Article II-64 Prohibition of tor ture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 16.12.2004 Official Journal of the European Union C 310/43 EN Article II-65 Prohibition of slavery and forced labour 1. No one shall be held in slavery or ser vitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited. TITLE II FREEDOMS Article II-66 Right to liber ty and security Everyone has the right to liber ty and security of person. Article II-67 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Article II-68 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. Article II-69 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. C 310/44 Official Journal of the European Union 16.12.2004 EN Article II-70 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right. Article II-71 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impar t information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. Article II-72 Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in par ticular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political par ties at Union level contribute to expressing the political will of the citizens of the Union. Article II-73 Freedom of the ar ts and sciences The ar ts and scientific research shall be free of constraint. Academic freedom shall be respected. Article II-74 Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the 16.12.2004 Official Journal of the European Union C 310/45 EN national laws governing the exercise of such freedom and right. Article II-75 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide ser vices in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union. Article II-76 Freedom to conduct a business The freedom to conduct a business in accordance with Union law and national laws and practices is recognised. Article II-77 Right to proper ty 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of proper ty may be regulated by law insofar as is necessary for the general interest. 2. Intellectual proper ty shall be protected. Article II-78 Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Constitution. Article II-79 Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. C 310/46 Official Journal of the European Union 16.12.2004 EN TITLE III EQUALIT Y Article II-80 Equality before the law Everyone is equal before the law. Article II-81 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, proper ty, bir th, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Constitution and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited. Article II-82 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Article II-83 Equality between women and men Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Article II-84 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 16.12.2004 Official Journal of the European Union C 310/47 EN 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Article II-85 The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to par ticipate in social and cultural life. Article II-86 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and par ticipation in the life of the community. TITLE IV SOLIDARIT Y Article II-87 Workers' right to information and consultation within the under taking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices. Article II-88 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conf licts of interest, to take collective action to defend their interests, including strike action. Article II-89 Right of access to placement services Everyone has the right of access to a free placement ser vice. C 310/48 Official Journal of the European Union 16.12.2004 EN Article II-90 Protection in the event of unjustif ied dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices. Article II-91 Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. Article II-92 Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education. Article II-93 Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the bir th or adoption of a child. Article II-94 Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social ser vices providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. 16.12.2004 Official Journal of the European Union C 310/49 EN 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices. 3. In order to combat social exclusion and pover ty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices. Article II-95 Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Article II-96 Access to ser vices of general economic interest The Union recognises and respects access to ser vices of general economic interest as provided for in national laws and practices, in accordance with the Constitution, in order to promote the social and territorial cohesion of the Union. Article II-97 Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Article II-98 Consumer protection Union policies shall ensure a high level of consumer protection. C 310/50 Official Journal of the European Union 16.12.2004 EN TITLE V CITIZENS' RIGHTS Article II-99 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article II-100 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. Article II-101 Right to good administration 1. Every person has the right to have his or her affairs handled impar tially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its ser vants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Constitution and must have an answer in the same language. 16.12.2004 Official Journal of the European Union C 310/51 EN Article II-102 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium. Article II-103 European Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Cour t of Justice of the European Union acting in its judicial role. Article II-104 Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament. Article II-105 Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Constitution, to nationals of third countries legally resident in the territory of a Member State. Article II-106 Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State. C 310/52 Official Journal of the European Union 16.12.2004 EN TITLE VI JUSTICE Article II-107 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Ar ticle. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impar tial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice. Article II-108 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. Article II-109 Principles of legality and propor tionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Ar ticle shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be dispropor tionate to the criminal offence. Article II-110 Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. 16.12.2004 Official Journal of the European Union C 310/53 EN TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER Article II-111 Field of application 1. The provisions of this Char ter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, obser ve the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the other Par ts of the Constitution. 2. This Char ter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Par ts of the Constitution. Article II-112 Scope and interpretation of rights and principles 1. Any limitation on the exercise of the rights and freedoms recognised by this Char ter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of propor tionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Char ter for which provision is made in other Par ts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Par ts. 3. Insofar as this Char ter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. Insofar as this Char ter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. C 310/54 Official Journal of the European Union 16.12.2004 EN 6. Full account shall be taken of national laws and practices as specified in this Char ter. 7. The explanations drawn up as a way of providing guidance in the interpretation of the Char ter of Fundamental Rights shall be given due regard by the cour ts of the Union and of the Member States. Article II-113 Level of protection Nothing in this Char ter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are p a r t y, i n c l u d i n g t h e E u r o p e a n C o nv e n t i o n fo r t h e P r o te c t i o n o f H u m a n R i g h t s a n d Fundamental Freedoms, and by the Member States' constitutions. Article II-114 Prohibition of abuse of rights Nothing in this Char ter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Char ter or at their limitation to a greater extent than is provided for herein. 16.12.2004 Official Journal of the European Union C 310/55 EN PART III THE POLICIES AND FUNCTIONING OF THE UNION TITLE I PROVISIONS OF GENERAL APPLICATION Article III-115 The Union shall ensure consistency between the policies and activities referred to in this Par t, taking all of its objectives into account and in accordance with the principle of conferral of powers. Article III-116 In all the activities referred to in this Par t, the Union shall aim to eliminate inequalities, and to promote equality, between women and men. Article III-117 In defining and implementing the policies and actions referred to in this Par t, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health. Article III-118 In defining and implementing the policies and activities referred to in this Par t, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article III-119 Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to in this Par t, in par ticular with a view to promoting sustainable development. Article III-120 Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities. Article III-121 In formulating and implementing the Union's agriculture, fisheries, transpor t, internal market, research and technological development and space policies, the Union and the Member States shall, C 310/56 Official Journal of the European Union 16.12.2004 EN since animals are sentient beings, pay full regard to the requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in par ticular to religious rites, cultural traditions and regional heritage. Article III-122 Without prejudice to Ar ticles I-5, III-166, III-167 and III-238, and given the place occupied by ser vices of general economic interest as ser vices to which all in the Union attribute value as well as their role in promoting its social and territorial cohesion, the Union and the Member States, each within their respective competences and within the scope of application of the Constitution, shall take care that such ser vices operate on the basis of principles and conditions, in par ticular economic and financial conditions, which enable them to fulfil their missions. European laws shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Constitution, to provide, to commission and to fund such ser vices. TITLE II NON-DISCRIMINATION AND CITIZENSHIP Article III-123 European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Ar ticle I-4(2). Article III-124 1. Without prejudice to the other provisions of the Constitution and within the limits of the powers assigned by it to the Union, a European law or framework law of the Council may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council shall act unanimously after obtaining the consent of the European Parliament. 2. By way of derogation from paragraph 1, European laws or framework laws may establish basic principles for Union incentive measures and define such measures, to suppor t action taken by Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, excluding any harmonisation of their laws and regulations. Article III-125 1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Ar ticle I-10(2)(a), of every citizen of the Union to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose. 16.12.2004 Official Journal of the European Union C 310/57 EN 2. For the same purposes as those referred to in paragraph 1 and if the Constitution has not provided the necessary powers, a European law or framework law of the Council may establish measures concerning passpor ts, identity cards, residence permits or any other such document and measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament. Article III-126 A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Ar ticle I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State. The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Ar ticle III-330(1) and the measures adopted for its implementation. Article III-127 Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Ar ticle I-10(2)(c). Member States shall commence the international negotiations required to secure this protection. A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament. Article III-128 The languages in which every citizen of the Union has the right to address the institutions or bodies under Ar ticle I-10(2)(d), and to have an answer, are those listed in Ar ticle IV-448(1). The institutions and bodies referred to in Ar ticle I-10(2)(d) are those listed in Ar ticles I-19(1), second subparagraph, I- 30, I-31 and I-32 and also the European Ombudsman. Article III-129 The Commission shall repor t to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Ar ticle I10 and of this Title. This repor t shall take account of the development of the Union. On the basis of this repor t, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Ar ticle I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements. C 310/58 Official Journal of the European Union 16.12.2004 EN TITLE III INTERNAL POLICIES AND ACTION CHAPTER I INTERNAL MARKET SECTION 1 ESTABLISHMENT AND FUNCTIONING OF THE INTERNAL MARKET Article III-130 1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution. 2. The inter nal market shall comprise an area without internal frontiers in which the free movement of persons, ser vices, goods and capital is ensured in accordance with the Constitution. 3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned. 4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effor t that cer tain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures. If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market. Article III-131 Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security. Article III-132 If measures taken in the circumstances referred to in Ar ticles III-131 and III-436 have the effect of distor ting the conditions of competition in the internal market, the Commission shall, together with the Member State concerned, examine how these measures can be adjusted to the rules laid down in the Constitution. 16.12.2004 Official Journal of the European Union C 310/59 EN By way of derogation from the procedure laid down in Ar ticles III-360 and III-361, the Commission or any Member State may bring the matter directly before the Cour t of Justice if the Commission or Member State considers that another Member State is making improper use of the powers provided for in Ar ticles III-131 and III-436. The Cour t of Justice shall give its ruling in camera. SECTION 2 FREE MOVEMENT OF PERSONS AND SERVICES Subsection 1 Workers Article III-133 1. Workers shall have the right to move freely within the Union. 2. Any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment shall be prohibited. 3. Workers shall have the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in European regulations adopted by the Commission. 4. This Ar ticle shall not apply to employment in the public ser vice. Article III-134 European laws or framework laws shall establish the measures needed to bring about freedom of movement for workers, as defined in Ar ticle III-133. They shall be adopted after consultation of the Economic and Social Committee. Such European laws or framework laws shall aim, in par ticular, to: (a) ensure close cooperation between national employment ser vices; C 310/60 Official Journal of the European Union 16.12.2004 EN (b) abolish those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers; (c) abolish all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as impose on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned; (d) set up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries. Article III-135 Member States shall, within the framework of a joint programme, encourage the exchange of young workers. Article III-136 1. In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by making arrangements to secure for employed and self-employed migrant workers and their dependants: (a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the different countries; (b) payment of benefits to persons resident in the territories of Member States. 2. Where a member of the Council considers that a draft European law or framework law referred to in paragraph 1 would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the procedure referred to in Ar ticle III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either: (a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Ar ticle III-396, or (b) request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted. 16.12.2004 Official Journal of the European Union C 310/61 EN Subsection 2 Freedom of establishment Article III-137 Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage under takings, in par ticular companies or firms within the meaning of the second paragraph of Ar ticle III-142, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to Section 4 relating to capital and payments. Article III-138 1. European framework laws shall establish measures to attain freedom of establishment as regards a par ticular activity. They shall be adopted after consultation of the Economic and Social Committee. 2. The European Parliament, the Council and the Commission shall carry out the duties devolving upon them under paragraph 1, in par ticular: (a) by according, as a general rule, priority treatment to activities where freedom of establishment makes a par ticularly valuable contribution to the development of production and trade; (b) by ensuring close cooperation between the competent authorities in the Member States in order to ascer tain the par ticular situation within the Union of the various activities concerned; (c) by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment; (d) by ensuring that workers from one Member State employed in the territory of another Member State may remain in that territory for the purpose of taking up activities therein as selfemployed persons, where they satisfy the conditions which they would be required to satisfy if they were entering that State at the time when they intended to take up such activities; (e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, insofar as this does not conf lict with the principles laid down in Ar ticle III-227(2); (f) by effecting the progressive abolition of restrictions on freedom of establishment in every branch of activity under consideration, both as regards the conditions for setting up agencies, branches or subsidiaries in the territory of a Member State and as regards the conditions governing the entry of personnel belonging to the main establishment into managerial or super visory posts in such agencies, branches or subsidiaries; C 310/62 Official Journal of the European Union 16.12.2004 EN (g) by coordinating to the necessary extent the safeguards which, for the protection of the interests of members and others, are required by Member States of companies or firms within the meaning of the second paragraph of Ar ticle III-142 with a view to making such safeguards equivalent throughout the Union; (h) by satisfying themselves that the conditions of establishment are not distorted by aids granted by Member States. Article III-139 This Subsection shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority. European laws or framework laws may exclude cer tain activities from application of this Subsection. Article III-140 1. This Subsection and measures adopted in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action in Member States providing for special treatment for foreign nationals on grounds of public policy, public security or public health. 2. European framework laws shall coordinate the national provisions referred to in paragraph 1. Article III-141 1. European framework laws shall make it easier for persons to take up and pursue activities as self- employed persons. They shall cover: (a) the mutual recognition of diplomas, cer tificates and other evidence of formal qualifications; (b) the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons. 2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for the exercise of such professions in the various Member States. Article III-142 Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Subsection, be treated in the same way as natural persons who are nationals of Member States. `Companies or firms' means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making. 16.12.2004 Official Journal of the European Union C 310/63 EN Article III-143 Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards par ticipation in the capital of companies or firms within the meaning of the second paragraph of Ar ticle III-142, without prejudice to the application of the other provisions of the Constitution. Subsection 3 Freedom to provide ser vices Article III-144 Within the framework of this Subsection, restrictions on freedom to provide ser vices within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the ser vices are intended. European laws or framework laws may extend this Subsection to ser vice providers who are nationals of a third State and who are established within the Union. Article III-145 Ser vices shall be considered to be `ser vices' for the purposes of the Constitution where they are normally provided for remuneration, insofar as they are not governed by the provisions relating to freedom of movement for persons, goods and capital. `Ser vices' shall in par ticular include: (a) activities of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; (d) activities of the professions. Without prejudice to Subsection 2 relating to freedom of establishment, the person providing a ser vice may, in order to do so, temporarily pursue his or her activity in the Member State where the ser vice is provided, under the same conditions as are imposed by that State on its own nationals. Article III-146 1. Freedom to provide ser vices in the field of transpor t shall be governed by Section 7 of Chapter III relating to transpor t. 2. The liberalisation of banking and insurance ser vices connected with movements of capital shall be effected in step with the liberalisation of movement of capital. C 310/64 Official Journal of the European Union 16.12.2004 EN Article III-147 1. European framework laws shall establish measures to achieve the liberalisation of a specific ser vice. They shall be adopted after consultation of the Economic and Social Committee. 2. European framework laws referred to in paragraph 1 shall as a general rule give priority to those ser vices which directly affect production costs or the liberalisation of which helps to promote trade in goods. Article III-148 The Member States shall endeavour to under take liberalisation of services beyond the extent required by the European framework laws adopted pursuant to Ar ticle III-147(1), if their general economic situation and the situation of the economic sector concerned so permit. To this end, the Commission shall make recommendations to the Member States concerned. Article III-149 As long as restrictions on freedom to provide ser vices have not been abolished, the Member States shall apply such restrictions without distinction on grounds of nationality or of residence to all persons providing ser vices within the meaning of the first paragraph of Ar ticle III-144. Article III-150 Ar ticles III-139 to III-142 shall apply to the matters covered by this Subsection. SECTION 3 FREE MOVEMENT OF GOODS Subsection 1 Customs union Article III-151 1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on impor ts and expor ts and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries. 2. Paragraph 4 and Subsection 3 on the prohibition of quantitative restrictions shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States. 16.12.2004 Official Journal of the European Union C 310/65 EN 3. Products coming from a third country shall be considered to be in free circulation in a Member State if the impor t formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or par tial drawback of such duties or charges. 4. Customs duties on impor ts and expor ts and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature. 5. The Council, on a proposal from the Commission, shall adopt the European regulations and decisions fixing Common Customs Tariff duties. 6. In carrying out the tasks entrusted to it under this Ar ticle the Commission shall be guided by: (a) the need to promote trade between Member States and third countries; (b) developments in conditions of competition within the Union insofar as they lead to an improvement in the competitive capacity of under takings; (c) the requirements of the Union as regards the supply of raw materials and semi-finished goods; in this connection the Commission shall take care to avoid distor ting conditions of competition between Member States in respect of finished goods; (d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union. Subsection 2 Customs cooperation Article III-152 Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between them and the Commission. Subsection 3 Prohibition of quantitative restrictions Article III-153 Quantitative restrictions on impor ts and expor ts and all measures having equivalent effect shall be prohibited between Member States. C 310/66 Official Journal of the European Union 16.12.2004 EN Article III-154 Ar ticle III-153 shall not preclude prohibitions or restrictions on impor ts, expor ts or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing ar tistic, historic or archaeological value; or the protection of industrial and commercial proper ty. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Article III-155 1. Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States. This Ar ticle shall apply to any body through which a Member State, in law or in fact, either directly or i n d i r e c t l y s u p e r v i s e s , d e te r m i n e s o r a p p r e c i a b l y i n f l u e n c e s i mp o r t s o r e x p o r t s b e t w e e n Member States. It shall likewise apply to monopolies delegated by the State to others. 2. Member States shall refrain from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the Ar ticles dealing with the prohibition of customs duties and quantitative restrictions between Member States. 3. If a State monopoly of a commercial character has rules which are designed to make it easier to dispose of agricultural products or obtain for them the best return, steps should be taken in applying this Ar ticle to ensure equivalent safeguards for the employment and standard of living of the producers concerned. SECTION 4 CAPITAL AND PAYMENTS Article III-156 Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited. Article III-157 1. Ar ticle III-156 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment -- including investment in real estate, establishment, the provision of financial ser vices or the admission of securities to capital markets. With regard to restrictions which exist under national law in Estonia and Hungary, the date in question shall be 31 December 1999. 16.12.2004 Official Journal of the European Union C 310/67 EN 2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment -- including investment in real estate, establishment, the provision of financial ser vices or the admission of securities to capital markets. The European Parliament and the Council shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution. 3. Notwithstanding paragraph 2, only a European law or framework law of the Council may enact measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council shall act unanimously after consulting the European Parliament. Article III-158 1. Ar ticle III-156 shall be without prejudice to the right of Member States: (a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested; (b) to take all requisite measures to prevent infringements of national provisions laid down by law or regulation, in par ticular in the field of taxation and the prudential super vision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security. 2. This Section shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Constitution. 3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Ar ticle III-156. 4. In the absence of a European law or framework law provided for in Ar ticle III-157(3), the Commission or, in the absence of a European decision of the Commission within three months from the request of the Member State concerned, the Council, may adopt a European decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Constitution insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State. Article III-159 Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the functioning of economic and monetary union, the Council, on a proposal from the Commission, may adopt European regulations or decisions introducing safeguard measures with regard to third countries for a period not exceeding six months C 310/68 Official Journal of the European Union 16.12.2004 EN if such measures are strictly necessary. It shall act after consulting the European Central Bank. Article III-160 Where necessary to achieve the objectives set out in Ar ticle III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non- State entities. The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph. The acts referred to in this Ar ticle shall include necessary provisions on legal safeguards. SECTION 5 RULES ON COMPETITION Subsection 1 Rules applying to under takings Article III-161 1. The following shall be prohibited as incompatible with the internal market: all agreements between under takings, decisions by associations of under takings and concer ted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in par ticular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading par ties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other par ties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 16.12.2004 Official Journal of the European Union C 310/69 EN 2. Any agreements or decisions prohibited pursuant to this Ar ticle shall be automatically void. 3. Paragraph 1 may, however, be declared inapplicable in the case of: -- any agreement or category of agreements between under takings, -- any decision or category of decisions by associations of under takings, -- any concer ted practice or category of concer ted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the under takings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such under takings the possibility of eliminating competition in respect of a substantial par t of the products in question. Article III-162 Any abuse by one or more under takings of a dominant position within the internal market or in a substantial par t of it shall be prohibited as incompatible with the internal market insofar as it may affect trade between Member States. Such abuse may, in par ticular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading par ties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other par ties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Article III-163 The Council, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Ar ticles III161 and III162. It shall act after consulting the European Parliament. C 310/70 Official Journal of the European Union 16.12.2004 EN Such regulations shall be designed in par ticular: (a) to ensure compliance with the prohibitions laid down in Ar ticle III-161(1) and in Ar ticle III-162 by making provision for fines and periodic penalty payments; (b) to lay down detailed rules for the application of Ar ticle III-161(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other; (c) to define, if need be, in the various branches of the economy, the scope of Ar ticles III-161 and III- 162; (d) to define the respective functions of the Commission and of the Cour t of Justice of the European Union in applying the provisions laid down in this paragraph; (e) to determine the relationship between Member States' laws and this Subsection as well as the European regulations adopted pursuant to this Ar ticle. Article III-164 Until the entry into force of the European regulations adopted pursuant to Ar ticle III-163, the authorities in Member States shall rule on the admissibility of agreements, decisions and concer ted practices and on abuse of a dominant position in the internal market in accordance with their national law and Ar ticle III-161, in par ticular paragraph 3, and Ar ticle III-162. Article III-165 1. Without prejudice to Ar ticle III-164, the Commission shall ensure the application of the principles set out in Ar ticles III-161 and III-162. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end. 2. If the infringement referred to in paragraph 1 is not brought to an end, the Commission shall adopt a reasoned European decision recording the infringement of the principles. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation. 3. The Commission may adopt European regulations relating to the categories of agreement in respect of which the Council has adopted a European regulation pursuant to Ar ticle III-163, second paragraph, (b). Article III-166 1. In the case of public under takings and under takings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the Constitution, in par ticular Ar ticle I-4(2) and Ar ticles III-161 to III-169. 16.12.2004 Official Journal of the European Union C 310/71 EN 2. Under takings entrusted with the operation of ser vices of general economic interest or having the character of an income-producing monopoly shall be subject to the provisions of the Constitution, in par ticular to the rules on competition, insofar as the application of such provisions does not obstruct the performance, in law or in fact, of the par ticular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the Union's interests. 3. The Commission shall ensure the application of this Ar ticle and shall, where necessary, adopt appropriate European regulations or decisions. Subsection 2 Aid granted by Member States Article III-167 1. Save as other wise provided in the Constitution, any aid granted by a Member State or through State resources in any form whatsoever which distor ts or threatens to distor t competition by favouring cer tain under takings or the production of cer tain goods shall, insofar as it affects trade between Member States, be incompatible with the internal market. 2. The following shall be compatible with the internal market: (a) aid having a social character, granted to individual consumers, provided that such aid is granted without discrimination related to the origin of the products concerned; (b) aid to make good the damage caused by natural disasters or exceptional occurrences; (c) aid granted to the economy of cer tain areas of the Federal Republic of Germany affected by the division of Germany, insofar as such aid is required in order to compensate for the economic disadvantages caused by that division. Five years after the entry into force of the Treaty establishing a Constitution for Europe, the Council, acting on a proposal from the Commission, may adopt a European decision repealing this point. 3. The following may be considered to be compatible with the internal market: (a) aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, and of the regions referred to in Ar ticle III-424, in view of their structural, economic and social situation; (b) aid to promote the execution of an impor tant project of common European interest or to remedy a serious disturbance in the economy of a Member State; (c) aid to facilitate the development of cer tain economic activities or of cer tain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest; C 310/72 Official Journal of the European Union 16.12.2004 EN (d) aid to promote culture and heritage conser vation where such aid does not affect trading conditions and competition in the Union to an extent that is contrary to the common interest; (e) such other categories of aid as may be specified by European regulations or decisions adopted by the Council on a proposal from the Commission. Article III-168 1. The Commission, in cooperation with Member States, shall keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the internal market. 2. If, after giving notice to the par ties concerned to submit their comments, the Commission finds that aid granted by a Member State or through State resources is not compatible with the internal market having regard to Ar ticle III-167, or that such aid is being misused, it shall adopt a European decision requiring the Member State concerned to abolish or alter such aid within a period of time to be determined by the Commission. If the Member State concerned does not comply with this European decision within the prescribed time, the Commission or any other interested Member State may, in derogation from Ar ticles III-360 and III-361, refer the matter to the Cour t of Justice of the European Union directly. On application by a Member State, the Council may adopt unanimously a European decision that aid which that State is granting or intends to grant shall be considered to be compatible with the internal market, in derogation from Ar ticle III-167 or from European regulations provided for in Ar ticle III- 169, if such a decision is justified by exceptional circumstances. If, as regards the aid in question, the Commission has already initiated the procedure provided for in the first subparagraph of this paragraph, the fact that the Member State concerned has made its application to the Council shall have the effect of suspending that procedure until the Council has made its attitude known. If, however, the Council has not made its attitude known within three months of the said application being made, the Commission shall act. 3. The Commission shall be informed by the Member States, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the internal market having regard to Ar ticle III-167, it shall without delay initiate the procedure provided for in paragraph 2 of this Ar ticle. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision. 4. The Commission may adopt European regulations relating to the categories of State aid that the Council has, pursuant to Ar ticle III-169, determined may be exempted from the procedure provided for by paragraph 3 of this Ar ticle. 16.12.2004 Official Journal of the European Union C 310/73 EN Article III-169 The Council, on a proposal from the Commission, may adopt European regulations for the application of Ar ticles III-167 and III-168 and for determining in par ticular the conditions in which Ar ticle III-168(3) shall apply and the categories of aid exempted from the procedure provided for in Ar ticle 168(3). It shall act after consulting the European Parliament. SECTION 6 FISCAL PROVISIONS Article III-170 1. No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Fur thermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products. 2. Where products are expor ted by a Member State to the territory of another Member State, any repayment of internal taxation shall not exceed the internal taxation imposed on them whether directly or indirectly. 3. In the case of charges other than turnover taxes, excise duties and other forms of indirect taxation, remissions and repayments in respect of expor ts to other Member States may not be granted and counter vailing charges in respect of impor ts from Member States may not be imposed unless the provisions contemplated have been previously approved for a limited period by a European decision adopted by the Council on a proposal from the Commission. Article III-171 A European law or framework law of the Council shall establish measures for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation provided that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distor tion of competition. The Council shall act unanimously after consulting the European Parliament and the Economic and Social Committee. SECTION 7 COMMON PROVISIONS Article III-172 1. Save where other wise provided in the Constitution, this Ar ticle shall apply for the achievement of the objectives set out in Ar ticle III-130. European laws or framework laws shall establish measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. C 310/74 Official Journal of the European Union 16.12.2004 EN Such laws shall be adopted after consultation of the Economic and Social Committee. 2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of persons or to those relating to the rights and interests of employed persons. 3. The Commission, in its proposals submitted under paragraph 1 concerning health, safety, environmental protection and consumer protection, shall take as a base a high level of protection, taking account in par ticular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council shall also seek to achieve this objective. 4. If, after the adoption of a harmonisation measure by means of a European law or framework law or by means of a European regulation of the Commission, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Ar ticle III-154, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them. 5. Moreover, without prejudice to paragraph 4, if, after the adoption of a harmonisation measure by means of a European law or framework law or by means of a European regulation of the Commission, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions and the reasons for them. 6. The Commission shall, within six months of the notifications referred to in paragraphs 4 and 5, adopt a European decision approving or rejecting the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they constitute an obstacle to the functioning of the internal market. In the absence of a decision by the Commission within this period the national provisions referred to in paragraphs 4 and 5 shall be deemed to have been approved. When justified by the complexity of the matter and in the absence of danger to human health, the Commission may notify the Member State concerned that the period referred to in this paragraph will be extended for a fur ther period of up to six months. 7. When, pursuant to paragraph 6, a Member State is authorised to maintain or introduce national provisions derogating from a harmonisation measure, the Commission shall immediately examine whether to propose an adaptation to that measure. 8. When a Member State raises a specific problem on public health in a field which has been the subject of prior harmonisation measures, it shall bring it to the attention of the Commission which shall immediately examine whether to propose appropriate measures. 9. By way of derogation from the procedure laid down in Ar ticles III-360 and III-361, the Commission and any Member State may bring the matter directly before the Cour t of Justice of the European Union if it considers that another Member State is making improper use of the powers provided for in this Ar ticle. 16.12.2004 Official Journal of the European Union C 310/75 EN 10. The harmonisation measures referred to in this Ar ticle shall, in appropriate cases, include a safeguard clause authorising the Member States to take, for one or more of the noneconomic reasons referred to in Ar ticle III-154, provisional measures subject to a Union control procedure. Article III-173 Without prejudice to Ar ticle III-172, a European framework law of the Council shall establish measures for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market. The Council shall act unanimously after consulting the European Parliament and the Economic and Social Committee. Article III-174 Where the Commission finds that a difference between the provisions laid down by law, regulation or administrative action in Member States is distor ting the conditions of competition in the internal market and that the resultant distor tion needs to be eliminated, it shall consult the Member States concerned. If such consultation does not result in agreement, European framework laws shall establish the measures necessary to eliminate the distor tion in question. Any other appropriate measures provided for in the Constitution may be adopted. Article III-175 1. Where there is reason to fear that the adoption or amendment of a provision laid down by law, regulation or administrative action of a Member State may cause distor tion within the meaning of Ar ticle III-174, a Member State desiring to proceed therewith shall consult the Commission. After consulting the Member States, the Commission shall address to the Member States concerned a recommendation on such measures as may be appropriate to avoid the distortion in question. 2. If a Member State desiring to introduce or amend its own provisions does not comply with the recommendation addressed to it by the Commission, other Member States shall not be required, pursuant to Ar ticle III-174, to amend their own provisions in order to eliminate such distor tion. If the Member State which has ignored the recommendation of the Commission causes distor tion detrimental only to itself, Ar ticle III-174 shall not apply. Article III-176 In the context of the establishment and functioning of the internal market, European laws or framework laws shall establish measures for the creation of European intellectual proper ty rights to provide uniform intellectual proper ty rights protection throughout the Union and for the setting up of centralised Unionwide authorisation, coordination and super vision arrangements. A European law of the Council shall establish language arrangements for the European intellectual proper ty rights. The Council shall act unanimously after consulting the European Parliament. C 310/76 Official Journal of the European Union 16.12.2004 EN CHAPTER II ECONOMIC AND MONETARY POLICY Article III-177 For the purposes set out in Ar ticle I-3, the activities of the Member States and the Union shall include, as provided in the Constitution, the adoption of an economic policy which is based on the close coordination of Member States' economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition. Concurrently with the foregoing, and as provided in the Constitution and in accordance with the procedures set out therein, these activities shall include a single currency, the euro, and the definition and conduct of a single monetary policy and exchange-rate policy, the primary objective of both of which shall be to maintain price stability and, without prejudice to this objective, to suppor t general economic policies in the Union, in accordance with the principle of an open market economy with free competition. These activities of the Member States and the Union shall entail compliance with the following guiding principles: stable prices, sound public finances and monetary conditions and a stable balance of payments. SECTION 1 ECONOMIC POLICY Article III-178 Member States shall conduct their economic policies in order to contribute to the achievement of the Union's objectives, as defined in Ar ticle I-3, and in the context of the broad guidelines referred to in Ar ticle III-179(2). The Member States and the Union shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Ar ticle III-177. Article III-179 1. Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council, in accordance with Ar ticle III-178. 2. The Council, on a recommendation from the Commission, shall formulate a draft for the broad guidelines of the economic policies of the Member States and of the Union, and shall repor t its findings to the European Council. The European Council, on the basis of the repor t from the Council, shall discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Union. On the basis of this conclusion, the Council shall adopt a recommendation setting out these broad guidelines. It shall inform the European Parliament of its recommendation. 16.12.2004 Official Journal of the European Union C 310/77 EN 3. In order to ensure closer coordination of economic policies and sustained convergence of the economic performances of the Member States, the Council, on the basis of repor ts submitted by the Commission, shall monitor economic developments in each of the Member States and in the Union, as well as the consistency of economic policies with the broad guidelines referred to in paragraph 2, and shall regularly carry out an overall assessment. For the purpose of this multilateral surveillance, Member States shall forward information to the Commission on impor tant measures taken by them in the field of their economic policy and such other information as they deem necessary. 4. Where it is established, under the procedure referred to in paragraph 3, that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardising the proper functioning of economic and monetary union, the Commission may address a warning to the Member State concerned. The Council, on a recommendation from the Commission, may address the necessary recommendations to the Member State concerned. The Council, on a proposal from the Commission, may decide to make its recommendations public. Within the scope of this paragraph, the Council shall act without taking into account the vote of the member of the Council representing the Member State concerned. A qualified majority shall be defined as at least 55 % of the other members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. A blocking minority must include at least the minimum number of these other Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 5. The President of the Council and the Commission shall repor t to the European Parliament on the results of multilateral sur veillance. The President of the Council may be invited to appear before the competent committee of the European Parliament if the Council has made its recommendations public. 6. European laws may lay down detailed rules for the multilateral surveillance procedure referred to in paragraphs 3 and 4. Article III-180 1. Without prejudice to any other procedures provided for in the Constitution, the Council, on a proposal from the Commission, may adopt a European decision laying down measures appropriate to the economic situation, in par ticular if severe difficulties arise in the supply of cer tain products. 2. Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may adopt a European decision granting, under cer tain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision adopted. C 310/78 Official Journal of the European Union 16.12.2004 EN Article III-181 1. Overdraft facilities or any other type of credit facility with the European Central Bank or with the central banks of the Member States (hereinafter referred to as `national central banks') in favour of Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public under takings of Member States shall be prohibited, as shall the purchase directly from them by the European Central Bank or national central banks of debt instruments. 2. Paragraph 1 shall not apply to publicly owned credit institutions which, in the context of the supply of reser ves by central banks, shall be given the same treatment by national central banks and the European Central Bank as private credit institutions. Article III-182 Any measure or provision, not based on prudential considerations, establishing privileged access by Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public under takings of Member States to financial institutions shall be prohibited. Article III-183 1. The Union shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public under takings of any Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project. A Member State shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public under takings of another Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project. 2. The Council, on a proposal from the Commission, may adopt European regulations or decisions specifying definitions for the application of the prohibitions laid down in Ar ticles III-181 and III-182 and in this Ar ticle. It shall act after consulting the European Parliament. Article III-184 1. Member States shall avoid excessive government deficits. 2. The Commission shall monitor the development of the budgetary situation and of the stock of government debt in the Member States in order to identify gross errors. In par ticular it shall examine compliance with budgetary discipline on the basis of the following two criteria: (a) whether the ratio of the planned or actual government deficit to gross domestic product exceeds a reference value, unless: (i) either the ratio has declined substantially and continuously and reached a level that comes close to the reference value, or 16.12.2004 Official Journal of the European Union C 310/79 EN (ii) alternatively, the excess over the reference value is only exceptional and temporary and the ratio remains close to the reference value; (b) whether the ratio of government debt to gross domestic product exceeds a reference value, unless the ratio is diminishing sufficiently and approaching the reference value at a satisfactory pace. The reference values are specified in the Protocol on the excessive deficit procedure. 3. If a Member State does not fulfil the requirements under one or both of these criteria, the Commission shall prepare a repor t. The Commission's repor t shall also take into account whether the government deficit exceeds government investment expenditure and take into account all other relevant factors, including the mediumterm economic and budgetary position of the Member State. The Commission may also prepare a repor t if, notwithstanding the fulfilment of the requirements under the criteria, it is of the opinion that there is a risk of an excessive deficit in a Member State. 4. The Economic and Financial Committee set up under Ar ticle III-192 shall formulate an opinion on the Commission's repor t. 5. If the Commission considers that an excessive deficit in a Member State exists or may occur, it shall address an opinion to the Member State concerned and shall inform the Council accordingly. 6. The Council shall, on a proposal from the Commission, having considered any observations which the Member State concerned may wish to make and after an overall assessment, decide whether an excessive deficit exists. In that case it shall adopt, without undue delay, on a recommendation from the Commission, recommendations addressed to the Member State concerned with a view to bringing that situation to an end within a given period. Subject to paragraph 8, those recommendations shall not be made public. Within the scope of this paragraph, the Council shall act without taking into account the vote of the member of the Council representing the Member State concerned. A qualified majority shall be defined as at least 55 % of the other members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. A blocking minority must include at least the minimum number of these other Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 7. The Council, on a recommendation from the Commission, shall adopt the European decisions and recommendations referred to in paragraphs 8 to 11. It shall act without taking into account the vote of the member of the Council representing the Member State concerned. A qualified majority shall be defined as at least 55 % of the other members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. C 310/80 Official Journal of the European Union 16.12.2004 EN A blocking minority must include at least the minimum number of these other Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 8. Where it adopts a European decision establishing that there has been no effective action in response to its recommendations within the period laid down, the Council may make its recommendations public. 9. If a Member State persists in failing to put the Council's recommendations into practice, the Council may adopt a European decision giving notice to the Member State to take, within a specified time-limit, measures for the deficit reduction which the Council judges necessary to remedy the situation. In such a case, the Council may request the Member State concerned to submit repor ts in accordance with a specific timetable in order to examine the adjustment effor ts of that Member State. 10. As long as a Member State fails to comply with a European decision adopted in accordance with paragraph 9, the Council may decide to apply or, as the case may be, intensify one or more of the following measures: (a) require the Member State concerned to publish additional information, to be specified by the Council, before issuing bonds and securities; (b) invite the European Investment Bank to reconsider its lending policy towards the Member State concerned; (c) require the Member State concerned to make a non-interest-bearing deposit of an appropriate size with the Union until the Council considers that the excessive deficit has been corrected; (d) impose fines of an appropriate size. The President of the Council shall inform the European Parliament of the measures adopted. 11. The Council shall repeal some or all of the measures referred to in paragraph 6 and paragraphs 8, 9 and 10 if it considers the excessive deficit in the Member State concerned to have been corrected. If the Council has previously made public recommendations, it shall state publicly, as soon as the European decision referred to in paragraph 8 has been repealed, that there is no longer an excessive deficit in the Member State concerned. 12. The rights to bring actions provided for in Ar ticles III-360 and III-361 shall not be exercised within the framework of paragraphs 1 to 6 or paragraphs 8 and 9. 13. Fur ther provisions relating to the implementation of the procedure laid down in this Ar ticle are set out in the Protocol on the excessive deficit procedure. A European law of the Council shall lay down the appropriate measures to replace the said Protocol. The Council shall act unanimously after consulting the European Parliament and the European Central Bank. 16.12.2004 Official Journal of the European Union C 310/81 EN Subject to the other provisions of this paragraph, the Council, on a proposal from the Commission, shall adopt European regulations or decisions laying down detailed rules and definitions for the application of the said Protocol. It shall act after consulting the European Parliament. SECTION 2 MONETARY POLICY Article III-185 1. The primary objective of the European System of Central Banks shall be to maintain price stability. Without prejudice to this objective, the European System of Central Banks shall suppor t the general economic policies in the Union in order to contribute to the achievement of its objectives as laid down in Ar ticle I-3. The European System of Central Banks shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Ar ticle III-177. 2. The basic tasks to be carried out through the European System of Central Banks shall be: (a) to define and implement the Union's monetary policy; (b) to conduct foreign-exchange operations consistent with Ar ticle III-326; (c) to hold and manage the official foreign reser ves of the Member States; (d) to promote the smooth operation of payment systems. 3. Paragraph 2(c) shall be without prejudice to the holding and management by the governments of Member States of foreign-exchange working balances. 4. The European Central Bank shall be consulted: (a) on any proposed Union act in areas within its powers; (b) by national authorities regarding any draft legislative provision in areas within its powers, but within the limits and under the conditions set out by the Council in accordance with the procedure laid down in Ar ticle III-187(4). The European Central Bank may submit opinions to the Union institutions, bodies, offices or agencies or to national authorities on matters within its powers. 5. The European System of Central Banks shall contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential super vision of credit institutions and the stability of the financial system. C 310/82 Official Journal of the European Union 16.12.2004 EN 6. A European law of the Council may confer specific tasks upon the European Central Bank concerning policies relating to the prudential super vision of credit institutions and other financial institutions with the exception of insurance under takings. The Council shall act unanimously after consulting the European Parliament and the European Central Bank. Article III-186 1. The European Central Bank shall have the exclusive right to author ise the issue of euro bank notes in the Union. The European Central Bank and the national central banks may issue such notes. Only the bank notes issued by the European Central Bank and the national central banks shall have the status of legal tender within the Union. 2. Member States may issue euro coins subject to approval by the European Central Bank of the volume of the issue. The Council, on a proposal from the Commission, may adopt European regulations laying down measures to harmonise the denominations and technical specifications of coins intended for circulation to the extent necessary to permit their smooth circulation within the Union. The Council shall act after consulting the European Parliament and the European Central Bank. Article III-187 1. The European System of Central Banks shall be governed by the decision-making bodies of the European Central Bank, which shall be the Governing Council and the Executive Board. 2. The Statute of the European System of Central Banks is laid down in the Protocol on the Statute of the European System of Central Banks and of the European Central Bank. 3. Ar ticle 5(1), (2) and (3), Ar ticles 17 and 18, Ar ticle 19(1), Ar ticles 22, 23, 24 and 26, Ar ticle 32(2), (3), (4) and (6), Ar ticle 33(1)(a) and Ar ticle 36 of the Statute of the European System of Central Banks and of the European Central Bank may be amended by European laws: (a) either on a proposal from the Commission and after consultation of the European Central Bank; (b) or on a recommendation from the European Central Bank and after consultation of the Commission. 4. The Council shall adopt the European regulations and decisions laying down the measures referred to in Ar ticle 4, Ar ticle 5(4), Ar ticle 19(2), Ar ticle 20, Ar ticle 28(1), Ar ticle 29(2), Ar ticle 30(4) and Ar ticle 34(3) of the Statute of the European System of Central Banks and of the European Central Bank. It shall act after consulting the European Parliament: (a) either on a proposal from the Commission and after consulting the European Central Bank; (b) or on a recommendation from the European Central Bank and after consulting the Commission. 16.12.2004 Official Journal of the European Union C 310/83 EN Article III-188 When exercising the powers and carrying out the tasks and duties conferred upon them by the Constitution and the Statute of the European System of Central Banks and of the European Central Bank, neither the European Central Bank, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions from Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The Union institutions, bodies, offices or agencies and the governments of the Member States under take to respect this principle and not to seek to inf luence the members of the decision-making bodies of the European Central Bank or of the national central banks in the performance of their tasks. Article III-189 Each Member State shall ensure that its national legislation, including the statutes of its national central bank, is compatible with the Constitution and the Statute of the European System of Central Banks and of the European Central Bank. Article III-190 1. In order to carry out the tasks entrusted to the European System of Central Banks, the European Central Bank shall, in accordance with the Constitution and under the conditions laid down in the Statute of the European System of Central Banks and of the European Central Bank, adopt: (a) European regulations to the extent necessary to implement the tasks defined in Ar ticle 3(1)(a), Ar ticle 19(1), Ar ticle 22 and Ar ticle 25(2) of the Statute of the European System of Central Banks and of the European Central Bank and in cases which shall be laid down in European regulations and decisions as referred to in Ar ticle III-187(4); (b) European decisions necessary for carrying out the tasks entrusted to the European System of Central Banks under the Constitution and the Statute of the European System of Central Banks and of the European Central Bank; (c) recommendations and opinions. 2. The European Central Bank may decide to publish its European decisions, recommendations and opinions. 3. The Council shall, under the procedure laid down in Ar ticle III-187(4), adopt the European regulations establishing the limits and conditions under which the European Central Bank shall be entitled to impose fines or periodic penalty payments on under takings for failure to comply with obligations under its European regulations and decisions. C 310/84 Official Journal of the European Union 16.12.2004 EN Article III-191 Without prejudice to the powers of the European Central Bank, European laws or framework laws shall lay down the measures necessary for use of the euro as the single currency. Such laws or framework laws shall be adopted after consultation of the European Central Bank. SECTION 3 INSTITUTIONAL PROVISIONS Article III-192 1. In order to promote coordination of the policies of Member States to the full extent needed for the functioning of the internal market, an Economic and Financial Committee is hereby set up. 2. The Committee shall have the following tasks: (a) to deliver opinions at the request of the Council or of the Commission, or on its own initiative, for submission to those institutions; (b) to keep under review the economic and financial situation of the Member States and of the Union and to repor t on it regularly to the Council and to the Commission, in par ticular with regard to financial relations with third countries and international institutions; (c) without prejudice to Ar ticle III-344, to contribute to the preparation of the work of the Council referred to in Ar ticle III-159, Ar ticle III-179(2), (3), (4) and (6), Ar ticles III-180, III-183 and III- 184, Ar ticle III-185(6), Ar ticle III-186(2), Ar ticle III-187(3) and (4), Ar ticles III-191 and III-196, Ar ticle III-198(2) and (3), Ar ticle III-201, Ar ticle III-202(2) and (3) and Ar ticles III-322 and III- 326, and to carry out other advisory and preparatory tasks assigned to it by the Council; (d) to examine, at least once a year, the situation regarding the movement of capital and the freedom of payments, as they result from the application of the Constitution and of Union acts; the examination shall cover all measures relating to capital movements and payments; the Committee shall repor t to the Commission and to the Council on the outcome of this examination. The Member States, the Commission and the European Central Bank shall each appoint no more than two members of the Committee. 3. The Council, on a proposal from the Commission, shall adopt a European decision laying down detailed provisions concerning the composition of the Economic and Financial Committee. It shall act after consulting the European Central Bank and the Committee. The President of the Council shall inform the European Parliament of that decision. 16.12.2004 Official Journal of the European Union C 310/85 EN 4. In addition to the tasks referred to in paragraph 2, if and as long as there are Member States with a derogation as referred to in Ar ticle III-197, the Committee shall keep under review the monetary and financial situation and the general payments system of those Member States and repor t regularly to the Council and to the Commission on the matter. Article III-193 For matters within the scope of Ar ticle III-179(4), Ar ticle III-184 with the exception of paragraph 13, Ar ticles III-191, III-196, Ar ticle III-198(3) and Ar ticle III-326, the Council or a Member State may request the Commission to make a recommendation or a proposal, as appropriate. The Commission shall examine this request and submit its conclusions to the Council without delay. SECTION 4 PROVISIONS SPECIFIC TO MEMBER STATES WHOSE CURRENCY IS THE EURO Article III-194 1. In order to ensure the proper functioning of economic and monetary union, and in accordance with the relevant provisions of the Constitution, the Council shall, in accordance with the relevant procedure from among those referred to in Ar ticles III-179 and III-184, with the exception of the procedure set out in Ar ticle III-184(13), adopt measures specific to those Member States whose currency is the euro: (a) to strengthen the coordination and surveillance of their budgetary discipline; (b) to set out economic policy guidelines for them, while ensuring that they are compatible with those adopted for the whole of the Union and are kept under surveillance. 2. For those measures set out in paragraph 1, only members of the Council representing Member States whose currency is the euro shall take par t in the vote. A qualified majority shall be defined as at least 55 % of these members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. A blocking minority must include at least the minimum number of these Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. Article III-195 Arrangements for meetings between ministers of those Member States whose currency is the euro are laid down by the Protocol on the Euro Group. C 310/86 Official Journal of the European Union 16.12.2004 EN Article III-196 1. In order to secure the euro's place in the international monetary system, the Council, on a proposal from the Commission, shall adopt a European decision establishing common positions on matters of par ticular interest for economic and monetary union within the competent international financial institutions and conferences. The Council shall act after consulting the European Central Bank. 2. The Council, on a proposal from the Commission, may adopt appropriate measures to ensure unified representation within the international financial institutions and conferences. The Council shall act after consulting the European Central Bank. 3. For the measures referred to in paragraphs 1 and 2, only members of the Council representing Member States whose currency is the euro shall take par t in the vote. A qualified majority shall be defined as at least 55 % of these members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. A blocking minority must include at least the minimum number of these Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. SECTION 5 TRANSITIONAL PROVISIONS Article III-197 1. Member States in respect of which the Council has not decided that they fulfil the necessary conditions for the adoption of the euro shall hereinafter be referred to as `Member States with a derogation'. 2. The following provisions of the Constitution shall not apply to Member States with a derogation: (a) adoption of the par ts of the broad economic policy guidelines which concern the euro area generally (Ar ticle III-179(2)); (b) coercive means of remedying excessive deficits (Ar ticle III-184(9) and (10)); (c) the objectives and tasks of the European System of Central Banks (Ar ticle III-185(1), (2), (3) and (5)); (d) issue of the euro (Article III-186); (e) acts of the European Central Bank (Ar ticle III-190); 16.12.2004 Official Journal of the European Union C 310/87 EN (f) measures governing the use of the euro (Ar ticle III-191); (g) monetary agreements and other measures relating to exchange-rate policy (Article III-326); (h) appointment of members of the Executive Board of the European Central Bank (Ar ticle III-382 (2)); (i) European decisions establishing common positions on issues of par ticular relevance for economic and monetary union within the competent international financial institutions and conferences (Ar ticle III-196(1)); (j) measures to ensure unified representation within the international financial institutions and conferences (Ar ticle III-196(2)). In the Ar ticles referred to in points (a) to (j), `Member States' shall therefore mean Member States whose currency is the euro. 3. Under Chapter IX of the Statute of the European System of Central Banks and of the European Central Bank, Member States with a derogation and their national central banks are excluded from rights and obligations within the European System of Central Banks. 4. The voting rights of members of the Council representing Member States with a derogation shall be suspended for the adoption by the Council of the measures referred to in the Ar ticles listed in paragraph 2, and in the following instances: (a) recommendations made to those Member States whose currency is the euro in the framework of multilateral sur veillance, including on stability programmes and warnings (Ar ticle III-179(4)); (b) measures relating to excessive deficits concerning those Member States whose currency is the euro (Ar ticle III-184(6), (7), (8) and (11)). A qualified majority shall be defined as at least 55 % of the other members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. A blocking minority must include at least the minimum number of these other Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. C 310/88 Official Journal of the European Union 16.12.2004 EN Article III-198 1. At least once every two years, or at the request of a Member State with a derogation, the Commission and the European Central Bank shall repor t to the Council on the progress made by the Member States with a derogation in fulfilling their obligations regarding the achievement of economic and monetary union. These repor ts shall include an examination of the compatibility between the national legislation of each of these Member States, including the statutes of its national central bank, and Ar ticles III-188 and III-189 and the Statute of the European System of Central Banks and of the European Central Bank. The repor ts shall also examine whether a high degree of sustainable convergence has been achieved, by analysing how far each of these Member States has fulfilled the following criteria: (a) the achievement of a high degree of price stability; this is apparent from a rate of inf lation which is close to that of, at most, the three best performing Member States in terms of price stability; (b) the sustainability of the government financial position; this is apparent from having achieved a government budgetary position without a deficit that is excessive as determined in accordance with Ar ticle III-184(6); (c) the obser vance of the normal f luctuation margins provided for by the exchange-rate mechanism of the European monetary system, for at least two years, without devaluing against the euro; (d) the durability of convergence achieved by the Member State with a derogation and of its par ticipation in the exchange-rate mechanism, being ref lected in the long-term interest-rate levels. The four criteria laid down in this paragraph and the relevant periods over which they are to be respected are developed fur ther in the protocol on the convergence criteria. the repor ts from the commission and the european central bank shall also take account of the results of the integration of markets, the situation and development of the balances of payments on current account and an examination of the development of unit labour costs and other price indices. 2. After consulting the European Parliament and after discussion in the European Council, the Council, on a proposal from the Commission, shall adopt a European decision establishing which Member States with a derogation fulfil the necessary conditions on the basis of the criteria laid down in paragraph 1, and shall abrogate the derogations of the Member States concerned. The Council shall act having received a recommendation of a qualified majority of those among its members representing Member States whose currency is the euro. These members shall act within six months of the Council receiving the Commission's proposal. The qualified majority referred to in the second subparagraph shall be defined as at least 55 % of these members of the Council, representing Member States comprising at least 65 % of the population of the par ticipating Member States. A blocking minority must include at least the minimum number of these Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 16.12.2004 Official Journal of the European Union C 310/89 EN 3. If it is decided, in accordance with the procedure set out in paragraph 2, to abrogate a derogation, the Council shall, on a proposal from the Commission, adopt the European regulations or decisions irrevocably fixing the rate at which the euro is to be substituted for the currency of the Member State concerned, and laying down the other measures necessary for the introduction of the euro as the single currency in that Member State. The Council shall act with the unanimous agreement of the members representing Member States whose currency is the euro and the Member State concerned, after consulting the European Central Bank. Article III-199 1. If and as long as there are Member States with a derogation, and without prejudice to Ar ticle III- 187(1), the General Council of the European Central Bank referred to in Ar ticle 45 of the Statute of the European System of Central Banks and of the European Central Bank shall be constituted as a third decision-making body of the European Central Bank. 2. If and as long as there are Member States with a derogation, the European Central Bank shall, as regards those Member States: (a) strengthen cooperation between the national central banks; (b) strengthen the coordination of the monetary policies of the Member States, with the aim of ensuring price stability; (c) monitor the functioning of the exchange-rate mechanism; (d) hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets; (e) carry out the former tasks of the European Monetary Cooperation Fund which had subsequently been taken over by the European Monetary Institute. Article III-200 Each Member State with a derogation shall treat its exchange-rate policy as a matter of common interest. In so doing, it shall take account of the experience acquired in cooperation within the framework of the exchange-rate mechanism. Article III-201 1. Where a Member State with a derogation is in difficulties or is seriously threatened with difficulties as regards its balance of payments either as a result of an overall disequilibrium in its balance of payments, or as a result of the type of currency at its disposal, and where such difficulties are liable in par ticular to jeopardise the functioning of the internal market or the implementation of the common commercial policy, the Commission shall immediately investigate the position of the State in question and the action which, making use of all the means at its disposal, that State has taken or may take in accordance with the Constitution. The Commission shall state what measures it recommends the Member State concerned to adopt. If the action taken by a Member State with a derogation and the measures suggested by the Commission do not prove sufficient to overcome the difficulties which have arisen or which threaten, the Commission shall, after consulting the Economic and Financial Committee, recommend to the C 310/90 Official Journal of the European Union 16.12.2004 EN Council the granting of mutual assistance and appropriate methods. The Commission shall keep the Council regularly informed of the situation and of how it evolves. 2. The Council shall adopt European regulations or decisions granting such mutual assistance and laying down the conditions and details of such assistance, which may take such forms as: (a) a concer ted approach to or within any other international organisations to which Member States with a derogation may have recourse; (b) measures needed to avoid def lection of trade where the Member State with a derogation, which is in difficulties, maintains or reintroduces quantitative restrictions against third countries; (c) the granting of limited credits by other Member States, subject to their agreement. 3. If the mutual assistance recommended by the Commission is not granted by the Council or if the mutual assistance granted and the measures taken are insufficient, the Commission shall authorise the Member State with a derogation, which is in difficulties, to take protective measures, the conditions and details of which the Commission shall determine. Such authorisation may be revoked and such conditions and details may be changed by the Council. Article III-202 1. Where a sudden crisis in the balance of payments occurs and a European decision as referred to in Ar ticle III-201(2) is not immediately adopted, a Member State with a derogation may, as a precaution, take the necessary protective measures. Such measures must cause the least possible disturbance in the functioning of the internal market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen. 2. The Commission and the other Member States shall be informed of the protective measures referred to in paragraph 1 not later than when they enter into force. The Commission may recommend to the Council the granting of mutual assistance under Ar ticle III-201. 3. The Council, acting on a recommendation from the Commission and after consulting the Economic and Financial Committee may adopt a European decision stipulating that the Member State concerned shall amend, suspend or abolish the protective measures referred to in paragraph 1. 16.12.2004 Official Journal of the European Union C 310/91 EN CHAPTER III POLICIES IN OTHER AREAS SECTION 1 EMPLOYMENT Article III-203 The Union and the Member States shall, in accordance with this Section, work towards developing a coordinated strategy for employment and par ticularly for promoting a skilled, trained and adaptable workforce and labour markets responsive to economic change with a view to achieving the objectives referred to in Ar ticle I-3. Article III-204 1. Member States, through their employment policies, shall contribute to the achievement of the objectives referred to in Ar ticle III203 in a way consistent with the broad guidelines of the economic policies of the Member States and of the Union adopted pursuant to Ar ticle III-179(2). 2. Member States, having regard to national practices related to the responsibilities of management and labour, shall regard promoting employment as a matter of common concern and shall coordinate their action in this respect within the Council, in accordance with ar ticle III-206. Article III-205 1. The Union shall contribute to a high level of employment by encouraging cooperation between Member States and by suppor ting and, if necessary, complementing their action. In doing so, the competences of the Member States shall be respected. 2. The objective of a high level of employment shall be taken into consideration in the formulation and implementation of Union policies and activities. Article III-206 1. The European Council shall each year consider the employment situation in the Union and adopt conclusions thereon, on the basis of a joint annual repor t by the Council and the Commission. 2. On the basis of the conclusions of the European Council, the Council, on a proposal from the Commission, shall each year adopt guidelines which the Member States shall take into account in their employment policies. It shall act after consulting the European Parliament, the Committee of the Regions, the Economic and Social Committee and the Employment Committee. These guidelines shall be consistent with the broad guidelines adopted pursuant to Ar ticle III-179(2). C 310/92 Official Journal of the European Union 16.12.2004 EN 3. Each Member State shall provide the Council and the Commission with an annual repor t on the principal measures taken to implement its employment policy in the light of the guidelines for employment as referred to in paragraph 2. 4. The Council, on the basis of the repor ts referred to in paragraph 3 and having received the views of the Employment Committee, shall each year carry out an examination of the implementation of the employment policies of the Member States in the light of the guidelines for employment. The Council, on a recommendation from the Commission, may adopt recommendations which it shall address to Member States. 5. On the basis of the results of that examination, the Council and the Commission shall make a joint annual repor t to the European Council on the employment situation in the Union and on the implementation of the guidelines for employment. Article III-207 European laws or framework laws may establish incentive measures designed to encourage cooperation between Member States and to suppor t their action in the field of employment through initiatives aimed at developing exchanges of information and best practices, providing comparative analysis and advice as well as promoting innovative approaches and evaluating experiences, in par ticular by recourse to pilot projects. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. Such European laws or framework laws shall not include harmonisation of the laws and regulations of the Member States. Article III-208 The Council shall, by a simple majority, adopt a European decision establishing an Employment Committee with advisory status to promote coordination between Member States on employment and labour market policies. It shall act after consulting the European Parliament. The tasks of the Committee shall be: (a) to monitor the employment situation and employment policies in the Union and the Member States; (b) without prejudice to Ar ticle III-344, to formulate opinions at the request of either the Council or the Commission or on its own initiative, and to contribute to the preparation of the Council proceedings referred to in Ar ticle III-206. In fulfilling its mandate, the Committee shall consult management and labour. Each Member State and the Commission shall appoint two members of the Committee. 16.12.2004 Official Journal of the European Union C 310/93 EN SECTION 2 SOCIAL POLICY Article III-209 The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Char ter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. To this end the Union and the Member States shall act taking account of the diverse forms of national practices, in par ticular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy. They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Constitution and from the approximation of provisions laid down by law, regulation or administrative action of the Member States. Article III-210 1. With a view to achieving the objectives of Ar ticle III-209, the Union shall suppor t and complement the activities of the Member States in the following fields: (a) improvement in par ticular of the working environment to protect workers' health and safety; (b) working conditions; (c) social security and social protection of workers; (d) protection of workers where their employment contract is terminated; (e) the information and consultation of workers; (f) representation and collective defence of the interests of workers and employers, including co- determination, subject to paragraph 6; (g) conditions of employment for third-country nationals legally residing in Union territory; (h) the integration of persons excluded from the labour market, without prejudice to Ar ticle III-283; (i) equality between women and men with regard to labour market opportunities and treatment at work; (j) the combating of social exclusion; C 310/94 Official Journal of the European Union 16.12.2004 EN (k) the modernisation of social protection systems without prejudice to point (c). 2. For the purposes of paragraph 1: (a) European laws or framework laws may establish measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States; (b) in the fields referred to in paragraph 1(a) to (i), European framework laws may establish minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such European framework laws shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized under takings. In all cases, such European laws or framework laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. 3. By way of derogation from paragraph 2, in the fields referred to in paragraph 1(c), (d), (f) and (g), European laws or framework laws shall be adopted by the Council acting unanimously after consulting the European Parliament, the Committee of the Regions and the Economic and Social Committee. The Council may, on a proposal from the Commission, adopt a European decision making the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g). It shall act unanimously after consulting the European Parliament. 4. A Member State may entrust management and labour, at their joint request, with the implementation of European framework laws adopted pursuant to paragraphs 2 and 3 or, where appropriate, with the implementation of European regulations or decisions adopted in accordance with Ar ticle III-212. In this case, it shall ensure that, no later than the date on which a European framework law must be transposed, or a European regulation or decision implemented, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that framework law, regulation or decision. 5. The European laws and framework laws adopted pursuant to this Ar ticle: (a) shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium of such systems; (b) shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Constitution. 6. This Ar ticle shall not apply to pay, the right of association, the right to strike or the right to impose lockouts. 16.12.2004 Official Journal of the European Union C 310/95 EN Article III-211 1. The Commission shall promote the consultation of management and labour at Union level and shall adopt any relevant measure to facilitate their dialogue by ensuring balanced suppor t for the par ties. 2. For the purposes of paragraph 1, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Union action. 3. If, after the consultation referred to in paragraph 2, the Commission considers Union action desirable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall for ward to the Commission an opinion or, where appropriate, a recommendation. 4. On the occasion of the consultation referred to in paragraphs 2 and 3, management and labour may inform the Commission of their wish to initiate the process provided for in Ar ticle III-212(1). The duration of this process shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it. Article III-212 1. Should management and labour so desire, the dialogue between them at Union level may lead to contractual relations, including agreements. 2. Agreements concluded at Union level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Ar ticle III-210, at the joint request of the signatory par ties, by European regulations or decisions adopted by the Council on a proposal from the Commission. The European Parliament shall be informed. Where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Ar ticle III-210(3), the Council shall act unanimously. Article III-213 With a view to achieving the objectives of Ar ticle III-209 and without prejudice to the other provisions of the Constitution, the Commission shall encourage cooperation between the Member States and facilitate the coordination of their action in all social policy fields under this Section, par ticularly in matters relating to: (a) employment; (b) labour law and working conditions; (c) basic and advanced vocational training; (d) social security; (e) prevention of occupational accidents and diseases; C 310/96 Official Journal of the European Union 16.12.2004 EN (f) occupational hygiene; (g) the right of association and collective bargaining between employers and workers. To this end, the Commission shall act in close contact with Member States by making studies, delivering opinions and arranging consultations both on problems arising at national level and on those of concern to international organisations, in par ticular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed. Before delivering the opinions provided for in this Ar ticle, the Commission shall consult the Economic and Social Committee. Article III-214 1. Each Member State shall ensure that the principle of equal pay for female and male workers for equal work or work of equal value is applied. 2. For the purpose of this Ar ticle, `pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. 3. European laws or framework laws shall establish measures to ensure the application of the principle of equal oppor tunities and equal treatment of women and men in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. They shall be adopted after consultation of the Economic and Social Committee. 4. With a view to ensuring full equality in practice between women and men in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity, or to prevent or compensate for disadvantages in professional careers. Article III-215 Member States shall endeavour to maintain the existing equivalence between paid holiday schemes. 16.12.2004 Official Journal of the European Union C 310/97 EN Article III-216 The Commission shall draw up a repor t each year on progress in achieving the objectives of Ar ticle III-209, including the demographic situation within the Union. It shall forward the repor t to the European Parliament, the Council and the Economic and Social Committee. Article III-217 The Council shall, by a simple majority, adopt a European decision establishing a Social Protection Committee with advisory status to promote cooperation on social protection policies between M e m b e r S t a te s a n d w i t h t h e C o m m i s s i o n . T h e C o u n c i l s h a l l a c t a f t e r c o n s u l t i n g t h e European Parliament. The tasks of the Committee shall be: (a) to monitor the social situation and the development of social protection policies in the Member States and within the Union; (b) to promote exchanges of information, experience and good practice between Member States and with the Commission; (c) without prejudice to Ar ticle III-344, to prepare repor ts, formulate opinions or under take other work within the scope of its powers, at the request of either the Council or the Commission or on its own initiative. In fulfilling its mandate, the Committee shall establish appropriate contacts with management and labour. Each Member State and the Commission shall appoint two members of the Committee. Article III-218 The Commission shall include a separate chapter on social developments within the Union in its annual repor t to the European Parliament. The European Parliament may invite the Commission to draw up repor ts on any par ticular problems concerning social conditions. Article III-219 1. In order to improve employment oppor tunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in par ticular through vocational training and retraining. C 310/98 Official Journal of the European Union 16.12.2004 EN 2. The Commission shall administer the Fund. It shall be assisted in this task by a Committee presided over by a member of the Commission and composed of representatives of Member States, trade unions and employers' organisations. 3. European laws shall establish implementing measures relating to the Fund. Such laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. SECTION 3 ECONOMIC, SOCIAL AND TERRITORIAL COHESION Article III-220 In order to promote its overall harmonious development, the Union shall develop and pursue its action leading to the strengthening of its economic, social and territorial cohesion. In par ticular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. Among the regions concerned, par ticular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the nor thernmost regions with very low population density and island, crossborder and mountain regions. Article III-221 Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Ar ticle III-220. The formulation and implementation of the Union's policies and action and the implementation of the internal market shall take into account those objectives and shall contribute to their achievement. The Union shall also suppor t the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing financial instruments. The Commission shall submit a repor t to the European Parliament, the Council, the Committee of the Regions and the Economic and Social Committee every three years on the progress made towards achieving economic, social and territorial cohesion and on the manner in which the various means provided for in this Ar ticle have contributed to it. This repor t shall, if necessary, be accompanied by appropriate proposals. European laws or framework laws may establish any specific measure outside the Funds, without prejudice to measures adopted within the framework of the Union's other policies. They shall be a d o pte d a f t e r c o n s u l t a t i o n o f t h e C o m m i t t e e o f t h e R e g i o n s a n d t h e E c o n o m i c a n d Social Committee. 16.12.2004 Official Journal of the European Union C 310/99 EN Article III-222 The European Regional Development Fund is intended to help to redress the main regional imbalances in the Union through par ticipation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions. Article III-223 1. Without prejudice to ar ticle III-224, European laws shall define the tasks, the priority objectives and the organisation of the structural funds, which may involve grouping the Funds, the general rules applicable to them and the provisions necessary to ensure their effectiveness and the coordination of the Funds with one another and with the other existing Financial Instruments. A Cohesion Fund set up by a European law shall provide a financial contribution to projects in the fields of environment and transEuropean networks in the area of transpor t infrastructure. In all cases, such European laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. 2. The first provisions on the Structural Funds and the Cohesion Fund to be adopted following those in force on the date on which the Treaty establishing a Constitution for Europe is signed shall be established by a European law of the Council. The Council shall act unanimously after obtaining the consent of the European Parliament. Article III-224 European laws shall establish implementing measures relating to the European Regional Development Fund. Such laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. With regard to the European Agricultural Guidance and Guarantee Fund, Guidance Section, and the European Social Fund, Ar ticles III-231 and III-219(3) respectively shall apply. SECTION 4 AGRICULTURE AND FISHERIES Article III-225 The Union shall define and implement a common agriculture and fisheries policy. `Agricultural products' means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term `agricultural', shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector. C 310/100 Official Journal of the European Union 16.12.2004 EN Article III-226 1. The internal market shall extend to agriculture and trade in agricultural products. 2. Save as other wise provided in ar ticles III-227 to III-232, the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products. 3. The products listed in Annex I shall be subject to Ar ticles III-227 to III-232. 4. The operation and development of the internal market for agricultural products must be accompanied by a common agricultural policy. Article III-227 1. The objectives of the common agricultural policy shall be: (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in par ticular labour; (b) thus to ensure a fair standard of living for the agricultural community, in par ticular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices. 2. In working out the common agricultural policy and the special methods for its application, account shall be taken of: (a) the par ticular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions; (b) the need to effect the appropriate adjustments by degrees; (c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole. Article III-228 1. In order to attain the objectives set out in Ar ticle III-227, a common organisation of agricultural markets shall be established. This organisation shall take one of the following forms, depending on the product concerned: (a) common rules on competition; 16.12.2004 Official Journal of the European Union C 310/101 EN (b) compulsory coordination of the various national market organisations; (c) a European market organisation. 2. The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Ar ticle III-227, in par ticular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising impor ts or expor ts. The common organisation shall be limited to pursuit of the objectives set out in Ar ticle III-227 and shall exclude any discrimination between producers or consumers within the Union. Any common price policy shall be based on common criteria and uniform methods of calculation. 3. In order to enable the common organisation referred to in paragraph 1 to attain its objectives, one or more agricultural guidance and guarantee funds may be set up. Article III-229 To enable the objectives set out in Ar ticle III-227 to be attained, provision may be made within the framework of the common agricultural policy for measures such as: (a) an effective coordination of effor ts in the spheres of vocational training, of research and of the dissemination of agricultural knowledge; this may include joint financing of projects or institutions; (b) joint measures to promote consumption of cer tain products. Article III-230 1. The Section relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by European laws or framework laws in accordance with Ar ticle III-231(2), having regard to the objectives set out in Ar ticle III-227. 2. The Council, on a proposal from the Commission, may adopt a European regulation or decision authorising the granting of aid: (a) for the protection of enterprises handicapped by structural or natural conditions; (b) within the framework of economic development programmes. Article III-231 1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Ar ticle III-228(1), and for implementing the measures referred to in this Section. C 310/102 Official Journal of the European Union 16.12.2004 EN These proposals shall take account of the interdependence of the agricultural matters referred to in this Section. 2. European laws or framework laws shall establish the common organisation of the market provided for in Ar ticle III-228(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy. They shall be adopted after consultation of the Economic and Social Committee. 3. The Council, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing oppor tunities. 4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Ar ticle III-228(1) if: (a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time, and (b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market. 5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for expor t to third countries may be impor ted from outside the Union. Article III-232 Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a counter vailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a counter vailing charge on export. The Commission shall adopt European regulations or decisions fixing the amount of these charges at the level required to redress the balance. It may also authorise other measures, the conditions and details of which it shall determine. 16.12.2004 Official Journal of the European Union C 310/103 EN SECTION 5 ENVIRONMENT Article III-233 1. Union policy on the environment shall contribute to the pursuit of the following objectives: (a) preser ving, protecting and improving the quality of the environment; (b) protecting human health; (c) prudent and rational utilisation of natural resources; (d) promoting measures at international level to deal with regional or worldwide environmental problems. 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional steps, for noneconomic environmental reasons, subject to a procedure of inspection by the Union. 3. In preparing its policy on the environment, the Union shall take account of: (a) available scientific and technical data; (b) environmental conditions in the various regions of the Union; (c) the potential benefits and costs of action or lack of action; (d) the economic and social development of the Union as a whole and the balanced development of its regions. 4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for the Union's cooperation may be the subject of agreements between the Union and the third par ties concerned. The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements. C 310/104 Official Journal of the European Union 16.12.2004 EN Article III-234 1. European laws or framework laws shall establish what action is to be taken in order to achieve the objectives referred to in Ar ticle III-233. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. 2. By way of derogation from paragraph 1 and without prejudice to Ar ticle III-172, the Council shall unanimously adopt European laws or framework laws establishing: (a) provisions primarily of a fiscal nature; (b) measures affecting: (i) town and country planning; (ii) quantitative management of water resources or affecting, directly or indirectly, the availability of those resources; (iii) land use, with the exception of waste management; (c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply. The Council, on a proposal from the Commission, may unanimously adopt a European decision making the ordinary legislative procedure applicable to the matters referred to in the first subparagraph . In all cases, the Council shall act after consulting the European Parliament, the Committee of the Regions and the Economic and Social Committee. 3. European laws shall establish general action programmes which set out priority objectives to be attained. Such laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be. 4. Without prejudice to cer tain measures adopted by the Union, the Member States shall finance and implement the environment policy. 5. Without prejudice to the principle that the polluter should pay, if a measure based on paragraph 1 involves costs deemed dispropor tionate for the public authorities of a Member State, such measure shall provide in appropriate form for: (a) temporary derogations, and/or (b) financial suppor t from the Cohesion Fund. 16.12.2004 Official Journal of the European Union C 310/105 EN 6. The protective measures adopted pursuant to this Ar ticle shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Constitution. They shall be notified to the Commission. SECTION 6 CONSUMER PROTECTION Article III-235 1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests. 2. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through: (a) measures adopted pursuant to Ar ticle III-172 in the context of the establishment and functioning of the internal market; (b) measures which suppor t, supplement and monitor the policy pursued by the Member States. 3. European laws or framework laws shall establish the measures referred to in paragraph 2(b). Such laws shall be adopted after consultation of the Economic and Social Committee. 4. Acts adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective provisions. Such provisions must be compatible with the Constitution. They shall be notified to the Commission. SECTION 7 TRANSPORT Article III-236 1. The objectives of the Constitution shall, in matters governed by this Section, be pursued within the framework of a common transpor t policy. 2. European laws or framework laws shall implement paragraph 1, taking into account the distinctive features of transpor t. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. Such European laws or framework laws shall establish: (a) common rules applicable to international transpor t to or from the territory of a Member State or passing across the territory of one or more Member States; C 310/106 Official Journal of the European Union 16.12.2004 EN (b) the conditions under which nonresident carriers may operate transpor t ser vices within a Member State; (c) measures to improve transpor t safety; (d) any other appropriate measure. 3. When the European laws or framework laws referred to in paragraph 2 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in cer tain regions, and the operation of transpor t facilities. Article III-237 Until the European laws or framework laws referred to in Ar ticle III-236(2) have been adopted, no Member State may, unless the Council has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State. Article III-238 Aids shall be compatible with the Constitution if they meet the needs of coordination of transpor t or if they represent reimbursement for the discharge of cer tain obligations inherent in the concept of a public ser vice. Article III-239 Any measures adopted within the framework of the Constitution in respect of transpor t rates and conditions shall take account of the economic circumstances of carriers. Article III-240 1. In the case of transpor t within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transpor t links on grounds of the Member State of origin or of destination of the goods in question shall be prohibited. 2. Paragraph 1 shall not prevent the adoption of other European laws or framework laws pursuant to Ar ticle III-236(2). 3. The Council, on a proposal from the Commission, shall adopt European regulations or decisions for implementing paragraph 1. It shall act after consulting the European Parliament and the Economic and Social Committee. The Council may in par ticular adopt the European regulations and decisions needed to enable the institutions to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full. 16.12.2004 Official Journal of the European Union C 310/107 EN 4. The Commission, acting on its own initiative or on application by a Member State, shall investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, adopt the necessary European decisions within the framework of the European regulations and decisions referred to in paragraph 3. Article III-241 1. The imposition by a Member State, in respect of transpor t operations carried out within the Union, of rates and conditions involving any element of suppor t or protection in the interest of one or more par ticular under takings or industries shall be prohibited, unless authorised by a European decision of the Commission. 2. The Commission, acting on its own initiative or on application by a Member State, shall examine the rates and conditions referred to in paragraph 1, taking account in par ticular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transpor t on the other. After consulting each Member State concerned, the Commission shall adopt the necessary European decisions. 3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition. Article III-242 Charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transpor t rates shall not exceed a reasonable level after taking the costs actually incurred thereby into account. Member States shall endeavour to reduce these costs. The Commission may make recommendations to Member States for the application of this Ar ticle. Article III-243 The provisions of this Section shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of cer tain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty establishing a Constitution for Europe, the Council, acting on a proposal from the Commission, may adopt a European decision repealing this Ar ticle. Article III-244 An Advisory Committee consisting of exper ts designated by the governments of the Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transpor t matters. C 310/108 Official Journal of the European Union 16.12.2004 EN Article III-245 1. This Section shall apply to transpor t by rail, road and inland water way. 2. European laws or framework laws may lay down appropriate measures for sea and air transpor t. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. SECTION 8 TRANS-EUROPEAN NET WORKS Article III-246 1. To help achieve the objectives referred to in Ar ticles III-130 and III-220 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Union shall contribute to the establishment and development of trans-European networks in the areas of transpor t, telecommunications and energy infrastructures. 2. Within the framework of a system of open and competitive markets, action by the Union shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in par ticular of the need to link island, landlocked and peripheral regions with the central regions of the Union. Article III-247 1. In order to achieve the objectives referred to in Ar ticle III-246, the Union: (a) shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of transEuropean networks; these guidelines shall identify projects of common interest; (b) shall implement any measures that may prove necessary to ensure the interoperability of the networks, in par ticular in the field of technical standardisation; (c) may suppor t projects of common interest suppor ted by Member States, which are identified in the framework of the guidelines referred to in point (a), par ticularly through feasibility studies, loan guarantees or interest-rate subsidies; the Union may also contribute, through the Cohesion Fund, to the financing of specific projects in Member States in the area of transpor t infrastructure. The Union's activities shall take into account the potential economic viability of the projects. 2. European laws or framework laws shall establish the guidelines and other measures referred to in paragraph 1. Such laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. 16.12.2004 Official Journal of the European Union C 310/109 EN Guidelines and projects of common interest which relate to the territory of a Member State shall require the agreement of that Member State. 3. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Ar ticle III-246. The Commission may, in close cooperation with the Member States, take any useful initiative to promote such coordination. 4. The Union may cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks. SECTION 9 RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE Article III-248 1. The Union shall aim to strengthen its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encourage it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by vir tue of other Chapters of the Constitution. 2. For the purposes referred to in paragraph 1 the Union shall, throughout the Union, encourage under takings, including small and medium-sized under takings, research centres and universities in their research and technological development activities of high quality. It shall suppor t their effor ts to cooperate with one another, aiming, notably, at permitting researchers to cooperate freely across borders and at enabling under takings to exploit the internal market potential, in par ticular through the opening-up of national public contracts, the definition of common standards and the removal of legal and fiscal obstacles to that cooperation. 3. All the Union's activities in the area of research and technological development, including demonstration projects, shall be decided on and implemented in accordance with this Section. Article III-249 In pursuing the objectives referred to in Ar ticle III248, the Union shall carry out the following activities, complementing the activities carried out in the Member States: (a) implementation of research, technological development and demonstration programmes, by promoting cooperation with and between under takings, research centres and universities; (b) promotion of cooperation in the field of the Union's research, technological development and demonstration with third countries and international organisations; C 310/110 Official Journal of the European Union 16.12.2004 EN (c) dissemination and optimisation of the results of activities in the Union's research, technological development and demonstration; (d) stimulation of the training and mobility of researchers in the Union. Article III-250 1. The Union and the Member States shall coordinate their research and technological development activities so as to ensure that national policies and the Union's policy are mutually consistent. 2. In close cooperation with the Member States, the Commission may take any useful initiative to promote the coordination referred to in paragraph 1, in par ticular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed. Article III-251 1. European laws shall establish a multiannual framework programme, setting out all the activities financed by the Union. Such laws shall be adopted after consultation of the Economic and Social Committee. The framework programme shall: (a) establish the scientific and technological objectives to be achieved by the activities provided for in Ar ticle III-249 and lay down the relevant priorities; (b) indicate the broad lines of such activities; (c) lay down the maximum overall amount and the detailed rules for the Union's financial par ticipation in the framework programme and the respective shares in each of the activities provided for. 2. The multiannual framework programme shall be adapted or supplemented as the situation changes. 3. A European law of the Council shall establish specific programmes to implement the multiannual framework programme within each activity. Each specific programme shall define the detailed rules for implementing it, fix its duration and provide for the means deemed necessary. The sum of the amounts deemed necessary, fixed in the specific programmes, shall not exceed the overall maximum amount fixed for the framework programme and each activity. Such a law shall be adopted after consulting the European Parliament and the Economic and Social Committee. 4. As a complement to the activities planned in the multiannual framework programme, European laws shall establish the measures necessary for the implementation of the European research area. Such laws shall be adopted after consulting the Economic and Social Committee. 16.12.2004 Official Journal of the European Union C 310/111 EN Article III-252 1. For the implementation of the multiannual framework programme, European laws or framework laws shall establish: (a) the rules for the par ticipation of under takings, research centres and universities; (b) the rules governing the dissemination of research results. Such European laws or framework laws shall be adopted after consultation of the Economic and Social Committee. 2. In implementing the multiannual framework programme, European laws may establish supplementary programmes involving the par ticipation of cer tain Member States only, which shall finance them subject to possible par ticipation by the Union. Such European laws shall determine the rules applicable to supplementary programmes, par ticularly as regards the dissemination of knowledge as well as access by other Member States. They shall be adopted after consultation of the Economic and Social Committee and with the agreement of the Member States concerned. 3. In implementing the multiannual framework programme, European laws may make provision, in agreement with the Member States concerned, for par ticipation in research and development programmes under taken by several Member States, including par ticipation in the structures created for the execution of those programmes. Such European laws shall be adopted after consultation of the Economic and Social Committee. 4. In implementing the multiannual framework programme the Union may make provision for cooperation in the Union's research, technological development and demonstration with third countries or international organisations. The detailed arrangements for such cooperation may be the subject of agreements between the Union and the third par ties concerned. Article III-253 The Council, on a proposal from the Commission, may adopt European regulations or decisions to set up joint under takings or any other structure necessary for the efficient execution of the Union's research, technological development and demonstration programmes. It shall act after consulting the European Parliament and the Economic and Social Committee. Article III-254 1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, suppor t research and technological development and coordinate the effor ts needed for the exploration and exploitation of space. C 310/112 Official Journal of the European Union 16.12.2004 EN 2. To contribute to attaining the objectives referred to in paragraph 1, European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme. 3. The Union shall establish any appropriate relations with the European Space Agency. Article III-255 At the beginning of each year the Commission shall send a repor t to the European Parliament and the Council. The repor t shall include information on activities relating to research, technological development and the dissemination of results during the previous year, and the work programme for the current year. SECTION 10 ENERGY Article III-256 1. In the context of the establishment and functioning of the internal market and with regard for the need to preser ve and improve the environment, Union policy on energy shall aim to: (a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union, and (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy. 2. Without prejudice to the application of other provisions of the Constitution, the objectives in paragraph 1 shall be achieved by measures enacted in European laws or framework laws. Such laws or framework laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. Such European laws or framework laws shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Ar ticle III-234(2)(c). 3. By way of derogation from paragraph 2, a European law or framework law of the Council shall establish the measures referred to therein when they are primarily of a fiscal nature. The Council shall act unanimously after consulting the European Parliament. 16.12.2004 Official Journal of the European Union C 310/113 EN CHAPTER IV AREA OF FREEDOM, SECURIT Y AND JUSTICE SECTION 1 GENERAL PROVISIONS Article III-257 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards thirdcountry nationals. For the purpose of this Chapter, stateless persons shall be treated as thirdcountry nationals. 3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4. The Union shall facilitate access to justice, in par ticular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. Article III-258 The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. Article III-259 National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and propor tionality. Article III-260 Without prejudice to Ar ticles III-360 to III-362, the Council may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impar tial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in par ticular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation. C 310/114 Official Journal of the European Union 16.12.2004 EN Article III-261 A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Ar ticle III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings. Article III-262 This Chapter shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Article III-263 The Council shall adopt European regulations to ensure administrative cooperation between the relevant depar tments of the Member States in the areas covered by this Chapter, as well as between those depar tments and the Commission. It shall act on a Commission proposal, subject to Ar ticle III- 264, and after consulting the European Parliament. Article III-264 The acts referred to in Sections 4 and 5, together with the European regulations referred to in Ar ticle III-263 which ensure administrative cooperation in the areas covered by these Sections, shall be adopted: (a) on a proposal from the Commission, or (b) on the initiative of a quarter of the Member States. SECTION 2 POLICIES ON BORDER CHECKS, ASYLUM AND IMMIGRATION Article III-265 1. The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders. 16.12.2004 Official Journal of the European Union C 310/115 EN 2. For the purposes of paragraph 1, European laws or framework laws shall establish measures concerning: (a) the common policy on visas and other shor tstay residence permits; (b) the checks to which persons crossing external borders are subject; (c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a shor t period; (d) any measure necessary for the gradual establishment of an integrated management system for external borders; (e) the absence of any controls on persons, whatever their nationality, when crossing internal borders. 3. This Ar ticle shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law. Article III-266 1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any thirdcountry national requiring international protection and ensuring compliance with the principle of nonrefoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. 2. For the purposes of paragraph 1, European laws or framework laws shall lay down measures for a common European asylum system comprising: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; (c) a common system of temporary protection for displaced persons in the event of a massive inf low; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) par tnership and cooperation with third countries for the purpose of managing inf lows of people applying for asylum or subsidiary or temporary protection. C 310/116 Official Journal of the European Union 16.12.2004 EN 3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inf low of nationals of third countries, the Council, on a proposal from the Commission, may adopt European regulations or decisions comprising provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament. Article III-267 1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration f lows, fair treatment of thirdcountry nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. 2. For the purposes of paragraph 1, European laws or framework laws shall establish measures in the following areas: (a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion; (b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States; (c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation; (d) combating trafficking in persons, in par ticular women and children. 3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of thirdcountry nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States. 4. European laws or framework laws may establish measures to provide incentives and suppor t for the action of Member States with a view to promoting the integration of thirdcountry nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States. 5. This Ar ticle shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed. Article III-268 The policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Section shall contain appropriate measures to give effect to this principle. 16.12.2004 Official Journal of the European Union C 310/117 EN SECTION 3 JUDICIAL COOPERATION IN CIVIL MATTERS Article III-269 1. The Union shall develop judicial cooperation in civil matters having crossborder implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. 2. For the purposes of paragraph 1, European laws or framework laws shall establish measures, par ticularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases; (b) the cross-border ser vice of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conf lict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) suppor t for the training of the judiciary and judicial staff. 3. Notwithstanding paragraph 2, a European law or framework law of the Council shall establish measures concerning family law with cross-border implications. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the o r d i n a r y l e g i s l a t i v e p r o c e d u r e . T h e C o u n c i l s h a l l a c t u n a n i m o u s l y a f te r c o n s u l t i n g t h e European Parliament. C 310/118 Official Journal of the European Union 16.12.2004 EN SECTION 4 JUDICIAL COOPERATION IN CRIMINAL MATTERS Article III-270 1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Ar ticle III-271. European laws or framework laws shall establish measures to: (a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions; (b) prevent and settle conf licts of jurisdiction between Member States; (c) suppor t the training of the judiciary and judicial staff; (d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. 2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a crossborder dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament. Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals. 16.12.2004 Official Journal of the European Union C 310/119 EN 3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, the procedure referred to in Ar ticle III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either: (a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Ar ticle III-396, or (b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted. 4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Ar ticles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply. Article III-271 1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of par ticularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament. 2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Ar ticle III-264. C 310/120 Official Journal of the European Union 16.12.2004 EN 3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Ar ticle III-396 is applicable, it shall be suspended. After discussion, the European Council shall, within four months of this suspension, either: (a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Ar ticle III-396 where it is applicable, or (b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted. 4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Ar ticles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply. Article III-272 European laws or framework laws may establish measures to promote and suppor t the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States. Article III-273 1. Eurojust's mission shall be to suppor t and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol. In this context, European laws shall determine Eurojust's structure, operation, field of action and tasks. Those tasks may include: (a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions, conducted by competent national authorities, par ticularly those relating to offences against the financial interests of the Union; (b) the coordination of investigations and prosecutions referred to in point (a); (c) the strengthening of judicial cooperation, including by resolution of conf licts of jurisdiction and by close cooperation with the European Judicial Network. European laws shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities. 16.12.2004 Official Journal of the European Union C 310/121 EN 2. In the prosecutions referred to in paragraph 1, and without prejudice to Ar ticle III-274, formal acts of judicial procedure shall be carried out by the competent national officials. Article III-274 1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament. 2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent cour ts of the Member States in relation to such offences. 3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions. 4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission. SECTION 5 POLICE COOPERATION Article III-275 1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement ser vices in relation to the prevention, detection and investigation of criminal offences. 2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning: (a) the collection, storage, processing, analysis and exchange of relevant information; (b) suppor t for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crimedetection; (c) common investigative techniques in relation to the detection of serious forms of organised crime. C 310/122 Official Journal of the European Union 16.12.2004 EN 3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Ar ticle. The Council shall act unanimously after consulting the European Parliament. Article III-276 1. Europol's mission shall be to suppor t and strengthen action by the Member States' police authorities and other law enforcement ser vices and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy. 2. European laws shall determine Europol's structure, operation, field of action and tasks. These tasks may include: (a) the collection, storage, processing, analysis and exchange of information forwarded par ticularly by the authorities of the Member States or third countries or bodies; (b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust. European laws shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments. 3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities. Article III-277 A European law or framework law of the Council shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Ar ticles III-270 and III-275 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament. 16.12.2004 Official Journal of the European Union C 310/123 EN CHAPTER V AREAS WHERE THE UNION MAY TAKE COORDINATING, COMPLEMENTARY OR SUPPORTING ACTION SECTION 1 PUBLIC HEALTH Article III278 1. A high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities. Action by the Union, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover: (a) the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education; (b) monitoring, early warning of and combating serious cross-border threats to health. The Union shall complement the Member States' action in reducing drugrelated health damage, including information and prevention. 2. The Union shall encourage cooperation between the Member States in the areas referred to in this Ar ticle and, if necessary, lend suppor t to their action. It shall in par ticular encourage cooperation between the Member States to improve the complementarity of their health ser vices in crossborder areas. Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination, in par ticular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed. 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health. C 310/124 Official Journal of the European Union 16.12.2004 EN 4. By way of derogation from Ar ticle I12(5) and Ar ticle I17(a) and in accordance with Ar ticle I14 (2)(k), European laws or framework laws shall contribute to the achievement of the objectives referred to in this Ar ticle by establishing the following measures in order to meet common safety concerns: (a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures; (b) measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health; (c) measures setting high standards of quality and safety for medicinal products and devices for medical use; (d) measures concerning monitoring, early warning of and combating serious cross-border threats to health. Such European laws or framework laws shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. 5. European laws or framework laws may also establish incentive measures designed to protect and improve human health and in par ticular to combat the major crossborder health scourges, as well as measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. 6. For the purposes of this Ar ticle, the Council, on a proposal from the Commission, may also adopt recommendations. 7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health ser vices and medical care. The responsibilities of the Member States shall include the management of health ser vices and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood. 16.12.2004 Official Journal of the European Union C 310/125 EN SECTION 2 INDUSTRY Article III279 1. The Union and the Member States shall ensure that the conditions necessary for the competitiveness of the Union's industry exist. For that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at: (a) speeding up the adjustment of industry to structural changes; (b) encouraging an environment favourable to initiative and to the development of under takings throughout the Union, par ticularly small and mediumsized under takings; (c) encouraging an environment favourable to cooperation between under takings; (d) fostering better exploitation of the industrial potential of policies of innovation, research and technological development. 2. The Member States shall consult each other in liaison with the Commission and, where necessary, shall coordinate their action. The Commission may take any useful initiative to promote such coordination, in par ticular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed. 3. The Union shall contribute to the achievement of the objectives set out in paragraph 1 through the policies and activities it pursues under other provisions of the Constitution. European laws or framework laws may establish specific measures in suppor t of action taken in the Member States to achieve the objectives set out in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Economic and Social Committee. This Section shall not provide a basis for the introduction by the Union of any measure which could lead to distor tion of competition or contains tax provisions or provisions relating to the rights and interests of employed persons. SECTION 3 CULTURE Article III280 1. The Union shall contribute to the f lowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. C 310/126 Official Journal of the European Union 16.12.2004 EN 2. Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, suppor ting and complementing their action in the following areas: (a) improvement of the knowledge and dissemination of the culture and history of the European peoples; (b) conser vation and safeguarding of cultural heritage of European significance; (c) noncommercial cultural exchanges; (d) ar tistic and literary creation, including in the audiovisual sector. 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in par ticular the Council of Europe. 4. The Union shall take cultural aspects into account in its action under other provisions of the Constitution, in par ticular in order to respect and to promote the diversity of its cultures. 5. In order to contribute to the achievement of the objectives referred to in this Ar ticle: (a) European laws or framework laws shall establish incentive measures, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Committee of the Regions; (b) the Council, on a proposal from the Commission, shall adopt recommendations. SECTION 4 TOURISM Article III281 1. The Union shall complement the action of the Member States in the tourism sector, in par ticular by promoting the competitiveness of Union under takings in that sector. To that end, Union action shall be aimed at: (a) encouraging the creation of a favourable environment for the development of under takings in this sector; (b) promoting cooperation between the Member States, par ticularly by the exchange of good practice; 2. European laws or framework laws shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Ar ticle, excluding any harmonisation of the laws and regulations of the Member States. 16.12.2004 Official Journal of the European Union C 310/127 EN SECTION 5 EDUCATION, YOUTH, SPORT AND VOCATIONAL TRAINING Article III282 1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by suppor ting and complementing their action. It shall fully respect the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. The Union shall contribute to the promotion of European spor ting issues, while taking account of the specific nature of spor t, its structures based on voluntary activity and its social and educational function. Union action shall be aimed at: (a) developing the European dimension in education, par ticularly through the teaching and dissemination of the languages of the Member States; (b) encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods of study; (c) promoting cooperation between educational establishments; (d) developing exchanges of information and experience on issues common to the education systems of the Member States; (e) encouraging the development of youth exchanges and of exchanges of socioeducational instructors and encouraging the par ticipation of young people in democratic life in Europe; (f) encouraging the development of distance education; (g) developing the European dimension in spor t, by promoting fairness and openness in spor ting competitions and cooperation between bodies responsible for spor ts, and by protecting the physical and moral integrity of spor tsmen and spor tswomen, especially young spor tsmen and spor tswomen. 2. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in par ticular the Council of Europe. 3. In order to contribute to the achievement of the objectives referred to in this Ar ticle: (a) European laws or framework laws shall establish incentive measures, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee; (b) the Council, on a proposal from the Commission, shall adopt recommendations. C 310/128 Official Journal of the European Union 16.12.2004 EN Article III283 1. The Union shall implement a vocational training policy which shall suppor t and complement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training. Union action shall aim to: (a) facilitate adaptation to industrial change, in par ticular through vocational training and retraining; (b) improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market; (c) facilitate access to vocational training and encourage mobility of instructors and trainees and par ticularly young people; (d) stimulate cooperation on training between educational or training establishments and firms; (e) develop exchanges of information and experience on issues common to the training systems of the Member States. 2. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training. 3. In order to contribute to the achievement of the objectives referred to in this Ar ticle: (a) European laws or framework laws shall establish the necessary measures, excluding any harmonisation of the laws and regulations of the Member States. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee; (b) the Council, on a proposal from the Commission, shall adopt recommendations. SECTION 6 CIVIL PROTECTION Article III284 1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or manmade disasters. Union action shall aim to: (a) suppor t and complement Member States' action at national, regional and local level in risk prevention, in preparing their civilprotection personnel and in responding to natural or 16.12.2004 Official Journal of the European Union C 310/129 EN manmade disasters within the Union; (b) promote swif t, effective operational cooperation within the Union between national civilprotection ser vices; (c) promote consistency in international civilprotection work. 2. European laws or framework laws shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States. SECTION 7 ADMINISTRATIVE COOPERATION Article III285 1. Effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest. 2. The Union may suppor t the effor ts of Member States to improve their administrative capacity to implement Union law. Such action may include facilitating the exchange of information and of civil ser vants as well as suppor ting training schemes. No Member State shall be obliged to avail itself of such suppor t. European laws shall establish the necessary measures to this end, excluding any harmonisation of the laws and regulations of the Member States. 3. This Ar ticle shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission. It shall also be without prejudice to other provisions of the Constitution providing for administrative cooperation among the Member States and between them and the Union. TITLE IV ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES Article III286 1. The nonEuropean countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom shall be associated with the Union. These countries and territories, hereinafter called the `countries and territories', are listed in Annex II. This title shall apply to Greenland, subject to the specific provisions of the Protocol on special arrangements for Greenland. C 310/130 Official Journal of the European Union 16.12.2004 EN 2. The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union. Association shall serve primarily to fur ther the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire. Article III-287 Association shall have the following objectives: (a) Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to the Constitution; (b) each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which it has special relations; (c) Member States shall contribute to the investments required for the progressive development of these countries and territories; (d) for investments financed by the Union, par ticipation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories; (e) in relations between Member States and the countries and territories, the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions of Subsection 2 of Section 2 of Chapter I of Title III relating to the freedom of establishment and under the procedures laid down in that Subsection, and on a nondiscriminatory basis, subject to any acts adopted pursuant to Ar ticle III291. Article III-288 1. Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the prohibition of customs duties between Member States provided for in the Constitution. 2. Customs duties on impor ts into each country or territory from Member States or from the other countries or territories shall be prohibited in accordance with Ar ticle III151(4). 3. The countries and territories may, however, levy customs duties which meet the needs of their development and industrialisation or produce revenue for their budgets. The duties referred to in the first subparagraph shall not exceed the level of those imposed on impor ts of products from the Member State with which each country or territory has special relations. 16.12.2004 Official Journal of the European Union C 310/131 EN 4. Paragraph 2 shall not apply to countries and territories which, by reason of the par ticular international obligations by which they are bound, already apply a nondiscriminatory customs tariff. 5. The introduction of or any change in customs duties imposed on goods impor ted into the countries and territories shall not, either in law or in fact, give rise to any direct or indirect discrimination between impor ts from the various Member States. Article III-289 If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when Ar ticle III288(1) has been applied, to cause def lections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States that they take the necessary measures to remedy the situation. Article III-290 Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be regulated by acts adopted in accordance with Ar ticle III291. Article III-291 The Council, on a proposal from the Commission, shall adopt unanimously, on the basis of the experience acquired under the association of the countries and territories with the Union, European laws, framework laws, regulations and decisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. These laws and framework laws shall be adopted after consultation of the European Parliament. TITLE V THE UNION'S EXTERNAL ACTION CHAPTER I PROVISIONS HAVING GENERAL APPLICATION Article III-292 1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Char ter and international law. C 310/132 Official Journal of the European Union 16.12.2004 EN The Union shall seek to develop relations and build par tnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in par ticular in the framework of the United Nations. 2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and suppor t democracy, the rule of law, human rights and the principles of international law; (c) preser ve peace, prevent conf licts and strengthen international security, in accordance with the pur poses and pr inciples of the United Nations Char ter, with the pr inciples of the Helsinki Final Act and with the aims of the Char ter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating pover ty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preser ve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or man-made disasters; (h) promote an international system based on stronger multilateral cooperation and good global governance. 3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and the external aspects of its other policies. The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the Union Minister for Foreign Affairs, shall ensure that consistency and shall cooperate to that effect. Article III-293 1. On the basis of the principles and objectives set out in Ar ticle III-292, the European Council shall identify the strategic interests and objectives of the Union. 16.12.2004 Official Journal of the European Union C 310/133 EN European decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States. The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. European decisions of the European Council shall be implemented in accordance with the procedures provided for in the Constitution. 2. The Union Minister for Foreign Affairs, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council. CHAPTER II COMMON FOREIGN AND SECURIT Y POLICY SECTION 1 COMMON PROVISIONS Article III-294 1. In the context of the principles and objectives of its external action, the Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy. 2. The Member States shall suppor t the common foreign and security policy actively and unreser vedly in a spirit of loyalty and mutual solidarity. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. The Council and the Union Minister for Foreign Affairs shall ensure that these principles are complied with. 3. The Union shall conduct the common foreign and security policy by: (a) defining the general guidelines; (b) adopting European decisions defining: (i) actions to be under taken by the Union; (ii) positions to be taken by the Union; C 310/134 Official Journal of the European Union 16.12.2004 EN (iii) arrangements for the implementation of the European decisions referred to in points (i) and (ii); (c) strengthening systematic cooperation between Member States in the conduct of policy. Article III-295 1. The European Council shall define the general guidelines for the common foreign and security policy, including for matters with defence implications. If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union's policy in the face of such developments. 2. The Council shall adopt the European decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines and strategic lines defined by the European Council. Article III-296 1. The Union Minister for Foreign Affairs, who shall chair the Foreign Affairs Council, shall contribute through his or her proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the European decisions adopted by the European Council and the Council. 2. The Minister for Foreign Affairs shall represent the Union for matters relating to the common foreign and security policy. He or she shall conduct political dialogue with third par ties on the Union's behalf and shall express the Union's position in international organisations and at international conferences. 3. In fulfilling his or her mandate, the Union Minister for Foreign Affairs shall be assisted by a European External Action Ser vice. This ser vice shall work in cooperation with the diplomatic ser vices of the Member States and shall comprise officials from relevant depar tments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic ser vices of the Member States. The organisation and functioning of the European External Action Ser vice shall be established by a European decision of the Council. The Council shall act on a proposal from the Union Minister for Foreign Affairs after consulting the European Parliament and after obtaining the consent of the Commission. Article III-297 1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary European decisions. Such decisions shall lay down the objectives, the scope, the means to be made available to the Union, if necessary the duration, and the conditions for implementation of the action. If there is a change in circumstances having a substantial effect on a question subject to such a European decision, the Council shall review the principles and objectives of that decision and adopt the necessary European decisions. 16.12.2004 Official Journal of the European Union C 310/135 EN 2. The European decisions referred to in paragraph 1 shall commit the Member States in the positions they adopt and in the conduct of their activity. 3. Whenever there is any plan to adopt a national position or take national action pursuant to a European decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of such a decision. 4. In cases of imperative need arising from changes in the situation and failing a review of the European decision pursuant to the second subparagraph of paragraph 1, Member States may take the necessary measures as a matter of urgency, having regard to the general objectives of that decision. The Member State concerned shall inform the Council immediately of any such measures. 5. Should there be any major difficulties in implementing a European decision as referred to in this Ar ticle, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the action or impair its effectiveness. Article III-298 The Council shall adopt European decisions which shall define the approach of the Union to a par ticular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the positions of the Union. Article III-299 1. Any Member State, the Union Minister for Foreign Affairs, or that Minister with the Commission's suppor t, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate. 2. In cases requiring a rapid decision, the Union Minister for Foreign Affairs, of the Minister's own motion or at the request of a Member State, shall convene an extraordinary meeting of the Council within for ty-eight hours or, in an emergency, within a shor ter period. Article III-300 1. The European decisions referred to in this Chapter shall be adopted by the Council acting unanimously. When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration. In that case, it shall not be obliged to apply the European decision, but shall accept that the latter commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conf lict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted. C 310/136 Official Journal of the European Union 16.12.2004 EN 2. By way of derogation from paragraph 1, the Council shall act by a qualified majority: (a) when adopting European decisions defining a Union action or position on the basis of a European decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Ar ticle III-293(1); (b) when adopting a European decision defining a Union action or position, on a proposal which the Union Minister for Foreign Affairs has presented following a specific request to him or her from the European Council, made on its own initiative or that of the Minister; (c) when adopting a European decision implementing a European decision defining a Union action or position; (d) when adopting a European decision concerning the appointment of a special representative in accordance with Ar ticle III-302. If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a European decision to be adopted by a qualified majority, a vote shall not be taken. The Union Minister for Foreign Affairs will, in close consultation with the Member State involved, search for a solution acceptable to it. If he or she does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a European decision by unanimity. 3. In accordance with Ar ticle I-40(7) the European Council may unanimously adopt a European decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2 of this Ar ticle. 4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications. Article III-301 1. When the European Council or the Council has defined a common approach of the Union within the meaning of Ar ticle I-40(5), the Union Minister for Foreign Affairs and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council. 2. The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach referred to in paragraph 1. Article III-302 The Council may appoint, on a proposal from the Union Minister for Foreign Affairs, a special representative with a mandate in relation to par ticular policy issues. The special representative shall carry out his or her mandate under the Minister's authority. 16.12.2004 Official Journal of the European Union C 310/137 EN Article III-303 The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter. Article III-304 1. The Union Minister for Foreign Affairs shall consult and inform the European Parliament in accordance with Ar ticle I-40(8) and Ar ticle I-41(8). He or she shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament. 2. The European Parliament may ask questions of the Council and of the Union Minister for Foreign Affairs or make recommendations to them. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy. Article III-305 1. Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union's positions in such fora. The Union Minister for Foreign Affairs shall organise this coordination. In international organisations and at international conferences where not all the Member States par ticipate, those which do take par t shall uphold the Union's positions. 2. In accordance with Ar ticle I-16(2), Member States represented in international organisations or international conferences where not all the Member States par ticipate shall keep the latter, as well as the Union Minister for Foreign Affairs, informed of any matter of common interest. Member States which are also members of the United Nations Security Council shall concer t and keep the other Member States and the Union Minister for Foreign Affairs fully informed. Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the United Nations Char ter. When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign Affairs be asked to present the Union's position. Article III-306 The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisa- tions, shall cooperate in ensuring that the European decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments. C 310/138 Official Journal of the European Union 16.12.2004 EN They shall contribute to the implementation of the right of European citizens to protection in the territory of third countries as referred to in Ar ticle I-10(2)(c) and the measures adopted pursuant to Ar ticle III-127. Article III-307 1. Without prejudice to Ar ticle III-344, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the Union Minister for Foreign Affairs. 2. Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the Union Minister for Foreign Affairs, the political control and strategic direction of the crisis management operations referred to in Ar ticle III-309. The Council may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council, to take the relevant measures concerning the political control and strategic direction of the operation. Article III-308 The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Ar ticles I-13 to I-15 and I-17. Similarly, the implementation of the policies listed in those Ar ticles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter. SECTION 2 THE COMMON SECURIT Y AND DEFENCE POLICY Article III-309 1. The tasks referred to in Ar ticle I-41(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conf lict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conf lict stabilisation. All these tasks may contribute to the fight against terrorism, including by suppor ting third countries in combating terrorism in their territories. 16.12.2004 Official Journal of the European Union C 310/139 EN 2. The Council shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks. Article III-310 1. Within the framework of the European decisions adopted in accordance with Ar ticle III-309, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the Union Minister for Foreign Affairs, shall agree among themselves on the management of the task. 2. Member States par ticipating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the European decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary European decisions. Article III-311 1. The Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), established by Ar ticle I-41(3) and subject to the authority of the Council, shall have as its task to: (a) contribute to identifying the Member States' military capability objectives and evaluating obser vance of the capability commitments given by the Member States; (b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods; (c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes; (d) suppor t defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs; (e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure. C 310/140 Official Journal of the European Union 16.12.2004 EN 2. The European Defence Agency shall be open to all Member States wishing to be par t of it. The Council, acting by a qualified majority, shall adopt a European decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective par ticipation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary. Article III-312 1. Those Member States which wish to par ticipate in the permanent structured cooperation referred to in Ar ticle I-41(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation shall notify their intention to the Council and to the Union Minister for Foreign Affairs. 2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a European decision establishing permanent structured cooperation and determining the list of par ticipating Member States. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs. 3. Any Member State which, at a later stage, wishes to par ticipate in the permanent structured cooperation shall notify its intention to the Council and to the Union Minister for Foreign Affairs. The Council shall adopt a European decision confirming the par ticipation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Ar ticles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs. Only members of the Council representing the par ticipating Member States shall take par t in the vote. A qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 4. If a par ticipating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Ar ticles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a European decision suspending the par ticipation of the Member State concerned. The Council shall act by a qualified majority. Only members of the Council representing the par ticipating Member States, with the exception of the Member State in question, shall take par t in the vote. A qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 16.12.2004 Official Journal of the European Union C 310/141 EN 5. Any par ticipating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to par ticipate. 6. The European decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the par ticipating Member States only. SECTION 3 FINANCIAL PROVISIONS Article III-313 1. Administrative expenditure which the implementation of this Chapter entails for the institutions shall be charged to the Union budget. 2. Operating expenditure to which the implementation of this Chapter gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council decides other wise. In cases where expenditure is not charged to the Union budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council decides other wise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Ar ticle III- 300(1), second subparagraph, shall not be obliged to contribute to the financing thereof. 3. The Council shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in par ticular for preparatory activities for the tasks referred to in Ar ticle I-41(1) and Ar ticle III-309. It shall act after consulting the European Parliament. Preparatory activities for the tasks referred to in Ar ticle I-41(1) and Ar ticle III-309 which are not charged to the Union budget shall be financed by a star t-up fund made up of Member States' contributions. The Council shall adopt by a qualified majority, on a proposal from the Union Minister for Foreign Affairs, European decisions establishing: (a) the procedures for setting up and financing the star t-up fund, in par ticular the amounts allocated to the fund; (b) the procedures for administering the star t-up fund; (c) the financial control procedures. C 310/142 Official Journal of the European Union 16.12.2004 EN When the task planned in accordance with Ar ticle I-41(1) and Ar ticle III-309 cannot be charged to the Union budget, the Council shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall repor t to the Council on the implementation of this remit. CHAPTER III COMMON COMMERCIAL POLICY Article III-314 By establishing a customs union in accordance with Ar ticle III-151, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers. Article III-315 1. The common commercial policy shall be based on uniform principles, par ticularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and ser vices, and the commercial aspects of intellectual proper ty, foreign direct investment, the achievement of uniformity in measures of liberalisation, expor t policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action. 2. European laws shall establish the measures defining the framework for implementing the common commercial policy. 3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Ar ticle III-325 shall apply, subject to the special provisions of this Ar ticle. The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules. The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall repor t regularly to the special committee and to the European Parliament on the progress of negotiations. 4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority. For the negotiation and conclusion of agreements in the fields of trade in ser vices and the commercial aspects of intellectual proper ty, as well as foreign direct investment, the Council shall act 16.12.2004 Official Journal of the European Union C 310/143 EN unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules. The Council shall also act unanimously for the negotiation and conclusion of agreements: (a) in the field of trade in cultural and audiovisual ser vices, where these agreements risk prejudicing the Union's cultural and linguistic diversity; (b) in the field of trade in social, education and health ser vices, where these agreements risk seriously disturbing the national organisation of such ser vices and prejudicing the responsibility of Member States to deliver them. 5. The negotiation and conclusion of international agreements in the field of transpor t shall be subject to Section 7 of Chapter III of Title III and to Ar ticle III-325. 6. The exercise of the competences conferred by this Ar ticle in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States insofar as the Constitution excludes such harmonisation. CHAPTER IV COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID SECTION 1 DEVELOPMENT COOPERATION Article III-316 1. Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action. The Union's development cooperation policy and that of the Member States shall complement and reinforce each other. Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of pover ty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries. 2. The Union and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations. Article III-317 1. European laws or framework laws shall establish the measures necessary for the implementation of development cooperation policy, which may relate to multiannual cooperation programmes with developing countries or programmes with a thematic approach. C 310/144 Official Journal of the European Union 16.12.2004 EN 2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Ar ticles III-292 and III-316. The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements. 3. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1. Article III-318 1. In order to promote the complementarity and efficiency of their action, the Union and the Member States shall coordinate their policies on development cooperation and shall consult each other on their aid programmes, including in international organisations and during international conferences. They may under take joint action. Member States shall contribute if necessary to the implementation of Union aid programmes. 2. The Commission may take any useful initiative to promote the coordination referred to in paragraph 1. 3. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and the competent international organisations. SECTION 2 ECONOMIC, FINANCIAL AND TECHNICAL COOPERATION WITH THIRD COUNTRIES Article III-319 1. Without prejudice to the other provisions of the Constitution, and in par ticular Ar ticles III-316 to III-318, the Union shall carry out economic, financial and technical cooperation measures, including assistance, in par ticular financial assistance, with third countries other than developing countries. Such measures shall be consistent with the development policy of the Union and shall be carried out within the framework of the principles and objectives of its external action. The Union's measures and those of the Member States shall complement and reinforce each other. 2. European laws or framework laws shall establish the measures necessary for the implementation of paragraph 1. 3. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third par ties concerned. The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements. 16.12.2004 Official Journal of the European Union C 310/145 EN Article III-320 When the situation in a third country requires urgent financial assistance from the Union, the Council shall adopt the necessary European decisions on a proposal from the Commission. SECTION 3 HUMANITARIAN AID Article III-321 1. The Union's operations in the field of humanitarian aid shall be conducted within the framework of the principles and objectives of the external action of the Union. Such operations shall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations. The Union's operations and those of the Member States shall complement and reinforce each other. 2. Humanitarian aid operations shall be conducted in compliance with the principles of international law and with the principles of impar tiality, neutrality and non-discrimination. 3. European laws or framework laws shall establish the measures defining the framework within which the Union's humanitarian aid operations shall be implemented. 4. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in paragraph 1 and in Ar ticle III-292. The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements. 5. In order to establish a framework for joint contributions from young Europeans to the humanitarian aid operations of the Union, a European Voluntary Humanitarian Aid Corps shall be set up. European laws shall determine the rules and procedures for the operation of the Corps. 6. The Commission may take any useful initiative to promote coordination between actions of the Union and those of the Member States, in order to enhance the efficiency and complementarity of Union and national humanitarian aid measures. 7. The Union shall ensure that its humanitarian aid operations are coordinated and consistent with those of international organisations and bodies, in par ticular those for ming par t of the United Nations system. C 310/146 Official Journal of the European Union 16.12.2004 EN CHAPTER V RESTRICTIVE MEASURES Article III-322 1. Where a European decision, adopted in accordance with Chapter II, provides for the interruption or reduction, in par t or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the Union Minister for Foreign Affairs and the Commission, shall adopt the necessary European regulations or decisions. It shall inform the European Parliament thereof. 2. Where a European decision adopted in accordance with Chapter II so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities. 3. The acts referred to in this Ar ticle shall include necessary provisions on legal safeguards. CHAPTER VI INTERNATIONAL AGREEMENTS Article III-323 1. The Union may conclude an agreement with one or more third countries or international organisations where the Constitution so provides or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Constitution, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. 2. Agreements concluded by the Union are binding on the institutions of the Union and on its Member States. Article III-324 The Union may conclude an association agreement with one or more third countries or international organisations in order to establish an association involving reciprocal rights and obligations, common actions and special procedures. Article III-325 1. Without prejudice to the specific provisions laid down in Ar ticle III-315, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure. 2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them. 16.12.2004 Official Journal of the European Union C 310/147 EN 3. The Commission, or the Union Minister for Foreign Affairs where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a European decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or head of the Union's negotiating team. 4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted. 5. The Council, on a proposal by the negotiator, shall adopt a European decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force. 6. The Council, on a proposal by the negotiator, shall adopt a European decision concluding the agreement. Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the European decision concluding the agreement: (a) after obtaining the consent of the European Parliament in the following cases: (i) association agreements; (ii) Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms; (iii) agreements establishing a specific institutional framework by organising cooperation procedures; (iv) agreements with impor tant budgetary implications for the Union; (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent. (b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act. 7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation. C 310/148 Official Journal of the European Union 16.12.2004 EN 8. The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Ar ticle III-319 with the States which are candidates for accession. 9. The Council, on a proposal from the Commission or the Union Minister for Foreign Affairs, shall adopt a European decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement. 10. The European Parliament shall be immediately and fully informed at all stages of the procedure. 11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Cour t of Justice as to whether an agreement envisaged is compatible with the Constitution. Where the opinion of the Cour t of Justice is adverse, the agreement envisaged may not enter into force unless it is amended or the Constitution is revised. Article III-326 1. By way of derogation from Ar ticle III-325, the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3. The Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may adopt, adjust or abandon the central rates of the euro within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the central rates of the euro. 2. In the absence of an exchange-rate system in relation to one or more currencies of third States as referred to in paragraph 1, the Council, acting either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the European System of Central Banks, to maintain price stability. 3. By way of derogation from Ar ticle III-325, where agreements on matters relating to the monetary or exchange-rate system are to be the subject of negotiations between the Union and one or more third States or international organisations, the Council, acting on a recommendation from the Commission and after consulting the European Central Bank, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Union expresses a single position. The Commission shall be fully associated with the negotiations. 16.12.2004 Official Journal of the European Union C 310/149 EN 4. Without prejudice to Union competence and Union agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude agreements. CHAPTER VII THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS Article III-327 1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development. The Union shall also maintain such relations as are appropriate with other international organisations. 2. The Union Minister for Foreign Affairs and the Commission shall be instructed to implement this Ar ticle. Article III-328 1. Union delegations in third countries and at international organisations shall represent the Union. 2. Union delegations shall be placed under the authority of the Union Minister for Foreign Affairs. They shall act in close cooperation with Member States' diplomatic and consular missions. CHAPTER VIII IMPLEMENTATION OF THE SOLIDARIT Y CLAUSE Article III-329 1. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council. 2. The arrangements for the implementation by the Union of the solidarity clause referred to in Ar ticle I-43 shall be defined by a European decision adopted by the Council acting on a joint proposal by the Commission and the Union Minister for Foreign Affairs. The Council shall act in accordance with Ar ticle III-300(1) where this decision has defence implications. The European Parliament shall be informed. For the purposes of this paragraph and without prejudice to Ar ticle III-344, the Council shall be assisted by the Political and Security Committee with the suppor t of the structures developed in the context of the common security and defence policy and by the Committee referred to in Ar ticle C 310/150 Official Journal of the European Union 16.12.2004 EN III-261; the two committees shall, if necessary, submit joint opinions. 3. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action. TITLE VI THE FUNCTIONING OF THE UNION CHAPTER I PROVISIONS GOVERNING THE INSTITUTIONS SECTION 1 THE INSTITUTIONS Subsection 1 The European Parliament Article III-330 1. A European law or framework law of the Council shall establish the necessary measures for the election of the Members of the European Parliament by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. The Council shall act unanimously on initiative from, and after obtaining the consent of, the European Parliament, which shall act by a majority of its component members. This law or framework law shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements. 2. A European law of the European Parliament shall lay down the regulations and general conditions governing the performance of the duties of its Members. The European Parliament shall act on its own initiative after seeking an opinion from the Commission and after obtaining the consent of the Council. The Council shall act unanimously on all rules or conditions relating to the taxation of Members or former Members. Article III-331 European laws shall lay down the regulations governing the political par ties at European level referred to in Ar ticle I-46(4), and in par ticular the rules regarding their funding. 16.12.2004 Official Journal of the European Union C 310/151 EN Article III-332 The European Parliament may, by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Constitution. If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons. Article III-333 In the course of its duties, the European Parliament may, at the request of a quar ter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Constitution on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law, except where the alleged facts are being examined before a cour t and while the case is still subject to legal proceedings. The temporary Committee of Inquiry shall cease to exist on submission of its repor t. A European law of the European Parliament shall lay down the detailed provisions governing the exercise of the right of inquiry. The European Parliament shall act on its own initiative after obtaining the consent of the Council and of the Commission. Article III-334 In accordance with Ar ticle I-10(2)(d), any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other persons, a petition to the European Parliament on a matter which comes within the Union's fields of activity and which affects him, her or it directly. Article III-335 1. The European Parliament shall elect a European Ombudsman. In accordance with Ar ticles I-10 (2)(d) and I-49, he or she shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union's institutions, bodies, offices or agencies, with the exception of the Cour t of Justice of the European Union acting in its judicial role. In accordance with his or her duties, the Ombudsman shall conduct inquiries for which he or she finds grounds, either on his or her own initiative or on the basis of complaints submitted to him or her direct or through a member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he or she shall refer the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform him or her of its views. The European Ombudsman shall then forward a repor t to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be informed of the outcome of such inquiries. The Ombudsman shall submit an annual repor t to the European Parliament on the outcome of his or her inquiries. C 310/152 Official Journal of the European Union 16.12.2004 EN 2. The Ombudsman shall be elected after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment. The Ombudsman may be dismissed by the Cour t of Justice at the request of the European Parliament if he or she no longer fulfils the conditions required for the performance of his or her duties or if he or she is guilty of serious misconduct. 3. The Ombudsman shall be completely independent in the performance of his or her duties. In the performance of those duties he or she shall neither seek nor take instructions from any institution, body, office or agency. The Ombudsman shall not, during his or her term of office, engage in any other occupation, whether gainful or not. 4. A European law of the European Parliament shall lay down the regulations and general conditions governing the performance of the Ombudsman's duties. The European Parliament shall act on its own initiative after seeking an opinion from the Commission and after obtaining the consent of the Council. Article III-336 The European Parliament shall hold an annual session. It shall meet, without requiring to be convened, on the second Tuesday in March. The European Parliament may meet in extraordinary par t-session at the request of a majority of its component members or at the request of the Council or of the Commission. Article III-337 1. The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council. 2. The Commission may attend all the meetings of the European Parliament and shall, at its request, be heard. It shall reply orally or in writing to questions put to it by the European Parliament or by its members. 3. The European Parliament shall discuss in open session the annual general repor t submitted to it by the Commission. Article III-338 Save as other wise provided in the Constitution, the European Parliament shall act by a majority of the votes cast. Its Rules of Procedure shall determine the quorum. Article III-339 The European Parliament shall adopt its Rules of Procedure, by a majority of its component members. The proceedings of the European Parliament shall be published in the manner laid down in the Constitution and the Rules of Procedure of the European Parliament. 16.12.2004 Official Journal of the European Union C 310/153 EN Article III-340 If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and shall do so only by open vote. If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component members of the European Parliament, the members of the Commission shall resign as a body and the Union Minister for Foreign Affairs shall resign from duties that he or she carries out in the Commission. They shall remain in office and continue to deal with current business until they are replaced in accordance with Ar ticles I-26 and I-27. In this case, the term of office of the members of the Commission appointed to replace them shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired. Subsection 2 The European Council Article III-341 1. Where a vote is taken, any member of the European Council may also act on behalf of not more than one other member. Abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity. 2. The President of the European Parliament may be invited to be heard by the European Council. 3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure. 4. The European Council shall be assisted by the General Secretariat of the Council. Subsection 3 The Council of Ministers Article III-342 The Council shall meet when convened by its President on his or her own initiative, or at the request of one of its members or of the Commission. Article III-343 1. Where a vote is taken, any member of the Council may act on behalf of not more than one other member. 2. Where it is required to act by a simple majority, the Council shall act by a majority of its component members. C 310/154 Official Journal of the European Union 16.12.2004 EN 3. Abstentions by members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity. Article III-344 1. A committee consisting of the Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter. The Committee may adopt procedural decisions in cases provided for in the Council's Rules of Procedure. 2. The Council shall be assisted by a General Secretariat, under the responsibility of a Secretary- General appointed by the Council . The Council shall decide on the organisation of the General Secretariat by a simple majority. 3. The Council shall act by a simple majority regarding procedural matters and for the adoption of its Rules of Procedure. Article III-345 The Council, by a simple majority, may request the Commission to under take any studies the Council considers desirable for the attainment of the common objectives, and to submit any appropriate proposals to it. If the Commission does not submit a proposal, it shall inform the Council of the reasons. Article III-346 The Council shall adopt European decisions laying down the rules governing the committees provided for in the Constitution. It shall act by a simple majority after consulting the Commission. Subsection 4 The European Commission Article III-347 The members of the Commission shall refrain from any action incompatible with their duties. Member States shall respect their independence and shall not seek to inf luence them in the performance of their tasks. The members of the Commission shall not, during their term of office, engage in any other occupation, whether gainful or not. When entering upon their duties they shall give a solemn under taking that, both during and after their term of office, they will respect the obligations arising therefrom and in par ticular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of cer tain appointments or benefits. In the event of any breach of these obligations, the Cour t of Justice may, on application by the Council, acting by a simple majority, or the Commission, rule that the person concerned be, according to the circumstances, either compulsorily retired in accordance with Ar ticle III-349 or deprived of his or her right to a pension or other benefits in its stead. 16.12.2004 Official Journal of the European Union C 310/155 EN Article III-348 1. Apart from normal replacement, or death, the duties of a member of the Commission shall end when he or she resigns or is compulsorily retired. 2. A vacancy caused by resignation, compulsory retirement or death shall be filled for the remainder of the member's term of office by a new member of the same nationality appointed by the Council, by common accord with the President of the Commission, after consulting the European Parliament and in accordance with the criteria set out in Ar ticle I-26(4). The Council may, acting unanimously on a proposal from the President of the Commission, decide that such a vacancy need not be filled, in par ticular when the remainder of the member's term of office is shor t. 3. In the event of resignation, compulsory retirement or death, the President shall be replaced for the remainder of his or her term of office in accordance with Ar ticle I-27(1). 4. In the event of resignation, compulsory retirement or death, the Union Minister for Foreign Affairs shall be replaced, for the remainder of his or her term of office, in accordance with Ar ticle I- 28(1). 5. In the case of the resignation of all the members of the Commission, they shall remain in office and continue to deal with current business until they have been replaced, for the remainder of their term of office, in accordance with Ar ticles I-26 and I-27. Article III-349 If any member of the Commission no longer fulfils the conditions required for the performance of his or her duties or if he or she has been guilty of serious misconduct, the Cour t of Justice may, on application by the Council, acting by a simple majority, or by the Commission, compulsorily retire him or her. Article III-350 Without prejudice to Ar ticle I-28(4), the responsibilities incumbent upon the Commission shall be structured and allocated among its members by its President, in accordance with Ar ticle I-27(3). The President may reshuff le the allocation of those responsibilities during the Commission's term of office. The members of the Commission shall carry out the duties devolved upon them by the President under his or her authority. Article III-351 The Commission shall act by a majority of its members. Its Rules of Procedure shall determine the quorum. Article III-352 1. The Commission shall adopt its Rules of Procedure so as to ensure both its own operation and that of its depar tments. It shall ensure that these rules are published. C 310/156 Official Journal of the European Union 16.12.2004 EN 2. The Commission shall publish annually, not later than one month before the opening of the session of the European Parliament, a general repor t on the activities of the Union. Subsection 5 The Cour t of Justice of the European Union Article III-353 The Cour t of Justice shall sit in chambers, as a Grand Chamber or as a full Cour t, in accordance with the Statute of the Cour t of Justice of the European Union. Article III-354 The Cour t of Justice shall be assisted by eight Advocates-General. Should the Cour t of Justice so request, the Council may, acting unanimously, adopt a European decision to increase the number of Advocates-General. It shall be the duty of the Advocate-General, acting with complete impar tiality and independence, to make, in open cour t, reasoned submissions on cases which, in accordance with the Statute of the Cour t of Justice of the European Union, require his or her involvement. Article III-355 The Judges and Advocates-General of the Cour t of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence; they shall be appointed by common accord of the governments of the Member States after consultation of the panel provided for in Ar ticle III-357. Every three years there shall be a par tial replacement of the Judges and Advocates-General, in accordance with the conditions laid down in the Statute of the Cour t of Justice of the European Union. The Judges shall elect the President of the Cour t of Justice from among their number for a term of three years. He or she may be re-elected. The Cour t of Justice shall adopt its Rules of Procedure. Those Rules shall require the consent of the Council. Article III-356 The number of Judges of the General Cour t shall be determined by the Statute of the Cour t of Justice of the European Union. The Statute may provide for the General Cour t to be assisted by Advocates- General. The members of the General Cour t shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office. They shall be appointed by common accord of the governments of the Member States after consultation of the panel provided for in Ar ticle III-357. 16.12.2004 Official Journal of the European Union C 310/157 EN The membership of the General Cour t shall be par tially renewed every three years. The Judges shall elect the President of the General Cour t from among their number for a term of three years. He or she may be re-elected. The General Cour t shall establish its Rules of Procedure in agreement with the Cour t of Justice. The Rules shall be subject to the consent of the Council. Unless the Statute provides other wise, the provisions of the Constitution relating to the Cour t of Justice shall apply to the General Cour t. Article III-357 A panel shall be set up in order to give an opinion on candidates' suitability to perform the duties of Judge and Advocate-General of the Cour t of Justice and the General Cour t before the governments of the Member States make the appointments referred to in Ar ticles III-355 and III-356. The panel shall comprise seven persons chosen from among former members of the Cour t of Justice and the General Cour t, members of national supreme cour ts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament. The Council shall adopt a European decision establishing the panel's operating rules and a European decision appointing its members. It shall act on the initiative of the President of the Cour t of Justice. Article III-358 1. The General Cour t shall have jurisdiction to hear and determine at first instance actions or proceedings referred to in Ar ticles III-365, III-367, III-370, III-372 and III-374, with the exception of those assigned to a specialised cour t set up under Ar ticle III-359 and those reser ved in the Statute of the Cour t of Justice of the European Union for the Cour t of Justice. The Statute may provide for the General Cour t to have jurisdiction for other classes of action or proceeding. Decisions given by the General Cour t under this paragraph may be subject to a right of appeal to the Cour t of Justice on points of law only, under the conditions and within the limits laid down by the Statute. 2. The General Cour t shall have jurisdiction to hear and determine actions or proceedings brought against decisions of the specialised cour ts. Decisions given by the General Cour t under this paragraph may exceptionally be subject to review by the Cour t of Justice, under the conditions and within the limits laid down by the Statute of the Cour t of Justice of the European Union, where there is a serious risk of the unity or consistency of Union law being affected. 3. The General Cour t shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Ar ticle III-369, in specific areas laid down by the Statute of the Cour t of Justice of the European Union. Where the General Cour t considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Cour t of Justice for a ruling. C 310/158 Official Journal of the European Union 16.12.2004 EN Decisions given by the General Cour t on questions referred for a preliminary ruling may exceptionally be subject to review by the Cour t of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being affected. Article III-359 1. European laws may establish specialised cour ts attached to the General Cour t to hear and determine at first instance cer tain classes of action or proceeding brought in specific areas. They shall be adopted either on a proposal from the Commission after consultation of the Cour t of Justice or at the request of the Cour t of Justice after consultation of the Commission. 2. The European law establishing a specialised cour t shall lay down the rules on the organisation of the cour t and the extent of the jurisdiction conferred upon it. 3. Decisions given by specialised cour ts may be subject to a right of appeal on points of law only or, when provided for in the European law establishing the specialised cour t, a right of appeal also on matters of fact, before the General Cour t. 4. The members of the specialised cour ts shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. They shall be appointed by the Council, acting unanimously. 5. The specialised cour ts shall establish their Rules of Procedure in agreement with the Cour t of Justice. Those Rules shall require the consent of the Council. 6. Unless the European law establishing the specialised cour t provides other wise, the provisions of the Constitution relating to the Cour t of Justice of the European Union and the provisions of the Statute of the Cour t of Justice of the European Union shall apply to the specialised cour ts. Title I of the Statute and Ar ticle 64 thereof shall in any case apply to the specialised cour ts. Article III-360 If the Commission considers that a Member State has failed to fulfil an obligation under the Constitution, it shall deliver a reasoned opinion on the matter after giving the State concerned the oppor tunity to submit its obser vations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Cour t of Justice of the European Union. Article III-361 A Member State which considers that another Member State has failed to fulfil an obligation under the Constitution may bring the matter before the Cour t of Justice of the European Union. Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Constitution, it shall bring the matter before the Commission. 16.12.2004 Official Journal of the European Union C 310/159 EN The Commission shall deliver a reasoned opinion after each of the States concerned has been given the oppor tunity to submit its own case and its observations on the other par ty's case both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Cour t. Article III-362 1. If the Cour t of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Constitution, that State shall be required to take the necessary measures to comply with the judgment of the Cour t. 2. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment referred to in paragraph 1, it may bring the case before the Cour t of Justice of the European Union after giving that State the opportunity to submit its obser vations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Cour t finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. This procedure shall be without prejudice to Ar ticle III-361. 3. When the Commission brings a case before the Cour t of Justice of the European Union pursuant to Ar ticle III-360 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a European framework law, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Cour t finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Cour t in its judgment. Article III-363 European laws and regulations of the Council may give the Cour t of Justice of the European Union unlimited jurisdiction with regard to the penalties provided for in them. Article III-364 Without prejudice to the other provisions of the Constitution, a European law may confer on the Cour t of Justice of the European Union, to the extent that it shall determine, jurisdiction in disputes relating to the application of acts adopted on the basis of the Constitution which create European intellectual proper ty rights. Article III-365 1. The Cour t of Justice of the European Union shall review the legality of European laws and framework laws, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European C 310/160 Official Journal of the European Union 16.12.2004 EN Council intended to produce legal effects vis-ŕ-vis third par ties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-ŕ-vis third par ties. 2. For the purposes of paragraph 1, the Cour t of Justice of the European Union shall have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Constitution or of any rule of law relating to its application, or misuse of powers. 3. The Cour t of Justice of the European Union shall have jurisdiction under the conditions laid down in paragraphs 1 and 2 in actions brought by the Cour t of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives. 4. Any natural or legal person may, under the conditions laid down in paragraphs 1 and 2, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures. 5. Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. 6. The proceedings provided for in this Ar ticle shall be instituted within two months of the publication of the act, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the plaintiff's knowledge, as the case may be. Article III-366 If the action is well founded, the Cour t of Justice of the European Union shall declare the act concerned to be void. However, the Cour t shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive. Article III-367 Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Constitution, fail to act, the Member States and the other institutions of the Union may bring an action before the Cour t of Justice of the European Union to have the infringement established. This Ar ticle shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act. The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a fur ther period of two months. 16.12.2004 Official Journal of the European Union C 310/161 EN Any natural or legal person may, under the conditions laid down in the first and second paragraphs, complain to the Cour t that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion. Article III-368 The institution, body, office or agency whose act has been declared void, or whose failure to act has been declared contrary to the Constitution, shall be required to take the necessary measures to comply with the judgment of the Cour t of Justice of the European Union. This obligation shall not affect any obligation which may result from the application of the second paragraph of Ar ticle III-431. Article III-369 The Cour t of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of the Constitution; b) the validity and interpretation of acts of the institutions, bodies, offices and agencies of the Union. Where such a question is raised before any cour t or tribunal of a Member State, that cour t or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Cour t to give a ruling thereon. Where any such question is raised in a case pending before a cour t or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that cour t or tribunal shall bring the matter before the Cour t. If such a question is raised in a case pending before a cour t or tribunal of a Member State with regard to a person in custody, the Cour t shall act with the minimum of delay. Article III-370 The Cour t of Justice of the European Union shall have jurisdiction in disputes relating to compensation for damage provided for in the second and third paragraphs of Ar ticle III-431. Article III-371 The Cour t of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Ar ticle I-59 solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Ar ticle. Such a request must be made within one month from the date of such determination. The Cour t shall rule within one month from the date of the request. C 310/162 Official Journal of the European Union 16.12.2004 EN Article III-372 The Cour t of Justice of the European Union shall have jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other ser vants of the Union. Article III-373 The Cour t of Justice of the European Union shall, within the limits hereinafter laid down, have jurisdiction in disputes concerning: (a) the fulfilment by Member States of obligations under the Statute of the European Investment Bank. In this connection, the Board of Directors of the Bank shall enjoy the powers conferred upon the Commission by Ar ticle III-360; (b) measures adopted by the Board of Governors of the European Investment Bank. In this connection, any Member State, the Commission or the Board of Directors of the Bank may institute proceedings under the conditions laid down in Ar ticle III-365; (c) measures adopted by the Board of Directors of the European Investment Bank. Proceedings against such measures may be instituted only by Member States or by the Commission, under the conditions laid down in Ar ticle III-365, and solely on the grounds of non-compliance with the procedure provided for in Ar ticle 19(2), (5), (6) and (7) of the Statute of the Bank; (d) the fulfilment by national central banks of obligations under the Constitution and the Statute of the European System of Central Banks and of the European Central Bank. In this connection, the powers of the Governing Council of the European Central Bank in respect of national central banks shall be the same as those conferred upon the Commission in respect of Member States by Ar ticle III-360. If the Cour t of Justice of the European Union finds that a national central bank has failed to fulfil an obligation under the Constitution, that bank shall be required to take the necessary measures to comply with the judgment of the Cour t. Article III-374 The Cour t of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law. Article III-375 1. Save where jurisdiction is conferred on the Cour t of Justice of the European Union by the Constitution, disputes to which the Union is a par ty shall not on that ground be excluded from the jurisdiction of the cour ts or tribunals of the Member States. 2. Member States under take not to submit a dispute concerning the interpretation or application of the Constitution to any method of settlement other than those provided for therein. 3. The Cour t of Justice shall have jurisdiction in any dispute between Member States which relates to the subject-matter of the Constitution if the dispute is submitted to it under a special agreement between the par ties. 16.12.2004 Official Journal of the European Union C 310/163 EN Article III-376 The Cour t of Justice of the European Union shall not have jurisdiction with respect to Ar ticles I-40 and I-41 and the provisions of Chapter II of Title V concerning the common foreign and security policy and Ar ticle III-293 insofar as it concerns the common foreign and security policy. However, the Cour t shall have jurisdiction to monitor compliance with Ar ticle III-308 and to rule on proceedings, brought in accordance with the conditions laid down in Ar ticle III-365(4), reviewing the legality of European decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter II of Title V. Article III-377 In exercising its powers regarding the provisions of Sections 4 and 5 of Chapter IV of Title III relating to the area of freedom, security and justice, the Cour t of Justice of the European Union shall have no jurisdiction to review the validity or propor tionality of operations carried out by the police or other law-enforcement ser vices of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Article III-378 Notwithstanding the expiry of the period laid down in Ar ticle III-365(6), any par ty may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in Ar ticle III-365(2) in order to invoke before the Cour t of Justice of the European Union the inapplicability of that act. Article III-379 1. Actions brought before the Cour t of Justice of the European Union shall not have suspensory effect. The Cour t may, however, if it considers that circumstances so require, order that application of the contested act be suspended. 2. The Cour t of Justice of the European Union may in any cases before it prescribe any necessary interim measures. Article III-380 The judgments of the Cour t of Justice of the European Union shall be enforceable under the conditions laid down in Ar ticle III-401. Article III-381 The Statute of the Cour t of Justice of the European Union shall be laid down in a Protocol. A European law may amend the provisions of the Statute, with the exception of Title I and Ar ticle 64. It shall be adopted either at the request of the Cour t of Justice and after consultation of the Commission, or on a proposal from the Commission and after consultation of the Cour t of Justice. C 310/164 Official Journal of the European Union 16.12.2004 EN Subsection 6 The European Central Bank Article III-382 1. The Governing Council of the European Central Bank shall comprise the members of the Executive Board of the European Central Bank and the Governors of the national central banks of the Member States without a derogation as referred to in Ar ticle III-197. 2. The Executive Board shall comprise the President, the Vice-President and four other members. The President, the Vice-President and the other members of the Executive Board shall be appointed by the European Council, acting by a qualified majority, from among persons of recognised standing and professional experience in monetary or banking matters, on a recommendation from the Council and after consulting the European Parliament and the Governing Council of the European Central Bank. Their term of office shall be eight years and shall not be renewable. Only nationals of Member States may be members of the Executive Board. Article III-383 1. The President of the Council and a member of the Commission may par ticipate, without having the right to vote, in meetings of the Governing Council of the European Central Bank. The President of the Council may submit a motion for deliberation to the Governing Council of the European Central Bank. 2. The President of the European Central Bank shall be invited to par ticipate in meetings of the Council when it is discussing matters relating to the objectives and tasks of the European System of Central Banks. 3. The European Central Bank shall address an annual repor t on the activities of the European System of Central Banks and on the monetary policy of both the previous and the current year to the European Parliament, the European Council, the Council and the Commission. The President of the European Central Bank shall present this repor t to the European Parliament, which may hold a general debate on that basis, and to the Council. The President of the European Central Bank and the other members of the Executive Board may, at the request of the European Parliament or on their own initiative, be heard by the competent bodies of the European Parliament. 16.12.2004 Official Journal of the European Union C 310/165 EN Subsection 7 The Cour t of Auditors Article III-384 1. The Cour t of Auditors shall examine the accounts of all revenue and expenditure of the Union. It shall also examine the accounts of all revenue and expenditure of any body, office or agency set up by the Union insofar as the instrument establishing that body, office or agency does not preclude such examination. The Cour t of Auditors shall provide the European Parliament and the Council with a statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions which shall be published in the Official Journal of the European Union. This statement may be supplemented by specific assessments for each major area of Union activity. 2. The Cour t of Auditors shall examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether the financial management has been sound. In doing so, it shall repor t in par ticular on any cases of irregularity. The audit of revenue shall be carried out on the basis of the amounts established as due and the amounts actually paid to the Union. The audit of expenditure shall be carried out on the basis both of commitments under taken and payments made. These audits may be carried out before the closure of accounts for the financial year in question. 3. The audit shall be based on records and, if necessary, performed on the spot in the other institutions, or on the premises of any body, office or agency which manages revenue or expenditure on behalf of the Union and in the Member States, including on the premises of any natural or legal person in receipt of payments from the budget. In the Member States the audit shall be carried out in liaison with national audit bodies or, if these do not have the necessary powers, with the competent national depar tments. The Cour t of Auditors and the national audit bodies of the Member States shall cooperate in a spirit of trust while maintaining their independence. These bodies or depar tments shall inform the Cour t of Auditors whether they intend to take par t in the audit. The other institutions, any bodies, offices or agencies managing revenue or expenditure on behalf of the Union, any natural or legal person in receipt of payments from the budget, and the national audit bodies or, if these do not have the necessary powers, the competent national depar tments, shall forward to the Cour t of Auditors, at its request, any document or information necessary to carry out its task. In respect of the European Investment Bank's activity in managing Union revenue and expenditure, rights of access by the Cour t of Auditors to information held by the Bank shall be governed by an agreement between the Cour t of Auditors, the Bank and the Commission. In the absence of an agreement, the Cour t of Auditors shall never theless have access to information necessary for the audit of Union expenditure and revenue managed by the Bank. C 310/166 Official Journal of the European Union 16.12.2004 EN 4. The Cour t of Auditors shall draw up an annual repor t after the close of each financial year. It shall be for warded to the other institutions and shall be published, together with the replies of these institutions to the observations of the Cour t of Auditors, in the Official Journal of the European Union. The Cour t of Auditors may also, at any time, submit observations, par ticularly in the form of special repor ts, on specific questions and deliver opinions at the request of one of the other institutions. It shall adopt its annual repor ts, special repor ts or opinions by a majority of its component members. However, it may establish internal chambers in order to adopt cer tain categories of repor ts or opinions under the conditions laid down by its Rules of Procedure. It shall assist the European Parliament and the Council in exercising their powers of control over the implementation of the budget. It shall adopt its Rules of Procedure. Those rules shall require the consent of the Council . Article III-385 1. The members of the Cour t of Auditors shall be chosen from among persons who belong or have belonged in their respective States to external audit bodies or who are especially qualified for this office. Their independence must be beyond doubt. 2. The members of the Cour t of Auditors shall be appointed for a term of six years. Their term of office shall be renewable. The Council shall adopt a European decision establishing the list of members drawn up in accordance with the proposals made by each Member State. It shall act after consulting the European Parliament. The members of the Cour t of Auditors shall elect their President from among their number for a term of three years. He or she may be re-elected. 3. In the performance of their duties, members of the Cour t of Auditors shall neither seek nor take instructions from any government or from any other body. They shall refrain from any action incompatible with their duties. 4. Members of the Cour t of Auditors shall not, during their term of office, engage in any other occupation, whether gainful or not. When entering upon their duties they shall give a solemn under taking that, both during and after their term of office, they will respect the obligations arising therefrom and in par ticular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of cer tain appointments or benefits. 5. Apar t from normal replacement, or death, the duties of a member of the Cour t of Auditors shall end when he or she resigns, or is compulsorily retired by a ruling of the Cour t of Justice pursuant to paragraph 6. The vacancy thus caused shall be filled for the remainder of the member's term of office. Save in the case of compulsory retirement, members of the Cour t of Auditors shall remain in office until they have been replaced. 16.12.2004 Official Journal of the European Union C 310/167 EN 6. A member of the Cour t of Auditors may be deprived of his or her office or of his or her right to a pension or other benefits in its stead only if the Cour t of Justice, at the request of the Cour t of Auditors, finds that he or she no longer fulfils the requisite conditions or meets the obligations arising from his or her office. SECTION 2 THE UNION'S ADVISORY BODIES Subsection 1 The Committee of the Regions Article III-386 The number of members of the Committee of the Regions shall not exceed 350. The Council, acting unanimously on a proposal from the Commission, shall adopt a European decision determining the Committee's composition. The members of the Committee and an equal number of alternate members shall be appointed for five years. Their term of office shall be renewable. No member of the Committee shall at the same time be a member of the European Parliament. The Council shall adopt the European decision establishing the list of members and alternate members drawn up in accordance with the proposals made by each Member State. When the mandate referred to in Ar ticle I-32(2) on the basis of which they were proposed comes to an end, the term of office of members of the Committee shall terminate automatically and they shall then be replaced for the remainder of the said term of office in accordance with the same procedure. Article III-387 The Committee of the Regions shall elect its chairman and officers from among its members for a term of two and a half years. It shall be convened by its chairman at the request of the European Parliament, of the Council or of the Commission. It may also meet on its own initiative. It shall adopt its Rules of Procedure. Article III-388 The Committee of the Regions shall be consulted by the European Parliament, by the Council or by the Commission where the Constitution so provides and in all other cases in which one of these institutions considers it appropriate, in par ticular those which concern cross-border cooperation. C 310/168 Official Journal of the European Union 16.12.2004 EN The European Parliament, the Council or the Commission shall, if it considers it necessary, set the Committee, for the submission of its opinion, a time-limit which shall not be less than one month from the date on which the chairman receives notification to this effect. Upon expiry of the time- limit, the absence of an opinion shall not prevent fur ther action. Where the Economic and Social Committee is consulted, the Committee of the Regions shall be informed by the European Parliament, the Council or the Commission of the request for an opinion. Where it considers that specific regional interests are involved, the Committee of the Regions may issue an opinion on the matter. It may also issue an opinion on its own initiative. The opinion of the Committee, together with a record of its proceedings, shall be for warded to the European Parliament, to the Council and to the Commission. Subsection 2 The Economic and Social Committee Article III-389 The number of members of the Economic and Social Committee shall not exceed 350. The Council, acting unanimously on a proposal from the Commission, shall adopt a European decision determining the Committee's composition. Article III-390 The members of the Economic and Social Committee shall be appointed for five years. Their term of office shall be renewable. The Council shall adopt the European decision establishing the list of members drawn up in accordance with the proposals made by each Member State. The Council shall act after consulting the Commission. It may obtain the opinion of European bodies which are representative of the various economic and social sectors and of civil society to which the Union's activities are of concern. Article III-391 The Economic and Social Committee shall elect its chairman and officers from among its members for a term of two and a half years. It shall be convened by its chairman at the request of the European Parliament, of the Council or of the Commission. It may also meet on its own initiative. It shall adopt its Rules of Procedure. 16.12.2004 Official Journal of the European Union C 310/169 EN Article III-392 The Economic and Social Committee shall be consulted by the European Parliament, by the Council or by the Commission where the Constitution so provides. It may be consulted by these institutions in all cases in which they consider it appropriate. It may also issue an opinion on its own initiative. The European Parliament, the Council or the Commission shall, if it considers it necessary, set the Committee, for the submission of its opinion, a time-limit which shall not be less than one month from the date on which the chairman receives notification to this effect. Upon expiry of the time- limit, the absence of an opinion shall not prevent fur ther action. The opinion of the Committee, together with a record of its proceedings, shall be for warded to the European Parliament, to the Council and to the Commission. SECTION 3 THE EUROPEAN INVESTMENT BANK Article III-393 The European Investment Bank shall have legal personality. Its members shall be the Member States. The Statute of the European Investment Bank is laid down in a Protocol. A European law of the Council may amend the Statute of the European Investment Bank. The Council shall act unanimously, either at the request of the European Investment Bank and after consulting the European Parliament and the Commission, or on a proposal from the Commission and after consulting the European Parliament and the European Investment Bank. Article III-394 The task of the European Investment Bank shall be to contribute, by having recourse to the capital markets and utilising its own resources, to the balanced and steady development of the internal market in the Union's interest. For this purpose the European Investment Bank shall, operating on a non-profit-making basis, in par ticular grant loans and give guarantees which facilitate the financing of the following projects in all sectors of the economy: (a) projects for developing less-developed regions (b) projects for modernising or conver ting under takings or for developing fresh activities called for by the establishment or functioning of the internal market, where these projects are of such a size or nature that they cannot be entirely financed by the various means available in the individual Member States; C 310/170 Official Journal of the European Union 16.12.2004 EN (c) projects of common interest to several Member States which are of such a size or nature that they cannot be entirely financed by the various means available in the individual Member States. In carrying out its task, the European Investment Bank shall facilitate the financing of investment programmes in conjunction with assistance from the Structural Funds and other Union financial instruments. SECTION 4 PROVISIONS COMMON TO UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES Article III-395 1. Where, pursuant to the Constitution, the Council acts on a proposal from the Commission, it may amend that proposal only by acting unanimously, except in the cases referred to in Ar ticles I-55, I-56, III-396(10) and (13), III-404 and III-405(2). 2. As long as the Council has not acted, the Commission may alter its proposal at any time during the procedures leading to the adoption of a Union act. Article III-396 1. Where, pursuant to the Constitution, European laws or framework laws are adopted under the ordinary legislative procedure, the following provisions shall apply. 2. The Commission shall submit a proposal to the European Parliament and the Council. First reading 3. The European Parliament shall adopt its position at first reading and communicate it to the Council. 4. If the Council approves the European Parliament's position, the act concerned shall be adopted in the wording which corresponds to the position of the European Parliament. 5. If the Council does not approve the European Parliament's position, it shall adopt its position at first reading and communicate it to the European Parliament. 6. The Council shall inform the European Parliament fully of the reasons which led it to adopt its position at first reading. The Commission shall inform the European Parliament fully of its position. 16.12.2004 Official Journal of the European Union C 310/171 EN Second reading 7. If, within three months of such communication, the European Parliament: (a) approves the Council's position at first reading or has not taken a decision, the act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council; (b) rejects, by a majority of its component members, the Council's position at first reading, the proposed act shall be deemed not to have been adopted; (c) proposes, by a majority of its component members, amendments to the Council's position at first reading, the text thus amended shall be for warded to the Council and to the Commission, which shall deliver an opinion on those amendments. 8. If, within three months of receiving the European Parliament's amendments, the Council, acting by a qualified majority: (a) approves all those amendments, the act in question shall be deemed to have been adopted; (b) does not approve all the amendments, the President of the Council, in agreement with the President of the European Parliament, shall within six weeks convene a meeting of the Conciliation Committee. 9. The Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. Conciliation 10. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of members representing the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the members representing the European Parliament within six weeks of its being convened, on the basis of the positions of the European Parliament and the Council at second reading. 11. The Commission shall take par t in the Conciliation Committee's proceedings and shall take all necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. 12. If, within six weeks of its being convened, the Conciliation Committee does not approve the joint text, the proposed act shall be deemed not to have been adopted. Third reading 13. If, within that period, the Conciliation Committee approves a joint text, the European Parliament, acting by a majority of the votes cast, and the Council, acting by a qualified majority, shall each have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If they fail to do so, the proposed act shall be deemed not to have been adopted. 14. The periods of three months and six weeks referred to in this Ar ticle shall be extended by a maximum of one month and two weeks respectively at the initiative of the European Parliament or the Council. C 310/172 Official Journal of the European Union 16.12.2004 EN Special provisions 15. Where, in the cases provided for in the Constitution, a law or framework law is submitted to the ordinary legislative procedure on the initiative of a group of Member States, on a recommendation by the European Central Bank, or at the request of the Cour t of Justice, paragraph 2, the second sentence of paragraph 6, and paragraph 9 shall not apply. In such cases, the European Parliament and the Council shall communicate the proposed act to the Commission with their positions at first and second readings. The European Parliament or the Council may request the opinion of the Commission throughout the procedure, which the Commission may also deliver on its own initiative. It may also, if it deems it necessary, take par t in the Conciliation Committee in accordance with paragraph 11. Article III-397 The European Parliament, the Council and the Commission shall consult each other and by common agreement make arrangements for their cooperation. To that end, they may, in compliance with the Constitution, conclude interinstitutional agreements which may be of a binding nature. Article III-398 1. In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the suppor t of an open, efficient and independent European administration. 2. In compliance with the Staff Regulations and the Conditions of employment adopted on the basis of Ar ticle III-427, European laws shall establish provisions to that end. Article III-399 1. The institutions, bodies, offices and agencies of the Union shall ensure transparency in their work and shall, pursuant to Ar ticle I-50, determine in their rules of procedure specific provisions for public access to their documents. The Cour t of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to the provisions of Ar ticle I-50(3) and to this Ar ticle only when exercising their administrative tasks. 2. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the European law referred to in Ar ticle I-50(3). Article III-400 1. The Council shall adopt European regulations and decisions determining: (a) the salaries, allowances and pensions of the President of the European Council, the President of the Commission, the Union Minister for Foreign Affairs, the members of the Commission, the Presidents, members and Registrars of the Cour t of Justice of the European Union, and the Secretary-General of the Council; 16.12.2004 Official Journal of the European Union C 310/173 EN (b) the conditions of employment, in par ticular the salaries, allowances and pensions, of the President and members of the Cour t of Auditors; (c) any payment to be made instead of remuneration to the persons referred to in points (a) and (b). 2. The Council shall adopt European regulations and decisions determining the allowances of the members of the Economic and Social Committee. Article III-401 Acts of the Council, of the Commission or of the European Central Bank which impose a pecuniary obligation on persons other than Member States shall be enforceable. Enforcement shall be governed by the rules of civil procedure in force in the Member State in the territory of which it is carried out. The order for its enforcement shall be appended to the decision, without other formality than verification of the authenticity of the decision, by the national authority which the government of each Member State shall designate for this purpose and shall make known to the Commission and the Cour t of Justice of the European Union. When these formalities have been completed on application by the par ty concerned, the latter may proceed to enforcement by bringing the matter directly before the competent authority, in accordance with the national law. Enforcement may be suspended only by a decision of the Cour t of Justice of the European Union. However, the cour ts of the country concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner. CHAPTER II FINANCIAL PROVISIONS SECTION 1 THE MULTIANNUAL FINANCIAL FRAMEWORK Article III-402 1. The multiannual financial framework shall be established for a period of at least five years in accordance with Ar ticle I-55. 2. The financial framework shall determine the amounts of the annual ceilings on commitment appropriations by category of expenditure and of the annual ceiling on payment appropriations. The categories of expenditure, limited in number, shall correspond to the Union's major sectors of activity. 3. The financial framework shall lay down any other provisions required for the annual budgetary procedure to run smoothly. C 310/174 Official Journal of the European Union 16.12.2004 EN 4. Where no European law of the Council determining a new financial framework has been adopted by the end of the previous financial framework, the ceilings and other provisions corresponding to the last year of that framework shall be extended until such time as that law is adopted. 5. Throughout the procedure leading to the adoption of the financial framework, the European Parliament, the Council and the Commission shall take any measure necessary to facilitate the successful completion of the procedure. SECTION 2 THE UNION'S ANNUAL BUDGET Article III-403 The financial year shall run from 1 January to 31 December. Article III-404 European laws shall establish the Union's annual budget in accordance with the following provisions: 1. Each institution shall, before 1 July, draw up estimates of its expenditure for the following financial year. The Commission shall consolidate these estimates in a draft budget which may contain different estimates. The draft budget shall contain an estimate of revenue and an estimate of expenditure. 2. The Commission shall submit a proposal containing the draft budget to the European Parliament and to the Council not later than 1 September of the year preceding that in which the budget is to be implemented. The Commission may amend the draft budget during the procedure until such time as the Conciliation Committee, referred to in paragraph 5, is convened. 3. The Council shall adopt its position on the draf t budget and for ward it to the European Parliament not later than 1 October of the year preceding that in which the budget is to be implemented. The Council shall inform the European Parliament in full of the reasons which led it to adopt its position. 4. If, within forty-two days of such communication, the European Parliament: (a) approves the position of the Council, the European law establishing the budget shall be adopted; (b) has not taken a decision, the European law establishing the budget shall be deemed to have been adopted (c) adopts amendments by a majority of its component members, the amended draft shall be forwarded to the Council and to the Commission. The President of the European Parliament, in agreement with the President of the Council, shall immediately convene a meeting of the Conciliation Committee. However, if within ten days of the draft being for warded the Council informs the European Parliament that it has approved all its amendments, the Conciliation Committee shall not meet. 16.12.2004 Official Journal of the European Union C 310/175 EN 5. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of members representing the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament within twenty-one days of its being convened, on the basis of the positions of the European Parliament and the Council. The Commission shall take par t in the Conciliation Committee's proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. 6. If, within the twenty-one days referred to in paragraph 5, the Conciliation Committee agrees on a joint text, the European Parliament and the Council shall each have a period of four teen days from the date of that agreement in which to approve the joint text. 7. If, within the period of four teen days referred to in paragraph 6: (a) the European Parliament and the Council both approve the joint text or fail to take a decision, or if one of these institutions approves the joint text while the other one fails to take a decision, the European law establishing the budget shall be deemed to be definitively adopted in accordance with the joint text, or (b) the European Parliament, acting by a majority of its component members, and the Council both reject the joint text, or if one of these institutions rejects the joint text while the other one fails to take a decision, a new draft budget shall be submitted by the Commission, or (c) the European Parliament, acting by a majority of its component members, rejects the joint text while the Council approves it, a new draft budget shall be submitted by the Commission, or (d) the European Parliament approves the joint text whilst the Council rejects it, the European Parliament may, within four teen days from the date of the rejection by the Council and acting by a majority of its component members and three-fifths of the votes cast, decide to confirm all or some of the amendments referred to in paragraph 4(c). Where a European Parliament amendment is not confirmed, the position agreed in the Conciliation committee on the budget heading which is the subject of the amendment shall be retained. The European law establishing the budget shall be deemed to be definitively adopted on this basis. 8. If, within the twenty-one days referred to in paragraph 5, the Conciliation Committee does not agree on a joint text, a new draft budget shall be submitted by the Commission. 9. When the procedure provided for in this Ar ticle has been completed, the President of the European Parliament shall declare that the European law establishing the budget has been definitively adopted. 10. Each institution shall exercise the powers conferred upon it under this Ar ticle in compliance with the Constitution and the acts adopted thereunder, with par ticular regard to the Union's own resources and the balance between revenue and expenditure. C 310/176 Official Journal of the European Union 16.12.2004 EN Article III-405 1. If at the beginning of a financial year no European law establishing the budget has been definitively adopted, a sum equivalent to not more than one twelfth of the budget appropriations entered in the chapter in question of the budget for the preceding financial year may be spent each month in respect of any chapter in accordance with the European law referred to in Ar ticle III-412; that sum shall not, however, exceed one twelfth of the appropriations provided for in the same chapter of the draft budget. 2. The Council, on a proposal by the Commission and in compliance with the other conditions laid down in paragraph 1, may adopt a European decision authorising expenditure in excess of one twelfth, in accordance with the European law referred to in Ar ticle III-412. The Council shall forward the decision immediately to the European Parliament. The European decision shall lay down the necessary measures relating to resources to ensure application of this Ar ticle, in accordance with the European laws referred to in Ar ticle I-54(3) and (4). It shall enter into force thir ty days following its adoption if the European Parliament, acting by a majority of its component members, has not decided to reduce this expenditure within that time- limit. Article III-406 In accordance with the conditions laid down by the European law referred to in Ar ticle III-412, any appropriations, other than those relating to staff expenditure, that are unexpended at the end of the financial year may be carried for ward to the next financial year only. Appropriations shall be classified under different chapters grouping items of expenditure according to their nature or purpose and subdivided in accordance with the European law referred to in Ar ticle III-412. The expenditure of: -- the European Parliament, -- the European Council and the Council, -- the Commission, and -- the Cour t of Justice of the European Union shall be set out in separate sections of the budget, without prejudice to special arrangements for cer tain common items of expenditure. 16.12.2004 Official Journal of the European Union C 310/177 EN SECTION 3 IMPLEMENTATION OF THE BUDGET AND DISCHARGE Article III-407 The Commission shall implement the budget in cooperation with the Member States, in accordance with the European law referred to in Ar ticle III-412, on its own responsibility and within the limits of the appropriations allocated, having regard to the principles of sound financial management. Member States shall cooperate with the Commission to ensure that the appropriations are used in accordance with those principles. The European law referred to in Ar ticle III-412 shall establish the control and audit obligations of the Member States in the implementation of the budget and the resulting responsibilities. It shall establish the responsibilities and detailed rules for each institution concerning its par t in effecting its own expenditure. Within the budget the Commission may, subject to the limits and conditions laid down by the European law referred to in Ar ticle III-412, transfer appropriations from one chapter to another or from one subdivision to another. Article III-408 The Commission shall submit annually to the European Parliament and to the Council the accounts of the preceding financial year relating to the implementation of the budget. The Commission shall also for ward to them a financial statement of the Union's assets and liabilities. The Commission shall also submit to the European Parliament and to the Council an evaluation repor t on the Union's finances based on the results achieved, in par ticular in relation to the indications given by the European Parliament and the Council pursuant to Ar ticle III-409. Article III-409 1. The European Parliament, on a recommendation from the Council, shall give a discharge to the Commission in respect of the implementation of the budget. To this end, the Council and the European Parliament in turn shall examine the accounts, the financial statement and the evaluation repor t referred to in Ar ticle III-408, the annual repor t by the Cour t of Auditors together with the replies of the institutions under audit to the obser vations of the Cour t of Auditors, the statement of assurance referred to in the second subparagraph of Ar ticle III-384(1) and any relevant special repor ts by the Cour t of Auditors. 2. Before giving a discharge to the Commission, or for any other purpose in connection with the exercise of its powers over the implementation of the budget, the European Parliament may ask to hear the Commission give evidence with regard to the execution of expenditure or the operation of financial control systems. The Commission shall submit any necessary information to the European Parliament at the latter's request. 3. The Commission shall take all appropriate steps to act on the obser vations in the decisions giving discharge and on other obser vations by the European Parliament relating to the execution of expenditure, as well as on comments accompanying the recommendations on discharge adopted by the Council. C 310/178 Official Journal of the European Union 16.12.2004 EN 4. At the request of the European Parliament or the Council, the Commission shall repor t on the measures taken in the light of these obser vations and comments and in par ticular on the instructions given to the depar tments which are responsible for the implementation of the budget. These repor ts shall also be for warded to the Cour t of Auditors. SECTION 4 COMMON PROVISIONS Article III-410 The multiannual financial framework and the annual budget shall be drawn up in euro. Article III-411 The Commission may, provided it notifies the competent authorities of the Member States concerned, transfer into the currency of one of the Member States its holdings in the currency of another Member State, to the extent necessary to enable them to be used for purposes which come within the scope of the Constitution. The Commission shall as far as possible avoid making such transfers if it possesses cash or liquid assets in the currencies which it needs. The Commission shall deal with each Member State concerned through the authority designated by that State. In carrying out financial operations the Commission shall employ the ser vices of the bank of issue of the Member State concerned or of any other financial institution approved by that State. Article III-412 1. European laws shall establish: (a) the financial rules which determine in par ticular the procedure to be adopted for establishing and implementing the budget and for presenting and auditing accounts; (b) rules providing for checks on the responsibility of financial actors, in par ticular authorising officers and accounting officers. Such European laws shall be adopted after consultation of the Cour t of Auditors. 2. The Council shall, on a proposal from the Commission, adopt a European regulation laying down the methods and procedure whereby the budget revenue provided under the arrangements relating to the Union's own resources shall be made available to the Commission, and the measures to be applied, if need be, to meet cash requirements. The Council shall act after consulting the European Parliament and the Cour t of Auditors. 3. The Council shall act unanimously until 31 December 2006 in all the cases referred to by this Ar ticle. 16.12.2004 Official Journal of the European Union C 310/179 EN Article III-413 The European Parliament, the Council and the Commission shall ensure that the financial means are made available to allow the Union to fulfil its legal obligations in respect of third par ties. Article III-414 Regular meetings between the Presidents of the European Parliament, the Council and the Commission shall be convened, on the initiative of the Commission, under the budgetary procedures referred to in this Chapter. The Presidents shall take all the necessary steps to promote consultation and the reconciliation of the positions of the institutions over which they preside in order to facilitate the implementation of this Chapter. SECTION 5 COMBATING FRAUD Article III-415 1. The Union and the Member States shall counter fraud and any other illegal activities affecting the Union's financial interests through measures taken in accordance with this Ar ticle. These measures shall act as a deterrent and be such as to afford effective protection in the Member States and in all the Union's institutions, bodies, offices and agencies. 2. Member States shall take the same measures to counter fraud affecting the Union's financial interests as they take to counter fraud affecting their own financial interests. 3. Without prejudice to other provisions of the Constitution, the Member States shall coordinate their action aimed at protecting the Union's financial interests against fraud. To this end they shall organise, together with the Commission, close and regular cooperation between the competent authorities. 4. European laws or framework laws shall lay down the necessary measures in the fields of the prevention of and fight against fraud affecting the Union's financial interests with a view to affording effective and equivalent protection in the Member States and in all the Union's institutions, bodies, offices and agencies. They shall be adopted after consultation of the Cour t of Auditors. 5. The Commission, in cooperation with Member States, shall each year submit to the European Parliament and to the Council a repor t on the measures taken for the implementation of this Ar ticle. C 310/180 Official Journal of the European Union 16.12.2004 EN CHAPTER III ENHANCED COOPERATION Article III-416 Any enhanced cooperation shall comply with the Constitution and the law of the Union. Such cooperation shall not undermine the internal market or economic, social and territorial cohesion. It shall not constitute a barrier to or discrimination in trade between Member States, nor shall it distor t competition between them. Article III-417 Any enhanced cooperation shall respect the competences, rights and obligations of those Member States which do not par ticipate in it. Those Member States shall not impede its implementation by the par ticipating Member States. Article III-418 1. When enhanced cooperation is being established, it shall be open to all Member States, subject to compliance with any conditions of par ticipation laid down by the European authorising decision. It shall also be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to any such conditions. The Commission and the Member States par ticipating in enhanced cooperation shall ensure that they promote par ticipation by as many Member States as possible. 2. The Commission and, where appropriate, the Union Minister for Foreign Affairs shall keep the European Parliament and the Council regularly informed regarding developments in enhanced cooperation. Article III-419 1. Member States which wish to establish enhanced cooperation between themselves in one of the areas covered by the Constitution, with the exception of fields of exclusive competence and the common foreign and security policy, shall address a request to the Commission, specifying the scope and objectives of the enhanced cooperation proposed. The Commission may submit a proposal to the Council to that effect. In the event of the Commission not submitting a proposal, it shall inform the Member States concerned of the reasons for not doing so. Authorisation to proceed with enhanced cooperation shall be granted by a European decision of the Council, which shall act on a proposal from the Commission and after obtaining the consent of the European Parliament. 2. The request of the Member States which wish to establish enhanced cooperation between themselves within the framework of the common foreign and security policy shall be addressed to the Council. It shall be for warded to the Union Minister for Foreign Affairs, who shall give an opinion on whether the enhanced cooperation proposed is consistent with the Union's common foreign and security policy, and to the Commission, which shall give its opinion in par ticular on whether the 16.12.2004 Official Journal of the European Union C 310/181 EN enhanced cooperation proposed is consistent with other Union policies. It shall also be forwarded to the European Parliament for information. Authorisation to proceed with enhanced cooperation shall be granted by a European decision of the Council acting unanimously. Article III-420 1. Any Member State which wishes to par ticipate in enhanced cooperation in progress in one of the areas referred to in Ar ticle III-419(1) shall notify its intention to the Council and the Commission. The Commission shall, within four months of the date of receipt of the notification, confirm the par ticipation of the Member State concerned. It shall note where necessary that the conditions of par ticipation have been fulfilled and shall adopt any transitional measures necessary with regard to the application of the acts already adopted within the framework of enhanced cooperation. However, if the Commission considers that the conditions of par ticipation have not been fulfilled, it shall indicate the arrangements to be adopted to fulfil those conditions and shall set a deadline for re- examining the request. On the expiry of that deadline, it shall re-examine the request, in accordance with the procedure set out in the second subparagraph. If the Commission considers that the conditions of par ticipation have still not been met, the Member State concerned may refer the matter to the Council, which shall decide on the request. The Council shall act in accordance with Ar ticle I- 44(3). It may also adopt the transitional measures referred to in the second subparagraph on a proposal from the Commission. 2. Any Member State which wishes to par ticipate in enhanced cooperation in progress in the framework of the common foreign and security policy shall notify its intention to the Council, the Union Minister for Foreign Affairs and the Commission. The Council shall confirm the par ticipation of the Member State concerned, after consulting the Union Minister for Foreign Affairs and after noting, where necessary, that the conditions of par ticipation have been fulfilled. The Council, on a proposal from the Union Minister for Foreign Affairs, may also adopt any transitional measures necessary with regard to the application of the acts already adopted within the framework of enhanced cooperation. However, if the Council considers that the conditions of par ticipation have not been fulfilled, it shall indicate the arrangements to be adopted to fulfil those conditions and shall set a deadline for re-examining the request for par ticipation. For the purposes of this paragraph, the Council shall act unanimously and in accordance with Ar ticle I-44(3). Article III-421 Expenditure resulting from implementation of enhanced cooperation, other than administrative costs entailed for the institutions, shall be borne by the par ticipating Member States, unless all members of the Council, acting unanimously after consulting the European Parliament, decide other wise. C 310/182 Official Journal of the European Union 16.12.2004 EN Article III-422 1. Where a provision of the Constitution which may be applied in the context of enhanced cooperation stipulates that the Council shall act unanimously, the Council, acting unanimously in accordance with the arrangements laid down in Ar ticle I-44(3), may adopt a European decision stipulating that it will act by a qualified majority. 2. Where a provision of the Constitution which may be applied in the context of enhanced cooperation stipulates that the Council shall adopt European laws or framework laws under a special legislative procedure, the Council, acting unanimously in accordance with the arrangements laid down in Ar ticle I-44(3), may adopt a European decision stipulating that it will act under the ordinary legislative procedure. The Council shall act after consulting the European Parliament. 3. Paragraphs 1 and 2 shall not apply to decisions having military or defence implications. Article III-423 The Council and the Commission shall ensure the consistency of activities under taken in the context of enhanced cooperation and the consistency of such activities with the policies of the Union, and shall cooperate to that end. TITLE VII COMMON PROVISIONS Article III-424 Taking account of the structural economic and social situation of Guadeloupe, French Guiana, Mar tinique, Réunion, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, on a proposal from the Commission, shall adopt European laws, framework laws, regulations and decisions aimed, in par ticular, at laying down the conditions of application of the Constitution to those regions, including common policies. It shall act after consulting the European Parliament. The acts referred to in the first paragraph concern in par ticular areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Union programmes. The Council shall adopt the acts referred to in the first paragraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Union legal order, including the internal market and common policies. 16.12.2004 Official Journal of the European Union C 310/183 EN Article III-425 The Constitution shall in no way prejudice the rules in Member States governing the system of proper ty ownership. Article III-426 In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in par ticular, acquire or dispose of movable and immovable proper ty and may be a par ty to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by vir tue of their administrative autonomy, in matters relating to their respective operation. Article III-427 The Staff Regulations of officials and the Conditions of employment of other ser vants of the Union shall be laid down by a European law. It shall be adopted after consultation of the institutions concerned. Article III-428 The Commission may, within the limits and under conditions laid down by a European regulation or decision adopted by a simple majority by the Council, collect any information and carry out any checks required for the performance of the tasks entrusted to it. Article III-429 1. Without prejudice to Ar ticle 5 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, measures for the production of statistics shall be laid down by a European law or framework law where necessary for the performance of the Union's activities. 2. The production of statistics shall conform to impar tiality, reliability, objectivity, scientific independence, cost-effectiveness and statistical confidentiality. It shall not entail excessive burdens on economic operators. Article III-430 The members of the Union's institutions, the members of committees, and the officials and other ser vants of the Union shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in par ticular information about under takings, their business relations or their cost components. Article III-431 The Union's contractual liability shall be governed by the law applicable to the contract in question. In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its ser vants in the performance of their duties. C 310/184 Official Journal of the European Union 16.12.2004 EN Notwithstanding the second paragraph, the European Central Bank shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or by its ser vants in the performance of their duties. The personal liability of its ser vants towards the Union shall be governed by the provisions laid down in their Staff Regulations or in the Conditions of Employment applicable to them. Article III-432 The seat of the Union's institutions shall be determined by common accord of the governments of the Member States. Article III-433 The Council shall adopt unanimously a European regulation laying down the rules governing the languages of the Union's institutions, without prejudice to the Statute of the Cour t of Justice of the European Union. Article III-434 The Union shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Union. Article III-435 The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the Constitution. To the extent that such agreements are not compatible with the Constitution, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Constitution by each Member State form an integral par t of the Union and are thereby inseparably linked with the creation of institutions on which powers have been conferred by the Constitution and the granting of identical advantages by all the other Member States. Article III-436 1. The Constitution shall not preclude the application of the following rules: (a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security; 16.12.2004 Official Journal of the European Union C 310/185 EN (b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes. 2. The Council, on a proposal from the Commission, may unanimously adopt a European decision making changes to the list of 15 April 1958 of the products to which the provisions of paragraph 1 (b) apply. C 310/186 Official Journal of the European Union 16.12.2004 EN PART IV GENERAL AND FINAL PROVISIONS Article IV-437 Repeal of earlier Treaties 1. This Treaty establishing a Constitution for Europe shall repeal the Treaty establishing the European Community, the Treaty on European Union and, under the conditions laid down in the Protocol on the acts and treaties having supplemented or amended the Treaty establishing the European Community and the Treaty on European Union, the acts and treaties which have supplemented or amended them, subject to paragraph 2 of this Ar ticle. 2. The Treaties on the Accession: (a) of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland; (b) of the Hellenic Republic; (c) of the Kingdom of Spain and the Por tuguese Republic; (d) of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, and (e) of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, shall be repealed. Never theless: -- the provisions of the Treaties referred to in points (a) to (d) and set out or referred to in the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden shall remain in force and their legal effects shall be preser ved in accordance with that Protocol, -- the provisions of the Treaty referred to in point (e) and which are set out or referred to in the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic shall remain in force and their legal effects shall be preser ved in accordance with that Protocol. 16.12.2004 Official Journal of the European Union C 310/187 EN Article IV-438 Succession and legal continuity 1. The European Union established by this Treaty shall be the successor to the European Union established by the Treaty on European Union and to the European Community. 2. Until new provisions have been adopted in implementation of this Treaty or until the end of their term of office, the institutions, bodies, offices and agencies existing on the date of the entry into force of this Treaty shall, subject to Ar ticle IV-439, exercise their powers within the meaning of this Treaty in their composition on that date. 3. The acts of the institutions, bodies, offices and agencies adopted on the basis of the treaties and acts repealed by Ar ticle IV-437 shall remain in force. Their legal effects shall be preser ved until those acts are repealed, annulled or amended in implementation of this Treaty. The same shall apply to agreements concluded between Member States on the basis of the treaties and acts repealed by Ar ticle IV-437. The other components of the acquis of the Community and of the Union existing at the time of the entry into force of this Treaty, in par ticular the interinstitutional agreements, decisions and agreements arrived at by the Representatives of the Governments of the Member States, meeting within the Council, the agreements concluded by the Member States on the functioning of the Union or of the Community or linked to action by the Union or by the Community, the declarations, including those made in the context of intergovernmental conferences, as well as the resolutions or other positions adopted by the European Council or the Council and those relating to the Union or to the Community adopted by common accord by the Member States, shall also be preser ved until they have been deleted or amended. 4. The case-law of the Cour t of Justice of the European Communities and of the Cour t of First Instance on the interpretation and application of the treaties and acts repealed by Ar ticle IV-437, as well as of the acts and conventions adopted for their application, shall remain, mutatis mutandis, the source of interpretation of Union law and in par ticular of the comparable provisions of the Constitution. 5. Continuity in administrative and legal procedures commenced prior to the date of entry into force of this Treaty shall be ensured in compliance with the Constitution. The institutions, bodies, offices and agencies responsible for those procedures shall take all appropriate measures to that effect. Article IV-439 Transitional provisions relating to cer tain institutions The transitional provisions relating to the composition of the European Parliament, to the definition of a qualified majority in the European Council and in the Council, including those cases where not all members of the European Council or Council vote, and to the composition of the Commission, including the Union Minister for Foreign Affairs, shall be laid down in the Protocol on the transitional provisions relating to the institutions and bodies of the Union. C 310/188 Official Journal of the European Union 16.12.2004 EN Article IV-440 Scope 1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Nor thern Ireland. 2. This Treaty shall apply to Guadeloupe, French Guiana, Mar tinique, Réunion, the Azores, Madeira and the Canary Islands in accordance with Ar ticle III-424. 3. The special arrangements for association set out in Title IV of Par t III shall apply to the overseas countries and territories listed in Annex II. This Treaty shall not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Nor thern Ireland which are not included in that list. 4. This Treaty shall apply to the European territories for whose external relations a Member State is responsible. 5. This Treaty shall apply to the Ĺland Islands with the derogations which originally appeared in the Treaty referred to in Ar ticle IV-437(2)(d) and which have been incorporated in Section 5 of Title V of the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. 6. Notwithstanding paragraphs 1 to 5: (a) this Treaty shall not apply to the Faeroe Islands; (b) this Treaty shall apply to Akrotiri and Dhekelia, the sovereign base areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus, only to the extent necessary to ensure the implementation of the arrangements originally provided for in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus, annexed to the Act of Accession which is an integral par t of the Treaty referred to in Ar ticle IV-437(2)(e), and which have been incorporated in Title III of Par t II of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic; (c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands originally set out in the Treaty referred to in Ar ticle IV-437(2)(a), and which have been incorporated in Section 3 of Title II of 16.12.2004 Official Journal of the European Union C 310/189 EN the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. 7. The European Council may, on the initiative of the Member State concerned, adopt a European decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 2 and 3. The European Council shall act unanimously after consulting the Commission. Article IV-441 Regional unions This Treaty shall not preclude the existence or completion of regional unions between Belgium and Luxembourg, or between Belgium, Luxembourg and the Netherlands, to the extent that the objectives of these regional unions are not attained by application of the said Treaty. Article IV-442 Protocols and Annexes The Protocols and Annexes to this Treaty shall form an integral par t thereof. Article IV-443 Ordinary revision procedure 1. The government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of this Treaty. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified. 2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 3. The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States. C 310/190 Official Journal of the European Union 16.12.2004 EN 3. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to this Treaty. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements. 4. If, two years after the signature of the treaty amending this Treaty, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council. Article IV-444 Simplif ied revision procedure 1. Where Par t III provides for the Council to act by unanimity in a given area or case, the European Council may adopt a European decision authorising the Council to act by a qualified majority in that area or in that case. This paragraph shall not apply to decisions with military implications or those in the area of defence. 2. Where Par t III provides for European laws and framework laws to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a European decision allowing for the adoption of such European laws or framework laws in accordance with the ordinary legislative procedure. 3. Any initiative taken by the European Council on the basis of paragraphs 1 or 2 shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the European decision referred to in paragraphs 1 or 2 shall not be adopted. In the absence of opposition, the European Council may adopt the decision. For the adoption of the European decisions referred to in paragraphs 1 and 2, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members. Article IV-445 Simplif ied revision procedure concerning internal Union policies and action 1. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or par t of the provisions of Title III of Par t III on the internal policies and action of the Union. 2. The European Council may adopt a European decision amending all or par t of the provisions of Title III of Par t III. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. 16.12.2004 Official Journal of the European Union C 310/191 EN Such a European decision shall not come into force until it has been approved by the Member States in accordance with their respective constitutional requirements. 3. The European decision referred to in paragraph 2 shall not increase the competences conferred on the Union in this Treaty. Article IV-446 Duration This Treaty is concluded for an unlimited period. Article IV-447 Ratif ication and entry into force 1. This Treaty shall be ratified by the High Contracting Par ties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic. 2. This Treaty shall enter into force on 1 November 2006, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the second month following the deposit of the instrument of ratification by the last signatory State to take this step. Article IV-448 Authentic texts and translations 1. This Treaty, drawn up in a single original in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a cer tified copy to each of the governments of the other signatory States. 2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or par t of their territory. A cer tified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council. C 310/192 Official Journal of the European Union 16.12.2004 EN EN FE DE LO CUAL, los plenipotenciarios infrascritos suscriben el presente Tratado Na DKAZ CEHOZ pipojili níze podepsaní zplnomocnní zástupci k této smlouv své podpisy TIL BEKRĆFTELSE HERAF har under tegnede befuldmćgtigede underskrevet denne traktat ZU URKUND DESSEN haben die unterzeichneten Bevollmächtigten ihre Unterschriften unter diesen Ver trag gesetzt SELLE KINNITUSEKS on nimetatud täievolilised esindajad käesolevale lepingule alla kirjutanud , IN WITNESS WHEREOF, the undersigned plenipotentiaries have signed this Treaty EN FOI DE QUOI, les plénipotentiaires soussignés ont apposé leur signature au bas du présent traité DÁ FHIANÚ SIN, chuir na Lánchumhachtaigh thíos-sínithe a lámh leis an gConradh seo IN FEDE DI CHE, i plenipotenziari sottoscritti hanno apposto la loro firma in calce al presente trattato TO APLIECINOT, attiecgi pilnvarotas personas ir parakstjusas so Lgumu TAI PALIUDYDAMI si Sutar t pasiras toliau nurodyti galiotieji atstovai FENTIEK HITELÉÜL az alulírott meghatalmazottak aláír ták ezt a szerzdést B'XIEHDA TA' DAN, il-plenipotenzjarji sottoskritti ffirmaw dan it-Trattat TEN BLIJKE WAARVAN de ondergetekende gevolmachtigden hun handtekening onder dit verdrag hebben gesteld W DOWÓD CZEGO niej podpisani pelnomocnicy zloyli swoje podpisy pod niniejszym Traktatem EM FÉ DO QUE os plenipotenciários abaixo assinados apuseram as suas assinaturas no final do presente Tratado NA DÔKAZ TOHO dolupodpísaní splnomocnení zástupcovia podpísali túto zmluvu V POTRDITEV TEGA so spodaj podpisani pooblascenci podpisali to pogodbo TÄMÄN VAKUUDEKSI alla mainitut täysivaltaiset edustajat ovat allekirjoittaneet tämän sopimuksen TILL BEVIS HÄRPĹ har under tecknade befullmäktigade under tecknat detta fördrag Hecho en Roma, el veintinueve de octubre del dos mil cuatro. V ím dne dvacátého devátého íjna dva tisíce ctyi Udfćrdiget i Rom den niogtyvende oktober to tusind og fire. Geschehen zu Rom am neunundzwanzigsten Oktober zweitausendundvier. Kahe tuhande neljanda aasta oktoobrikuu kahekümne üheksandal päeval Roomas , . Done at Rome on the twentyninth day of October in the year two thousand and four. Fait ŕ Rome, le vingtneuf octobre deux mille quatre. Arna dhéanamh sa Róimh, an naoú lá fichead de Dheireadh Fómhair sa bhliain dhá mhíle is a ceathair Fatto a Roma, addě ventinove ottobre duemilaquattro. Rom, divi tkstosi cetur t gada divdesmit devtaj oktobr Priimta du tkstanciai ketvir t met spalio dvidesimt devint dien Romoje Kelt Rómában, a kétezer-negyedik év október havának huszonkilencedik napján 16.12.2004 Official Journal of the European Union C 310/193 EN Magmul f'Ruma fid-disa' u goxrin jum ta' Ottubru tas-sena elfejn u erbga Gedaan te Rome, de negenentwintigste oktober tweeduizendvier. Sporzdzono w Rzymie dnia dwudziestego dziewitego padziernika roku dwutysicznego czwar tego Feito em Roma, em vinte e nove de Outubro de dois mil e quatro V Ríme dvadsiatehodeviateho októbra dvetisícstyri V Rimu, devetindvajsetega oktobra leta dva tisoc stiri Te h t y R o o m a s s a k a h d e n t e n a k y m m e n e n t e n ä y h d e k s ä n t e n ä p ä i v ä n ä l o k a k u u t a v u o n n a kaksituhattaneljä. Som skedde i Rom den tjugonionde oktober tjugohundrafyra. C 310/194 Official Journal of the European Union 16.12.2004 EN Pour Sa Majesté le Roi des Belges Voor Zijne Majesteit de Koning der Belgen Für Seine Majestät den König der Belgier Cette signature engage également la Communauté française, la Communauté f lamande, la Communauté germanophone, la Région wallonne, la Région f lamande et la Région de Bruxelles-Capitale. Deze handtekening verbindt eveneens de Vlaamse Gemeenschap, de Franse Gemeenschap, de Duitstalige Gemeenschap, het Vlaamse Gewest, het Waalse Gewest en het Brussels Hoofdstedelijk Gewest. Diese Unterschrift bindet zugleich die Deutschsprachige Gemeinschaft, die Flämische Gemeinschaft, die Französische Gemeinschaft, die Wallonische Region, die Flämische Region und die Region Brüssel-Hauptstadt. Za prezidenta Ceské republiky 16.12.2004 Official Journal of the European Union C 310/195 EN For Hendes Majestćt Danmarks Dronning Für den Präsidenten der Bundesrepublik Deutschland Eesti Vabariigi Presidendi nimel C 310/196 Official Journal of the European Union 16.12.2004 EN Por Su Majestad el Rey de Espańa Pour le Président de la République française 16.12.2004 Official Journal of the European Union C 310/197 EN Thar ceann Uachtarán na hÉireann For the President of Ireland Per il Presidente della Repubblica italiana C 310/198 Official Journal of the European Union 16.12.2004 EN Latvas Republikas Valsts prezidentes vrd Lietuvos Respublikos Prezidento vardu Pour Son Altesse Royale le Grand-Duc de Luxembourg 16.12.2004 Official Journal of the European Union C 310/199 EN A Magyar Köztársaság Elnöke részérl Gall-President ta' Malta Voor Hare Majesteit de Koningin der Nederlanden C 310/200 Official Journal of the European Union 16.12.2004 EN Für den Bundespräsidenten der Republik Österreich Za Prezydenta Rzeczypospolitej Polskiej Pelo Presidente da República Por tuguesa 16.12.2004 Official Journal of the European Union C 310/201 EN Za predsednika Republike Slovene Za prezidenta Slovenskej republiky Suomen Tasavallan Presidentin puolesta För Republiken Finlands President C 310/202 Official Journal of the European Union 16.12.2004 EN För Konungariket Sveriges regering For Her Majesty the Queen of the United Kingdom of Great Britain and Nor thern Ireland 16.12.2004 Official Journal of the European Union C 310/203 EN PROTOCOLS AND ANNEXES A. PROTOCOLS ANNEXED TO THE TREAT Y ESTABLISHING A CONSTITUTION FOR EUROPE C 310/204 Official Journal of the European Union 16.12.2004 EN 1. PROTOCOL ON THE ROLE OF NATIONAL PARLIAMENTS IN THE EUROPEAN UNION THE HIGH CONTRACTING PARTIES, RECALLING that the way in which national Parliaments scrutinise their governments in relation to the activities of the Union is a matter for the par ticular constitutional organisation and practice of each Member State; DESIRING to encourage greater involvement of national Parliaments in the activities of the European Union and to enhance their ability to express their views on draft European legislative acts as well as on other matters which may be of par ticular interest to them, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: TITLE I INFORMATION FOR NATIONAL PARLIAMENTS Article 1 Commission consultation documents (green and white papers and communications) shall be forwarded directly by the Commission to national Parliaments upon publication. The Commission shall also forward the annual legislative programme as well as any other instrument of legislative planning or policy to national Parliaments, at the same time as to the European Parliament and the Council. Article 2 Draft European legislative acts sent to the European Parliament and to the Council shall be for warded to national Parliaments. For the purposes of this Protocol, `draft European legislative acts' shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Cour t of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a European legislative act. Draft European legislative acts originating from the Commission shall be for warded to national Parliaments directly by the Commission, at the same time as to the European Parliament and the Council. Draft European legislative acts originating from the European Parliament shall be forwarded to national Parliaments directly by the European Parliament. Draft European legislative acts originating from a group of Member States, the Cour t of Justice, the European Central Bank or the European Investment Bank shall be for warded to national Parliaments by the Council. 16.12.2004 Official Journal of the European Union C 310/205 EN Article 3 National Parliaments may send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion on whether a draft European legislative act complies with the principle of subsidiarity, in accordance with the procedure laid down in the Protocol on the application of the principles of subsidiarity and propor tionality. If the draft European legislative act originates from a group of Member States, the President of the Council shall for ward the reasoned opinion or opinions to the governments of those Member States. If the draft European legislative act originates from the Cour t of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall for ward the reasoned opinion or opinions to the institution or body concerned. Article 4 A sixweek period shall elapse between a draft European legislative act being made available to national Parliaments in the official languages of the Union and the date when it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure. Exceptions shall be possible in cases of urgency, the reasons for which shall be stated in the act or position of the Council. Save in urgent cases for which due reasons have been given, no agreement may be reached on a draft European legislative act during those six weeks. Save in urgent cases for which due reasons have been given, a tenday period shall elapse between the placing of a draft European legislative act on the provisional agenda for the Council and the adoption of a position. Article 5 The agendas for and the outcome of meetings of the Council, including the minutes of meetings where the Council is deliberating on draft European legislative acts, shall be forwarded directly to national Parliaments, at the same time as to Member States' governments. Article 6 When the European Council intends to make use of Ar ticle IV444(1) or (2) of the Constitution, national Parliaments shall be informed of the initiative of the European Council at least six months before any European decision is adopted. Article 7 The Cour t of Auditors shall forward its annual repor t to national Parliaments, for information, at the same time as to the European Parliament and to the Council. Article 8 Where the national Parliamentar y system is not unicameral, Ar ticles 1 to 7 shall apply to the component chambers. C 310/206 Official Journal of the European Union 16.12.2004 EN TITLE II INTERPARLIAMENTARY COOPERATION Article 9 The European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union. Article 10 A conference of Parliamentary Committees for Union Affairs may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission. That conference shall in addition promote the exchange of information and best practice between national Parliaments and the European Parliament, including their special committees. It may also organise interparliamentary conferences on specific topics, in par ticular to debate matters of common foreign and security policy, including common security and defence policy. Contributions from the conference shall not bind national Parliaments and shall not prejudge their positions. 16.12.2004 Official Journal of the European Union C 310/207 EN 2. PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARIT Y AND PROPORTIONALIT Y THE HIGH CONTRACTING PARTIES, WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union; RESOLVED to establish the conditions for the application of the principles of subsidiarity and propor tionality, as laid down in Ar ticle I-11 of the Constitution, and to establish a system for monitoring the application of those principles, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 Each institution shall ensure constant respect for the principles of subsidiarity and propor tionality, as laid down in Ar ticle I-11 of the Constitution. Article 2 Before proposing European legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal. Article 3 For the purposes of this Protocol, `draft European legislative acts' shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Cour t of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a European legislative act. Article 4 The Commission shall for ward its draft European legislative acts and its amended drafts to national Parliaments at the same time as to the Union legislator. The European Parliament shall for ward its draft European legislative acts and its amended drafts to national Parliaments. The Council shall for ward draft European legislative acts originating from a group of Member States, the Cour t of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments. Upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be for warded by them to national Parliaments. C 310/208 Official Journal of the European Union 16.12.2004 EN Article 5 Draft European legislative acts shall be justified with regard to the principles of subsidiarity and propor tionality. Any draft European legislative act should contain a detailed statement making it possible to appraise compliance with the pr inciples of subsidiar ity and propor tionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a European framework law, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft European legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved. Article 6 Any national Parliament or any chamber of a national Parliament may, within six weeks from the date of transmission of a draft European legislative act, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers. If the draft European legislative act originates from a group of Member States, the President of the Council shall for ward the opinion to the governments of those Member States. If the draft European legislative act originates from the Cour t of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned. Article 7 The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Cour t of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament. Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote. Where reasoned opinions on a draft European legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second paragraph, the draft must be reviewed. This threshold shall be a quar ter in the case of a draft European legislative act submitted on the basis of Ar ticle III­264 of the Constitution on the area of freedom, security and justice. 16.12.2004 Official Journal of the European Union C 310/209 EN After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Cour t of Justice, the European Central Bank or the European Investment Bank, if the draft European legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision. Article 8 The Cour t of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a European legislative act, brought in accordance with the rules laid down in Ar ticle III-365 of the Constitution by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber of it. In accordance with the rules laid down in the said Ar ticle, the Committee of the Regions may also bring such actions against European legislative acts for the adoption of which the Constitution provides that it be consulted. Article 9 The Commission shall submit each year to the European Council, the European Parliament, the Council and national Parliaments a repor t on the application of Ar ticle I-11 of the Constitution. This annual repor t shall also be for warded to the Committee of the Regions and to the Economic and Social Committee. C 310/210 Official Journal of the European Union 16.12.2004 EN 3. PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION THE HIGH CONTRACTING PARTIES DESIRING to lay down the Statute of the Cour t of Justice of the European Union provided for in Ar ticle III-381 of the Constitution, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and the Treaty establishing the European Atomic Energy Community: Article 1 The Cour t of Justice of the European Union shall be constituted and shall function in accordance with the Constitution, with the Treaty establishing the European Atomic Energy Community (EAEC Treaty) and with this Statute. TITLE I JUDGES AND ADVOCATES-GENERAL Article 2 Before taking up his duties each Judge shall, before the Cour t of Justice sitting in open cour t, take an oath to perform his duties impar tially and conscientiously and to preser ve the secrecy of the deliberations of the Cour t. Article 3 The Judges shall be immune from legal proceedings. After they have ceased to hold office, they shall continue to enjoy immunity in respect of acts performed by them in their official capacity, including words spoken or written. The Cour t of Justice, sitting as a full Cour t, may waive the immunity. If the decision concerns a member of the General Cour t or of a specialised cour t, the Cour t shall decide after consulting the cour t concerned. Where immunity has been waived and criminal proceedings are instituted against a Judge, he shall be tried, in any of the Member States, only by the cour t competent to judge the members of the highest national judiciary. Ar ticles 11 to 14 and Ar ticle 17 of the Protocol on the privileges and immunities of the Union shall apply to the Judges, Advocates-General, Registrars and Assistant Rappor teurs of the Cour t of Justice of the European Union, without prejudice to the provisions relating to immunity from legal proceedings of Judges which are set out in the first, second and third paragraphs of this Ar ticle. 16.12.2004 Official Journal of the European Union C 310/211 EN Article 4 The Judges may not hold any political or administrative office. They may not engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by a European decision of the Council, acting by a simple majority. When taking up their duties, they shall give a solemn under taking that, both during and after their term of office, they will respect the obligations arising therefrom, in par ticular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of cer tain appointments or benefits. Any doubt on this point shall be settled by decision of the Cour t of Justice. If the decision concerns a member of the General Cour t or of a specialised cour t, the Cour t shall decide after consulting the cour t concerned. Article 5 Apar t from normal replacement, or death, the duties of a Judge shall end when he resigns. Where a Judge resigns, his letter of resignation shall be addressed to the President of the Cour t of Justice for transmission to the President of the Council. Upon this notification a vacancy shall arise on the bench. Save where Ar ticle 6 applies, a Judge shall continue to hold office until his successor takes up his duties. Article 6 A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Judges and Advocates-General of the Cour t of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office. The Judge concerned shall not take par t in any such deliberations. If the person concerned is a member of the General Cour t or of a specialised cour t, the Cour t shall decide after consulting the cour t concerned. The Registrar of the Cour t of Justice shall communicate the decision of the Cour t of Justice to the President of the European Parliament and to the President of the Commission and shall notify it to the President of the Council. In the case of a decision depriving a Judge of his office, a vacancy shall arise on the bench upon this latter notification. Article 7 A Judge who is to replace a member of the Cour t of Justice whose term of office has not expired shall be appointed for the remainder of his predecessor's term. Article 8 The provisions of Ar ticles 2 to 7 shall apply to the Advocates-General. C 310/212 Official Journal of the European Union 16.12.2004 EN TITLE II ORGANISATION OF THE COURT OF JUSTICE Article 9 When, every three years, the Judges are par tially replaced, thir teen and twelve Judges shall be replaced alternately. When, every three years, the Advocates-General are par tially replaced, four Advocates-General shall be replaced on each occasion. Article 10 The Registrar shall take an oath before the Cour t of Justice to perform his duties impar tially and conscientiously and to preser ve the secrecy of the deliberations of the Cour t of Justice. Article 11 The Cour t of Justice shall arrange for replacement of the Registrar on occasions when he is prevented from attending the Cour t of Justice. Article 12 Officials and other ser vants shall be attached to the Cour t of Justice to enable it to function. They shall be responsible to the Registrar under the authority of the President. Article 13 A European law may provide for the appointment of Assistant Rappor teurs and lay down the rules governing their ser vice. It shall be adopted at the request of the Cour t of Justice. The Assistant Rappor teurs may be required, under conditions laid down in the Rules of Procedure, to par ticipate in preparatory inquiries in cases pending before the Cour t of Justice and to cooperate with the Judge who acts as Rappor teur. The Assistant Rappor teurs shall be chosen from persons whose independence is beyond doubt and who possess the necessary legal qualifications; they shall be appointed by a European decision of the Council, acting by a simple majority. They shall take an oath before the Cour t of Justice to perform their duties impar tially and conscientiously and to preser ve the secrecy of the deliberations of the Cour t of Justice. Article 14 The Judges, the Advocates-General and the Registrar shall be required to reside at the place where the Cour t of Justice has its seat. Article 15 The Cour t of Justice shall remain permanently in session. The duration of the judicial vacations shall be determined by the Cour t of Justice with due regard to the needs of its business. 16.12.2004 Official Journal of the European Union C 310/213 EN Article 16 The Cour t of Justice shall form chambers consisting of three and five Judges. The Judges shall elect the Presidents of the chambers from among their number. The Presidents of the chambers of five Judges shall be elected for three years. They may be re-elected once. The Grand Chamber shall consist of thir teen Judges. It shall be presided over by the President of the Cour t of Justice. The Presidents of the chambers of five Judges and other Judges appointed in accordance with the conditions laid down in the Rules of Procedure shall also form par t of the Grand Chamber. The Cour t of Justice shall sit in a Grand Chamber when a Member State or an institution of the Union that is par ty to the proceedings so requests. The Cour t of Justice shall sit as a full Cour t where cases are brought before it pursuant to Ar ticle III-335(2), the second paragraph of Ar ticle III-347, Ar ticle III-349 or Ar ticle III-385(6) of the Constitution. Moreover, where it considers that a case before it is of exceptional impor tance, the Cour t of Justice may decide, after hearing the Advocate-General, to refer the case to the full Cour t. Article 17 Decisions of the Cour t of Justice shall be valid only when an uneven number of its members is sitting in the deliberations. Decisions of the chambers consisting of either three or five Judges shall be valid only if they are taken by three Judges. Decisions of the Grand Chamber shall be valid only if nine Judges are sitting. Decisions of the full Cour t shall be valid only if fifteen Judges are sitting. In the event of one of the Judges of a chamber being prevented from attending, a Judge of another chamber may be called upon to sit in accordance with conditions laid down in the Rules of Procedure. Article 18 No Judge or Advocate-General may take par t in the disposal of any case in which he has previously taken par t as agent or adviser or has acted for one of the par ties, or in which he has been called upon to pronounce as a member of a cour t or tribunal, of a commission of inquiry or in any other capacity. If, for some special reason, any Judge or Advocate-General considers that he should not take par t in the judgment or examination of a par ticular case, he shall so inform the President. If, for some special reason, the President considers that any Judge or Advocate-General should not sit or make submissions in a par ticular case, he shall notify him accordingly. Any difficulty arising as to the application of this Ar ticle shall be settled by decision of the Cour t of Justice. C 310/214 Official Journal of the European Union 16.12.2004 EN A par ty may not apply for a change in the composition of the Cour t of Justice or of one of its chambers on the grounds of either the nationality of a Judge or the absence from the Cour t or from the chamber of a Judge of the nationality of that par ty. TITLE III PROCEDURE BEFORE THE COURT OF JUSTICE Article 19 The Member States and the institutions of the Union shall be represented before the Cour t of Justice by an agent appointed for each case. The agent may be assisted by an adviser or by a lawyer. The States, other than the Member States, which are par ties to the Agreement on the European Economic Area and also the European Free Trade Association (EFTA) Surveillance Authority referred to in that Agreement shall be represented in same manner. Other par ties must be represented by a lawyer. Only a lawyer authorised to practise before a cour t of a Member State or of another State which is a par ty to the Agreement on the European Economic Area may represent or assist a par ty before the Cour t of Justice. Such agents, advisers and lawyers shall, when they appear before the Cour t of Justice, enjoy the rights and immunities necessary to the independent exercise of their duties, under conditions laid down in the Rules of Procedure. As regards such advisers and lawyers who appear before it, the Cour t of Justice shall have the powers normally accorded to cour ts of law, under conditions laid down in the Rules of Procedure. University teachers being nationals of a Member State whose law accords them a right of audience shall have the same rights before the Cour t of Justice as are accorded by this Ar ticle to lawyers. Article 20 The procedure before the Cour t of Justice shall consist of two par ts: written and oral. The written procedure shall consist of the communication to the par ties and to the institutions, bodies, offices or agencies of the Union whose acts are in dispute, of applications, statements of case, defences and obser vations, and of replies, if any, as well as of all papers and documents in suppor t or of cer tified copies of them. Communications shall be made by the Registrar in the order and within the time laid down in the Rules of Procedure. The oral procedure shall consist of the reading of the repor t presented by a Judge acting as Rappor teur, the hearing by the Cour t of Justice of agents, advisers and lawyers and of the submissions of the Advocate General, as well as the hearing, if any, of witnesses and exper ts. 16.12.2004 Official Journal of the European Union C 310/215 EN Where it considers that the case raises no new point of law, the Cour t of Justice may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate General. Article 21 A case shall be brought before the Cour t of Justice by a written application addressed to the Registrar. The application shall contain the applicant's name and permanent address and the description of the signatory, the name of the par ty or names of the par ties against whom the application is made, the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based. The application shall be accompanied, where appropriate, by the measure the annulment of which is sought or, in the circumstances referred to in Ar ticle III-367 of the Constitution, by documentary evidence of the date on which an institution was, in accordance with that Ar ticle, requested to act. If the documents are not submitted with the application, the Registrar shall ask the par ty concerned to produce them within a reasonable period, but in that event the rights of the par ty shall not lapse even if such documents are produced after the time limit for bringing proceedings. Article 22 A case governed by Ar ticle 18 of the EAEC Treaty shall be brought before the Cour t of Justice by an appeal addressed to the Registrar. The appeal shall contain the name and permanent address of the applicant and the description of the signatory, a reference to the decision against which the appeal is brought, the names of the respondents, the subject matter of the dispute, the submissions and a brief statement of the grounds on which the appeal is based. The appeal shall be accompanied by a cer tified copy of the decision of the Arbitration Committee which is contested. If the Cour t rejects the appeal, the decision of the Arbitration Committee shall become final. If the Cour t annuls the decision of the Arbitration Committee, the matter may be reopened, where appropriate, on the initiative of one of the par ties in the case, before the Arbitration Committee. The latter shall conform to any decisions on points of law given by the Cour t. Article 23 In the cases governed by Ar ticle III-369 of the Constitution, the decision of the cour t or tribunal of a Member State which suspends its proceedings and refers a case to the Cour t of Justice shall be notified to the Cour t of Justice by the cour t or tribunal concerned. The decision shall then be notified by the Registrar of the Cour t of Justice to the par ties, to the Member States and to the Commission, and to the institution, body, office or agency which adopted the act the validity or interpretation of which is in dispute. Within two months of this notification, the par ties, the Member States, the Commission and, where appropriate, the institution, body, office or agency which adopted the act the validity or interpretation of which is in dispute, shall be entitled to submit statements of case or written obser vations to the Cour t of Justice. C 310/216 Official Journal of the European Union 16.12.2004 EN The decision of the national cour t or tribunal shall, moreover, be notified by the Registrar of the Cour t of Justice to the States, other than the Member States, which are par ties to the Agreement on the European Economic Area and also to the EFTA Surveillance Authority referred to in that Agreement which may, within two months of notification, where one of the fields of application of that Agreement is concerned, submit statements of case or written obser vations to the Cour t of Justice. This paragraph shall not apply to questions falling within the scope of the EAEC Treaty. Where an agreement relating to a specific subject matter, concluded by the Council and one or more non-member countries, provides that those countries are to be entitled to submit statements of case or written obser vations where a cour t or tribunal of a Member State refers to the Cour t of Justice for a preliminary ruling on a question falling within the scope of the agreement, the decision of the national cour t or tribunal containing that question shall also be notified to the non-member countries concerned. Within two months from such notification, those countries may lodge at the Cour t of Justice statements of case or written observations. Article 24 The Cour t of Justice may require the par ties to produce all documents and to supply all information which the Cour t of Justice considers desirable. Formal note shall be taken of any refusal. The Cour t of Justice may also require the Member States and institutions, bodies, offices and agencies of the Union not being par ties to the case to supply all information which the Cour t of Justice considers necessary for the proceedings. Article 25 The Cour t of Justice may at any time entrust any individual, body, authority, committee or other organisation it chooses with the task of giving an exper t opinion. Article 26 Witnesses may be heard under conditions laid down in the Rules of Procedure. Article 27 With respect to defaulting witnesses the Cour t of Justice shall have the powers generally granted to cour ts and tribunals and may impose pecuniary penalties under conditions laid down in the Rules of Procedure. Article 28 Witnesses and exper ts may be heard on oath taken in the form laid down in the Rules of Procedure or in the manner laid down by the law of the country of the witness or exper t. Article 29 The Cour t of Justice may order that a witness or exper t be heard by the judicial authority of his place of permanent residence. 16.12.2004 Official Journal of the European Union C 310/217 EN The order shall be sent for implementation to the competent judicial authority under conditions laid down in the Rules of Procedure. The documents drawn up in compliance with the letters rogatory shall be returned to the Cour t of Justice under the same conditions. The Cour t of Justice shall defray the expenses, without prejudice to the right to charge them, where appropriate, to the par ties. Article 30 A Member State shall treat any violation of an oath by a witness or exper t in the same manner as if the offence had been committed before one of its cour ts with jurisdiction in civil proceedings. At the instance of the Cour t of Justice, the Member State concerned shall prosecute the offender before its competent cour t. Article 31 The hearing in cour t shall be public, unless the Cour t of Justice, of its own motion or on application by the par ties, decides other wise for serious reasons. Article 32 During the hearings the Cour t of Justice may examine the exper ts, the witnesses and the par ties themselves. The latter, however, may address the Cour t of Justice only through their representatives. Article 33 Minutes shall be made of each hearing and signed by the President and the Registrar. Article 34 The case list shall be established by the President. Article 35 The deliberations of the Cour t of Justice shall be and shall remain secret. Article 36 Judgments shall state the reasons on which they are based. They shall contain the names of the Judges who took par t in the deliberations. Article 37 Judgments shall be signed by the President and the Registrar. They shall be read in open cour t. Article 38 The Cour t of Justice shall adjudicate upon costs. C 310/218 Official Journal of the European Union 16.12.2004 EN Article 39 The President of the Cour t of Justice may, by way of summary procedure, which may, insofar as necessary, differ from some of the rules contained in this Statute and which shall be laid down in the Rules of Procedure, adjudicate upon applications to suspend execution, as provided for in Ar ticle III- 379(1) of the Constitution and Ar ticle 157 of the EAEC Treaty, or to prescribe interim measures in pursuance of Ar ticle III-379(2) of the Constitution, or to suspend enforcement in accordance with the four th paragraph of Ar ticle III-401 of the Constitution or the third paragraph of Ar ticle 164 of the EAEC Treaty. Should the President be prevented from attending, his place shall be taken by another Judge under conditions laid down in the Rules of Procedure. The ruling of the President or of the Judge replacing him shall be provisional and shall in no way prejudice the decision of the Cour t of Justice on the substance of the case. Article 40 Member States and institutions of the Union may intervene in cases before the Cour t of Justice. The same right shall be open to the bodies, offices and agencies of the Union and to any other person which can establish an interest in the result of a case submitted to the Cour t of Justice. Natural or legal persons shall not inter vene in cases between Member States, between institutions of the Union or between Member States and institutions of the Union. Without prejudice to the second paragraph, the States, other than the Member States, which are par ties to the Agreement on the European Economic Area, and also the EFTA Sur veillance Authority referred to in that Agreement, may inter vene in cases before the Cour t of Justice where one of the fields of application of that Agreement is concerned. An application to inter vene shall be limited to suppor ting the form of order sought by one of the par ties. Article 41 Where the defending par ty, after having been duly summoned, fails to file written submissions in defence, judgment shall be given against that par ty by default. An objection may be lodged against the judgment within one month of it being notified. The objection shall not have the effect of staying enforcement of the judgment by default unless the Cour t of Justice decides other wise. Article 42 Member States, institutions, bodies, offices and agencies of the Union and any other natural or legal persons may, in cases and under conditions laid down in the Rules of Procedure, institute third-par ty proceedings to contest a judgment rendered without their being heard, where the judgment is prejudicial to their rights. 16.12.2004 Official Journal of the European Union C 310/219 EN Article 43 If the meaning or scope of a judgment is in doubt, the Cour t of Justice shall construe it on application by any par ty or any institution of the Union establishing an interest therein. Article 44 An application for revision of a judgment may be made to the Cour t of Justice only on discovery of a fact which is of such a nature as to be a decisive factor, and which, when the judgment was given, was unknown to the Cour t and to the par ty claiming the revision. The revision shall be opened by a judgment of the Cour t expressly recording the existence of a new fact, recognising that it is of such a character as to lay the case open to revision and declaring the application admissible on this ground. No application for revision may be made after the lapse of ten years from the date of the judgment. Article 45 Periods of grace based on considerations of distance shall be laid down in the Rules of Procedure. No right shall be prejudiced in consequence of the expiry of a time-limit if the par ty concerned proves the existence of unforeseeable circumstances or of force majeure. Article 46 Proceedings against the Union in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Cour t of Justice or if prior to such proceedings an application is made by the aggrieved par ty to the relevant institution of the Union. In the latter event the proceedings must be instituted within the period of two months provided for in Ar ticle III-365 of the Constitution. The second paragraph of Ar ticle III-367 of the Constitution shall apply. This Ar ticle shall also apply to proceedings against the European Central Bank regarding non- contractual liability. TITLE IV THE GENERAL COURT Article 47 The first paragraph of Ar ticle 9, Ar ticles 14 and 15, the first, second, four th and fifth paragraphs of Ar ticle 17 and Ar ticle 18 shall apply to the General Cour t and its members. Ar ticles 10, 11 and 14 shall apply to the Registrar of the General Cour t mutatis mutandis. C 310/220 Official Journal of the European Union 16.12.2004 EN Article 48 The General Cour t shall consist of twenty-five Judges. Article 49 The members of the General Cour t may be called upon to perform the task of an Advocate-General. It shall be the duty of the Advocate-General, acting with complete impar tiality and independence, to make, in open cour t, reasoned submissions on cer tain cases brought before the General Cour t in order to assist that Cour t in the performance of its task. The criteria for selecting such cases, as well as the procedures for designating the Advocates-General, shall be laid down in the Rules of Procedure of the General Cour t. A member called upon to perform the task of Advocate-General in a case may not take par t in the judgment of the case. Article 50 The General Cour t shall sit in chambers of three or five Judges. The Judges shall elect the Presidents of the chambers from among their number. The Presidents of the chambers of five Judges shall be elected for three years. They may be re-elected once. The composition of the chambers and the assignment of cases to them shall be governed by the Rules of Procedure. In cer tain cases governed by the Rules of Procedure, the General Cour t may sit as a full cour t or be constituted by a single Judge. The Rules of Procedure may also provide that the General Cour t may sit in a Grand Chamber in cases and under the conditions specified therein. Article 51 By way of derogation from the rule laid down in Ar ticle III-358(1) of the Constitution, jurisdiction shall be reser ved to the Cour t of Justice in the actions referred to in Ar ticles III-365 and III-367 of the Constitution when they are brought by a Member State against: (a) an act of or failure to act by the European Parliament or the Council, or both those institutions acting jointly, except for: -- European decisions adopted by the Council under the third subparagraph of Ar ticle III-168(2) of the Constitution; -- acts of the Council adopted pursuant to a Council act concerning measures to protect trade within the meaning of Ar ticle III-315 of the Constitution; -- acts of the Council by which the Council exercises implementing powers in accordance with Ar ticle I-37(2) of the Constitution; 16.12.2004 Official Journal of the European Union C 310/221 EN (b) against an act of or failure to act by the Commission under Ar ticle III-420(1) of the Constitution. Jurisdiction shall also be reser ved to the Cour t of Justice in the actions referred to in the same Ar ticles when they are brought by an institution of the Union against an act of or failure to act by the European Parliament or the Council or both of those institutions acting jointly or the Commission, or brought by an institution against an act of or failure to act by the European Central Bank. Article 52 The President of the Cour t of Justice and the President of the General Cour t shall determine, by common accord, the conditions under which officials and other ser vants attached to the Cour t of Justice shall render their ser vices to the General Cour t to enable it to function. Cer tain officials or other ser vants shall be responsible to the Registrar of the General Cour t under the authority of the President of the General Cour t. Article 53 The procedure before the General Cour t shall be governed by Title III. Such further and more detailed provisions as may be necessary shall be laid down in its Rules of Procedure. The Rules of Procedure may derogate from the four th paragraph of Ar ticle 40 and from Ar ticle 41 in order to take account of the specific features of litigation in the field of intellectual proper ty. Notwithstanding the four th paragraph of Ar ticle 20, the Advocate-General may make his reasoned submissions in writing. Article 54 Where an application or other procedural document addressed to the General Cour t is lodged by mistake with the Registrar of the Cour t of Justice, it shall be transmitted immediately by that Registrar to the Registrar of the General Cour t. Likewise, where an application or other procedural document addressed to the Cour t of Justice is lodged by mistake with the Registrar of the General Cour t, it shall be transmitted immediately by that Registrar to the Registrar of the Cour t of Justice. Where the General Cour t finds that it does not have jurisdiction to hear and determine an action in respect of which the Cour t of Justice has jurisdiction, it shall refer that action to the Cour t of Justice. Likewise, where the Cour t of Justice finds that an action falls within the jurisdiction of the General Cour t, it shall refer that action to the General Cour t, whereupon that Cour t may not decline jurisdiction. Where the Cour t of Justice and the General Cour t are seised of cases in which the same relief is sought, the same issue of interpretation is raised or the validity of the same act is called in question, the General Cour t may, after hearing the par ties, stay the proceedings before it until such time as the Cour t of Justice has delivered judgment, or, where the action is one brought pursuant to Ar ticle III- 365 of the Constitution or pursuant to Ar ticle 146 of the EAEC Treaty, may decline jurisdiction so as to allow the Cour t of Justice to rule on such actions. In the same circumstances, the Cour t of Justice may also decide to stay the proceedings before it. In that event, the proceedings before the General Cour t shall continue. Where a Member State and an institution are challenging the same act, the General Cour t shall decline jurisdiction so that the Cour t of Justice may rule on those applications. C 310/222 Official Journal of the European Union 16.12.2004 EN Article 55 Final decisions of the General Cour t, decisions disposing of the substantive issues in par t only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility, shall be notified by the Registrar of the General Cour t to all par ties as well as all Member States and the institutions of the Union even if they did not inter vene in the case before the General Cour t. Article 56 An appeal may be brought before the Cour t of Justice, within two months of the notification of the decision appealed against, against final decisions of the General Cour t and decisions of that Cour t disposing of the substantive issues in par t only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility. Such an appeal may be brought by any par ty which has been unsuccessful, in whole or in par t, in its submissions. However, inter veners other than the Member States and the institutions of the Union may bring such an appeal only where the decision of the General Cour t directly affects them. With the exception of cases relating to disputes between the Union and its ser vants, an appeal may also be brought by Member States and institutions of the Union which did not inter vene in the proceedings before the General Cour t. Such Member States and institutions shall be in the same position as Member States or institutions which intervened at first instance. Article 57 Any person whose application to inter vene has been dismissed by the General Cour t may appeal to the Cour t of Justice within two weeks from the notification of the decision dismissing the application. The par ties to the proceedings may appeal to the Cour t of Justice against any decision of the General Cour t made pursuant to Ar ticle III-379(1) or (2) or the four th paragraph of Ar ticle III-401 of the Constitution, or Ar ticle 157 or the third paragraph of Ar ticle 164 of the EAEC Treaty, within two months from their notification. The appeal referred to in the first two paragraphs shall be heard and determined under the procedure referred to in Ar ticle 39. Article 58 An appeal to the Cour t of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the General Cour t, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Union law by the General Cour t. No appeal shall lie regarding only the amount of the costs or the par ty ordered to pay them. 16.12.2004 Official Journal of the European Union C 310/223 EN Article 59 Where an appeal is brought against a decision of the General Cour t, the procedure before the Cour t of Justice shall consist of a written par t and an oral par t. In accordance with conditions laid down in the Rules of Procedure, the Cour t of Justice, having heard the Advocate-General and the par ties, may dispense with the oral procedure. Article 60 Without prejudice to Ar ticle III-379(1) and (2) of the Constitution or Ar ticle 157 of the EAEC Treaty, an appeal shall not have suspensory effect. By way of derogation from Ar ticle III-380 of the Constitution, decisions of the General Cour t declaring a European law or European regulation binding in its entirety and directly applicable in all Member States to be void shall take effect only as from the date of expiry of the period referred to in the first paragraph of Ar ticle 56 of this Statute or, if an appeal shall have been brought within that period, as from the date of dismissal of the appeal, without prejudice, however, to the right of a par ty to apply to the Cour t of Justice, pursuant to Ar ticle III-379(1) and (2) of the Constitution, and Ar ticle 157 of the EAEC Treaty for the suspension of the effects of the European law or European regulation which has been declared void or for the prescription of any other interim measure. Article 61 If the appeal is well founded, the Cour t of Justice shall quash the decision of the General Cour t. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Cour t for judgment. Where a case is referred back to the General Cour t, that Cour t shall be bound by the decision of the Cour t of Justice on points of law. When an appeal brought by a Member State or an institution of the Union, which did not inter vene in the proceedings before the General Cour t, is well founded, the Cour t of Justice may, if it considers this necessary, state which of the effects of the decision of the General Cour t which has been quashed shall be considered as definitive in respect of the par ties to the litigation. Article 62 In the cases provided for in Ar ticle III-358(2) and (3) of the Constitution, where the First Advocate- General considers that there is a serious risk of the unity or consistency of Union law being affected, he may propose that the Cour t of Justice review the decision of the General Cour t. The proposal must be made within one month of delivery of the decision by the General Cour t. Within one month of receiving the proposal made by the First Advocate-General, the Cour t of Justice shall decide whether or not the decision should be reviewed. C 310/224 Official Journal of the European Union 16.12.2004 EN TITLE V FINAL PROVISIONS Article 63 The Rules of Procedure of the Cour t of Justice and of the General Cour t shall contain any provisions necessary for applying and, where required, supplementing this Statute. Article 64 The rules governing the language arrangements applicable at the Cour t of Justice of the European Union shall be laid down by a European regulation of the Council acting unanimously. This regulation shall be adopted either at the request of the Cour t of Justice and after consultation of the Commission and the European Parliament, or on a proposal from the Commission and after consultation of the Cour t of Justice and of the European Parliament. Until those rules have been adopted, the provisions of the Rules of Procedure of the Cour t of Justice and of the Rules of Procedure of the General Cour t governing language arrangements shall apply. By way of derogation from Ar ticles III-355 and III-356 of the Constitution, those provisions may only be amended or repealed with the unanimous consent of the Council. Article 65 1. By way of derogation from Ar ticle IV-437 of the Constitution, any amendment to the Protocol on the Statute of the Cour t of Justice, annexed to the Treaty on European Union, to the Treaty establishing the European Community and to the EAEC Treaty, which is adopted between the signing and the entry into force of the Treaty establishing a Constitution for Europe, shall remain in force. 2. In order to incorporate them into the enacting terms of this Statute, the amendments referred to in paragraph 1 shall be subject to official codification by a European law of the Council, adopted at the request of the Cour t of Justice. When such codifying European law enters into force, this Ar ticle shall be repealed. 16.12.2004 Official Journal of the European Union C 310/225 EN 4. PROTOCOL ON THE STATUTE OF THE EUROPEAN SYSTEM OF CENTRAL BANKS AND OF THE EUROPEAN CENTRAL BANK THE HIGH CONTRACTING PARTIES, DESIRING to lay down the Statute of the European System of Central Banks and of the European Central Bank provided for in Ar ticles I30 and III187(2) of the Constitution, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: CHAPTER I THE EUROPEAN SYSTEM OF CENTRAL BANKS Article 1 The European System of Central Banks 1. In accordance with Ar ticle I-30(1) of the Constitution, the European Central Bank and the national central banks shall constitute the European System of Central Banks. The European Central Bank and the national central banks of those Member States whose currency is the euro shall constitute the Eurosystem. 2. The European System of Central Banks and the European Central Bank shall perform their tasks and carry on their activities in accordance with the Constitution and this Statute. CHAPTER II OBJECTIVES AND TASKS OF THE EUROPEAN SYSTEM OF CENTRAL BANKS Article 2 Objectives In accordance with Ar ticles I-30(2) and III-185(1) of the Constitution, the primary objective of the European System of Central Banks shall be to maintain price stability. Without prejudice to that objective, it shall suppor t the general economic policies in the Union in order to contribute to the achievement of the latter's objectives as laid down in Ar ticle I3 of the Constitution. The European System of Central Banks shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Ar ticle III-177 of the Constitution. C 310/226 Official Journal of the European Union 16.12.2004 EN Article 3 Tasks 1. In accordance with Ar ticle III-185(2) of the Constitution, the basic tasks to be carried out through the European System of Central Banks shall be: (a) to define and implement the Union's monetary policy; (b) to conduct foreign-exchange operations consistent with Ar ticle III-326 of the Constitution; (c) to hold and manage the official foreign reser ves of the Member States; (d) to promote the smooth operation of payment systems. 2. In accordance with Ar ticle III-185(3) of the Constitution, paragraph 1(c) of this Ar ticle shall be without prejudice to the holding and management by the governments of Member States of foreignexchange working balances. 3. In accordance with Ar ticle III-185(5) of the Constitution, the European System of Central Banks shall contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential super vision of credit institutions and the stability of the financial system. Article 4 Advisory functions In accordance with Ar ticle III-185(4) of the Constitution, the European Central Bank shall be consulted: (a) on any proposed Union act in areas within its powers; (b) by national authorities regarding any draft legislative provision in its fields of competence, but within the limits and under the conditions set out by the Council in accordance with the procedure laid down in Ar ticle 41. The European Central Bank may submit opinions to the Union institutions, bodies, offices or agencies or to national authorities on matters within its powers. Article 5 Collection of statistical information 1. In order to under take the tasks of the European System of Central Banks, the European Central Bank, assisted by the national central banks, shall collect the necessary statistical information either from the competent national authorities or directly from economic agents. For these purposes it shall 16.12.2004 Official Journal of the European Union C 310/227 EN cooperate with Union institutions, bodies, offices or agencies and with the competent authorities of the Member States or third countries and with international organisations. 2. The national central banks shall carry out, to the extent possible, the tasks referred to in paragraph 1. 3. The European Central Bank shall contribute to the harmonisation, where necessary, of the rules and practices governing the collection, compilation and distribution of statistics in the areas within its powers. 4. The Council, in accordance with the procedure laid down in Ar ticle 41, shall define the natural and legal persons subject to repor ting requirements, the confidentiality regime and the appropriate provisions for enforcement. Article 6 International cooperation 1. In the field of international cooperation involving the tasks entrusted to the European System of Central Banks, the European Central Bank shall decide how the European System of Central Banks shall be represented. 2. The European Central Bank and, subject to its approval, the national central banks may par ticipate in international monetary institutions. 3. Paragraphs 1 and 2 shall be without prejudice to Ar ticle III-196 of the Constitution. CHAPTER III ORGANISATION OF THE EUROPEAN SYSTEM OF CENTRAL BANKS Article 7 Independence In accordance with Ar ticle III-188 of the Constitution, when exercising the powers and carrying out the tasks and duties conferred upon them by the Constitution and this Statute, neither the European Central Bank, nor a national central bank, nor any member of their decisionmaking bodies shall seek or take instructions from Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The Union institutions, bodies, offices and agencies and the governments of the Member States under take to respect this principle and not to seek to inf luence the members of the decision-making bodies of the European Central Bank or of the national central banks in the performance of their tasks. C 310/228 Official Journal of the European Union 16.12.2004 EN Article 8 General principle The European System of Central Banks shall be governed by the decisionmaking bodies of the European Central Bank. Article 9 The European Central Bank 1. The European Central Bank, which, in accordance with Ar ticle I-30(3) of the Constitution, has legal personality, shall enjoy in each of the Member States the most extensive legal capacity accorded to legal persons under its law. It may, in par ticular, acquire or dispose of movable and immovable proper ty and may be a par ty to legal proceedings. 2. The European Central Bank shall ensure that the tasks conferred upon the European System of Central Banks under Ar ticle III-185(2), (3) and (5) of the Constitution are implemented either by itself pursuant to this Statute or through the national central banks pursuant to Ar ticle 12(1) and Ar ticle 14. 3. In accordance with Ar ticle III-187(1) of the Constitution, the decision-making bodies of the European Central Bank shall be the Governing Council and the Executive Board. Article 10 The Governing Council 1. In accordance with Ar ticle III-382(1) of the Constitution, the Governing Council shall comprise the members of the Executive Board of the European Central Bank and the Governors of the national central banks of the Member States without a derogation as referred to in Ar ticle III-197 of the Constitution. 2. Each member of the Governing Council shall have one vote. As from the date on which the number of members of the Governing Council exceeds 21, each member of the Executive Board shall have one vote and the number of governors with a voting right shall be 15. The latter voting rights shall be assigned and shall rotate as follows: (a) as from the date on which the number of governors exceeds 15 and until it reaches 22, the governors shall be allocated to two groups, according to a ranking of the size of the share of their national central bank's Member State in the aggregate gross domestic product at market prices and in the total aggregated balance sheet of the monetary financial institutions of the Member States whose currency is the euro. The shares in the aggregate gross domestic product at market prices and in the total aggregated balance sheet of the monetary financial institutions shall be assigned weights of 5/6 and 1/6, respectively. The first group shall be composed of five governors and the second group of the remaining governors. The frequency of voting rights of the governors allocated to the first group shall not be lower than the frequency of voting rights of those of the second group. Subject to the previous sentence, the first group shall be assigned four voting rights and the second group eleven voting rights; 16.12.2004 Official Journal of the European Union C 310/229 EN (b) as from the date on which the number of governors reaches 22, the governors shall be allocated to three groups according to a ranking based on the criteria laid down in (a). The first group shall be composed of five governors and shall be assigned four voting rights. The second group shall be composed of half of the total number of governors, with any fraction rounded up to the nearest integer, and shall be assigned eight voting rights. The third group shall be composed of the remaining governors and shall be assigned three voting rights; (c) within each group, the governors shall have their voting rights for equal amounts of time; (d) for the calculation of the shares in the aggregate gross domestic product at market prices Ar ticle 29(2) shall apply. The total aggregated balance sheet of the monetary financial institutions shall be calculated in accordance with the statistical framework applying in the Union at the time of the calculation; (e) whenever the aggregate gross domestic product at market prices is adjusted in accordance with Ar ticle 29(3), or whenever the number of governors increases, the size and/or composition of the groups shall be adjusted in accordance with the principles laid down in this subparagraph; (f) the Governing Council, acting by a two-thirds majority of all its members, with and without a voting right, shall take all measures necessary for the implementation of the principles laid down in this subparagraph and may decide to postpone the star t of the rotation system until the date on which the number of governors exceeds 18. The right to vote shall be exercised in person. By way of derogation from this rule, the Rules of Procedure referred to in Ar ticle 12(3) may lay down that members of the Governing Council may cast their vote by means of teleconferencing. These Rules shall also provide that a member of the Governing Council who is prevented from attending meetings of the Governing Council for a prolonged period may appoint an alternate as a member of the Governing Council. The first and second subparagraphs are without prejudice to the voting rights of all members of the Governing Council, with and without a voting right, under paragraph 3 and Ar ticle 40(2) and (3). Save as other wise provided for in this Statute, the Governing Council shall act by a simple majority of the members having a voting right. In the event of a tie, the President shall have the casting vote. In order for the Governing Council to vote, there shall be a quorum of two thirds of the members having a voting right. If the quorum is not met, the President may convene an extraordinary meeting at which decisions may be taken without regard to the quorum. 3. For any decisions to be taken under Ar ticles 28, 29, 30, 32, 33 and 49, the votes in the Governing Council shall be weighted according to the national central banks' shares in the subscribed capital of the European Central Bank. The weighting of the votes of the members of the Executive Board shall be zero. A decision requiring a qualified majority shall be adopted if the votes cast in favour represent at least two thirds of the subscribed capital of the European Central Bank and represent at least half of the shareholders. If a Governor is unable to be present, he may nominate an alternate to cast his weighted vote. C 310/230 Official Journal of the European Union 16.12.2004 EN 4. The proceedings of the meetings shall be confidential. The Governing Council may decide to make the outcome of its deliberations public. 5. The Governing Council shall meet at least ten times a year. Article 11 The Executive Board 1. In accordance with the first subparagraph of Ar ticle III-382(2) of the Constitution, the Executive Board shall comprise the President, the VicePresident and four other members. The members shall perform their duties on a full-time basis. No member shall engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the Governing Council. 2. In accordance with Ar ticle III-382(2) of the Constitution, the President, the Vice-President and the other members of the Executive Board shall be appointed by the European Council, acting by a qualified majority, from among persons of recognised standing and professional experience in monetary or banking matters, on a recommendation from the Council and after consulting the European Parliament and the Governing Council. Their term of office shall be eight years and shall not be renewable. Only nationals of Member States may be members of the Executive Board. 3. The terms and conditions of employment of the members of the Executive Board, in par ticular their salaries, pensions and other social security benefits shall be the subject of contracts with the European Central Bank and shall be fixed by the Governing Council on a proposal from a Committee comprising three members appointed by the Governing Council and three members appointed by the Council. The members of the Executive Board shall not have the right to vote on matters referred to in this paragraph. 4. If a member of the Executive Board no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Cour t of Justice may, on application by the Governing Council or the Executive Board, compulsorily retire him. 5. Each member of the Executive Board present in person shall have the right to vote and shall have, for that purpose, one vote. Save as other wise provided, the Executive Board shall act by a simple majority of the votes cast. In the event of a tie, the President shall have the casting vote. The voting arrangements shall be specified in the Rules of Procedure referred to in Ar ticle 12(3). 6. The Executive Board shall be responsible for the current business of the European Central Bank. 7. Any vacancy on the Executive Board shall be filled by the appointment of a new member in accordance with paragraph 2. 16.12.2004 Official Journal of the European Union C 310/231 EN Article 12 Responsibilities of the decisionmaking bodies 1. The Governing Council shall adopt the guidelines and take the decisions necessary to ensure the performance of the tasks entrusted to the European System of Central Banks under the Constitution and this Statute. The Governing Council shall formulate the monetary policy of the Union including, as appropriate, decisions relating to intermediate monetary objectives, key interest rates and the supply of reser ves in the European System of Central Banks, and shall establish the necessary guidelines for their implementation. The Executive Board shall implement monetary policy in accordance with the guidelines and decisions laid down by the Governing Council. In doing so the Executive Board shall give the necessary instructions to national central banks. In addition the Executive Board may have cer tain powers delegated to it where the Governing Council so decides. To the extent deemed possible and appropriate and without prejudice to the provisions of this Ar ticle, the European Central Bank shall have recourse to the national central banks to carry out operations which form par t of the tasks of the European System of Central Banks. 2. The Executive Board shall have responsibility for the preparation of meetings of the Governing Council. 3. The Governing Council shall adopt Rules of Procedure which determine the internal organisation of the European Central Bank and its decisionmaking bodies. 4. The Governing Council shall exercise the advisory functions referred to in Ar ticle 4. 5. The Governing Council shall take the decisions referred to in Ar ticle 6. Article 13 The President 1. The President or, in his absence, the VicePresident shall chair the Governing Council and the Executive Board of the European Central Bank. 2. Without prejudice to Ar ticle 38, the President or his nominee shall represent the European Central Bank externally. Article 14 National central banks 1. In accordance with Ar ticle III-189 of the Constitution, each Member State shall ensure that its national legislation, including the statutes of its national central bank, is compatible with the Constitution and this Statute. 2. The statutes of the national central banks shall, in par ticular, provide that the term of office of a Governor of a national central bank shall be no less than five years. C 310/232 Official Journal of the European Union 16.12.2004 EN A Governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct. A decision to this effect may be referred to the Cour t of Justice by the Governor concerned or the Governing Council on grounds of infringement of the Constitution or of any rule of law relating to its application. Such proceedings shall be instituted within two months of the publication of the decision or of its notification to the plaintiff or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. 3. The national central banks are an integral par t of the European System of Central Banks and shall act in accordance with the guidelines and instructions of the European Central Bank. The Governing Council shall take the necessary steps to ensure compliance with the guidelines and instructions of the European Central Bank, and shall require that any necessary information be given to it. 4. National central banks may perform functions other than those specified in this Statute unless the Governing Council finds, by a majority of two thirds of the votes cast, that these interfere with the objectives and tasks of the European System of Central Banks. Such functions shall be performed on the responsibility and liability of national central banks and shall not be regarded as being par t of the functions of the European System of Central Banks. Article 15 Repor ting commitments 1. The European Central Bank shall draw up and publish repor ts on the activities of the European System of Central Banks at least quar terly. 2. A consolidated financial statement of the European System of Central Banks shall be published each week. 3. In accordance with Ar ticle III-383(3) of the Constitution, the European Central Bank shall address an annual repor t on the activities of the European System of Central Banks and on the monetary policy of both the previous and the current year to the European Parliament, the European Council, the Council and the Commission. 4. The repor ts and statements referred to in this Ar ticle shall be made available to interested par ties free of charge. Article 16 Banknotes In accordance with Ar ticle III-186(1) of the Constitution, the Governing Council shall have the exclusive right to authorise the issue of euro banknotes within the Union. The European Central Bank and the national central banks may issue such notes. The banknotes issued by the European Central Bank and the national central banks shall be the only such notes to have the status of legal tender within the Union. 16.12.2004 Official Journal of the European Union C 310/233 EN The European Central Bank shall respect as far as possible existing practices regarding the issue and design of banknotes. CHAPTER IV MONETARY FUNCTIONS AND OPERATIONS OF THE EUROPEAN SYSTEM OF CENTRAL BANKS Article 17 Accounts with the European Central Bank and the national central banks In order to conduct their operations, the European Central Bank and the national central banks may open accounts for credit institutions, public entities and other market par ticipants, and accept assets, including book entry securities, as collateral. Article 18 Open market and credit operations 1. In order to achieve the objectives of the European System of Central Banks and to carry out its tasks, the European Central Bank and the national central banks may: (a) operate in the financial markets by buying and selling outright (spot and forward) or under repurchase agreement and by lending or borrowing claims and marketable instruments, whether in euro or other currencies, as well as precious metals; (b) conduct credit operations with credit institutions and other market par ticipants, with lending being based on adequate collateral. 2. The European Central Bank shall establish general principles for open market and credit operations carried out by itself or the national central banks, including for the announcement of conditions under which they stand ready to enter into such transactions. Article 19 Minimum reser ves 1. Subject to Ar ticle 2, the European Central Bank may require credit institutions established in Member States to hold minimum reser ves on accounts with the European Central Bank and national central banks in pursuance of monetary policy objectives. Detailed rules concerning the calculation and determination of the required minimum reser ves may be established by the Governing Council. In cases of noncompliance the European Central Bank shall be entitled to levy penalty interest and to impose other sanctions with comparable effect. C 310/234 Official Journal of the European Union 16.12.2004 EN 2. For the application of this Ar ticle, the Council shall, in accordance with the procedure laid down in Ar ticle 41, define the basis for minimum reser ves and the maximum permissible ratios between those reser ves and their basis, as well as the appropriate sanctions in cases of non-compliance. Article 20 Other instr uments of monetary control The Governing Council may, by a majority of two thirds of the votes cast, decide upon the use of such other operational methods of monetary control as it sees fit, respecting Ar ticle 2. The Council shall, in accordance with the procedure laid down in Ar ticle 41, define the scope of such methods if they impose obligations on third par ties. Article 21 Operations with public entities 1. In accordance with Ar ticle III-181 of the Constitution, overdrafts or any other type of credit facility with the European Central Bank or with the national central banks in favour of Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public under takings of Member States shall be prohibited, as shall the purchase directly from them by the European Central Bank or national central banks of debt instruments. 2. The European Central Bank and national central banks may act as fiscal agents for the entities referred to in paragraph 1. 3. The provisions of this Ar ticle shall not apply to publicly owned credit institutions which, in the context of the supply of reser ves by central banks, shall be given the same treatment by national central banks and the European Central Bank as private credit institutions. Article 22 Clearing and payment systems The European Central Bank and national central banks may provide facilities, and the European Central Bank may make regulations, to ensure efficient and sound clearing and payment systems within the Union and with other countries. 16.12.2004 Official Journal of the European Union C 310/235 EN Article 23 External operations The European Central Bank and national central banks may: (a) establish relations with central banks and financial institutions in other countries and, where appropriate, with international organisations; (b) acquire and sell spot and for ward all types of foreign exchange assets and precious metals; the term `foreign exchange asset' shall include securities and all other assets in the currency of any country or units of account and in whatever form held; (c) hold and manage the assets referred to in this Ar ticle; (d) conduct all types of banking transactions in relations with third countries and international organisations, including borrowing and lending operations. Article 24 Other operations In addition to operations arising from their tasks, the European Central Bank and national central banks may enter into operations for their administrative purposes or for their staff. CHAPTER V PRUDENTIAL SUPERVISION Article 25 Pr udential super vision 1. The European Central Bank may offer advice to and be consulted by the Council, the Commission and the competent authorities of the Member States on the scope and implementation of legally binding acts of the Union relating to the prudential super vision of credit institutions and to the stability of the financial system. 2. In accordance with any European law adopted under Ar ticle III-185(6) of the Constitution, the European Central Bank may perform specific tasks concerning policies relating to the prudential super vision of credit institutions and other financial institutions with the exception of insurance under takings. C 310/236 Official Journal of the European Union 16.12.2004 EN CHAPTER VI FINANCIAL PROVISIONS OF THE EUROPEAN SYSTEM OF CENTRAL BANKS Article 26 Financial accounts 1. The financial year of the European Central Bank and national central banks shall begin on the first day of January and end on the last day of December. 2. The annual accounts of the European Central Bank shall be drawn up by the Executive Board, in accordance with the principles established by the Governing Council. The accounts shall be approved by the Governing Council and shall thereafter be published. 3. For analytical and operational purposes, the Executive Board shall draw up a consolidated balance sheet of the European System of Central Banks, comprising those assets and liabilities of the national central banks that fall within the European System of Central Banks. 4. For the application of this Ar ticle, the Governing Council shall establish the necessary rules for standardising the accounting and repor ting of operations under taken by the national central banks. Article 27 Auditing 1. The accounts of the European Central Bank and national central banks shall be audited by independent external auditors recommended by the Governing Council and approved by the Council. The auditors shall have full power to examine all books and accounts of the European Central Bank and national central banks and obtain full information about their transactions. 2. Ar ticle III-384 of the Constitution shall only apply to an examination of the operational efficiency of the management of the European Central Bank. Article 28 Capital of the European Central Bank 1. The capital of the European Central Bank, shall be 5 000 million euro. The capital may be increased by such amounts as stipulated by a European decision by the Governing Council acting by the qualified majority provided for in Ar ticle 10(3), within the limits and under the conditions set by the Council under the procedure laid down in Ar ticle 41. 2. The national central banks shall be the sole subscribers to and holders of the capital of the European Central Bank. The subscription of capital shall be according to the key established in accordance with Ar ticle 29. 16.12.2004 Official Journal of the European Union C 310/237 EN 3. The Governing Council, acting by the qualified majority provided for in Ar ticle 10(3), shall determine the extent to which and the form in which the capital shall be paid up. 4. Subject to paragraph 5, the shares of the national central banks in the subscribed capital of the European Central Bank may not be transferred, pledged or attached. 5. If the key referred to in Ar ticle 29 is adjusted, the national central banks shall transfer among themselves capital shares to the extent necessary to ensure that the distribution of capital shares corresponds to the adjusted key. The Governing Council shall determine the terms and conditions of such transfers. Article 29 Key for capital subscription 1. The key for subscription of the European Central Bank's capital, fixed for the first time in 1998 when the European System of Central Banks was established, shall be determined by assigning to each national central bank a weighting in this key equal to the sum of: -- 50 % of the share of its respective Member State in the population of the Union in the penultimate year preceding the establishment of the European System of Central Banks; -- 50 % of the share of its respective Member State in the Union's gross domestic product at market prices as recorded in the last five years preceding the penultimate year before the establishment of the European System of Central Banks. The percentages shall be rounded up or down to the nearest multiple of 0,0001 percentage points. 2. The statistical data to be used for the application of this Ar ticle shall be provided by the Commission in accordance with the rules laid down by the Council under the procedure provided for in Ar ticle 41. 3. The weightings assigned to the national central banks shall be adjusted every five years after the establishment of the European System of Central Banks by analogy with paragraph 1. The adjusted key shall apply with effect from the first day of the following year. 4. The Governing Council shall take all other measures necessary for the application of this Ar ticle. Article 30 Transfer of foreign reser ve assets to the European Central Bank 1. Without prejudice to Ar ticle 28, the European Central Bank shall be provided by the national central bank s with foreign reser ve assets, other than Member States' cur rencies, euro, International Monetary Fund reser ve positions and special drawing rights, up to an amount equivalent to 50 000 million euro. The Governing Council shall decide upon the propor tion to be called up by the European Central Bank. The European Central Bank shall have the full right to hold and manage the foreign reser ves that are transferred to it and to use them for the purposes set out in this Statute. C 310/238 Official Journal of the European Union 16.12.2004 EN 2. The contributions of each national central bank shall be fixed in propor tion to its share in the subscribed capital of the European Central Bank. 3. Each national central bank shall be credited by the European Central Bank with a claim equivalent to its contribution. The Governing Council shall determine the denomination and remuneration of such claims. 4. Fur ther calls of foreign reser ve assets beyond the limit set in paragraph 1 may be effected by the European Central Bank, in accordance with paragraph 2, within the limits and under the conditions laid down by the Council in accordance with the procedure laid down in Ar ticle 41. 5. The European Central Bank may hold and manage International Monetary Fund reser ve positions and special drawing rights and provide for the pooling of such assets. 6. The Governing Council shall take all other measures necessary for the application of this Ar ticle. Article 31 Foreign reser ve assets held by national central banks 1. The national central banks shall be allowed to perform transactions in fulfilment of their obligations towards international organisations in accordance with Ar ticle 23. 2. All other operations in foreign reser ve assets remaining with the national central banks after the transfers referred to in Ar ticle 30, and Member States' transactions with their foreign exchange working balances shall, above a cer tain limit to be established within the framework of paragraph 3, be subject to approval by the European Central Bank in order to ensure consistency with the exchange rate and monetary policies of the Union. 3. The Governing Council shall issue guidelines with a view to facilitating such operations. Article 32 Allocation of monetary income of national central banks 1. The income accruing to the national central banks in the performance of the monetary policy function of the European System of Central Banks (hereinafter referred to as `monetary income') shall be allocated at the end of each financial year in accordance with the provisions of this Ar ticle. 2. The amount of each national central bank's monetary income shall be equal to its annual income derived from its assets held against notes in circulation and deposit liabilities to credit institutions. These assets shall be earmarked by national central banks in accordance with guidelines to be established by the Governing Council. 16.12.2004 Official Journal of the European Union C 310/239 EN 3. If, after the star t of the third stage, the balance sheet structures of the national central banks do not, in the judgment of the Governing Council, permit the application of paragraph 2, the Governing Council, acting by a qualified majority, may decide that, by way of derogation from paragraph 2, monetary income shall be measured according to an alternative method for a period of not more than five years. 4. The amount of each national central bank's monetary income shall be reduced by an amount equivalent to any interest paid by that central bank on its deposit liabilities to credit institutions in accordance with Ar ticle 19. The Governing Council may decide that national central banks shall be indemnified against costs incurred in connection with the issue of banknotes or in exceptional circumstances for specific losses arising from monetary policy operations under taken for the European System of Central Banks. Indemnification shall be in a form deemed appropriate in the judgment of the Governing Council. These amounts may be offset against the national central banks' monetary income. 5. The sum of the national central banks' monetary income shall be allocated to the national central banks in propor tion to their paid-up shares in the capital of the European Central Bank, subject to any decision taken by the Governing Council pursuant to Ar ticle 33(2). 6. The clearing and settlement of the balances arising from the allocation of monetary income shall be carried out by the European Central Bank in accordance with guidelines established by the Governing Council. 7. The Governing Council shall take all other measures necessary for the application of this Ar ticle. Article 33 Allocation of net prof its and losses of the European Central Bank 1. The net profit of the European Central Bank shall be transferred in the following order: (a) an amount to be determined by the Governing Council, which may not exceed 20 % of the net profit, shall be transferred to the general reser ve fund subject to a limit equal to 100 % of the capital; (b) the remaining net profit shall be distributed to the shareholders of the European Central Bank in propor tion to their paidup shares. 2. In the event of a loss incurred by the European Central Bank, the shor tfall may be offset against the general reser ve fund of the European Central Bank and, if necessary, following a decision by the Governing Council, against the monetary income of the relevant financial year in propor tion and up to the amounts allocated to the national central banks in accordance with Ar ticle 32(5). C 310/240 Official Journal of the European Union 16.12.2004 EN CHAPTER VII GENERAL PROVISIONS Article 34 Legal acts In accordance with Ar ticle III190 of the Constitution, the European Central Bank shall adopt: 1. (a) European regulations to the extent necessary to implement the tasks defined in Ar ticle 3(1)(a), Ar ticle 19(1), Ar ticle 22 or Ar ticle 25(2) of this Statute and in cases which shall be laid down in the European regulations and decisions referred to in Ar ticle 41; (b) the European decisions necessary for carrying out the tasks entrusted to the European System of Central Banks under the Constitution and this Statute; (c) recommendations and opinions. 2. The European Central Bank may decide to publish its European decisions, recommendations and opinions. 3. Within the limits and under the conditions adopted by the Council under the procedure laid down in Ar ticle 41, the European Central Bank shall be entitled to impose fines or periodic penalty payments on under takings for failure to comply with obligations under its European regulations and decisions. Article 35 Judicial control and related matters 1. The acts or omissions of the European Central Bank shall be open to review or interpretation by the Cour t of Justice of the European Union in the cases and under the conditions laid down in the Constitution. The European Central Bank may institute proceedings in the cases and under the conditions laid down in the Constitution. 2. Disputes between the European Central Bank, on the one hand, and its creditors, debtors or any other person, on the other, shall be decided by the competent national cour ts, save where jurisdiction has been conferred upon the Cour t of Justice of the European Union. 3. The European Central Bank shall be subject to the liability regime provided for in Ar ticle III-431 of the Constitution. The national central banks shall be liable according to their respective national laws. 4. The Cour t of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the European Central Bank, whether that contract be governed by public or private law. 16.12.2004 Official Journal of the European Union C 310/241 EN 5. A decision of the European Central Bank to bring an action before the Cour t of Justice of the European Union shall be taken by the Governing Council. 6. The Cour t of Justice of the European Union shall have jurisdiction in disputes concerning the fulfilment by a national central bank of obligations under the Constitution and this Statute. If the European Central Bank considers that a national central bank has failed to fulfil an obligation under the Constitution and this Statute, it shall deliver a reasoned opinion on the matter after giving the national central bank concerned the opportunity to submit its observations. If the national central bank concerned does not comply with the opinion within the period laid down by the European Central Bank, the latter may bring the matter before the Cour t of Justice of the European Union. Article 36 Staff 1. The Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the European Central Bank. 2. The Cour t of Justice of the European Union shall have jurisdiction in any dispute between the European Central Bank and its ser vants within the limits and under the conditions laid down in the conditions of employment. Article 37 Professional secrecy 1. Members of the governing bodies and the staff of the European Central Bank and the national central banks shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy. 2. Persons having access to data covered by a legally binding Union act imposing an obligation of secrecy shall be subject to that obligation. Article 38 Signatories The European Central Bank shall be legally committed to third par ties by the President or by two members of the Executive Board or by the signatures of two members of the staff of the European Central Bank who have been duly authorised by the President to sign on behalf of the European Central Bank. Article 39 Privileges and immunities The European Central Bank shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Union. C 310/242 Official Journal of the European Union 16.12.2004 EN CHAPTER VIII AMENDMENT OF THE STATUTE AND COMPLEMENTARY RULES Article 40 Simplif ied amendment procedures 1. In accordance with Ar ticle III-187(3) of the Constitution, Ar ticles 5(1), (2) and (3), 17, 18, 19(1), 22, 23, 24, 26, 32(2), (3), (4) and (6), 33(1)(a) and 36 of this Statute may be amended by European laws: (a) on a proposal from the Commission and after consulting the European Central Bank, or (b) on a recommendation from the European Central Bank and after consulting the Commission. 2. Ar ticle 10(2) may be amended by a European decision of the European Council, acting unanimously, either on a recommendation from the European Central Bank and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the European Central Bank. These amendments shall not enter into force until they are approved by the Member States in accordance with their respective constitutional requirements. 3. A recommendation made by the European Central Bank under this Ar ticle shall require a unanimous decision by the Governing Council. Article 41 Complementary r ules In accordance with Ar ticle III-187(4) of the Constitution, the Council shall adopt European regulations and decisions establishing the measures referred to in Ar ticles 4, 5(4), 19(2), 20, 28(1), 29 (2), 30(4) and 34(3) of this Statute. It shall act after consulting the European Parliament either: (a) on a proposal from the Commission and after consulting the European Central Bank or (b) on a recommendation from the European Central Bank and after consulting the Commission. 16.12.2004 Official Journal of the European Union C 310/243 EN CHAPTER IX TRANSITIONAL AND OTHER PROVISIONS FOR THE EUROPEAN SYSTEM OF CENTRAL BANKS Article 42 General provisions 1. A derogation as referred to in Ar ticle III-197(1) of the Constitution shall entail that the following Ar ticles of this Statute shall not confer any rights or impose any obligations on the Member State concerned: 3, 6, 9(2), 12(1), 14(3), 16, 18, 19, 20, 22, 23, 26(2), 27, 30, 31, 32, 33, 34 and 50. 2. The central banks of Member States with a derogation as specified in Ar ticle III-197(1) of the Constitution shall retain their powers in the field of monetary policy according to national law. 3. In accordance with the second subparagraph of Ar ticle III-197(2) of the Constitution, in Ar ticles 3, 11(2) and 19 of this Statute `Member States' shall mean Member States whose currency is the euro. 4. In Ar ticles 9(2), 10(2) and (3), 12(1), 16, 17, 18, 22, 23, 27, 30, 31, 32, 33(2) and 50 of this Statute, `national central banks' shall mean central banks of Member States whose currency is the euro. 5. In Ar ticles 10(3) and 33(1), `shareholders' shall mean national central banks of Member States whose currency is the euro. 6. In Ar ticles 10(3) and 30(2), `subscribed capital' shall mean capital of the European Central Bank subscribed by the national central banks of Member States whose currency is the euro. Article 43 Transitional tasks of the European Central Bank The European Central Bank shall take over the former functions of the European Monetary Institute referred to in Ar ticle III-199(2) of the Constitution which, because of the derogations of one or more Member States, still have to be performed after the introduction of the euro. The European Central Bank shall give advice in the preparations for the abrogation of the derogations referred to in Ar ticle III-198 of the Constitution. C 310/244 Official Journal of the European Union 16.12.2004 EN Article 44 The General Council of the European Central Bank 1. Without prejudice to Ar ticle III-187(1) of the Constitution, the General Council shall be constituted as a third decisionmaking body of the European Central Bank. 2. The General Council shall comprise the President and Vice-President of the European Central Bank and the Governors of the national central banks. The other members of the Executive Board may par ticipate, without having the right to vote, in meetings of the General Council. 3. The responsibilities of the General Council are listed in full in Ar ticle 46. Article 45 Functioning of the General Council 1. The President or, in his absence, the VicePresident of the European Central Bank shall chair the General Council of the European Central Bank. 2. The President of the Council and a Member of the Commission may par ticipate, without having the right to vote, in meetings of the General Council. 3. The President shall prepare the meetings of the General Council. 4. By way of derogation from Ar ticle 12(3), the General Council shall adopt its Rules of Procedure. 5. The Secretariat of the General Council shall be provided by the European Central Bank. Article 46 Responsibilities of the General Council 1. The General Council shall: (a) perform the tasks referred to in Ar ticle 43; (b) contribute to the advisory functions referred to in Ar ticles 4 and 25(1). 2. The General Council shall contribute to: (a) the collection of statistical information as referred to in Ar ticle 5; (b) the repor ting activities of the European Central Bank as referred to in Ar ticle 15; (c) the establishment of the necessary rules for the application of Ar ticle 26 as referred to in Ar ticle 26(4); (d) the taking of all other measures necessary for the application of Ar ticle 29 as referred to in Ar ticle 29(4); 16.12.2004 Official Journal of the European Union C 310/245 EN (e) the laying down of the Conditions of employment of the staff of the European Central Bank as referred to in Ar ticle 36. 3. The General Council shall contribute to the necessary preparations for irrevocably fixing the exchange rates of the currencies of Member States with a derogation against the euro as referred to in Ar ticle III-198(3) of the Constitution. 4. The General Council shall be informed by the President of the European Central Bank of decisions of the Governing Council. Article 47 Transitional provisions for the capital of the European Central Bank In accordance with Ar ticle 29, each national central bank shall be assigned a weighting in the key for subscription of the European Central Bank's capital. By way of derogation from Ar ticle 28(3), central banks of Member States with a derogation shall not pay up their subscribed capital unless the General Council, acting by a majority representing at least two thirds of the subscribed capital of the European Central Bank and at least half of the shareholders, decides that a minimal percentage has to be paid up as a contribution to the operational costs of the European Central Bank. Article 48 Deferred payment of capital, reser ves and provisions of the European Central Bank 1. The central bank of a Member State whose derogation has been abrogated shall pay up its subscribed share of the capital of the European Central Bank to the same extent as the central banks of other Member States whose currency is the euro, and shall transfer to the European Central Bank foreign reser ve assets in accordance with Ar ticle 30(1). The sum to be transferred shall be determined by multiplying the euro value at current exchange rates of the foreign reser ve assets which have already been transferred to the European Central Bank in accordance with Ar ticle 30(1), by the ratio between the number of shares subscribed by the national central bank concerned and the number of shares already paid up by the other national central banks. 2. In addition to the payment to be made in accordance with paragraph 1, the national central bank concerned shall contribute to the reser ves of the European Central Bank, to those provisions equivalent to reser ves, and to the amount still to be appropriated to the reser ves and provisions corresponding to the balance of the profit and loss account as at 31 December of the year prior to the abrogation of the derogation. The sum to be contributed shall be determined by multiplying the amount of the reser ves, as defined above and as stated in the approved balance sheet of the European Central Bank, by the ratio between the number of shares subscribed by the central bank concerned and the number of shares already paid up by the other central banks. 3. Upon one or more countries becoming Member States and their respective national central banks becoming par t of the European System of Central Banks, the subscribed capital of the European Central Bank and the limit on the amount of foreign reser ve assets that may be transferred to the European Central Bank shall be automatically increased. The increase shall be determined by multiplying the respective amounts then prevailing by the ratio, within the expanded capital key, C 310/246 Official Journal of the European Union 16.12.2004 EN between the weighting of the entering national central banks concerned and the weighting of the national central banks already members of the European System of Central Banks. Each national central bank's weighting in the capital key shall be calculated by analogy with Ar ticle 29(1) and in compliance with Ar ticle 29(2). The reference periods to be used for the statistical data shall be identical to those applied for the latest quinquennial adjustment of the weightings under Ar ticle 29 (3). Article 49 Derogation from Ar ticle 32 1. If, after the star t of the third stage, the Governing Council decides that the application of Ar ticle 32 results in significant changes in national central banks' relative income positions, the amount of income to be allocated pursuant to Ar ticle 32 shall be reduced by a uniform percentage which shall not exceed 60 % in the first financial year after the star t of the third stage and which shall decrease by at least 12 percentage points in each subsequent financial year. 2. Paragraph 1 shall be applicable for not more than five financial years after the star t of the third stage. Article 50 Exchange of banknotes in Member States' currencies Following the irrevocable fixing of exchange rates in accordance with Ar ticle III-198(3) of the Constitution, the Governing Council shall take the necessary measures to ensure that banknotes denominated in the currencies of Member States with irrevocably fixed exchange rates are exchanged by the national central banks at their respective par values. Article 51 Applicability of the transitional provisions If and as long as there are Member States with a derogation Ar ticles 42 to 47 shall be applicable. 16.12.2004 Official Journal of the European Union C 310/247 EN 5. PROTOCOL ON THE STATUTE OF THE EUROPEAN INVESTMENT BANK THE HIGH CONTRACTING PARTIES, DESIRING to lay down the Statute of the European Investment Bank provided for in Ar ticle III393 of the Constitution, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 The European Investment Bank referred to in Ar ticle III393 of the Constitution (hereinafter called the `Bank') is hereby constituted; it shall perform its functions and carry on its activities in accordance with the provisions of the Constitution and of this Statute. Article 2 The task of the Bank shall be that defined in Ar ticle III394 of the Constitution. Article 3 In accordance with Ar ticle III393 of the Constitution, the Bank's members shall be the Member States. Article 4 1. The capital of the Bank shall be 163 653 737 000 euro, subscribed by the Member States as follows: Germany 26 649 532 500 France 26 649 532 500 Italy 26 649 532 500 United Kingdom 26 649 532 500 Spain 15 989 719 500 Belgium 7 387 065 000 Netherlands 7 387 065 000 Sweden 4 900 585 500 Denmark 3 740 283 000 Austria 3 666 973 500 Poland 3 411 263 500 Finland 2 106 816 000 C 310/248 Official Journal of the European Union 16.12.2004 EN Greece 2 003 725 500 Por tugal 1 291 287 000 Czech Republic 1 258 785 500 Hungary 1 190 868 500 Ireland 935 070 000 Slovakia 428 490 500 Slovenia 397 815 000 Lithuania 249 617 500 Luxembourg 187 015 500 Cyprus 183 382 000 Latvia 152 335 000 Estonia 117 640 000 Malta 69 804 000 The Member States shall be liable only up to the amount of their share of the capital subscribed and not paid up. 2. The admission of a new member shall entail an increase in the subscribed capital corresponding to the capital brought in by the new member. 3. The Board of Governors may, acting unanimously, decide to increase the subscribed capital. 4. The share of a member in the subscribed capital may not be transferred, pledged or attached. Article 5 1. The subscribed capital shall be paid in by Member States to the extent of 5 % on average of the amounts laid down in Ar ticle 4(1). 2. In the event of an increase in the subscribed capital, the Board of Governors, acting unanimously, shall fix the percentage to be paid up and the arrangements for payment. Cash payments shall be made exclusively in euro. 3. The Board of Directors may require payment of the balance of the subscribed capital, to such extent as may be required for the Bank to meet its obligations. Each Member State shall make this payment in propor tion to its share of the subscribed capital. 16.12.2004 Official Journal of the European Union C 310/249 EN Article 6 The Bank shall be directed and managed by a Board of Governors, a Board of Directors and a Management Committee. Article 7 1. The Board of Governors shall consist of the ministers designated by the Member States. 2. The Board of Governors shall lay down general directives for the credit policy of the Bank, in accordance with the Union's objectives. The Board of Governors shall ensure that these directives are implemented. 3. The Board of Governors shall in addition: (a) decide whether to increase the subscribed capital in accordance with Ar ticle 4(3) and Ar ticle 5(2); (b) for the purposes of Ar ticle 9(1), determine the principles applicable to financing operations under taken within the framework of the Bank's task; (c) exercise the powers provided in Ar ticles 9 and 11 in respect of the appointment and the compulsory retirement of the members of the Board of Directors and of the Management Committee, and those powers provided for in the second subparagraph of Ar ticle 11(1); (d) take decisions in respect of the granting of finance for investment operations to be carried out, in whole or in par t, outside the territories of the Member States in accordance with Ar ticle 16(1); (e) approve the annual repor t of the Board of Directors; (f) approve the annual balance sheet and profit and loss account; (g) approve the Rules of Procedure of the Bank; (h) exercise the other powers conferred by this Statute. 4. Within the framework of the Constitution and this Statute, the Board of Governors, acting unanimously, may take any decisions concerning the suspension of the operations of the Bank and, should the event arise, its liquidation. Article 8 1. Save as other wise provided in this Statute, decisions of the Board of Governors shall be taken by a majority of its members. This majority must represent at least 50 % of the subscribed capital. A qualified majority shall require eighteen votes in favour and 68 % of the subscribed capital. C 310/250 Official Journal of the European Union 16.12.2004 EN 2. Abstentions by members present in person or represented shall not prevent the adoption of decisions requiring unanimity. Article 9 1. The Board of Directors shall take decisions in respect of granting finance, in par ticular in the form of loans and guarantees, and raising loans; it shall fix the interest rates on loans granted and the commission and other charges. It may, on the basis of a decision taken by a qualified majority, delegate some of its functions to the Management Committee. It shall determine the terms and conditions for such delegation and shall supervise its execution. The Board of Directors shall see that the Bank is properly run; it shall ensure that the Bank is managed in accordance with the Constitution and this Statute and with the general directives laid down by the Board of Governors. At the end of the financial year the Board of Directors shall submit a repor t to the Board of Governors and shall publish it when approved. The Board of Directors shall consist of twentysix directors and sixteen alternate directors. 2. The directors shall be appointed by the Board of Governors for five years, one nominated by each Member State. One shall also be nominated by the Commission. The alternate directors shall be appointed by the Board of Governors for five years as shown below: -- two alternates nominated by the Federal Republic of Germany, -- two alternates nominated by the French Republic, -- two alternates nominated by the Italian Republic, -- two alternates nominated by the United Kingdom of Great Britain and Nor thern Ireland, -- o n e a l te r n a te n o m i n a te d by c o m m o n a c c o r d b e t w e e n t h e K i n g d o m o f S p a i n a n d the Por tuguese Republic, -- one alternate nominated by common accord between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, -- o n e a l te r n a te n o m i n a te d by c o m m o n a c c o r d b e t w e e n t h e K i n g d o m o f D e n m a r k , the Hellenic Republic and Ireland, -- one alternate nominated by common accord between the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, 16.12.2004 Official Journal of the European Union C 310/251 EN -- three alternates nominated by common accord between the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, -- one alternate director nominated by the Commission. The Board of Directors shall coopt six nonvoting exper ts: three as members and three as alternates. The appointments of the directors and the alternates shall be renewable. The Rules of Procedure shall lay down the arrangements for par ticipating in the meetings of the Board of Directors and the provisions applicable to alternates and coopted exper ts. The President of the Management Committee or, in his absence, one of the VicePresidents, shall preside over meetings of the Board of Directors but shall not vote. Members of the Board of Directors shall be chosen from persons whose independence and competence are beyond doubt. They shall be responsible only to the Bank. 3. A director may be compulsorily retired by the Board of Governors only if he no longer fulfils the conditions required for the performance of his duties; the Board must act by a qualified majority. If the annual repor t is not approved, the Board of Directors shall resign. 4. Any vacancy arising as a result of death, voluntary resignation, compulsory retirement or collective resignation shall be filled in accordance with paragraph 2. A member shall be replaced for the remainder of his term of office, save where the entire Board of Directors is being replaced. 5. The Board of Governors shall determine the remuneration of members of the Board of Directors. The Board of Governors shall lay down what activities are incompatible with the duties of a director or an alternate. Article 10 1. Each director shall have one vote on the Board of Directors. He may delegate his vote in all cases, according to procedures to be laid down in the Rules of Procedure of the Bank. 2. Save as other wise provided in this Statute, decisions of the Board of Directors shall be taken by at least one third of the members entitled to vote, representing at least 50 % of the subscribed capital. A qualified majority shall require eighteen votes and 68 % of the subscribed capital in favour. The Rules of Procedure of the Bank shall lay down how many members of the Board of Directors constitute the quorum needed for the adoption of decisions. C 310/252 Official Journal of the European Union 16.12.2004 EN Article 11 1. The Management Committee shall consist of a President and eight VicePresidents appointed for a period of six years by the Board of Governors on a proposal from the Board of Directors. Their appointments shall be renewable. The Board of Governors, acting unanimously, may vary the number of members on the Management Committee. 2. On a proposal from the Board of Directors adopted by a qualified majority, the Board of Governors may, acting by a qualified majority, compulsorily retire a member of the Management Committee. 3. The Management Committee shall be responsible for the current business of the Bank, under the authority of the President and the super vision of the Board of Directors. It shall prepare the decisions of the Board of Directors, including decisions on the raising of loans and the granting of finance, in par ticular in the form of loans and guarantees. It shall ensure that these decisions are implemented. 4. The Management Committee, acting by a majority, shall adopt opinions on proposals for raising loans or granting finance, in par ticular in the form of loans and guarantees. 5. The Board of Governors shall determine the remuneration of members of the Management Committee and shall lay down what activities are incompatible with their duties. 6. The President or, if he is prevented, a VicePresident shall represent the Bank in judicial and other matters. 7. The staff of the Bank shall be under the authority of the President. They shall be engaged and discharged by him. In the selection of staff, account shall be taken not only of personal ability and qualifications but also of an equitable representation of nationals of Member States. The Rules of Procedure shall determine which organ is competent to adopt the provisions applicable to staff. 8. The Management Committee and the staff of the Bank shall be responsible only to the Bank and shall be completely independent in the performance of their duties. Article 12 1. A Committee consisting of six members, appointed on the grounds of their competence by the Board of Governors, shall verify that the activities of the Bank conform to best banking practice and shall be responsible for the auditing of its accounts. 2. The Committee referred to in paragraph 1 shall annually ascer tain that the operations of the Bank have been conducted and its books kept in a proper manner. To this end, it shall verify that the Bank's operations have been carried out in compliance with the formalities and procedures laid down by this Statute and the Rules of Procedure. 16.12.2004 Official Journal of the European Union C 310/253 EN 3. The Committee referred to in paragraph 1 shall confirm that the financial statements, as well as any other financial information contained in the annual accounts drawn up by the Board of Directors, give a true and fair view of the financial position of the Bank in respect of its assets and liabilities, and of the results of its operations and its cash f lows for the financial year under review. 4. The Rules of Procedure shall specify the qualifications required of the members of the Committee and lay down the terms and conditions for the Committee's activity. Article 13 The Bank shall deal with each Member State through the authority designated by that State. In the conduct of financial operations the Bank shall have recourse to the national central bank of the Member State concerned or to other financial institutions approved by that State. Article 14 1. The Bank shall cooperate with all international organisations active in fields similar to its own. 2. The Bank shall seek to establish all appropriate contacts in the interests of cooperation with banking and financial institutions in the countries to which its operations extend. Article 15 At the request of a Member State or of the Commission, or on its own initiative, the Board of Governors shall, in accordance with the same provisions as governed their adoption, interpret or supplement the directives laid down by it under Ar ticle 7. Article 16 1. Within the framework of the task set out in Ar ticle III394 of the Constitution, the Bank shall grant finance, in par ticular in the form of loans and guarantees to its members or to private or public under takings for investments to be carried out in the territories of Member States, to the extent that funds are not available from other sources on reasonable terms. However, by decision of the Board of Governors, acting by a qualified majority on a proposal from the Board of Directors, the Bank may grant financing for investment to be carried out, in whole or in par t, outside the territories of Member States. 2. As far as possible, loans shall be granted only on condition that other sources of finance are also used. 3. When granting a loan to an under taking or to a body other than a Member State, the Bank shall make the loan conditional either on a guarantee from the Member State in whose territory the investment will be carried out, on adequate guarantees, or on the financial strength of the debtor. Fur thermore, in accordance with the principles established by the Board of Governors pursuant to Ar ticle 7(3)(b), and where the implementation of projects provided for in Ar ticle III394 of the Constitution so requires, the Board of Directors shall, acting by a qualified majority, lay down the C 310/254 Official Journal of the European Union 16.12.2004 EN terms and conditions of any financing operation presenting a specific risk profile and thus considered to be a special activity. 4. The Bank may guarantee loans contracted by public or private under takings or other bodies for the purpose of carrying out projects provided for in Ar ticle III394 of the Constitution. 5. The aggregate amount outstanding at any time of loans and guarantees granted by the Bank shall not exceed 250 % of its subscribed capital, reser ves, nonallocated provisions and profit and loss account surplus. The latter aggregate amount shall be reduced by an amount equal to the amount subscribed (whether or not paid in) for any equity par ticipation of the Bank. The amount of the Bank's disbursed equity par ticipations shall not exceed at any time an amount corresponding to the total of its paidin subscribed capital, reser ves, nonallocated provisions and profit and loss account surplus. By way of exception, the special activities of the Bank, as decided by the Board of Governors and the Board of Directors in accordance with paragraph 3, will have a specific allocation of reser ve. This paragraph shall also apply to the consolidated accounts of the Bank. 6. The Bank shall protect itself against exchange risks by including in contracts for loans and guarantees such clauses as it considers appropriate. Article 17 1. Interest rates on loans to be granted by the Bank and commission and other charges shall be adjusted to conditions prevailing on the capital market and shall be calculated in such a way that the income therefrom shall enable the Bank to meet its obligations, to cover its expenses and risks and to build up a reser ve fund as provided for in Ar ticle 22. 2. The Bank shall not grant any reduction in interest rates. Where a reduction in the interest rate appears desirable in view of the nature of the investment to be financed, the Member State concerned or some other agency may grant aid towards the payment of interest to the extent that this is compatible with Ar ticle III167 of the Constitution. Article 18 In its financing operations, the Bank shall observe the following principles: 1. It shall ensure that its funds are employed in the most rational way in the interests of the Union. It may grant loans or guarantees only: (a) where, in the case of investments by under takings in the production sector, interest and amor tisation payments are covered out of operating profits or, in the case of other investments, either by a commitment entered into by the State in which the investment is made or by some other means; and, 16.12.2004 Official Journal of the European Union C 310/255 EN (b) where the execution of the investment contributes to an increase in economic productivity in general and promotes the establishment or functioning of the internal market. 2. It shall neither acquire any interest in an under taking nor assume any responsibility in its management unless this is required to safeguard the rights of the Bank in ensuring recovery of funds lent. However, in accordance with the principles determined by the Board of Governors pursuant to Ar ticle 7(3)(b), and where the implementation of operations provided for in Ar ticle III394 of the Constitution so requires, the Board of Directors shall, acting by a qualified majority, lay down the terms and conditions for taking an equity par ticipation in a commercial under taking, normally as a complement to a loan or a guarantee, insofar as this is required to finance an investment or programme. 3. It may dispose of its claims on the capital market and may, to this end, require its debtors to issue bonds or other securities. 4. Neither the Bank nor the Member States shall impose conditions requiring funds lent by the Bank to be spent within a specified Member State. 5. The Bank may make its loans conditional on international invitations to tender being arranged. 6. The Bank shall not finance, in whole or in par t, any investment opposed by the Member State in whose territory it is to be carried out. 7. As a complement to its lending activity, the Bank may provide technical assistance ser vices in accordance with the terms and conditions laid down by the Board of Governors, acting by a qualified majority, and in compliance with this Statute. Article 19 1. Any under taking or public or private entity may apply directly to the Bank for financing. Applications to the Bank may also be made either through the Commission or through the Member State on whose territory the investment will be carried out. 2. Applications made through the Commission shall be submitted for an opinion to the Member State in whose territory the investment will be carried out. Applications made through a Member State shall be submitted to the Commission for an opinion. Applications made direct by an under taking shall be submitted to the Member State concerned and to the Commission. The Member State concerned and the Commission shall deliver their opinions within two months. If no reply is received within this period, the Bank may assume that there is no objection to the investment in question. 3. The Board of Directors shall rule on financing operations submitted to it by the Management Committee. C 310/256 Official Journal of the European Union 16.12.2004 EN 4. The Management Committee shall examine whether financing operations submitted to it comply with the provisions of this Statute, in par ticular with Ar ticles 16 and 18. Where the Management Committee is in favour of the financing operation, it shall submit the corresponding proposal to the Board of Directors. The Committee may make its favourable opinion subject to such conditions as it considers essential. Where the Management Committee is against granting the finance, it shall submit the relevant documents together with its opinion to the Board of Directors. 5. Where the Management Committee delivers an unfavourable opinion, the Board of Directors may not grant the finance concerned unless its decision is unanimous. 6. Where the Commission delivers an unfavourable opinion, the Board of Directors may not grant the finance concerned unless its decision is unanimous, the director nominated by the Commission abstaining. 7. Where both the Management Committee and the Commission deliver an unfavourable opinion, the Board of Directors may not grant the finance. 8. In the event that a financing operation relating to an approved investment has to be restructured in order to safeguard the Bank's rights and interests, the Management Committee shall take without delay the emergency measures which it deems necessary, subject to immediate repor ting thereon to the Board of Directors. Article 20 1. The Bank shall borrow on the capital markets the funds necessary for the performance of its tasks. 2. The Bank may borrow on the capital markets of the Member States in accordance with the legal provisions applying to those markets. The competent authorities of a Member State with a derogation within the meaning of Ar ticle III197(1) of the Constitution may oppose this only if there is reason to fear serious disturbances on the capital market of that State. Article 21 1. The Bank may employ any available funds which it does not immediately require to meet its obligations in the following ways: (a) it may invest on the money markets; (b) it may, subject to the provisions of Ar ticle 18(2), buy and sell securities; (c) it may carry out any other financial operation linked with its objectives. 2. Without prejudice to the provisions of Ar ticle 23, the Bank shall not, in managing its investments, engage in any currency arbitrage not directly required to carry out its lending operations or fulfil commitments arising out of loans raised or guarantees granted by it. 16.12.2004 Official Journal of the European Union C 310/257 EN 3. The Bank shall, in the fields covered by this Ar ticle, act in agreement with the competent authorities or with the national central bank of the Member State concerned. Article 22 1. A reser ve fund of up to 10 % of the subscribed capital shall be built up progressively. If the state of the liabilities of the Bank should so justify, the Board of Directors may decide to set aside additional reser ves. Until such time as the reser ve fund has been fully built up, it shall be fed by: (a) interest received on loans granted by the Bank out of sums to be paid up by the Member States pursuant to Ar ticle 5; (b) interest received on loans granted by the Bank out of funds derived from repayment of the loans referred to in (a); to the extent that this income is not required to meet the obligations of the Bank or to cover its expenses. 2. The resources of the reser ve fund shall be so invested as to be available at any time to meet the purpose of the fund. Article 23 1. The Bank shall at all times be entitled to transfer its assets into the currency of a Member State whose currency is not the euro in order to carry out financial operations corresponding to the task set out in Ar ticle III394 of the Constitution, taking into account the provisions of Ar ticle 21 of this Statute. The Bank shall, as far as possible, avoid making such transfers if it has cash or liquid assets in the currency required. 2. The Bank may not conver t its assets in the currency of a Member State whose currency is not the euro into the currency of a third country without the agreement of the Member State concerned. 3. The Bank may freely dispose of that par t of its capital which is paid up and of any currency borrowed on markets outside the Union. 4. The Member States under take to make available to the debtors of the Bank the currency needed to repay the capital and pay the interest on loans or commission on guarantees granted by the Bank for investment to be carried out in their territory. Article 24 If a Member State fails to meet the obligations of membership arising from this Statute, in par ticular the obligation to pay its share of the subscribed capital or to ser vice its borrowings, the granting of loans or guarantees to that Member State or its nationals may be suspended by a decision of the Board of Governors, acting by a qualified majority. Such decision shall not release either the Member State or its nationals from their obligations towards the Bank. C 310/258 Official Journal of the European Union 16.12.2004 EN Article 25 1. If the Board of Governors decides to suspend the operations of the Bank, all its activities shall cease for thwith, except those required to ensure the due realisation, protection and preser vation of its assets and the settlement of its liabilities. 2. In the event of liquidation, the Board of Governors shall appoint the liquidators and give them instructions for carrying out the liquidation. It shall ensure that the rights of the members of staff are safeguarded. Article 26 1. In each of the Member States, the Bank shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in par ticular, acquire or dispose of movable or immovable proper ty and may be a par ty to legal proceedings. 2. The proper ty of the Bank shall be exempt from all forms of requisition or expropriation. Article 27 1. Disputes between the Bank on the one hand, and its creditors, debtors or any other person on the other, shall be decided by the competent national cour ts, save where jurisdiction has been conferred on the Cour t of Justice of the European Union. The Bank may provide for arbitration in any contract. 2. The Bank shall have an address for ser vice in each Member State. It may, however, in any contract, specify a par ticular address for ser vice. 3. The proper ty and assets of the Bank shall not be liable to attachment or to seizure by way of execution except by decision of a cour t. Article 28 1. The Board of Governors may, acting unanimously, decide to establish subsidiaries or other entities, which shall have legal personality and financial autonomy. 2. The Board of Governors, acting unanimously, shall establish the Statutes of the bodies referred to in paragraph 1, defining, in par ticular, their objectives, structure, capital, membership, the location of their seat, their financial resources, means of inter vention and auditing arrangements, as well as their relationship with the organs of the Bank. 3. The Bank may par ticipate in the management of these bodies and contribute to their subscribed capital up to the amount determined by the Board of Governors, acting unanimously. 4. The Protocol on the privileges and immunities of the European Union shall apply to the bodies referred to in paragraph 1 insofar as they are incorporated under Union law, to the members of their organs in the performance of their duties as such and to their staff, under the same terms and conditions as those applicable to the Bank. 16.12.2004 Official Journal of the European Union C 310/259 EN Those dividends, capital gains or other forms of revenue stemming from such bodies to which the members, other than the European Union and the Bank, are entitled, shall however remain subject to the fiscal provisions of the applicable legislation. 5. The Cour t of Justice of the European Union shall, within the limits hereinafter laid down, hear disputes concerning measures adopted by organs of a body incorporated under Union law. Proceedings against such measures may be instituted by any member of such a body in its capacity as such or by Member States under the conditions laid down in Ar ticle III365 of the Constitution. 6. The Board of Governors may, acting unanimously, decide to admit the staff of bodies incorporated under Union law to joint schemes with the Bank, in compliance with the respective internal procedures. C 310/260 Official Journal of the European Union 16.12.2004 EN 6. PROTOCOL ON THE LOCATION OF THE SEATS OF THE INSTITUTIONS AND OF CERTAIN BODIES, OFFICES, AGENCIES AND DEPARTMENTS OF THE EUROPEAN UNION THE HIGH CONTRACTING PARTIES, HAVING REGARD to Ar ticle III432 of the Constitution, RECALLING AND CONFIRMING the Decision of 8 April 1965, and without prejudice to the decisions concerning the seat of future institutions, bodies, offices, agencies and depar tments, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: Sole article 1. The European Parliament shall have its seat in Strasbourg, where the 12 periods of monthly plenary sessions, including the budget session, shall be held. The periods of additional plenary sessions shall be held in Brussels. The committees of the European Parliament shall meet in Brussels. The General Secretariat of the European Parliament and its depar tments shall remain in Luxembourg. 2. The Council shall have its seat in Brussels. During the months of April, June and October, the Council shall hold its meetings in Luxembourg. 3. The Commission shall have its seat in Brussels. The depar tments listed in Ar ticles 7, 8 and 9 of the Decision of 8 April 1965 shall be established in Luxembourg. 4. The Cour t of Justice of the European Union shall have its seat in Luxembourg. 5. The European Central Bank shall have its seat in Frankfur t. 6. The Cour t of Auditors shall have its seat in Luxembourg. 7. The Committee of the Regions shall have its seat in Brussels. 8. The Economic and Social Committee shall have its seat in Brussels. 9. The European Investment Bank shall have its seat in Luxembourg. 10. Europol shall have its seat in The Hague. 16.12.2004 Official Journal of the European Union C 310/261 EN 7. PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN UNION THE HIGH CONTRACTING PARTIES, CONSIDERING that, in accordance with Ar ticle III-434 of the Constitution, the Union shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: CHAPTER I PROPERT Y, FUNDS, ASSETS AND OPERATIONS OF THE UNION Article 1 The premises and buildings of the Union shall be inviolable. They shall be exempt from search, requisition, confiscation or expropriation. The proper ty and assets of the Union shall not be the subject of any administrative or legal measure of constraint without the authorisation of the Cour t of Justice. Article 2 The archives of the Union shall be inviolable. Article 3 The Union, its assets, revenues and other proper ty shall be exempt from all direct taxes. The governments of the Member States shall, wherever possible, take the appropriate measures to remit or refund the amount of indirect taxes or sales taxes included in the price of movable or immovable proper ty, where the Union makes, for its official use, substantial purchases the price of which includes taxes of this kind. These provisions shall not be applied, however, so as to have the effect of distorting competition within the Union. No exemption shall be granted in respect of taxes and dues which amount merely to charges for public utility ser vices. Article 4 The Union shall be exempt from all customs duties, prohibitions and restrictions on imports and expor ts in respect of ar ticles intended for its official use. Ar ticles so imported shall not be disposed of, whether or not in return for payment, in the territory of the State into which they have been impor ted, except under conditions approved by the government of that State. C 310/262 Official Journal of the European Union 16.12.2004 EN The Union shall also be exempt from any customs duties and any prohibitions and restrictions on impor t and expor ts in respect of its publications. CHAPTER II COMMUNICATIONS AND L AISSEZ-PASSER Article 5 For their official communications and the transmission of all their documents, the institutions of the Union shall enjoy in the territory of each Member State the treatment accorded by that State to diplomatic missions. Official correspondence and other official communications of the institutions of the Union shall not be subject to censorship. Article 6 Laissez-passer in a form to be prescribed by a European regulation of the Council acting by a simple majority, which shall be recognised as valid travel documents by the authorities of the Member States, may be issued to members and ser vants of the institutions of the Union by the Presidents of these institutions. These laissez-passer shall be issued to officials and other ser vants under conditions laid down in the Staff Regulations of officials and the Conditions of employment of other ser vants of the Union. The Commission may conclude agreements for these laissez-passer to be recognised as valid travel documents within the territory of third States. CHAPTER III MEMBERS OF THE EUROPEAN PARLIAMENT Article 7 No administrative or other restriction shall be imposed on the free movement of members of the European Parliament travelling to or from the place of meeting of the European Parliament. Members of the European Parliament shall, in respect of customs and exchange control, be accorded: (a) by their own governments, the same facilities as those accorded to senior officials travelling abroad on temporary official missions; (b) by the governments of other Member States, the same facilities as those accorded to representatives of foreign governments on temporary official missions. 16.12.2004 Official Journal of the European Union C 310/263 EN Article 8 Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties. Article 9 During the sessions of the European Parliament, its members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their Parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the European Parliament. Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its members. CHAPTER IV REPRESENTATIVES OF MEMBER STATES TAKING PART IN THE WORK OF THE INSTITUTIONS OF THE UNION Article 10 Representatives of Member States taking par t in the work of the institutions of the Union, their advisers and technical exper ts shall, in the performance of their duties and during their travel to and from the place of meeting, enjoy the customary privileges, immunities and facilities. This Ar ticle shall also apply to members of the advisory bodies of the Union. CHAPTER V OFFICIALS AND OTHER SERVANTS OF THE UNION Article 11 In the territory of each Member State and whatever their nationality, officials and other servants of the Union shall: (a) subject to the provisions of the Constitution relating, on the one hand, to the rules on the liability of officials and other ser vants towards the Union and, on the other hand, to the jurisdiction of the Cour t of Justice of the European Union in disputes between the Union and its officials and other ser vants, be immune from legal proceedings in respect of acts performed by them in their C 310/264 Official Journal of the European Union 16.12.2004 EN official capacity, including their words spoken or written. They shall continue to enjoy this immunity after they have ceased to hold office; (b) together with their spouses and dependent members of their families, not be subject to immigration restrictions or to formalities for the registration of aliens; (c) in respect of currency or exchange regulations, be accorded the same facilities as are customarily accorded to officials of international organisations; (d) enjoy the right to impor t free of duty their furniture and effects at the time of first taking up their post in the State concerned, and the right to reexpor t free of duty their furniture and effects, on termination of their duties in that State, subject in either case to the conditions considered to be necessary by the government of the State in which this right is exercised; (e) have the right to import free of duty a motor car for their personal use, acquired either in the State of their last residence or in the State of which they are nationals on the terms ruling in the home market in that State, and to reexpor t it free of duty, subject in either case to the conditions considered to be necessary by the government of the State concerned. Article 12 Officials and other ser vants of the Union shall be liable to a tax, for the benefit of the Union, on salaries, wages and emoluments paid to them by the Union, in accordance with the conditions and procedure laid down by a European law. That law shall be adopted after consultation of the institutions concerned. Officials and other ser vants of the Union shall be exempt from national taxes on salaries, wages and emoluments paid by the Union. Article 13 In the application of income tax, wealth tax and death duties and in the application of conventions on the avoidance of double taxation concluded between Member States of the Union, officials and other ser vants of the Union who, solely by reason of the performance of their duties in the ser vice of the Union, establish their residence in the territory of a Member State other than their State of domicile for tax purposes at the time of entering the ser vice of the Union, shall be considered, both in the State of their actual residence and in the State of domicile for tax purposes, as having maintained their domicile in the latter State provided that it is a member of the Union. This provision shall also apply to a spouse, to the extent that the latter is not separately engaged in a gainful occupation, and to children dependent on and in the care of the persons referred to in this Ar ticle. Movable proper ty belonging to persons referred to in the first paragraph and situated in the territory of the State where they are staying shall be exempt from death duties in that State. Such proper ty shall, for the assessment of such duty, be considered as being in the State of domicile for tax purposes, subject to the rights of third States and to the possible application of provisions of international conventions on double taxation. Any domicile acquired solely by reason of the performance of duties in the ser vice of other international organisations shall not be taken into consideration in applying the provisions of this Ar ticle. 16.12.2004 Official Journal of the European Union C 310/265 EN Article 14 The scheme of social security benefits for officials and other ser vants of the Union shall be laid down by a European law. That law shall be adopted after consultation of the institutions concerned. Article 15 The categories of officials and other ser vants of the Union to whom Ar ticle 11, the second paragraph of Ar ticle 12, and Ar ticle 13 shall apply, in whole or in par t, shall be determined by a European law. That law shall be adopted after consultation of the institutions concerned. The names, grades and addresses of officials and other ser vants included in such categories shall be communicated periodically to the governments of the Member States. CHAPTER VI PRIVILEGES AND IMMUNITIES OF MISSIONS OF THIRD STATES ACCREDITED TO THE UNION Article 16 The Member State in whose territory the Union has its seat shall accord the customary diplomatic privileges and immunities to missions of third States accredited to the Union. CHAPTER VII GENERAL PROVISIONS Article 17 Privileges, immunities and facilities shall be accorded to officials and other ser vants of the Union solely in the interests of the Union. Each institution of the Union shall be required to waive the immunity accorded to an official or other ser vant wherever that institution considers that the waiver of such immunity is not contrary to the interests of the Union. Article 18 The institutions of the Union shall, for the purpose of applying this Protocol, cooperate with the responsible authorities of the Member States concerned. Article 19 Ar ticles 11 to 14 and Ar ticle 17 shall apply to members of the Commission. C 310/266 Official Journal of the European Union 16.12.2004 EN Article 20 Ar ticles 11 to 14 and Ar ticle 17 shall apply to the Judges, the AdvocatesGeneral, the Registrars and the Assistant Rappor teurs of the Cour t of Justice of the European Union, without prejudice to the provisions of Ar ticle 3 of the Protocol on the Statute of the Cour t of Justice of the European Union concerning immunity from legal proceedings of Judges and Advocates-General. Ar ticles 11 to 14 and Ar ticle 17 shall also apply to the members of the Cour t of Auditors. Article 21 This Protocol shall also apply to the European Central Bank, to the members of its organs and to its staff, without prejudice to the Protocol on the Statute of the European System of Central Banks and of the European Central Bank. The European Central Bank shall, in addition, be exempt from any form of taxation or imposition of a like nature on the occasion of any increase in its capital and from the various formalities which may be connected therewith in the State where the Bank has its seat. The activities of the Bank and of its organs carried on in accordance with the Statute of the European System of Central Banks and of the European Central Bank shall not be subject to any turnover tax. Article 22 This Protocol shall also apply to the European Investment Bank, to the members of its organs, to its staff and to the representatives of the Member States taking par t in its activities, without prejudice to the Protocol on the Statute of the Bank. The European Investment Bank shall in addition be exempt from any form of taxation or imposition of a like nature on the occasion of any increase in its capital and from the various formalities which may be connected therewith in the State where the Bank has its seat. Similarly, its dissolution or liquidation shall not give rise to any imposition. Finally, the activities of the Bank and of its organs carried on in accordance with its Statute shall not be subject to any turnover tax. 16.12.2004 Official Journal of the European Union C 310/267 EN 8. PROTOCOL ON THE TREATIES AND ACTS OF ACCESSION OF THE KINGDOM OF DENMARK, IRELAND AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, OF THE HELLENIC REPUBLIC, OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC, AND OF THE REPUBLIC OF AUSTRIA, THE REPUBLIC OF FINLAND AND THE KINGDOM OF SWEDEN THE HIGH CONTRACTING PARTIES, RECALLING that the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland acceded to the European Communities on 1 January 1973; that the Hellenic Republic acceded to the European Communities on 1 January 1981; that the Kingdom of Spain and the Portuguese Republic acceded to the European Communities on 1 January 1986; that the Republic of Austria, the Republic of Finland and the Kingdom of Sweden acceded to the European Communities and to the European Union established by the Treaty on European Union on 1 January 1995; CONSIDERING THAT Ar ticle IV437(2) of the Constitution provides that the Treaties concerning the accessions referred to above shall be repealed; CONSIDERING THAT cer tain provisions appearing in those Accession Treaties and in the Acts annexed thereto remain relevant; and that Ar ticle IV437(2) of the Constitution provides that such provisions must be set out or referred to in a Protocol, so that they remain in force and that their legal effects are preser ved; WHEREAS the provisions in question require the technical adjustments necessary to bring them into line with the Constitution without altering their legal effect, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and the Treaty establishing the European Atomic Energy Community: TITLE I COMMON PROVISIONS Article 1 The rights and obligations resulting from the Accession Treaties referred to in Ar ticle IV437(2)(a) to (d) of the Constitution took effect, under the conditions laid down in those Treaties, on the following dates: (a) 1 January 1973, for the Treaty concerning the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland; (b) 1 January 1981, for the Treaty concerning the accession of the Hellenic Republic; (c) 1 January 1986, for the Treaty concerning the accession of the Kingdom of Spain and the Portuguese Republic; C 310/268 Official Journal of the European Union 16.12.2004 EN (d) 1 January 1995, for the Treaty concerning the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. Article 2 1. The acceding States referred to in Ar ticle 1 shall be required to accede to the following agreements or conventions concluded before their respective accessions, insofar as such agreements or conventions are still in force: (a) agreements or conventions concluded between the other Member States which are based on the Treaty establishing the European Community, the Treaty establishing the European Atomic Energy Community or the Treaty on European Union, or which are inseparable from the attainment of the objectives of those Treaties, or which relate to the functioning of the Communities or of the Union or which are connected with the activities thereof; (b) agreements or conventions concluded by the other Member States, acting jointly with the European Communities, with one or more third States or with an international organisation, and the agreements which are related to those agreements or conventions. The Union and the other Member States shall assist the acceding States referred to in Ar ticle 1 in this respect. 2. The acceding States referred to in Ar ticle 1 shall take appropriate measures, where necessary, to adjust their position in relation to international organisations, and in relation to those international agreements to which the Union or the European Atomic Energy Community or other Member States are also par ties, to the rights and obligations arising from their accession. Article 3 Provisions of the Acts of Accession, as interpreted by the Cour t of Justice of the European Communities and the Cour t of First Instance, the purpose or effect of which is to repeal or amend, other wise than as a transitional measure, acts adopted by the institutions, bodies, offices or agencies of the European Communities or of the European Union established by the Treaty on European Union shall remain in force subject to the second paragraph. The provisions referred to in the first paragraph shall have the same status in law as the acts which they repeal or amend and shall be subject to the same rules as those acts. Article 4 The texts of the acts of the institutions, bodies, offices and agencies of the European Communities or of the European Union established by the Treaty on European Union which were adopted before the accessions referred to in Ar ticle 1 and which were subsequently drawn up successively in the English and Danish languages, in the Greek language, in the Spanish and Por tuguese languages, and in the Finnish and Swedish languages, shall be authentic from the date of the respective accessions referred to in Ar ticle 1, under the same conditions as the texts drawn up and authentic in the other languages. 16.12.2004 Official Journal of the European Union C 310/269 EN Article 5 A European law of the Council may repeal the transitional provisions set out in this Protocol, when they are no longer applicable. The Council shall act unanimously after consulting the European Parliament. TITLE II PROVISIONS TAKEN FROM THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE KINGDOM OF DENMARK, IREL AND AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IREL AND SECTION 1 Provisions on Gibraltar Article 6 1. Acts of the institutions relating to the products in Annex I to the Constitution and the products subject, on impor tation into the Union, to specific rules as a result of the implementation of the common agricultural policy, as well as the acts on the harmonisation of legislation of Member States concerning turnover taxes, shall not apply to Gibraltar unless the Council adopts a European decision which provides other wise. The Council shall act unanimously on a proposal from the Commission. 2. The situation of Gibraltar defined in point VI of Annex II (1) to the Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland shall be maintained. SECTION 2 Provisions on the Faroe Islands Article 7 Danish nationals resident in the Faroe Islands shall be considered to be nationals of a Member State within the meaning of the Constitution only from the date on which the Constitution becomes applicable to those islands. (1) OJ L 73, 27.3.1972, p. 47. C 310/270 Official Journal of the European Union 16.12.2004 EN SECTION 3 Provisions on the Channel Islands and the Isle of Man Article 8 1. The Union rules on customs matters and quantitative restrictions, in par ticular customs duties, charges having equivalent effect and the Common Customs Tariff, shall apply to the Channel Islands and the Isle of Man under the same conditions as they apply to the United Kingdom. 2. In respect of agricultural products and products processed therefrom which are the subject of a special trade regime, the levies and other impor t measures laid down in Union rules and applicable by the United Kingdom shall be applied to third countries. Such provisions of Union rules as are necessary to allow free movement and observance of normal conditions of competition in trade in these products shall also be applicable. The Council, on a proposal from the Commission, shall adopt the European regulations or decisions establishing the conditions under which the provisions referred to in the first and second subparagraphs shall be applicable to these territories. Article 9 The rights enjoyed by Channel Islanders or Manxmen in the United Kingdom shall not be affected by Union law. However, such persons shall not benefit from provisions of Union law relating to the free movement of persons and ser vices. Article 10 The provisions of the Treaty establishing the European Atomic Energy Community applicable to persons or under takings within the meaning of Ar ticle 196 of that Treaty shall apply to those persons or under takings when they are established in the territories referred to in Ar ticle 8 of this Protocol. Article 11 The authorities of the territories referred to in Ar ticle 8 shall apply the same treatment to all natural and legal persons of the Union. Article 12 If, during the application of the arrangements defined in this Section, difficulties appear on either side in relations between the Union and the territories referred to in Ar ticle 8, the Commission shall without delay propose to the Council such safeguard measures as it believes necessary, specifying their terms and conditions of application. The Council shall adopt the appropriate European regulations or decisions within one month. 16.12.2004 Official Journal of the European Union C 310/271 EN Article 13 In this Section, Channel Islander or Manxman shall mean any British citizen who holds that citizenship by vir tue of the fact that he, a parent or grandparent was born, adopted, naturalised or registered in the island in question; but such a person shall not for this purpose be regarded as a Channel Islander or Manxman if he, a parent or a grandparent was born, adopted, naturalised or registered in the United Kingdom. Nor shall he be so regarded if he has at any time been ordinarily resident in the United Kingdom for five years. The administrative arrangements necessary to identify these persons will be notified to the Commission. SECTION 4 Provisions on the implementation of the policy of industrialisation and economic development in Ireland Article 14 The Member States take note of the fact that the Government of Ireland has embarked upon the implementation of a policy of industrialisation and economic development designed to align the standards of living in Ireland with those of the other Member States and to eliminate underemployment while progressively evening out regional differences in levels of development. They recognise it to be in their common interest that the objectives of this policy be so attained and agree to recommend to this end that the institutions implement all the means and procedures laid down by the Constitution, par ticularly by making adequate use of the Union resources intended for the realisation of its objectives. The Member States recognise in par ticular that, in the application of Ar ticles III167 and III168 of the Constitution, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population. SECTION 5 Provisions on the exchange of information with Denmark in the f ield of nuclear energy Article 15 1. From 1 January 1973, such information as has been communicated to Member States, persons and under takings, in accordance with Ar ticle 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of Denmark, which shall give it limited distribution within its territory under the conditions laid down in that Ar ticle. C 310/272 Official Journal of the European Union 16.12.2004 EN 2. From 1 January 1973, Denmark shall place at the disposal of the European Atomic Energy Community an equivalent volume of information in the sectors specified in paragraph 3. This information shall be set for th in detail in a document transmitted to the Commission. The Commission shall communicate this information to Community under takings under the conditions laid down in Ar ticle 13 of the Treaty establishing the European Atomic Energy Community. 3. The sectors in which Denmark shall make information available to the European Atomic Energy Community are as follows: (a) DOR heavy water moderated organic cooled reactor; (b) DT350, DK400 heavy water pressure vessel reactors; (c) high temperature gas loop; (d) instrumentation systems and special electronic equipment; (e) reliability; (f) reactor physics, reactor dynamics and heat exchange; (g) inpile testing of materials and equipment. 4. Denmark shall under take to supply the European Atomic Energy Community with any information complementary to the repor ts which it shall communicate, in par ticular during visits by European Atomic Energy Community personnel or personnel from the Member States to the Risö Centre, under conditions to be determined by mutual agreement in each case. Article 16 1. In those sectors in which Denmark places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and under takings of the Community where they possess exclusive rights to patents filed in Member States and insofar as they have no obligation or commitment in respect of third par ties to grant or offer to grant an exclusive or par tially exclusive licence to the rights in these patents. 2. Where an exclusive or par tially exclusive licence has been granted, Denmark shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and under takings of the Community by the holders of such licences. Such exclusive or par tially exclusive licences shall be granted on a normal commercial basis. 16.12.2004 Official Journal of the European Union C 310/273 EN SECTION 6 Provisions on the exchange of information with Ireland in the f ield of nuclear energy Article 17 1. From 1 January 1973, such information as has been communicated to Member States, persons and under takings, in accordance with Ar ticle 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of Ireland, which shall give it limited distribution within its territory under the conditions laid down in that Ar ticle. 2. From 1 January 1973, Ireland shall place at the disposal of the European Atomic Energy Community information obtained in the nuclear field in Ireland, which is given limited distribution, insofar as strictly commercial applications are not involved. The Commission shall communicate this information to Community under takings under the conditions laid down in Ar ticle 13 of the Treaty establishing the European Atomic Energy Community. 3. The information referred to in paragraphs 1 and 2 shall mainly concern studies for the development of a power reactor and work on radioisotopes and their application in medicine, including the problems of radiation protection. Article 18 1. In those sectors in which Ireland places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and under takings of the Community where they possess exclusive rights to patents filed in Member States and insofar as they have no obligation or commitment in respect of third par ties to grant or offer to grant an exclusive or par tially exclusive licence to the rights in these patents. 2. Where an exclusive or par tially exclusive licence has been granted, Ireland shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and under takings of the Community by the holders of such licences. Such exclusive or par tially exclusive licences shall be granted on a normal commercial basis. SECTION 7 Provisions on the exchange of information with the United Kingdom in the f ield of nuclear energy Article 19 1. From 1 January 1973, such information as has been communicated to Member States, persons and under takings, in accordance with Ar ticle 13 of the Treaty establishing the European Atomic C 310/274 Official Journal of the European Union 16.12.2004 EN Energy Community, shall be placed at the disposal of the United Kingdom, which shall give it limited distribution within its territory under the conditions laid down in that Ar ticle. 2. From 1 January 1973, the United Kingdom shall place at the disposal of the European Atomic Energy Community an equivalent volume of information in the sectors set out in the list contained in the Annex (1) to Protocol No 28 to the Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland. This information shall be set for th in detail in a document transmitted to the Commission. The Commission shall communicate this information to Community under takings under the conditions laid down in Ar ticle 13 of the Treaty establishing the European Atomic Energy Community. 3. In view of the European Atomic Energy Community's greater interest in certain sectors, the United Kingdom shall lay special emphasis on the transmission of information in the following sectors: (a) fast reactor research and development (including safety); (b) fundamental research (applicable to reactor types); (c) reactor safety (other than fast reactors); (d) metallurgy, steel, zirconium alloys and concrete; (e) compatibility of structural materials; (f) experimental fuel fabrication; (g) thermohydrodynamics; (h) instrumentation. Article 20 1. In those fields in which the United Kingdom places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and under takings of the Community where they possess exclusive rights to patents filed in the Member States of the Community and insofar as they have no obligation or commitment in respect of third par ties to grant or offer to grant an exclusive or par tially exclusive licence to the rights in these patents. (1) OJ L 73, 27.3.1972, p. 84. 16.12.2004 Official Journal of the European Union C 310/275 EN 2. Where an exclusive or par tially exclusive licence has been granted, the United Kingdom shall encourage and facilitate the granting of sublicences on commercial terms to the Member States, persons and under takings of the Community by the holders of such licences. Such exclusive or par tially exclusive licences shall be granted on a normal commercial basis. TITLE III PROVISIONS TAKEN FROM THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE HELLENIC REPUBLIC SECTION 1 Provisions on the granting by Greece of exemption from customs duties on the impor t of cer tain goods Article 21 Ar ticle III151 of the Constitution shall not prevent the Hellenic Republic from maintaining measures of exemption granted before 1 January 1979 pursuant to: (a) Law No 4171/61 (General measures to aid development of the country's economy), (b) Decree Law No 2687/53 (Investment and protection of foreign capital), (c) Law No 289/76 (Incentives with a view to promoting the development of frontier regions and governing all per tinent questions), until the expiry of the agreements concluded by the Hellenic Government with those persons benefiting from these measures. SECTION 2 Provisions on taxation Article 22 The acts listed in point II.2 of Annex VIII (1) to the Act concerning the conditions of accession of the Hellenic Republic shall apply in respect of the Hellenic Republic under the conditions laid down in that Annex, with the exception of the references to points 9 and 18(b) thereof. (1) OJ L 291, 19.11.1979, p. 163. C 310/276 Official Journal of the European Union 16.12.2004 EN SECTION 3 Provisions on cotton Article 23 1. This Section concerns cotton, not carded or combed, falling within subheading 5201 00 of the Combined Nomenclature. 2. A system shall be introduced in the Union par ticularly to: (a) suppor t the production of cotton in regions of the Union where it is impor tant for the agricultural economy, (b) permit the producers concerned to earn a fair income, (c) stabilise the market by structural improvements at the level of supply and marketing. 3. The system referred to in paragraph 2 shall include the grant of an aid to production. 4. In order to allow cotton producers to concentrate supply and to adapt production to market requirements, a system shall be introduced to encourage the formation of producer groups and federations of such groups. This system shall provide for the grant of aids with a view to providing incentives for the formation and facilitating the functioning of producer groups. The only groups that may benefit from this system must: (a) be formed on the initiative of the producers themselves, (b) offer a sufficient guarantee for the duration and effectiveness of their action, (c) be recognised by the Member State concerned. 5. The Union trading system with third countries shall not be affected. In this respect, in par ticular, no measure restricting impor ts may be laid down. 6. A European law of the Council shall establish the adjustments necessary to the system introduced pursuant to this Section. The Council, on a proposal from the Commission, shall adopt the European regulations and decisions establishing the general rules necessary for implementing the provisions of this Section. The Council shall act after consulting the European Parliament. 16.12.2004 Official Journal of the European Union C 310/277 EN SECTION 4 Provisions on the economic and industrial development of Greece Article 24 The Member States take note of the fact that the Hellenic Government has embarked upon the implementation of a policy of industrialisation and economic development designed to align the standards of living in Greece with those of the other Member States and to eliminate underemployment while progressively evening out regional differences in levels of development. They recognise it to be in their common interest that the objectives of this policy be so attained. To this end, the institutions shall implement all the means and procedures laid down by the Constitution, par ticularly by making adequate use of the Union resources intended for the realisation of its objectives. In par ticular, in the application of Ar ticles III167 and III168 of the Constitution, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population. SECTION 5 Provisions on the exchange of information with Greece in the f ield of nuclear energy Article 25 1. From 1 January 1981, such information as has been communicated to Member States, persons and under takings, in accordance with Ar ticle 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of the Hellenic Republic, which shall give it limited distribution within its territory under the conditions laid down in that Ar ticle. 2. From 1 January 1981, the Hellenic Republic shall place at the disposal of the European Atomic Energy Community information obtained in the nuclear field in Greece which is given limited distribution, insofar as strictly commercial applications are not involved. The Commission shall communicate this information to Community under takings under the conditions laid down in Ar ticle 13 of the Treaty establishing the European Atomic Energy Community. 3. The information referred to in paragraphs 1 and 2 shall mainly concern: (a) studies on the application of radioisotopes in the following fields: medicine, agriculture, entomology and environmental protection, (b) the application of nuclear technology to archeometry, (c) the development of electronic medical apparatus, (d) the development of methods of radioactive ore prospecting. C 310/278 Official Journal of the European Union 16.12.2004 EN Article 26 1. In those sectors in which the Hellenic Republic places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and under takings of the Community where they possess exclusive rights to patents filed in Member States of the Community and insofar as they have no obligation or commitment in respect of third par ties to grant or offer to grant an exclusive or par tially exclusive licence to the rights in these patents. 2. Where an exclusive or par tially exclusive licence has been granted, the Hellenic Republic shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and under takings of the European Atomic Energy Community by the holders of such licences. Such exclusive or par tially exclusive licences shall be granted on a normal commercial basis. TITLE IV PROVISIONS TAKEN FROM THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC SECTION 1 Financial provisions Article 27 The own resources accruing from value added tax shall be calculated and checked as if the Canary Islands and Ceuta and Melilla were included in the territorial field of application of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes -- Common system of value added tax: uniform basis of assessment. SECTION 2 Provisions on patents Article 28 The provisions of Spanish national law relating to the burden of proof, which were adopted under paragraph 2 of Protocol No 8 to the Act concerning the conditions of accession of the Kingdom of Spain and the Por tuguese Republic, shall not apply if the infringement proceedings are brought against the holder of another process patent for the manufacture of a product identical to that 16.12.2004 Official Journal of the European Union C 310/279 EN obtained as the result of the patented process of the plaintiff, if that other patent was issued before 1 January 1986. In cases where shifting the burden of proof does not apply, the Kingdom of Spain shall continue to require the patent holder to adduce proof of infringement. In all these cases the Kingdom of Spain shall apply a judicial procedure known as `distraintdescription'. `Distraintdescription' means a procedure forming par t of the system referred to in the first and second paragraphs by which any person entitled to bring an action for infringement may, after obtaining a cour t order, granted on his application, cause a detailed description to be made, at the premises of the alleged infringer, by a bailiff assisted by exper ts, of the processes in question, in par ticular by photocopying technical documents, with or without actual distraint. This cour t order may order the payment of a security, intended to grant damages to the alleged infringer in case of injury caused by the `distraintdescription'. Article 29 The provisions of Por tuguese national law relating to the burden of proof, which were adopted under paragraph 2 of Protocol No 19 to the Act concerning the conditions of accession of the Kingdom of Spain and the Por tuguese Republic, shall not apply if the infringement proceedings are brought against the holder of another process patent for the manufacture of a product identical to that obtained as the result of the patented process of the plaintiff, if that other patent was issued before 1 January 1986. In cases where shifting the burden of proof does not apply, the Por tuguese Republic shall continue to require the patent holder to adduce proof of infringement. In all these cases, the Por tuguese Republic shall apply a judicial procedure known as `distraintdescription'. `Distraintdescription' means a procedure forming par t of the system referred to in the first and second paragraphs by which any person entitled to bring an action for infringement may, after obtaining a cour t order, granted on his application, cause a detailed description to be made, at the premises of the alleged infringer, by a bailiff assisted by exper ts, of the processes in question, in par ticular by photocopying technical documents, with or without actual distraint. This cour t order may order the payment of a security, intended to grant damages to the alleged infringer in case of injury caused by the `distraintdescription'. SECTION 3 Provisions on the mechanism for additional responsibilities within the framework of f isheries agreements concluded by the Union with third countries Article 30 1. A specific system is hereby established for the execution of operations carried out as a complement to fishing activities under taken by vessels f lying the f lag of a Member State in waters falling under the sovereignty or within the jurisdiction of a third country within the framework of responsibilities created under fisheries agreements concluded by the Union with the third countries in question. C 310/280 Official Journal of the European Union 16.12.2004 EN 2. Operations considered likely to occur by way of addition to fishing activities subject to the conditions and within the limits referred to in paragraphs 3 and 4 relate to: (a) the processing, in the territory of the third country concerned, of fishery products caught by vessels f lying the f lag of a Member State in the waters of that third country in the course of fishing activities carried out by vir tue of a fisheries agreement, with a view to those products being put on the Union market under tariff headings falling within Chapter 3 of the Common Customs Tariff, (b) the loading or transhipment aboard a vessel f lying the f lag of a Member State occurring within the framework of activities provided for under such a fisheries agreement, of fishery products falling within Chapter 3 of the Common Customs Tariff with a view to their transpor t and any processing for the purpose of being put on the Union market. 3. The import into the Union of products having been the subject of the operations referred to in paragraph 2 shall be carried out subject to suspension, in par t or in whole, of the Common Customs Tariff duties or subject to a special system of charges, under the conditions and within the limits of additionality fixed annually in relation to the volume of fishing possibilities deriving from the agreements in question and from their accompanying detailed rules. 4. European laws or framework laws shall lay down the general rules of application of this system and in par ticular the criteria for fixing and appor tioning the quantities concerned. The detailed implementing rules of this system and the quantities concerned shall be adopted in accordance with the procedure laid down in Ar ticle 37 of Regulation (EC) No 104/2000. SECTION 4 Provisions on Ceuta and Melilla Subsection 1 General provisions Article 31 1. The Constitution and the acts of the institutions shall apply to Ceuta and to Melilla, subject to the derogations referred to in paragraphs 2 and 3 and to the other provisions of this Section. 2. The conditions under which the provisions of the Constitution concerning the free movement of goods, and the acts of the institutions concerning customs legislation and commercial policy, shall apply to Ceuta and to Melilla are set out in Subsection 3 of this Section. 3. Without prejudice to the specific provisions of Ar ticle 32, the acts of the institutions concerning the common agricultural policy and the common fisheries policy shall not apply to Ceuta or to Melilla. 16.12.2004 Official Journal of the European Union C 310/281 EN 4. At the request of the Kingdom of Spain, a European law or framework law of the Council may: (a) include Ceuta and Melilla in the customs territory of the Union; (b) define the appropriate measures aimed at extending to Ceuta and to Melilla the provisions of Union law in force. On a proposal from the Commission acting on its own initiative or at the request of a Member State, the Council may adopt a European law or framework law adjusting the arrangements applicable to Ceuta and to Melilla if necessary. The Council shall act unanimously after consulting the European Parliament. Subsection 2 Provisions relating to the Common Fisheries Policy Article 32 1. Subject to paragraph 2 and without prejudice to Subsection 3, the common fisheries policy shall not apply to Ceuta or to Melilla. 2. The Council, on a proposal from the Commission, shall adopt the European laws, framework laws, regulations or decisions which: (a) determine the structural measures which may be adopted in favour of Ceuta and Melilla; (b) determine the procedures appropriate to take into consideration all or par t of the interests of Ceuta and Melilla when it adopts acts, case by case, with a view to the negotiations by the Union aimed at the resumption or conclusion of fisheries agreements with third countries and to the specific interests of Ceuta and Melilla within international conventions concerning fisheries, to which the Union is a contracting par ty. 3. The Council, on a proposal from the Commission, shall adopt the European laws, framework laws, regulations or decisions which determine, where appropriate, the possibilities and conditions of mutual access to respective fishing zones and to the resources thereof. It shall act unanimously. 4. The European laws and framework laws referred to in paragraphs 2 and 3 shall be adopted after consultation of the European Parliament. Subsection 3 Provisions on free movement of goods, customs legislation and commercial policy Article 33 1. Products originating in Ceuta or in Melilla and products coming from third countries impor ted into Ceuta or into Melilla under the arrangements which are applicable there to them shall not be C 310/282 Official Journal of the European Union 16.12.2004 EN deemed, when released for free circulation in the customs territory of the Union, to be goods fulfilling the conditions of paragraphs 1 to 3 of Ar ticle III151 of the Constitution. 2. The customs territory of the Union shall not include Ceuta and Melilla. 3. Except where other wise provided for in this Subsection, the acts of the institutions regarding customs legislation for foreign trade shall apply under the same conditions to trade between the customs territory of the Union, on the one hand, and Ceuta and Melilla, on the other. 4. Except where other wise provided for in this Subsection, the acts of the institutions regarding the common commercial policy, be they autonomous or enacted by agreement, directly linked to the impor t or expor t of goods, shall not be applicable to Ceuta or to Melilla. 5. Except where other wise provided for in this Title, the Union shall apply in its trade with Ceuta and Melilla, for products falling within Annex I to the Constitution, the general arrangements which it applies in its foreign trade. Article 34 Subject to Ar ticle 35, customs duties on the impor t into the customs territory of the Union of products originating in Ceuta or in Melilla shall be abolished. Article 35 1. Fishery products falling within headings 0301, 0302, 0303, 1604, 1605 and subheadings 0511 91 and 2301 20 of the Common Customs Tariff and originating in Ceuta or in Melilla, shall, within the limit of tariff quotas calculated by product and on the average quantities actually disposed of during 1982, 1983 and 1984, qualify for exemption from customs duties throughout the customs territory of the Union. The release for free circulation of products imported into the customs territory of the Union, under these tariff quotas, shall be subject to compliance with the rules laid down by the common organisation of markets and in par ticular with respect to reference prices. 2. The Council, on a proposal from the Commission, shall each year adopt European regulations or decisions opening and allocating tariff quotas in accordance with the detailed rules laid down in paragraph 1. Article 36 1. Where application of Ar ticle 34 could lead to a substantial increase in the import of cer tain products originating in Ceuta or in Melilla such as might prejudice Union producers, the Council, on a proposal from the Commission, may adopt European regulations or decisions to subject the access of these products to the customs territory of the Union to special conditions. 2. Where, because the common commercial policy and the Common Customs Tariff are not applied to the impor t of raw materials or intermediate products into Ceuta or into Melilla, impor ts of a product originating in Ceuta or in Melilla cause, or may cause, serious injury to a producer activity 16.12.2004 Official Journal of the European Union C 310/283 EN exercised in one or more Member States, the Commission, at the request of a Member State or on its own initiative, may take the appropriate measures. Article 37 The customs duties on import into Ceuta and into Melilla of products originating in the customs territory of the Union, and charges having equivalent effect, shall be abolished. Article 38 The customs duties and charges having an effect equivalent to such duties and the trade arrangements applied on the impor t into Ceuta and into Melilla of goods coming from a third country may not be less favourable than those applicable by the Union in accordance with its international commitments or its preferential arrangements with regard to such third country, providing that the same third country grants, to imports from Ceuta and from Melilla, the same treatment as that which it grants to the Union. However, the arrangements applied to impor ts into Ceuta and into Melilla with regard to goods coming from such third country may not be more favourable than those applied with regard to the impor ts of products originating in the customs territory of the Union. Article 39 The Council, on a proposal from the Commission, shall adopt European regulations or decisions laying down the rules for the application of this Subsection and in par ticular the rules of origin applicable to trade, as referred to in Ar ticles 34, 35 and 37, including the provisions concerning the identification of originating products and the control of origin. The rules will include, in par ticular, provisions on marking and/or labelling of products, on the conditions of registration of vessels, on the application of the rule on mixed origin for fishery products, and also provisions enabling the origin of products to be determined. SECTION 5 Provisions on the regional development of Spain Article 40 The Member States take note of the fact that the Spanish Government has embarked upon the implementation of a policy of regional development designed in par ticular to stimulate economic growth in the lessdeveloped regions and areas of Spain. They recognise it to be in their common interest that the objectives of this policy be attained. They agree, in order to help the Spanish Government to accomplish this task, to recommend that the institutions use all the means and procedures laid down by the Constitution, par ticularly by making adequate use of the Union resources intended for the realisation of its objectives. C 310/284 Official Journal of the European Union 16.12.2004 EN The Member States recognise in par ticular that, in the application of Ar ticles III167 and III168 of the Constitution, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population of the lessdeveloped regions and areas of Spain. SECTION 6 Provisions on the economic and industrial development of Por tugal Article 41 The Member States take note of the fact that the Por tuguese Government has embarked upon the implementation of a policy of industrialisation and economic development designed to align the standard of living in Por tugal with that of the other Member States and to eliminate underemployment while progressively evening out regional differences in levels of development. They recognise it to be in their common interest that the objectives of this policy be attained. They agree to recommend to this end that the institutions use all the means and procedures laid down by the Constitution, par ticularly by making adequate use of the Union resources intended for the realisation of its objectives. The Member States recognise in par ticular that, in the application of Ar ticles III-167 and III-168 of the Constitution, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population. SECTION 7 Provisions on the exchange of information with the Kingdom of Spain in the f ield of nuclear energy Article 42 1. From 1 January 1986, such information as has been communicated to Member States, persons and under takings, in accordance with Ar ticle 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of the Kingdom of Spain, which shall give it limited distribution within its territory under the conditions laid down in that Ar ticle. 2. From 1 January 1986, the Kingdom of Spain shall place at the disposal of the European Atomic Energy Community information obtained in the nuclear field in Spain which is given limited distribution, insofar as strictly commercial applications are not involved. The Commission shall communicate this information to Community under takings under the conditions laid down in Ar ticle 13 of the Treaty establishing the European Atomic Energy Community. 3. The information referred to in paragraphs 1 and 2 shall mainly concern: (a) nuclear physics (low- and high-energy); (b) radiation protection; 16.12.2004 Official Journal of the European Union C 310/285 EN (c) isotope applications, in par ticular those of stable isotopes; (d) research reactors and relevant fuels; (e) research into the field of the fuel cycle (more especially the mining and processing of lowgrade uranium ore; optimisation of fuel elements for power reactors). Article 43 1. In those sectors in which the Kingdom of Spain places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and under takings of the Community where they possess exclusive rights to patents filed in Member States and insofar as they have no obligation or commitment in respect of third par ties to grant or offer to grant an exclusive or par tially exclusive licence to the rights in these patents. 2. Where an exclusive or par tially exclusive licence has been granted, the Kingdom of Spain shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and under takings of the Community by the holders of such licences. Such exclusive or par tially exclusive licences shall be granted on a normal commercial basis. SECTION 8 Provisions on the exchange of information with the Por tuguese Republic in the f ield of nuclear energy Article 44 1. From 1 January 1986, such information as has been communicated to Member States, persons and under takings, in accordance with Ar ticle 13 of the Treaty establishing the European Atomic Energy Community, shall be placed at the disposal of the Por tuguese Republic, which shall give it limited distribution within its territory under the conditions laid down in that Ar ticle. 2. From 1 January 1986, the Portuguese Republic shall place at the disposal of the European Atomic Energy Community information obtained in the nuclear field in Por tugal which is given limited distribution, insofar as strictly commercial applications are not involved. The Commission shall communicate this information to Community under takings under the conditions laid down in Ar ticle 13 of the Treaty establishing the European Atomic Energy Community. 3. The information referred to in paragraphs 1 and 2 shall mainly concern: (a) reactor dynamics; (b) radiation protection; C 310/286 Official Journal of the European Union 16.12.2004 EN (c) application of nuclear measuring techniques (in the industrial, agricultural, archaeological and geological fields); (d) atomic physics (effective measuring of cross sections, pipeline techniques); (e) extractive metallurgy of uranium. Article 45 1. In those sectors in which the Portuguese Republic places information at the disposal of the European Atomic Energy Community, the competent authorities shall grant upon request licences on commercial terms to Member States, persons and under takings of the Community where they possess exclusive rights to patents filed in Member States and insofar as they have no obligation or commitment in respect of third par ties to grant or offer to grant an exclusive or par tially exclusive licence to the rights in these patents. 2. Where an exclusive or par tially exclusive licence has been granted, the Por tuguese Republic shall encourage and facilitate the granting of sublicences on commercial terms to Member States, persons and under takings of the Community by the holders of such licences. Such exclusive or par tially exclusive licences shall be granted on a normal commercial basis. TITLE V PROVISIONS TAKEN FROM THE ACT CONCERNING THE CONDITIONS OF ACCESSION OF THE REPUBLIC OF AUSTRIA, THE REPUBLIC OF FINL AND AND THE KINGDOM OF SWEDEN SECTION 1 Financial provisions Article 46 Own resources accruing from value added tax shall be calculated and checked as though the Ĺland Islands were included in the territorial scope of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes -- Common system of value added tax: uniform basis of assessment. 16.12.2004 Official Journal of the European Union C 310/287 EN SECTION 2 Provisions on agriculture Article 47 Where there are serious difficulties resulting from accession which remain after full utilisation of Ar ticle 48 and of the other measures resulting from the rules existing in the Union, the Commission may adopt a European decision authorising Finland to grant national aids to producers so as to facilitate their full integration into the common agricultural policy. Article 48 1. The Commission shall adopt European decisions authorising Finland and Sweden to grant longterm national aids with a view to ensuring that agricultural activity is maintained in specific regions. These regions should cover the agricultural areas situated to the nor th of the 62nd Parallel and some adjacent areas south of that parallel affected by comparable climatic conditions rendering agricultural activity par ticularly difficult. 2. The regions referred to in paragraph 1 shall be determined by the Commission, taking into consideration in par ticular: (a) the low population density; (b) the portion of agricultural land in the overall surface area; (c) the portion of agricultural land devoted to arable crops intended for human consumption, in the agricultural surface area used. 3. The national aids provided for in paragraph 1 may be related to physical factors of production, such as hectares of agricultural land or heads of animal taking account of the relevant limits laid down in the common organisations of the market, as well as the historical production patterns of each farm, but must not: (a) be linked to future production; (b) or lead to an increase in production or in the level of overall suppor t recorded during a reference period preceding 1 January 1995, to be determined by the Commission. These aids may be differentiated by region. These aids must be granted in par ticular in order to: (a) maintain traditional primary production and processing naturally suited to the climatic conditions of the regions concerned; (b) improve the structures for the production, marketing and processing of agricultural products; C 310/288 Official Journal of the European Union 16.12.2004 EN (c) facilitate the disposal of the said products; (d) ensure that the environment is protected and the countryside preser ved. Article 49 1. The aids provided for in Ar ticles 47 and 48 and any other national aid subject to Commission authorisation under this Title shall be notified to the Commission. They may not be applied until such authorisation has been given. 2. As regards the aids provided for in Ar ticle 48, the Commission shall submit to the Council every five years as from 1 January 1996 a repor t on: (a) the authorisations granted; (b) the results of the aid granted under such authorisations. In preparation for drawing up such repor ts, Member States in receipt of such authorisations shall supply the Commission in good time with information on the effects of the aids granted, illustrating the development noted in the agricultural economy of the regions in question. Article 50 In the field of the aids provided for in Ar ticles III167 and III168 of the Constitution: (a) among the aids applied in Austria, Finland and Sweden prior to 1 January 1995, only those notified to the Commission by 30 April 1995 will be deemed to be existing aids within the meaning of Ar ticle III168(1) of the Constitution; (b) existing aids and plans intended to grant or alter aids which were notified to the Commission prior to 1 January 1995 shall be deemed to have been notified on that date. Article 51 1. Unless other wise stipulated in specific cases, the Council, on a proposal from the Commission, shall adopt the necessary European regulations or decisions to implement this Section. 2. A European law of the Council may make the adaptations to the provisions appearing in this Section which may prove necessary as a result of a modification in Union law. The Council shall act unanimously after consulting the European Parliament. Article 52 1. If transitional measures are necessary to facilitate the transition from the existing regime in Austria, Finland and Sweden to that resulting from application of the common organisation of the markets under the conditions set out in the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, such measures shall be adopted in accordance with the procedure laid down in Ar ticle 38 of Regulation No 136/66/EEC or, as appropriate, in the corresponding Ar ticles of the other Regulations on the common organisation 16.12.2004 Official Journal of the European Union C 310/289 EN of agricultural markets. These measures may be taken during a period expiring on 31 December 1997 and their application shall be limited to that date. 2. A European law of the Council may extend the period referred to in paragraph 1. The Council shall act unanimously after consulting the European Parliament. Article 53 Ar ticles 51 and 52 shall be applicable to fishery products. SECTION 3 Provisions on transitional measures Article 54 The Acts listed in points VII.B.I, VII.D.1, VII.D.2.c, IX.2.b, c, f, g, h, i, j, l, m, n, x, y, z and aa, and X.a, b and c of Annex XV (1) to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden shall apply in respect of Austria, Finland and Sweden under the conditions laid down in that Annex. With regard to point IX.2.x of Annex XV referred to in the first paragraph, the reference to the provisions of the Treaty establishing the European Community, in par ticular to Ar ticles 90 and 91 thereof, must be understood as referring to the provisions of the Constitution, in par ticular to Ar ticle III170(1) and (2) thereof. SECTION 4 Provisions on the applicability of cer tain acts Article 55 1. Any individual exemption decisions taken and negative clearance decisions taken before 1 January 1995 under Ar ticle 53 of the Agreement on the European Economic Area (EEA) or Ar ticle 1 of Protocol 25 to that Agreement, whether by the Sur veillance Authority of the European Free Trade Association (EFTA) or the Commission, and which concern cases which fall under Ar ticle 81 of the Treaty establishing the European Community as a result of accession shall remain valid for the purposes of Ar ticle III161 of the Constitution until the time limit specified therein expires or until the Commission adopts a duly motivated European decision to the contrary, in accordance with Union law. 2. All decisions taken by the EFTA Surveillance Authority before 1 January 1995 pursuant to Ar ticle 61 of the EEA Agreement and which fall under Ar ticle 87 of the Treaty establishing the European Community as a result of accession shall remain valid with respect to Ar ticle III167 of the Constitution unless the Commission adopts a European decision to the contrary pursuant to (1) OJ C 241, 29.8.1994, p. 322. C 310/290 Official Journal of the European Union 16.12.2004 EN Article III168 of the Constitution. This paragraph shall not apply to decisions subject to the proceedings provided for in Ar ticle 64 of the EEA Agreement. 3. Without prejudice to paragraphs 1 and 2, the decisions taken by the EFTA Sur veillance Authority remain valid after 1 January 1995 unless the Commission takes a duly motivated decision to the contrary in accordance with Union law. SECTION 5 Provisions on the Ĺland Islands Article 56 The provisions of the Constitution shall not preclude the application of the existing provisions in force on 1 January 1994 on the Ĺland islands on: (a) restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Ĺland, and for legal persons, to acquire and hold real proper ty on the Ĺland islands without permission by the competent authorities of the Ĺland islands; (b) restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide ser vices by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Ĺland, or by legal persons without permission by the competent authorities of the Ĺland islands. Article 57 1. The territory of the Ĺland Islands -- being considered as a third territory, as defined in the third indent of Ar ticle 3(1) of Council Directive 77/388/EEC, and as a national territory falling outside the field of application of the excise harmonisation directives as defined in Ar ticle 2 of Council Directive 92/12/EEC -- shall be excluded from the territorial application of Union law in the fields of harmonisation of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This paragraph shall not apply to the provisions of Council Directive 69/335/EEC relating to capital duty. 16.12.2004 Official Journal of the European Union C 310/291 EN 2. The derogation provided for in paragraph 1 is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph 1 are no longer justified, par ticularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall adopt the necessary acts in accordance with the per tinent ar ticles of the Constitution. Article 58 The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Ĺland islands. Article 59 The provisions of this Section shall apply in the light of the Declaration on the Ĺland Islands, which incorporates, without altering its legal effect, the wording of the preamble to Protocol No 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. SECTION 6 Provisions on the Sami people Article 60 Notwithstanding the provisions of the Constitution, exclusive rights to reindeer husbandry within traditional Sami areas may be granted to the Sami people. Article 61 This Section may be extended to take account of any further development of exclusive Sami rights linked to their traditional means of livelihood. A European law of the Council may make the necessary amendments to this Section. The Council shall act unanimously after consulting the European Parliament and the Committee of the Regions. Article 62 The provisions of this Section shall apply in the light of the Declaration on the Sami people, which incorporates, without altering its legal effect, the wording of the preamble to Protocol 3 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. C 310/292 Official Journal of the European Union 16.12.2004 EN SECTION 7 Special provisions in the framework of the Str uctural Funds in Finland and Sweden Article 63 Areas covered by the objective of promoting the development and structural adjustment of regions with an extremely low population density shall in principle represent or belong to regions at NUTS level II with a population density of 8 persons per km2 or less. Union assistance may, subject to the requirement of concentration, also extend to adjacent and contiguous smaller areas fulfilling the same population density criterion. The regions and areas referred to in this Ar ticle, are listed in Annex 1 (1) to Protocol 6 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. SECTION 8 Provisions on rail and combined transpor t in Austria Article 64 1. For the purposes of this Section, the following definitions shall apply: (a) `heavy goods vehicle' shall mean any motor vehicle with a maximum authorised weight of over 7,5 tonnes registered in a Member State designed to carry goods or haul trailers, including semitrailer tractor units, and trailers with a maximum authorised weight of over 7,5 tonnes and hauled by a motor vehicle registered in a Member State with a maximum authorised weight of 7,5 tonnes or less; (b) `combined transpor t' shall mean the carriage of goods by heavy goods vehicles or loading units which complete par t of their journey by rail and either begin or end the journey by road, whereby transit traffic may under no circumstances cross Austrian territory on its way to or from a rail terminal by road alone. 2. Ar ticles 65 to 71 shall apply to measures relating to the provision of rail and combined transpor t crossing the territory of Austria. Article 65 The Union and the Member States concerned shall, within the framework of their respective competences, adopt and closely coordinate measures for the development and promotion of rail and combined transpor t for the transAlpine carriage of goods. (1) OJ C 241, 29.8.1994, p. 355. 16.12.2004 Official Journal of the European Union C 310/293 EN Article 66 When establishing the guidelines provided for in Ar ticle III247 of the Constitution, the Union shall ensure that the axes defined in Annex 1 (1) to Protocol 9 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden form par t of the transEuropean networks for rail and combined transpor t and are fur thermore identified as projects of common interest. Article 67 The Union and the Member States concerned shall, within the framework of their respective competences, implement the measures listed in Annex 2 (2) to Protocol 9 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. Article 68 The Union and the Member States concerned shall use their best endeavours to develop and utilise the additional railway capacity referred to in Annex 3 (3) to Protocol 9 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. Article 69 The Union and the Member States concerned shall take measures to enhance the provision of rail and combined transpor t. Where appropriate, and subject to the provisions of the Constitution, such measures shall be established in close consultation with railway companies and other railway ser vice providers. Priority should be given to those measures set out in the provisions of Union law on railways and combined transpor t. In implementing any measures, par ticular attention shall be attached to the competitiveness, effectiveness and cost transparency of rail and combined transpor t. In par ticular, the Member States concerned shall endeavour to take such measures so as to ensure that prices for combined transpor t are competitive with those for other modes of transpor t. Any aid granted to these ends shall comply with Union law. Article 70 The Union and the Member States concerned shall, in the event of a serious disturbance in rail transit, such as a natural disaster, take all possible concer ted action to maintain the f low of traffic. Priority shall be given to sensitive loads, such as perishable foods. (1) OJ C 241, 29.8.1994, p. 364. (2) OJ C 241, 29.8.1994, p. 365. (3) OJ C 241, 29.8.1994, p. 367. C 310/294 Official Journal of the European Union 16.12.2004 EN Article 71 The Commission, acting in accordance with the procedure laid down in Ar ticle 73(2), shall review the operation of this Section. Article 72 1. This Ar ticle shall apply to the carriage of goods by road on journeys carried out within the territory of the Community. 2. For journeys which involve transit of goods by road through Austria, the regime established for journeys on own account and for journeys for hire or reward under the First Council Directive of 23 July 1962 and Council Regulation (EEC) No 881/92 shall apply subject to the provisions of this Ar ticle. 3. Until 1 January 1998, the following provisions shall apply: (a) The total of NOx emissions from heavy goods vehicles crossing Austria in transit shall be reduced by 60 % in the period between 1 January 1992 and 31 December 2003, according to the table in Annex 4. (b) The reductions in total NOx emissions from heavy goods vehicles shall be administered according to an ecopoints system. Under that system any heavy goods vehicle crossing Austria in transit shall require a number of ecopoints equivalent to its NOx emissions (authorised under the Conformity of Production (COP) value or typeapproval value). The method of calculation and administration of such points is described in Annex 5. (c) If the number of transit journeys in any year exceeds the reference figure established for 1991 by more than 8 %, the Commission, acting in accordance with the procedure laid down in Ar ticle 16, shall adopt appropriate measures in accordance with paragraph 3 of Annex 5. (d) Austria shall issue and make available in good time the ecopoints cards required for the administration of the ecopoints system, pursuant to Annex 5, for heavy goods vehicles crossing Austria in transit. (e) The ecopoints shall be distributed by the Commission among Member States in accordance with provisions to be established in accordance with paragraph 7. 4. Before 1 January 1998, the Council, on the basis of a repor t by the Commission, shall review the operation of provisions concerning transit of goods by road through Austria. The review shall take place in conformity with basic principles of Community law, such as the proper functioning of the internal market, in par ticular the free movement of goods and freedom to provide ser vices, protection of the environment in the interest of the Community as a whole, and traffic safety. Unless the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, decides other wise, the transitional period shall be extended to 1 January 2001, during which the provisions of paragraph 3 shall apply. 16.12.2004 Official Journal of the European Union C 310/295 EN 5. Before 1 January 2001, the Commission, in cooperation with the European Environment Agency, shall make a scientific study of the degree to which the objective concerning reduction of pollution set out in paragraph 3(a) has been achieved. If the Commission concludes that this objective has been achieved on a sustainable basis, the provisions of paragraph 3 shall cease to apply on 1 January 2001. If the Commission concludes that this objective has not been achieved on a sustainable basis, the Council, acting in accordance with Ar ticle 75 of the EC Treaty, may adopt measures, within a Community framework, which ensure equivalent protection of the environment, in par ticular a 60 % reduction of pollution. If the Council does not adopt such measures, the transitional period shall be automatically extended for a final period of three years, during which the provisions of paragraph 3 shall apply. 6. At the end of the transitional period, the Community acquis in its entirety shall be applied. 7. The Commission, acting in accordance with the procedure laid down in Ar ticle 16, shall adopt detailed measures concerning the procedures relating to the ecopoints system, the distribution of ecopoints and technical questions concerning the application of this Ar ticle, which shall enter into force on the date of accession of Austria. The measures referred to in the first subparagraph shall ensure that the factual situation for the present Member States resulting from the application of Council Regulation (EEC) No 3637/92 and of the Administrative Arrangement, signed on 23 December 1992, setting the date of entry into force and the procedures for the introduction of the ecopoints system referred to in the Transit Agreement, is maintained. All necessary effor ts shall be made to ensure that the share of ecopoints allocated to Greece takes sufficient account of Greek needs in this context. Article 73 1. The Commission shall be assisted by a Committee. 2. In cases where reference is made to this paragraph, Ar ticles 3 and 7 of Decision 1999/468/EC shall apply. 3. The Committee shall adopt its Rules of Procedure. SECTION 9 Provisions on the use of specif ic Austrian terms of the German language in the framework of the European Union Article 74 1. The specific Austrian terms of the German language contained in the Austrian legal order and listed in the Annex (1) to Protocol No 10 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden shall have the same status (1) OJ C 241, 29.8.1994, p. 370. C 310/296 Official Journal of the European Union 16.12.2004 EN and may be used with the same legal effect as the corresponding terms used in Germany listed in that Annex. 2. In the German language version of new legal acts the specific Austrian terms referred to in the Annex to Protocol No 10 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden shall be added in appropriate form to the corresponding terms used in Germany. 16.12.2004 Official Journal of the European Union C 310/297 EN 9. PROTOCOL ON THE TREAT Y AND THE ACT OF ACCESSION OF THE CZECH REPUBLIC, THE REPUBLIC OF ESTONIA, THE REPUBLIC OF CYPRUS, THE REPUBLIC OF LAT VIA, THE REPUBLIC OF LITHUANIA, THE REPUBLIC OF HUNGARY, THE REPUBLIC OF MALTA, THE REPUBLIC OF POLAND, THE REPUBLIC OF SLOVENIA AND THE SLOVAK REPUBLIC THE HIGH CONTRACTING PARTIES, RECALLING that the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic acceded to the European Communities and to the European Union established by the Treaty on European Union on 1 May 2004; CONSIDERING that Ar ticle IV437(2)(e) of the Constitution provides that the Treaty of 16 April 2003 concerning the accessions referred to above shall be repealed; CONSIDERING that many of the provisions of the Act annexed to that Treaty of Accession remain relevant; that Ar ticle IV437(2) of the Constitution provides that those provisions must be set out or referred to in a Protocol, so that they remain in force and their legal effects are preserved; CONSIDERING that some of those provisions require the technical adjustments necessary to bring them into line with the Constitution without altering their legal effect, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: PART ONE PROVISIONS REL ATING TO THE ACT OF ACCESSION OF 16 APRIL 2003 TITLE I PRINCIPLES Article 1 For the purposes of this Protocol: (a) the expression `Act of Accession of 16 April 2003' means the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded; C 310/298 Official Journal of the European Union 16.12.2004 EN (b) the expressions `Treaty establishing the European Community' (EC Treaty) and `Treaty establishing the European Atomic Energy Community' (EAEC Treaty) mean those Treaties as supplemented or amended by treaties or other acts which entered into force before 1 May 2004; (c) the expression `Treaty on European Union' (EU Treaty) means that Treaty as supplemented or amended by treaties or other acts which entered into force before 1 May 2004; (d) the expression `the Community' means one or both of the Communities referred to in (b) as the case may be; (e) the expression `present Member States' means the following Member States: the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Nor thern Ireland; (f) the expression `new Member States' means the following Member States: the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. Article 2 The rights and obligations resulting from the Treaty on the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, referred to in Ar ticle IV437(2)(e) of the Constitution, took effect, under the conditions laid down in that Treaty, as from 1 May 2004. Article 3 1. The provisions of the Schengen acquis integrated into the framework of the Union by the Protocol annexed to the Treaty establishing a Constitution for Europe (hereinafter referred to as the `Schengen Protocol') and the acts building upon it or other wise related to it, listed in Annex I to the Act of Accession of 16 April 2003, as well as any fur ther such acts adopted before 1 May 2004, shall be binding on and applicable in the new Member States from 1 May 2004. 2. Those provisions of the Schengen acquis as integrated into the framework of the Union and the acts building upon it or other wise related to it not referred to in paragraph 1, while binding on the new Member States from 1 May 2004, shall apply in a new Member State only pursuant to a European decision of the Council to that effect after verification in accordance with the applicable Schengen evaluation procedures that the necessary conditions for the application of all par ts of the acquis concerned have been met in that new Member State. The Council shall take its decision, after consulting the European Parliament, acting with the unanimity of its members representing the Governments of the Member States in respect of which the provisions referred to in the present paragraph have already been put into effect and of the representative of the Government of the Member State in respect of which those provisions are to be 16.12.2004 Official Journal of the European Union C 310/299 EN put into effect. The members of the Council representing the Governments of Ireland and of the United Kingdom of Great Britain and Nor thern Ireland shall take par t in such a decision insofar as it relates to the provisions of the Schengen acquis and the acts building upon it or other wise related to it in which these Member States par ticipate. 3. The Agreements concluded by the Council under Ar ticle 6 of the Schengen Protocol shall be binding on the new Member States from 1 May 2004. 4. The new Member States shall be required in respect of those conventions or instruments in the field of justice and home affairs which are inseparable from the attainment of the objectives of the EU Treaty: (a) to accede to those which, by 1 May 2004, have been opened for signature by the present Member States, and to those which have been drawn up by the Council in accordance with Title VI of the EU Treaty and recommended to the Member States for adoption; (b) to introduce administrative and other arrangements, such as those adopted by 1 May 2004 by the present Member States or by the Council, to facilitate practical cooperation between the Member States' institutions and organisations working in the field of justice and home affairs. Article 4 Each of the new Member States shall par ticipate in Economic and Monetary Union from 1 May 2004 as a Member State with a derogation within the meaning of Ar ticle III197 of the Constitution. Article 5 1. The new Member States, which have acceded by the Act of Accession of 16 April 2003 to the decisions and agreements adopted by the Representatives of the Governments of the Member States, meeting within the Council, shall be required to accede to all other agreements concluded by the present Member States relating to the functioning of the Union or connected with the activities thereof. 2. The new Member States shall be required to accede to the conventions provided for in Ar ticle 293 of the EC Treaty and to those that are inseparable from the attainment of the objectives of the EC Treaty, insofar as they are still in force, and also to the protocols on the interpretation of those conventions by the Cour t of Justice of the European Communities, signed by the present Member States, and to this end they shall be required to enter into negotiations with the present Member States in order to make the necessary adjustments thereto. Article 6 1. The new Member States shall be required to accede, under the conditions laid down in this Protocol, to the agreements or conventions concluded or provisionally applied by the present Member States and the Union or the European Atomic Energy Community, acting jointly, and to the agreements concluded by those States which are related to those agreements or conventions. C 310/300 Official Journal of the European Union 16.12.2004 EN The accession of the new Member States to the agreements or conventions mentioned in paragraph 4, as well as the agreements with Belarus, China, Chile, Mercosur and Switzerland which have been concluded or signed by the Community and its present Member States jointly shall be agreed by the conclusion of a protocol to such agreements or conventions between the Council, acting unanimously on behalf of the Member States, and the third country or countries or international organisation concerned. This procedure is without prejudice to the Union's and the European Atomic Energy Community's own competences and does not affect the allocation of powers between the Union and the European Atomic Energy Community and the Member States as regards the conclusion of such agreements in the future or any other amendments not related to accession. The Commission shall negotiate these protocols on behalf of the Member States on the basis of negotiating directives approved by the Council, acting by unanimity, and in consultation with a committee comprised of the representatives of the Member States. It shall submit a draft of the protocols for conclusion to the Council. 2. Upon acceding to the agreements and conventions referred to in paragraph 1 the new Member States shall acquire the same rights and obligations under those agreements and conventions as the present Member States. 3. The new Member States shall be required to accede, under the conditions laid down in this Protocol, to the Agreement on the European Economic Area (1), in accordance with Ar ticle 128 of that Agreement. 4. As from 1 May 2004, and, where appropriate, pending the conclusion of the necessary protocols referred to in paragraph 1, the new Member States shall apply the provisions of the Agreements concluded by the present Member States and, jointly, the Community, with Algeria, Armenia, Azerbaijan, Bulgaria, Croatia, Egypt, the former Yugoslav Republic of Macedonia, Georgia, Israel, Jordan, Kazakhstan, Kyrgyzstan, Lebanon, Mexico, Moldova, Morocco, Romania, the Russian Federation, San Marino, South Africa, South Korea, Syria, Tunisia, Turkey, Turkmenistan, Ukraine and Uzbekistan as well as the provisions of other agreements concluded jointly by the present Member States and the Community before 1 May 2004. Any adjustments to these Agreements shall be the subject of protocols concluded with the cocontracting countries in conformity with the provisions of the second subparagraph of paragraph 1. Should the protocols not have been concluded by 1 May 2004, the Union, the European Atomic Energy Community and the Member States shall take, in the framework of their respective competences, the necessary measures to deal with that situation. 5. As from 1 May 2004, the new Member States shall apply the bilateral textile agreements and arrangements concluded by the Community with third countries. The quantitative restrictions applied by the Union on impor ts of textile and clothing products shall be adjusted to take account of the accession of the new Member States. Should the amendments to the bilateral textile agreements and arrangements not have entered into force by 1 May 2004, the Union shall make the necessary adjustments to its rules for the impor t of textile and clothing products from third countries to take into account the accession of the new Member States. (1) OJ L 1, 3.1.1994, p. 3. 16.12.2004 Official Journal of the European Union C 310/301 EN 6. The quantitative restrictions applied by the Union on impor ts of steel and steel products shall be adjusted on the basis of impor ts by new Member States during the years immediately preceding the signing of the Accession Treaty of steel products originating in the supplier countries concerned. 7. Fisheries agreements concluded before 1 May 2004 by the new Member States with third countries shall be managed by the Union. The rights and obligations resulting for the new Member States from those agreements shall not be affected during the period in which the provisions of those agreements are provisionally maintained. As soon as possible, and in any event before the expiry of the agreements referred to in the first subparagraph, appropriate European decisions for the continuation of fishing activities resulting from those agreements shall be adopted in each case by the Council on a proposal from the Commission, including the possibility of extending cer tain agreements for periods not exceeding one year. 8. With effect from 1 May 2004, the new Member States shall withdraw from any free trade agreements with third countries, including the Central European Free Trade Agreement. To the extent that agreements between one or more of the new Member States on the one hand, and one or more third countries on the other, are not compatible with the obligations arising from the Constitution and in par ticular from this Protocol, the new Member States shall take all appropriate steps to eliminate the incompatibilities established. If a new Member State encounters difficulties in adjusting an agreement concluded with one or more third countries before accession, it shall, according to the terms of the agreement, withdraw from that agreement. 9. The new Member States shall take appropriate measures, where necessary, to adjust their position in relation to international organisations, and in relation to those international agreements to which the Union or the European Atomic Energy Community or other Member States are also par ties, to the rights and obligations arising from their accession to the Union. They shall in par ticular withdraw at 1 May 2004 or the earliest possible date thereafter from international fisheries agreements and organisations to which the Union is also a par ty, unless their membership relates to matters other than fisheries. Article 7 Acts adopted by the institutions to which the transitional provisions laid down in this Protocol relate shall retain their status in law; in par ticular, the procedures for amending those acts shall continue to apply. Article 8 Provisions of the Act of Accession of 16 April 2003, as interpreted by the Cour t of Justice of the European Communities and the Cour t of First Instance, the purpose or effect of which is to repeal or amend, other wise than as a transitional measure, acts adopted by the institutions, bodies, offices or agencies of the Community or of the European Union established by the Treaty on European Union shall remain in force subject to the application of the second paragraph. C 310/302 Official Journal of the European Union 16.12.2004 EN These provisions shall have the same status in law as the acts which they repeal or amend and shall be subject to the same rules as those acts. Article 9 The texts of the acts of the institutions, bodies, offices and agencies of the Community or of the European Union established by the Treaty on European Union and the texts of acts of the European Central Bank which were adopted before 1 May 2004 and which were drawn up in the Czech, Estonian, Latvian, Lithuanian, Hungarian, Maltese, Polish, Slovenian and Slovak languages shall be authentic from that date, under the same conditions as the texts drawn up and authentic in the other languages. Article 10 A European law of the Council may repeal the transitional provisions set out in this Protocol, when they are no longer applicable. The Council shall act unanimously after consulting the European Parliament. Article 11 The application of the Constitution and acts adopted by the institutions shall, as a transitional measure, be subject to the derogations provided for in this Protocol. TITLE II PERMANENT PROVISIONS Article 12 The adaptations to the acts listed in Annex III to the Act of Accession of 16 April 2003 made necessary by accession shall be drawn up in conformity with the guidelines set out in that Annex and in accordance with the procedure and under the conditions laid down in Ar ticle 36. Article 13 The measures listed in Annex IV to the Act of Accession of 16 April 2003 shall be applied under the conditions laid down in that Annex. Article 14 A European law of the Council may make the adaptations to the provisions of this Protocol relating to the common agricultural policy which may prove necessary as a result of a modification of Union law. The Council shall act unanimously after consulting the European Parliament. 16.12.2004 Official Journal of the European Union C 310/303 EN TITLE III TEMPORARY PROVISIONS Article 15 The measures listed in Annexes V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV to the Act of Accession of 16 April 2003 shall apply in respect of the new Member States under the conditions laid down in those Annexes. Article 16 1. The revenue designated as `Common Customs Tariff duties and other duties' referred to in Ar ticle 2(1)(b) of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities' own resources (1), or the corresponding provision in any Decision replacing it, shall include the customs duties calculated on the basis of the rates resulting from the Common Customs Tariff and any tariff concession relating thereto applied by the Union in the new Member States' trade with third countries. 2. For the year 2004, the harmonised VAT assessment base and the GNI (gross national income) base of each new Member State, referred to in Ar ticle 2(1)(c) and (d) of Council Decision 2000/597/EC, Euratom shall be equal to two thirds of the annual base. The GNI base of each new Member State to be taken into account for the calculation of the financing of the correction in respect of budgetary imbalances granted to the United Kingdom, referred to in Ar ticle 5(1) of Council Decision 2000/597/EC, Euratom shall likewise be equal to two thirds of the annual base. 3. For the purposes of determining the frozen rate for 2004 according to Ar ticle 2(4)(b) of Council Decision 2000/597/EC, Euratom the capped VAT bases of the new Member States shall be calculated on the basis of two thirds of their uncapped VAT base and two thirds of their GNI. Article 17 1. The budget of the Union for the financial year 2004 shall be adapted to take into account the accession of the new Member States through an amending budget taking effect on 1 May 2004. 2. The twelve monthly twelfths of VAT and GNIbased resources to be paid by the new Member States under the amending budget referred to in paragraph 1, as well as the retroactive adjustment of the monthly twelfths for the period January--April 2004 that only apply to the present Member States, shall be conver ted into eighths to be called during the period May--December 2004. The retroactive adjustments that result from any subsequent amending budget adopted in 2004 shall likewise be conver ted into equal par ts to be called during the remainder of the year. (1) OJ L 253, 7.10.2000, p. 42. C 310/304 Official Journal of the European Union 16.12.2004 EN Article 18 On the first working day of each month the Union shall pay the Czech Republic, Cyprus, Malta and Slovenia, as an item of expenditure under the Union budget, one eighth in 2004, as of 1 May 2004, and one twelfth in 2005 and 2006 of the following amounts of temporary budgetary compensation: (EUR million, 1999 prices) 2004 2005 2006 Czech Republic 125,4 178,0 85,1 Cyprus 68,9 119,2 112,3 Malta 37,8 65,6 62,9 Slovenia 29,5 66,4 35,5 Article 19 On the first working day of each month the Union shall pay the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as an item of expenditure under the Union budget, one eighth in 2004, as of 1 May 2004, and one twelfth in 2005 and 2006 of the following amounts of a special lumpsum cashf low facility: (EUR million, 1999 prices) 2004 2005 2006 Czech Republic 174,70 91,55 91,55 Estonia 15,80 2,90 2,90 Cyprus 27,70 5,05 5,05 Latvia 19,50 3,40 3,40 Lithuania 34,80 6,30 6,30 Hungary 155,30 27,95 27,95 Malta 12,20 27,15 27,15 Poland 442,80 550,00 450,00 Slovenia 65,40 17,85 17,85 Slovakia 63,20 11,35 11,35 16.12.2004 Official Journal of the European Union C 310/305 EN One thousand million euro for Poland and 100 million euro for the Czech Republic included in the special lumpsum cashf low facility shall be taken into account for any calculations on the distribution of Structural Funds for the years 2004, 2005 and 2006. Article 20 1. The new Member States listed below shall pay the following amounts to the Research Fund for Coal and Steel referred to in Decision 2002/234/ECSC of the Representatives of the Governments of the Member States, meeting within the Council, of 27 February 2002 on the financial consequences of the expiry of the ECSC Treaty and on the Research Fund for Coal and Steel (1): (EUR million, cur rent prices) Czech Republic 39,88 Estonia 2,50 Latvia 2,69 Hungary 9,93 Poland 92,46 Slovenia 2,36 Slovakia 20,11 2. The contributions to the Research Fund for Coal and Steel shall be made in four instalments star ting in 2006 and paid as follows, in each case on the first working day of the first month of each year: 2006: 15 % 2007: 20 % 2008: 30 % 2009: 35 % Article 21 1. Save as other wise provided for in this Protocol, no financial commitments shall be made under the Phare programme (2), the Phare crossborder cooperation programme (3), preaccession funds for Cyprus and Malta (4), the ISPA programme (5) and the Sapard programme (6) in favour of the (1) OJ L 79, 22.3.2002, p. 42. (2) Regulation (EEC) No 3906/89 (OJ L 375, 23.12.1989, p. 11). (3) Regulation (EC) No 2760/98 (OJ L 345, 19.12.1998, p. 49). (4) Regulation (EC) No 555/2000 (OJ L 68, 16.3.2000, p. 3). (5) Regulation (EC) No 1267/1999 (OJ L 161, 26.6.1999, p. 73). (6) Regulation (EC) No 1268/1999 (OJ L 161, 26.6.1999, p. 87). C 310/306 Official Journal of the European Union 16.12.2004 EN new Member States after 31 December 2003. The new Member States shall receive the same treatment as the present Member States as regards expenditure under the first three Headings of the Financial Perspective, as defined in the Interinstitutional Agreement of 6 May 1999 (1), as from 1 January 2004, subject to the individual specifications and exceptions below or as other wise provided for in this Protocol. The maximum additional appropriations for headings 1, 2, 3 and 5 of the Financial Perspective related to enlargement are set out in Annex XV to the Act of Accession of 16 April 2003. However, no financial commitment under the 2004 budget for any programme or agency concerned may be made before the accession of the relevant new Member State has taken place. 2. Paragraph 1 shall not apply to expenditure under the European Agricultural Guidance and Guarantee Fund, Guarantee Section, according to Ar ticles 2(1), 2(2), and 3(3) of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (2), which will become eligible for Community funding only from 1 May 2004, in accordance with Ar ticle 2 of this Protocol. However, paragraph 1 of this Ar ticle shall apply to expenditure for rural development under the European Agricultural Guidance and Guarantee Fund, Guarantee Section, according to Ar ticle 47a of Council Regulation (EC) No 1257/1999 of 17 May 1999 on suppor t for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing cer tain regulations (3), subject to the conditions set out in the amendment of that Regulation in Annex II to the Act of Accession of 16 April 2003. 3. Subject to the last sentence of paragraph 1, as of 1 January 2004, the new Member States shall par ticipate in Union programmes and agencies according to the same terms and conditions as the present Member States with funding from the general budget of the Union. 4. If any measures are necessary to facilitate the transition from the preaccession regime to that resulting from the application of this Ar ticle, the Commission shall adopt the required measures. Article 22 1. Tendering, contracting, implementation and payments for preaccession assistance under the Phare programme, the Phare cross-border cooperation programme and preaccession funds for Cyprus and Malta shall be managed by implementing agencies in the new Member States as from 1 May 2004. The Commission shall adopt European decisions to waive the ex ante control by the Commission over tendering and contracting following a positively assessed Extended Decentralised Implementation (1) Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure (OJ C 172, 18.6.1999, p. 1). (2) OJ L 160, 26.6.1999, p. 103. (3) OJ L 160, 26.6.1999, p. 80. 16.12.2004 Official Journal of the European Union C 310/307 EN System (EDIS) in accordance with the criteria and conditions laid down in the Annex to Council Regulation (EC) No 1266/1999 of 21 June 1999 on coordinating aid to the applicant countries in the framework of the preaccession strategy and amending Regulation (EEC) No 3906/89 (1). If these decisions to waive ex ante control have not been adopted before 1 May 2004, any contracts signed between 1 May 2004 and the date on which the Commission decisions are taken shall not be eligible for preaccession assistance. However, exceptionally, if the Commission decisions to waive exante control are delayed beyond 1 May 2004 for reasons not attributable to the authorities of a new Member State, the Commission may accept, in duly justified cases, eligibility for preaccession assistance of contracts signed between 1 May 2004 and the date of these decisions, and the continued implementation of preaccession assistance for a limited period, subject to ex ante control by the Commission over tendering and contracting. 2. Global budget commitments made before 1 May 2004 under the preaccession financial instruments referred to in paragraph 1, including the conclusion and registration of subsequent individual legal commitments and payments made after 1 May 2004, shall continue to be governed by the rules and regulations of the preaccession financing instruments and be charged to the cor responding budget chapters until closure of the programmes and projects concerned. Notwithstanding this, public procurement procedures initiated after 1 May 2004 shall be carried out in accordance with the relevant Union acts. 3. The last programming exercise for the preaccession assistance referred to in paragraph 1 shall take place in the last full calendar year preceding 1 May 2004. Actions under these programmes will have to be contracted within the following two years and disbursements made as provided for in the Financing Memorandum (2), usually by the end of the third year after the commitment. No extensions shall be granted for the contracting period. Exceptionally and in duly justified cases, limited extensions in terms of duration may be granted for disbursement. 4. In order to ensure the necessary phasing out of the preaccession financial instruments referred to in paragraph 1 as well as the ISPA programme, and a smooth transition from the rules applicable before and after 1 May 2004, the Commission may take all appropriate measures to ensure that the necessary statutory staff is maintained in the new Member States for a maximum of fifteen months following that date. During this period, officials assigned to posts in the new Member States before accession and who are required to remain in ser vice in those States after 1 May 2004 shall benefit, as an exception, from the same financial and material conditions as were applied by the Commission before 1 May 2004 in accordance with Annex X to the Staff Regulations of officials and the conditions of employment of other ser vants of the European Communities laid down in Regulation (EEC, Euratom, ECSC) (1) OJ L 232, 2.9.1999, p. 34. (2) As set out in the Phare Guidelines (SEC (1999) 1596, updated on 6.9.2002 by C 3303/2). C 310/308 Official Journal of the European Union 16.12.2004 EN No 259/68 (1). The administrative expenditure, including salaries for other staff, necessary for the management of the preaccession assistance shall be covered, for all of 2004 and until the end of July 2005, under the heading `suppor t expenditure for operations' (former par t B of the budget) or equivalent headings for the financial instruments referred to in paragraph 1 as well as the ISPA programme, of the relevant preaccession budgets. 5. Where projects approved under Regulation (EC) No 1258/1999 can no longer be funded under that instrument, they may be integrated into rural development programming and financed under the European Agricultural Guidance and Guarantee Fund. Should specific transitional measures be necessary in this regard, these shall be adopted by the Commission in accordance with the procedures laid down in Ar ticle 50(2) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (2). Article 23 1. Between 1 May 2004 and the end of 2006, the Union shall provide temporary financial assistance, hereinafter referred to as the `Transition Facility', to the new Member States to develop and strengthen their administrative capacity to implement and enforce Union and European Atomic Energy Community law and to foster exchange of best practice among peers. 2. Assistance shall address the continued need for strengthening institutional capacity in cer tain areas through action which cannot be financed by the Structural Funds, in par ticular in the following areas: (a) justice and home affairs (strengthening of the judicial system, external border controls, anticorruption strategy, strengthening of law enforcement capacities); (b) financial control; (c) protection of the financial interests of the Union and of the European Atomic Energy Community and the fight against fraud; (d) internal market, including customs union; (e) environment; (f) veterinary ser vices and administrative capacitybuilding relating to food safety; (g) administrative and control structures for agriculture and rural development, including the Integrated Administration and Control System (IACS); (1) OJ L 56, 4.3.1968, p. 1. (2) OJ L 161, 26.6.1999, p. 1. 16.12.2004 Official Journal of the European Union C 310/309 EN (h) nuclear safety (strengthening the effectiveness and competence of nuclear safety authorities and their technical suppor t organisations as well as public radioactive waste management agencies); (i) statistics; (j) strengthening public administration according to needs identified in the Commission's comprehensive monitoring repor t which are not covered by the Structural Funds. 3. Assistance under the Transition Facility shall be decided in accordance with the procedure laid down in Ar ticle 8 of Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to cer tain countries of Central and Eastern Europe (1). 4. The programme shall be implemented in accordance with Ar ticle 53(1)(a) and (b) of the Financial Regulation applicable to the general budget of the European Communities (2) or the European law replacing it. For twinning projects between public administrations for the purpose of institutionbuilding, the procedure for call for proposals through the network of contact points in the Member States shall continue to apply, as established in the Framework Agreements with the present Member States for the purpose of preaccession assistance. The commitment appropriations for the Transition Facility, at 1999 prices, shall be 200 million euro in 2004, 120 million euro in 2005 and 60 million euro in 2006. The annual appropriations shall be authorised by the budgetary authority within the limits of the Financial Perspective as defined by the Interinstitutional Agreement of 6 May 1999. Article 24 1. A Schengen Facility is hereby created as a temporary instrument to help beneficiary Member States between 1 May 2004 and the end of 2006 to finance actions at the new external borders of the Union for the implementation of the Schengen acquis and external border control. In order to address the shor tcomings identified in the preparation for par ticipation in Schengen, the following types of action shall be eligible for financing under the Schengen Facility: (a) investment in construction, renovation or upgrading of bordercrossing infrastructure and related buildings; (b) investments in any kind of operating equipment (e.g. laboratory equipment, detection tools, Schengen Information System -- SIS II hardware and software, means of transpor t); (c) training of border guards; (1) OJ L 375, 23.12.1989, p. 11. (2) Regulation (EC, Euratom) No 1605/2002 (OJ L 248, 16.9.2002, p. 1). C 310/310 Official Journal of the European Union 16.12.2004 EN (d) suppor t to costs for logistics and operations. 2. The following amounts shall be made available under the Schengen Facility in the form of lumpsum grant payments as of 1 May 2004 to the beneficiary Member States listed below: (million euro, 1999 prices) 2004 2005 2006 Estonia 22,90 22,90 22,90 Latvia 23,70 23,70 23,70 Lithuania 44,78 61,07 29,85 Hungary 49,30 49,30 49,30 Poland 93,34 93,33 93,33 Slovenia 35,64 35,63 35,63 Slovakia 15,94 15,93 15,93 3. The beneficiary Member States shall be responsible for selecting and implementing individual operations in compliance with this Ar ticle. They shall also be responsible for coordinating use of the Schengen Facility with assistance from other Union instruments, ensuring compatibility with Union policies and measures and compliance with the Financial Regulation applicable to the general budget of the European Communities or with the European law replacing it. The lumpsum grant payments shall be used within three years from the first payment and any unused or unjustifiably spent funds shall be recovered by the Commission. The beneficiary Member States shall submit, no later than six months after expiry of the threeyear deadline, a comprehensive repor t on the financial execution of the lumpsum grant payments with a statement justifying the expenditure. The beneficiary State shall exercise this responsibility without prejudice to the Commission's responsibility for the implementation of the Union's budget and in accordance with the provisions applicable to decentralised management in the said Financial Regulation or in the European law replacing it. 4. The Commission retains the right of verification, through the AntiFraud Office (OLAF). The Commission and the Cour t of Auditors may also carry out onthespot checks in accordance with the appropriate procedures. 5. The Commission may adopt any technical provisions necessary for the operation of the Schengen Facility. Article 25 The amounts referred to in Ar ticles 18, 19, 23 and 24 shall be adjusted each year, as par t of the technical adjustment provided for in paragraph 15 of the Interinstitutional Agreement of 6 May 1999. 16.12.2004 Official Journal of the European Union C 310/311 EN Article 26 1. If, until the end of a period of up to three years after 1 May 2004, difficulties arise which are serious and liable to persist in any sector of the economy or which could bring about serious deterioration in the economic situation of a given area, a new Member State may apply for authorisation to take protective measures in order to rectify the situation and adjust the sector concerned to the economy of the internal market. In the same circumstances, any present Member State may apply for authorisation to take protective measures with regard to one or more of the new Member States. 2. Upon request by the State concerned, the Commission shall, by emergency procedure, adopt the European regulations or decisions establishing the protective measures which it considers necessary, specifying the conditions and modalities under which they are to be put into effect. In the event of serious economic difficulties and at the express request of the Member State concerned, the Commission shall act within five working days of the receipt of the request accompanied by the relevant background information. The measures thus decided on shall be applicable forthwith, shall take account of the interests of all par ties concerned and shall not entail frontier controls. 3. The measures authorised under paragraph 2 may involve derogations from the rules of the Constitution, and in par ticular from this Protocol, to such an extent and for such periods as are strictly necessary in order to attain the objectives referred to in paragraph 1. Priority shall be given to such measures as will least disturb the functioning of the internal market. Article 27 If a new Member State has failed to implement commitments under taken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market, including any commitments in all sectoral policies which concern economic activities with crossborder effect, or an imminent risk of such breach, the Commission may, until the end of a period of up to three years after 1 May 2004, upon the motivated request of a Member State or on its own initiative, adopt European regulations or decisions establishing appropriate measures. Measures shall be propor tional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The measures shall be maintained no longer than strictly necessary, and, in any case, will be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the European regulations or decisions establishing the safeguard measures, and it shall take duly into account any obser vations of the Council in this respect. C 310/312 Official Journal of the European Union 16.12.2004 EN Article 28 If there are serious shor tcomings or any imminent risks of such shortcomings in a new Member State in the transposition, state of implementation or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty, Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, and European laws and framework laws adopted on the basis of Sections 3 and 4 of Chapter IV of Title III of Par t III of the Constitution, the Commission may, until the end of a period of up to three years after 1 May 2004, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, adopt European regulations or decisions establishing appropriate measures and specify the conditions and modalities under which these measures are put into effect. These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between a new Member State and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The measures shall be maintained no longer than strictly necessary, and, in any case, will be lifted when the shor tcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shor tcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shor tcomings, the Commission may adapt the adopted measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking safeguard measures, and it shall take duly into account any observations of the Council in this respect. Article 29 In order not to hamper the proper functioning of the internal market, the enforcement of the new Member States' national rules during the transitional periods referred to in Annexes V to XIV to the Act of Accession of 16 April 2003 shall not lead to border controls between Member States. Article 30 If transitional measures are necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy under the conditions set out in this Protocol, such measures shall be adopted by the Commission in accordance with the procedure referred to in Ar ticle 42(2) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1), or as appropriate, in the corresponding Ar ticles of the other Regulations on the common organisation of agricultural markets or of the European laws replacing them or the relevant procedure as determined in the applicable legislation. The transitional measures referred to in this Ar ticle may be adopted during a period of three years after 1 May 2004 and their application shall be limited to that period. A European law of the Council may extend this period. The Council shall act unanimously after consulting the European Parliament. (1) OJ L 178, 30.6.2001, p. 1. 16.12.2004 Official Journal of the European Union C 310/313 EN Article 31 If transitional measures are necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the Union veterinary and phytosanitary rules, such measures shall be adopted by the Commission in accordance with the relevant procedure as determined in the applicable legislation. These measures shall be taken during a period of three years after 1 May 2004 and their application shall be limited to that period. Article 32 1. The terms of office of the new members of the Committees, groups and other bodies listed in Annex XVI to the Act of Accession of 16 April 2003 shall expire at the same time as those of the members in office on 1 May 2004. 2. The terms of office of the new members of the Committees and groups set up by the Commission which are listed in Annex XVII to the Act of Accession of 16 April 2003 shall expire at the same time as those of the members in office on 1 May 2004. TITLE IV APPLICABILIT Y OF THE ACTS OF THE INSTITUTIONS Article 33 As from 1 May 2004, the new Member States shall be considered as being addressees of directives and decisions within the meaning of Ar ticle 249 of the EC Treaty and of Ar ticle 161 of the EAEC Treaty, provided that those directives and decisions have been addressed to all the present Member States. Except with regard to directives and decisions which enter into force pursuant to Ar ticle 254 (1) and (2) of the EC Treaty, the new Member States shall be considered as having received notification of such directives and decisions upon 1 May 2004. Article 34 The new Member States shall put into effect the measures necessary for them to comply, from 1 May 2004, with the provisions of directives and decisions within the meaning of Ar ticle 249 of the EC Treaty and of Ar ticle 161 of the EAEC Treaty, unless another timelimit is provided for in the Annexes referred to in Ar ticle 15 or in any other provisions of this Protocol. Article 35 Unless other wise stipulated, the Council, on a proposal from the Commission, shall adopt the necessary European regulations and decisions to implement the provisions contained in Annexes III and IV to the Act of Accession of 16 April 2003 referred to in Ar ticles 12 and 13 of this Protocol. C 310/314 Official Journal of the European Union 16.12.2004 EN Article 36 1. Where acts of the institutions prior to 1 May 2004 require adaptation by reason of accession, and the necessary adaptations have not been provided for in this Protocol, those adaptations shall be made in accordance with the procedure laid down by paragraph 2. Those adaptations shall enter into force as from 1 May 2004. 2. The Council, on a proposal from the Commission, or the Commission, according to which of these two institutions adopted the original acts, shall to this end adopt the necessary acts. Article 37 Provisions laid down by law, regulation or administrative action designed to ensure the protection of the health of workers and the general public in the territory of the new Member States against the dangers arising from ionising radiations shall, in accordance with Ar ticle 33 of the EAEC Treaty, be communicated by those States to the Commission within three months from 1 May 2004. PART T WO PROVISIONS ON THE PROTOCOLS ANNEXED TO THE ACT OF ACCESSION OF 16 APRIL 2003 TITLE I TRANSITIONAL PROVISIONS ON THE EUROPEAN INVESTMENT BANK Article 38 The Kingdom of Spain shall pay the amount of EUR 309 686 775 as its share of the capital paid in for the subscribed capital increase. This contribution shall be paid in eight equal instalments falling due on 30 September 2004, 30 September 2005, 30 September 2006, 31 March 2007, 30 September 2007, 31 March 2008, 30 September 2008 and 31 March 2009. The Kingdom of Spain shall contribute, in eight equal instalments falling due on those dates, to the reser ves and provisions equivalent to reser ves, as well as to the amount still to be appropriated to the reser ves and provisions, comprising the balance of the profit and loss account, established at the end of the month of April 2004, as entered on the balance sheet of the Bank, in amounts corresponding to 4,1292 % of the reser ves and provisions. 16.12.2004 Official Journal of the European Union C 310/315 EN Article 39 From 1 May 2004, the new Member States shall pay the following amounts corresponding to their share of the capital paid in for the subscribed capital as defined in Ar ticle 4 of the Statute of the European Investment Bank. Poland EUR 170 563 175 Czech Republic EUR 62 939 275 Hungary EUR 59 543 425 Slovakia EUR 21 424 525 Slovenia EUR 19 890 750 Lithuania EUR 12 480 875 Cyprus EUR 9 169 100 Latvia EUR 7 616 750 Estonia EUR 5 882 000 Malta EUR 3 490 200 These contributions shall be paid in eight equal instalments falling due on 30 September 2004, 30 September 2005, 30 September 2006, 31 March 2007, 30 September 2007, 31 March 2008, 30 September 2008 and 31 March 2009. Article 40 The new Member States shall contribute, in eight equal instalments falling due on the dates referred to in Ar ticle 39, to the reser ves and provisions equivalent to reser ves, as well as to the amount still to be appropriated to the reser ves and provisions, comprising the balance of the profit and loss account, established at the end of the month of April 2004, as entered on the balance sheet of the European Investment Bank, in amounts corresponding to the following percentages of the reser ves and provisions: Poland 2,2742 % Czech Republic 0,8392 % Hungary 0,7939 % Slovakia 0,2857 % Slovenia 0,2652 % Lithuania 0,1664 % Cyprus 0,1223 % Latvia 0,1016 % Estonia 0,0784 % Malta 0,0465 % C 310/316 Official Journal of the European Union 16.12.2004 EN Article 41 The capital and payments provided for in Ar ticles 38, 39 and 40 shall be paid in by the Kingdom of Spain and the new Member States in cash in euro, save by way of derogation decided unanimously by the Board of Governors. TITLE II PROVISIONS ON THE RESTRUCTURING OF THE CZECH STEEL INDUSTRY Article 42 1. Notwithstanding Ar ticles III167 and III168 of the Constitution, State aid granted by the Czech Republic for restructuring purposes to specified par ts of the Czech steel industry from 1997 to 2003 shall be deemed to be compatible with the internal market provided that: (a) the period provided for in Ar ticle 8(4) of Protocol 2 on ECSC products to the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and the Czech Republic, of the other par t (1), has been extended until 1 May 2004; (b) the terms set out in the restructuring plan on the basis of which the abovementioned Protocol was extended are adhered to throughout the period 2002--2006; (c) the conditions set out in this Title are met, and (d) no State aid for restructuring is to be paid to the Czech steel industry after 1 May 2004. 2. Restructuring of the Czech steel sector, as described in the individual business plans of the companies listed in Annex 1 to Protocol 2 to the Act of Accession of 16 April 2003 (hereinafter referred to as `benefiting companies'), and in line with the conditions set out in this Title, shall be completed no later than 31 December 2006 (hereinafter referred to as `the end of the restructuring period'). 3. Only benefiting companies shall be eligible for State aid in the framework of the Czech steel restructuring programme. 4. A benefiting company may not: (a) in the case of a merger with a company not included in Annex 1 to Protocol 2 to the Act of Accession of 16 April 2003, pass on the benefit of the aid granted to the benefiting company; (1) OJ L 360, 31.12.1994, p. 2. 16.12.2004 Official Journal of the European Union C 310/317 EN (b) take over the assets of any company not included in Annex 1 to Protocol 2 to the Act of Accession of 16 April 2003 which is declared bankrupt in the period up to 31 December 2006. 5. Any subsequent privatisation of any of the benefiting companies shall respect the conditions and principles regarding viability, State aid and capacity reduction defined in this Title. 6. The total restructuring aid to be granted to the benefiting companies shall be determined by the justifications set out in the approved Czech steel restructuring plan and individual business plans as approved by the Council. But in any case, the aid paid out in the period 1997--2003 is limited to a maximum amount of CZK 14 147 425 201. Of this total figure, Nová Hu receives a maximum of CZK 5 700 075 201, Vítkovice Steel receives a maximum of CZK 8 155 350 000 and Válcovny Plechu Frýdek Místek receives a maximum of CZK 292 000 000 depending on the requirements as set out in the approved restructuring plan. The aid shall only be granted once. No fur ther State aid shall be granted by the Czech Republic for restructuring purposes to the Czech steel industry. 7. The net capacity reduction to be achieved by the Czech Republic for finished products during the period 1997--2006 shall be 590 000 tonnes. Capacity reduction shall be measured only on the basis of permanent closure of production facilities by physical destruction such that the facilities cannot be restored to ser vice. A declaration of bankruptcy of a steel company shall not qualify as capacity reduction. The above level of net capacity reduction, together with any other capacity reductions identified as necessary in the restructuring programmes, shall be completed in line with the timetable in Annex 2 to Protocol 2 to the Act of Accession of 16 April 2003. 8. The Czech Republic shall remove trade barriers in the coal market in accordance with the acquis by accession, enabling Czech steel companies to obtain access to coal at international market prices. The business plan for the benefiting company Nová Hu shall be implemented. In par ticular: 9. (a) the Vysoké Pece Ostrava (VPO) plant shall be brought into the organisational framework of Nová Hu by acquisition of full ownership. A target date shall be set for this merger, including assignation of responsibility for its implementation; C 310/318 Official Journal of the European Union 16.12.2004 EN (b) restructuring effor ts shall concentrate on the following: (i) evolving Nová Hu from being productionoriented to being marketingoriented and improving the efficiency and effectiveness of its business management, including greater transparency on costs; (ii) Nová Hu reviewing its product mix and entry into higher addedvalue markets; (iii) Nová Hu making the necessary investments in order to achieve a higher quality of finished products in the shor t term; (c) employment restructuring shall be implemented; levels of productivity comparable to those obtained by the Union's steel industry product groups shall be reached as at 31 December 2006, on the basis of the consolidated figures of the benefiting companies concerned; (d) compliance with the relevant Community acquis in the field of environmental protection shall be achieved by 1 May 2004 including the necessary investments addressed in the business plan. In accordance with the business plan the necessary future IPPCrelated investment shall also be made, in order to ensure compliance with Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (1) by 1 November 2007. 10. The business plan for the benefiting company Vítkovice Steel shall be implemented. In par ticular: (a) the Duo Mill shall be permanently closed no later than 31 December 2006. In the event of purchase of the company by a strategic investor, the purchase contract shall be made conditional on this closure by this date; (b) restructuring effor ts shall concentrate on the following: (i) an increase in direct sales and a greater focus on cost reduction, this being essential for more efficient business management, (ii) adapting to market demand and shifting towards higher valueadded products, (iii) bringing forward the proposed investment in the secondary steelmaking process from 2004 to 2003, in order to allow the company to compete on quality rather than on price; (c) compliance with the relevant Community acquis in the field of environmental protection shall be achieved by 1 May 2004 including the necessary investments addressed in the business plan, which include the need for future IPPCrelated investment. (1) OJ L 257, 10.10.1996, p. 26. 16.12.2004 Official Journal of the European Union C 310/319 EN 11. The business plan for the benefiting company Válcovny Plechu Frýdek Místek (VPFM) shall be implemented. In par ticular: (a) Hot Rolling Mills Nos 1 and 2 shall be permanently closed at the end of 2004; (b) restructuring effor ts shall concentrate on the following: (i) making the necessary investment in order to reach a higher quality of finished product in the shor t term after the signing of the Treaty of Accession, (ii) giving priority to the implementation of key identified profit improvement oppor tunities (including employment restructuring, cost reductions, yield improvements and distribution reorientation). 12. Any subsequent changes in the overall restructuring plan and the individual plans must be agreed by the Commission and, where appropriate, by the Council. 13. The implementation of the restructuring shall take place under conditions of full transparency and on the basis of sound market economy principles. 14. The Commission and the Council shall closely monitor the implementation of the restructuring and the fulfilment of the conditions set out in this Title concerning viability, State aid and capacity reductions before and after 1 May 2004 until the end of the restructuring period, in accordance with paragraphs 15 to 18. For this purpose the Commission shall repor t to the Council. 15. The Commission and the Council shall monitor the restructuring benchmarks set out in Annex 3 to Protocol 2 to the Act of Accession of 16 April 2003. The references in that Annex to paragraph 16 of the said Protocol shall be construed as being made to paragraph 16 of this Ar ticle. 16. Monitoring shall include an independent evaluation to be carried out in 2003, 2004, 2005 and 2006. The Commission's viability test shall be an impor tant element in ensuring that viability is achieved. 17. The Czech Republic shall cooperate fully with all the arrangements for monitoring. In par ticular: (a) the Czech Republic shall supply the Commission with sixmonthly repor ts concerning the restructuring of the benefiting companies, no later than 15 March and 15 September of each year, until the end of the restructuring period, (b) the first repor t shall reach the Commission by 15 March 2003 and the last repor t by 15 March 2007, unless the Commission decides other wise, C 310/320 Official Journal of the European Union 16.12.2004 EN (c) the repor ts shall contain all the information necessary to monitor the restructuring process and the reduction and use of capacity and shall provide sufficient financial data to allow an assessment to be made of whether the conditions and requirements contained in this Title have been fulfilled. The repor ts shall at the least contain the information set out in Annex 4 to Protocol 2 to the Act of Accession of 16 April 2003, which the Commission reser ves the right to modify in line with its experiences during the monitoring process. In addition to the individual business repor ts of the benefiting companies, there shall also be a repor t on the overall situation of the Czech steel sector, including recent macroeconomic developments, (d) the Czech Republic shall oblige the benefiting companies to disclose all relevant data which might, under other circumstances, be considered as confidential. In its repor ting to the Council, the Commission shall ensure that companyspecific confidential information is not disclosed. 18. The Commission may at any time decide to mandate an independent consultant to evaluate the monitoring results, under take any research necessary and repor t to the Commission and the Council. 19. If the Commission establishes, on the basis of the repor ts referred to in paragraph 17, that substantial deviations from the financial data on which the viability assessment has been made have occurred, it may require the Czech Republic to take appropriate measures to reinforce the restructuring measures of the benefiting companies concerned. 20. Should the monitoring show that: (a) the conditions for the transitional arrangements contained in this Title have not been fulfilled, or that (b) the commitments made in the framework of the extension of the period during which the Czech Republic may exceptionally grant State suppor t for the restructuring of its steel industry under the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and the Czech Republic, of the other par t (1) have not been fulfilled, or that (c) the Czech Republic in the course of the restructuring period has granted additional incompatible State aid to the steel industry and to the benefiting companies in par ticular, the transitional arrangements contained in this Title shall not have effect. The Commission shall take appropriate steps requiring any company concerned to reimburse any aid granted in breach of the conditions laid down in this Title. (1) OJ L 360, 31.12.1994, p. 2. 16.12.2004 Official Journal of the European Union C 310/321 EN TITLE III PROVISIONS ON THE SOVEREIGN BASE AREAS OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IREL AND IN CYPRUS Article 43 1. The Sovereign Base Areas shall be included within the customs territory of the Union and, for this purpose, the customs and common commercial policy acts of the Union listed in Par t One of the Annex to Protocol 3 to the Act of Accession of 16 April 2003 shall apply to the Sovereign Base Areas with the amendments set out in that Annex. In that Annex, reference to `this Protocol' shall be construed as being to this Title. 2. The Union acts on turnover taxes, excise duties and other forms of indirect taxation listed in Par t Two of the Annex to Protocol 3 to the Act of Accession of 16 April 2003 shall apply to the Sovereign Base Areas with the amendments set out in that Annex as well as the relevant provisions applying to Cyprus as set out in this Protocol. 3. The Union acts listed in Par t Three of the Annex to Protocol 3 to the Act of Accession of 16 April 2003 shall be amended as set out in that Annex to enable the United Kingdom to maintain the reliefs and exemptions from duties and taxes on supplies to its forces and associated personnel which are granted by the Treaty concerning the Establishment of the Republic of Cyprus (hereinafter referred to as the `Treaty of Establishment'). Article 44 Ar ticles III225 to III232 of the Constitution, together with the provisions adopted on that basis, and the provisions adopted in accordance with Ar ticle III278(4)(b) of the Constitution shall apply to the Sovereign Base Areas. Article 45 Persons resident or employed in the territory of the Sovereign Base Areas who, under arrangements made pursuant to the Treaty of Establishment and the associated Exchange of Notes dated 16 August 1960, are subject to the social security legislation of the Republic of Cyprus shall be treated for the purposes of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to selfemployed persons and to members of their families moving within the Community (1) as if they were resident or employed in the territory of the Republic of Cyprus. (1) OJ L 149, 5.7.1971, p. 2. C 310/322 Official Journal of the European Union 16.12.2004 EN Article 46 1. The Republic of Cyprus shall not be required to carry out checks on persons crossing its land and sea boundaries with the Sovereign Base Areas and any Union restrictions on the crossing of external borders shall not apply in relation to such persons. 2. The United Kingdom shall exercise controls on persons crossing the external borders of the Sovereign Base Areas in accordance with the under takings set out in Par t Four of the Annex to Protocol 3 to the Act of Accession of 16 April 2003. Article 47 The Council, on a proposal from the Commission, may, in order to ensure effective implementation of the objectives of this Title, adopt a European decision amending Ar ticles 43 to 46, including the Annex to Protocol 3 to the Act of Accession of 16 April 2003, or applying other provisions of the Constitution and Union acts to the Sovereign Base Areas on such terms and subject to such conditions as it may specify. The Council shall act unanimously. The Commission shall consult the United Kingdom and the Republic of Cyprus before bringing for ward a proposal. Article 48 1. Subject to paragraph 2, the United Kingdom shall be responsible for the implementation of this Title in the Sovereign Base Areas. In par ticular: (a) the United Kingdom shall be responsible for the application of the Union measures specified in this Title in the fields of customs, indirect taxation and the common commercial policy in relation to goods entering or leaving the island of Cyprus through a port or airpor t within the Sovereign Base Areas; (b) customs controls on goods impor ted into or expor ted from the island of Cyprus by the forces of the United Kingdom through a por t or airport in the Republic of Cyprus may be carried out within the Sovereign Base Areas; (c) the United Kingdom shall be responsible for issuing any licences, authorisations or cer tificates which may be required under any applicable Union measure in respect of goods impor ted into or expor ted from the island of Cyprus by the forces of the United Kingdom. 2. The Republic of Cyprus shall be responsible for the administration and payment of any Union funds to which persons in the Sovereign Base Areas may be entitled pursuant to the application of the common agricultural policy in the Sovereign Base Areas under Ar ticle 44, and the Republic of Cyprus shall be accountable to the Commission for such expenditure. 16.12.2004 Official Journal of the European Union C 310/323 EN 3. Without prejudice to paragraphs 1 and 2, the United Kingdom may delegate to the competent authorities of the Republic of Cyprus, in accordance with arrangements made pursuant to the Treaty of Establishment, the performance of any functions imposed on a Member State by or under any provision referred to in Ar ticles 43 to 46. 4. The United Kingdom and the Republic of Cyprus shall cooperate to ensure the effective implementation of this Title in the Sovereign Base Areas and, where appropriate, shall conclude fur ther arrangements concerning the delegation of the implementation of any of the provisions referred to in Ar ticles 43 to 46. A copy of any such arrangements shall be submitted to the Commission. Article 49 The arrangements provided for in this Title shall have the sole purpose of regulating the par ticular situation of the Sovereign Base Areas of the United Kingdom in Cyprus and shall not apply to any other territory of the Union, nor ser ve as a precedent, in whole or in par t, for any other special arrangements which either already exist or which might be set up in another European territory provided for in Ar ticle IV440 of the Constitution. Article 50 The Commission shall repor t to the European Parliament and the Council every five years as from 1 May 2004 on the implementation of the provisions of this Title. Article 51 The provisions of this Title shall apply in the light of the Declaration on the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus, which incorporates, without altering its legal effect, the wording of the preamble to Protocol 3 to the Act of Accession of 16 April 2003. TITLE IV PROVISIONS ON THE IGNALINA NUCLEAR POWER PL ANT IN LITHUANIA Article 52 Acknowledging the readiness of the Union to provide adequate additional assistance to the efforts by Lithuania to decommission the Ignalina nuclear power plant and highlighting this expression of solidarity, Lithuania has under taken to close Unit 1 of the Ignalina nuclear power plant before 2005 and Unit 2 of this plant by 31 December 2009 at the latest and subsequently decommission these units. Article 53 1. During the period 2004--2006, the Union shall provide Lithuania with additional financial assistance in suppor t of its effor ts to decommission, and to address the consequences of the closure C 310/324 Official Journal of the European Union 16.12.2004 EN and decommissioning of, the Ignalina nuclear power plant (hereinafter `the Ignalina Programme'). 2. Measures under the Ignalina Programme shall be decided and implemented in accordance with the provisions laid down in Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to cer tain countries of Central and Eastern Europe (1). 3. The Ignalina Programme shall, inter alia, cover: measures in suppor t of the decommissioning of the Ignalina nuclear power plant; measures for the environmental upgrading in line with the acquis and modernisation measures of conventional production capacity to replace the production capacity of the two Ignalina nuclear power plant reactors; and other measures which are consequential to the decision to close and decommission this plant and which contribute to the necessary restructuring, environmental upgrading and modernisation of the energy production, transmission and distribution sectors in Lithuania as well as to enhancing the security of energy supply and improving energy efficiency in Lithuania. 4. The Ignalina Programme shall include measures to suppor t plant personnel in maintaining a high level of operational safety at the Ignalina nuclear power plant in the periods prior to the closure and during the decommissioning of the said reactor units. 5. For the period 2004--2006 the Ignalina Programme shall amount to 285 million euro in commitment appropriations, to be committed in equal annual tranches. 6. The contribution under the Ignalina Programme may, for cer tain measures, amount to up to 100 % of the total expenditure. Every effor t should be made to continue the cofinancing practice established under the preaccession assistance for Lithuania's decommissioning effort as well as to attract cofinancing from other sources, as appropriate. 7. The assistance under the Ignalina Programme, or par ts thereof, may be made available as a Union contribution to the Ignalina International Decommissioning Suppor t Fund, managed by the European Bank for Reconstruction and Development. 8. Public aid from national, Union and international sources: (a) for the environmental upgrading in line with the acquis and modernisation measures of the Lithuanian Thermal Power Plant in Elektrenai as the key replacement for the production capacity of the two Ignalina nuclear power plant reactors; and (b) for the decommissioning of the Ignalina nuclear power plant shall be compatible with the internal market as defined in the Constitution. (1) OJ L 375, 23.12.1989, p. 11. 16.12.2004 Official Journal of the European Union C 310/325 EN 9. Public aid from national, Union and international sources in suppor t of Lithuania's effor ts to address the consequences of the closure and of the decommissioning of the Ignalina nuclear power plant may, on a case by case basis, be considered to be compatible -- under the Constitution -- with the internal market, in par ticular public aid provided for enhancing the security of energy supply. Article 54 1. Recognising that the decommissioning of the Ignalina nuclear power plant is of a longterm nature and represents for Lithuania an exceptional financial burden not commensurate with its size and economic strength, the Union shall, in solidarity with Lithuania, provide adequate additional assistance to the decommissioning effor t beyond 2006. 2. The Ignalina Programme shall be, for this purpose, seamlessly continued and extended beyond 2006. Implementing provisions for the extended Ignalina Programme shall be adopted in accordance with the procedure laid down in Ar ticle 35 of this Protocol and enter into force, at the latest, by the date of expiry of the Financial Perspective as defined in the Interinstitutional Agreement of 6 May 1999. 3. The Ignalina Programme, as extended in accordance with the provisions of paragraph 2, shall be based on the same elements and principles as described in Ar ticle 53. 4. For the period of the subsequent Financial Perspective, the overall average appropriations under the extended Ignalina Programme shall be appropriate. Programming of these resources will be based on actual payment needs and absorption capacity. Article 55 Without prejudice to the provisions of Ar ticle 52, the general safeguard clause referred to in Ar ticle 26 shall apply until 31 December 2012 if energy supply is disrupted in Lithuania. Article 56 This Title shall apply in the light of the Declaration on the Ignalina nuclear power plant in Lithuania which incorporates, without altering its legal effect, the wording of the preamble to Protocol 4 to the Act of Accession of 16 April 2003. TITLE V PROVISIONS ON THE TRANSIT OF PERSONS BY L AND BET WEEN THE REGION OF KALININGRAD AND OTHER PARTS OF THE RUSSIAN FEDERATION Article 57 The Union rules and arrangements on transit of persons by land between the region of Kaliningrad and other par ts of the Russian Federation, and in par ticular the Council Regulation (EC) No 693/ 2003 of 14 April 2003 establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail C 310/326 Official Journal of the European Union 16.12.2004 EN Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual (1), shall not in themselves delay or prevent the full par ticipation of Lithuania in the Schengen acquis, including the removal of internal border controls. Article 58 The Union shall assist Lithuania in implementing the rules and arrangements for the transit of persons between the region of Kaliningrad and the other par ts of the Russian Federation with a view to Lithuania's full par ticipation in the Schengen area as soon as possible. The Union shall assist Lithuania in managing the transit of persons between the region of Kaliningrad and the other par ts of the Russian Federation and shall, notably, bear any additional costs incurred by implementing the specific provisions of the acquis provided for such transit. Article 59 Without prejudice to the sovereign rights of Lithuania, any further act concerning the transit of persons between the region of Kaliningrad and other par ts of the Russian Federation shall be adopted by the Council on a proposal from the Commission. The Council shall act unanimously. Article 60 This Title shall apply in the light of the Declaration on the transit of persons by land between the region of Kaliningrad and other par ts of the Russian Federation, which incorporates, without altering its legal affect, the wording of the preamble to Protocol 5 to the Act of Accession of 16 April 2003. TITLE VI PROVISIONS ON THE ACQUISITION OF SECONDARY RESIDENCES IN MALTA Article 61 Bearing in mind the very limited number of residences in Malta and the very limited land available for construction purposes, which can only cover the basic needs created by the demographic development of the present residents, Malta may on a nondiscriminatory basis maintain in force the rules on the acquisition and holding of immovable proper ty for secondary residence purposes by nationals of the Member States who have not legally resided in Malta for at least five years laid down in the Immovable Proper ty (Acquisition by NonResidents) Act (Chapter 246). (1) OJ L 99, 17.4.2003, p. 8. 16.12.2004 Official Journal of the European Union C 310/327 EN Malta shall apply authorisation procedures for the acquisition of immovable proper ty for secondary residence purposes in Malta, which shall be based on published, objective, stable and transparent criteria. These criteria shall be applied in a nondiscriminatory manner and shall not differentiate between nationals of Malta and of other Member States. Malta shall ensure that in no instance shall a national of a Member State be treated in a more restrictive way than a national of a third country. In the event that the value of one such proper ty bought by a national of a Member State exceeds the thresholds provided for in Malta's legislation, namely 30 000 Maltese lira for apar tments and 50 000 Maltese lira for any type of proper ty other than apar tments and proper ty of historical impor tance, authorisation shall be granted. Malta may revise the thresholds established by such legislation to ref lect changes in prices in the proper ty market in Malta. TITLE VII PROVISIONS ON ABORTION IN MALTA Article 62 Nothing in the Treaty establishing a Constitution for Europe or in the Treaties and Acts modifying or supplementing it shall affect the application in the territory of Malta of national legislation relating to abor tion. TITLE VIII PROVISIONS ON THE RESTRUCTURING OF THE POLISH STEEL INDUSTRY Article 63 1. Notwithstanding Ar ticles III167 and III168 of the Constitution, State aid granted by Poland for restructuring purposes to specified par ts of the Polish steel industry shall be deemed to be compatible with the internal market provided that: (a) the period provided for in Ar ticle 8(4) of Protocol 2 on ECSC products to the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and Poland, of the other par t (1), has been extended until 1 May 2004, (b) the terms set out in the restructuring plan, on the basis of which the abovementioned Protocol was extended are adhered to throughout the period 2002--2006, (c) the conditions set out in this Title are met, and (1) OJ L 348, 31.12.1993, p. 2. C 310/328 Official Journal of the European Union 16.12.2004 EN (d) no State aid for restructuring is to be paid to the Polish steel industry after 1 May 2004. 2. Restructuring of the Polish steel sector, as described in the individual business plans of the companies listed in Annex 1 to Protocol 8 to the Act of Accession of 16 April 2003 (hereinafter referred to as `benefiting companies'), and in line with the conditions set out in this Title, shall be completed no later than 31 December 2006 (hereinafter referred to as `the end of the restructuring period'). 3. Only benefiting companies shall be eligible for State aid in the framework of the Polish steel restructuring programme. 4. A benefiting company may not: (a) in the case of a merger with a company not included in Annex 1 to Protocol 8 to the Act of Accession of 16 April 2003, pass on the benefit of the aid granted to the benefiting company; (b) take over the assets of any company not included in Annex 1 to Protocol 8 to the Act of Accession of 16 April 2003 which is declared bankrupt in the period up to 31 December 2006. 5. Any subsequent privatisation of any of the benefiting companies shall take place on a basis that respects the need for transparency and shall respect the conditions and principles regarding viability, State aids and capacity reduction defined in this Title. No further State aid shall be granted as par t of the sale of any company or individual assets. 6. The restructuring aid granted to the benefiting companies shall be determined by the justifications set out in the approved Polish steel restructuring plan and individual business plans as approved by the Council. But, in any case, the aid paid out in the period of 19972003 in its total amount shall not exceed PLN 3 387 070 000. Of this total figure: (a) as regards Polskie Huty Stali (hereinafter referred to as `PHS'), the restructuring aid already granted or to be granted from 1997 until the end of 2003 shall not exceed PLN 3 140 360 000. PHS has already received PLN 62 360 000 of restructuring aid in the period 19972001; it shall receive fur ther restructuring aid of no more than PLN 3 078 000 000 in 2002 and 2003 depending on the requirements set out in the approved restructuring plan (to be entirely paid out in 2002 if the extension of the grace period under Protocol 2 of the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and Poland, of the other par t, is granted by the end of 2002, or other wise in 2003); (b) as regards Huta Andrzej S.A., Huta Bankowa Sp. z o.o., Huta Batory S.A., Huta Buczek S.A., Huta L.W. Sp. z o.o., Huta Labdy S.A., and Huta Pokój S.A. (hereinafter referred to as `other benefiting companies'), the steel restructuring aid already granted or to be granted from 1997 until the end of 2003 shall not exceed PLN 246 710 000. These firms have already received PLN 37 160 000 of restructuring aid in the period 19972001; they shall receive fur ther restructuring aid of no more than PLN 210 210 000 depending on the requirements set out in the approved 16.12.2004 Official Journal of the European Union C 310/329 EN restructuring plan (of which PLN 182 170 000 in 2002 and PLN 27 380 000 in 2003 if the extension of the grace period under Protocol 2 of the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and Poland, of the other par t, is granted by the end of 2002, or other wise PLN 210 210 000 in 2003). No further State aid shall be granted by Poland for restructuring purposes to the Polish steel industry. 7. The net capacity reduction to be achieved by Poland for finished products during the period 19972006 shall be a minimum of 1 231 000 tonnes. This overall amount includes net capacity reductions of at least 715 000 tpy in hotrolled products and 716 000 tpy in coldrolled products, as well as an increase of at most 200 000 tpy of other finished products. Capacity reduction shall be measured only on the basis of permanent closure of production facilities by physical destruction such that the facilities cannot be restored to ser vice. A declaration of bankruptcy of a steel company shall not qualify as capacity reduction. The net capacity reductions shown in Annex 2 to Protocol 8 to the Act of Accession of 16 April 2003 are minima and actual net capacity reductions to be achieved and the time frame for doing so shall be established on the basis of Poland's final restructuring programme and individual business plans under the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and Poland, of the other par t, taking into account the objective to ensure the viability of benefiting companies as at 31 December 2006. 8. The business plan for the benefiting company PHS shall be implemented. In par ticular: (a) restructuring effor ts shall concentrate on the following: (i) reorganising PHS production facilities on a product basis and ensuring horizontal organisation by function (purchasing, production, sales), (ii) establishing in PHS a unified management structure enabling full realisation of synergies in the consolidation, (iii) e vo l v i n g t h e s t r a te g i c fo c u s o f P H S f r o m b e i n g p r o d u c t i o n o r i e n te d to b e i n g marketingoriented, (iv) improving the efficiency and effectiveness of PHS business management and also ensuring better control of direct sales, (v) PHS reviewing, on the basis of sound economic considerations, the strategy of spinoff companies and, where appropriate, reintegrating services into the parent company, C 310/330 Official Journal of the European Union 16.12.2004 EN (vi) PHS reviewing its product mix, reducing overcapacity on long semifinished products and generally moving fur ther into the higher value-added product market, (vii) PHS investing in order to achieve a higher quality of finished products; special attention shall be given to attaining by the date set in the timetable for the implementation of the PHS restructuring programme and at the latest by the end of 2006 3Sigma production quality level at the PHS site in Kraków; (b) cost savings shall be maximised in PHS during the restructuring period through energy efficiency gains, improved purchasing and ensuring productivity yields comparable to Union levels; (c) employment restructuring shall be implemented; levels of productivity comparable to those obtained by Union steel industry product groups shall be reached as at 31 December 2006, based on consolidated figures including indirect employment in the wholly owned ser vice companies; (d) any privatisation shall be on a basis that respects the need for transparency and fully respects the commercial value of PHS. No further State aid shall be granted as par t of the sale. 9. The business plan for the other benefiting companies shall be implemented. In par ticular: (a) for all of the other benefiting companies, restructuring effor ts shall concentrate on the following: (i) evolving the strategic focus from being productionoriented to being marketingoriented, (ii) improving the efficiency and effectiveness of the companies' business management and also ensuring better control of direct sales, (iii) reviewing, on the basis of sound economic considerations, the strategy of spinoff companies and, where appropriate, reintegrating ser vices into the parent companies; (b) for Huta Bankowa, implementing the cost savings programme; (c) for Huta Buczek, obtaining the necessary financial suppor t from creditors and local financial institutions and implementing the cost savings programme, including reducing the investment cost by adapting existing production facilities; (d) for Huta Labdy, implementing the cost savings programme and reducing reliance on the mining industry; (e) for Huta Pokój, achieving international productivity standards in the subsidiaries, implementing energy consumption savings and cancelling the proposed investment in the processing and construction depar tment; 16.12.2004 Official Journal of the European Union C 310/331 EN (f) for Huta Batory, reaching agreement with creditors and financial institutions on debt rescheduling and investment loans. The company shall also ensure substantial additional cost savings associated with employment restructuring and improved yields; (g) for Huta Andrzej, securing a stable financial base for its development by negotiating an agreement between the company's current lenders, longterm creditors, trade creditors and financial institutions. Additional investments in the hot tube mill as well as the implementation of the staff reduction programme must take place; (h) for Huta L.W., carrying out investments in relation to the company's hotrolling mills project, lifting equipment, and environmental standing. This company shall also achieve higher productivity levels, through staff restructuring and reducing the costs of external ser vices. 10. Any subsequent changes in the overall restructuring plan and the individual plans must be agreed by the Commission and, where appropriate, by the Council. 11. The implementation of the restructuring shall take place under conditions of full transparency and on the basis of sound market economy principles. 12. The Commission and the Council shall closely monitor the implementation of the restructuring and the fulfilment of the conditions set out in this Title concerning viability, State aid and capacity reductions before and after 1 May 2004, until the end of the restructuring period, in accordance with paragraphs 13 to 18. For this purpose the Commission shall repor t to the Council. 13. In addition to the monitoring of State aid, the Commission and the Council shall monitor the restructuring benchmarks set out in Annex 3 to Protocol 8 to the Act of Accession of 16 April 2003. References made in that Annex to paragraph 14 of the Protocol shall be construed as being made to paragraph 14 of this Ar ticle. 14. Monitoring shall include an independent evaluation to be carried out in 2003, 2004, 2005 and 2006. The Commission's viability test shall be applied and productivity shall be measured as par t of the evaluation. 15. Poland shall cooperate fully with all the arrangements for monitoring. In par ticular: (a) Poland shall supply the Commission with sixmonthly repor ts concerning the restructuring of the benefiting companies, no later than 15 March and 15 September of each year, until the end of the restructuring period; (b) the first repor t shall reach the Commission by 15 March 2003 and the last repor t by 15 March 2007, unless the Commission decides other wise; (c) the repor ts shall contain all the information necessary to monitor the restructuring process, the State aid and the reduction and use of capacity and shall provide sufficient financial data to allow an assessment to be made of whether the conditions and requirements contained in this Title C 310/332 Official Journal of the European Union 16.12.2004 EN have been fulfilled. The repor ts shall at the least contain the information set out in Annex 4 to Protocol 8 to the Act of Accession of 16 April 2003, which the Commission reser ves the right to modify in line with its experiences during the monitoring process. In Annex 4 to Protocol 8 to the Act of Accession of 16 April 2003, the reference to paragraph 14 of the Protocol shall be construed as being to paragraph 14 of this Ar ticle. In addition to the individual business repor ts of the benefiting companies there shall also be a repor t on the overall situation of the Polish steel sector, including recent macroeconomic developments; (d) all additional information necessary for the independent evaluation provided for in paragraph 14 must, fur thermore, be provided by Poland; (e) Poland shall oblige the benefiting companies to disclose all relevant data which might, under other circumstances, be considered as confidential. In its repor ting to the Council, the Commission shall ensure that companyspecific confidential information is not disclosed. 16. The Commission may at any time decide to mandate an independent consultant to evaluate the monitoring results, under take any research necessary and repor t to the Commission and the Council. 17. If the Commission establishes, on the basis of the monitoring, that substantial deviations from the financial data on which the viability assessment has been made have occurred, it may require Poland to take appropriate measures to reinforce or modify the restructuring measures of the benefiting companies concerned. 18. Should the monitoring show that: (a) the conditions for the transitional arrangements contained in this Title have not been fulfilled, or that (b) the commitments made in the framework of the extension of the period during which Poland may exceptionally grant State suppor t for the restructuring of its steel industry under the Europe Agreement establishing an association between the European Communities and their Member States, of the one par t, and Poland, of the other par t, have not been fulfilled, or that (c) Poland in the course of the restructuring period has granted additional incompatible State aid to the steel industry and to the benefiting companies in par ticular, the transitional arrangements contained in this Title shall not have effect. The Commission shall take appropriate steps requiring any company concerned to reimburse any aid granted in breach of the conditions laid down in this Title. 16.12.2004 Official Journal of the European Union C 310/333 EN TITLE IX PROVISIONS ON UNIT 1 AND UNIT 2 OF THE BOHUNICE V1 NUCLEAR POWER PL ANT IN SLOVAKIA Article 64 Slovakia has under taken to close Unit 1 of the Bohunice V1 nuclear power plant by 31 December 2006 at the latest and Unit 2 of this plant by 31 December 2008 at the latest and subsequently decommission these units. Article 65 1. During the period 20042006, the Union shall provide Slovakia with financial assistance in suppor t of its effor ts to decommission, and to address the consequences of the closure and decommissioning of, Unit 1 and Unit 2 of the Bohunice V1 nuclear power plant (hereinafter referred to as `the Assistance'). 2. The Assistance shall be decided and implemented in accordance with the provisions laid down in Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to cer tain countries of Central and Eastern Europe (1). 3. For the period 20042006 the Assistance shall amount to 90 million euro in commitment appropriations, to be committed in equal annual tranches. 4. The Assistance or par ts thereof may be made available as a Union contribution to the Bohunice International Decommissioning Suppor t Fund, managed by the European Bank for Reconstruction and Development. Article 66 The Union acknowledges that the decommissioning of the Bohunice V1 Nuclear Power plant must continue beyond the Financial Perspective as defined in the Interinstitutional Agreement of 6 May 1999, and that this effor t represents for Slovakia a significant financial burden. Decisions on the continuation of Union assistance in this field after 2006 will take the situation into account. Article 67 The provisions of this Title shall apply in the light of the Declaration on Unit 1 and Unit 2 of the Bohunice V1 nuclear power plant in Slovakia which incorporates, without altering its legal effect, the wording of the preamble to Protocol 9 to the Act of Accession of 16 April 2003. (1) OJ L 375, 23.12.1989, p. 11. C 310/334 Official Journal of the European Union 16.12.2004 EN TITLE X PROVISIONS ON CYPRUS Article 68 1. The application of the Community and Union acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 2. The Council, on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1. It shall act unanimously. Article 69 1. The Council, on the basis of a proposal from the Commission, shall define the terms under which the provisions of Union law shall apply to the line between those areas referred to in Ar ticle 68 and the areas in which the Government of the Republic of Cyprus exercises effective control. The Council shall act unanimously. 2. The boundary between the Eastern Sovereign Base Area and those areas referred to in Ar ticle 68 shall be treated as par t of the external borders of the Sovereign Base Areas for the purpose of Par t Four of the Annex to Protocol 3 to the Act of Accession of 16 April 2003 on the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus for the duration of the suspension of the application of the Community and Union acquis according to Ar ticle 68. Article 70 1. Nothing in this Title shall preclude measures with a view to promoting the economic development of the areas referred to in Ar ticle 68. 2. Such measures shall not affect the application of the Community and Union acquis under the conditions set out in this Protocol in any other par t of the Republic of Cyprus. Article 71 In the event of settlement of the Cyprus problem, the Council, on the basis of a proposal from the Commission, shall decide on the adaptations to the terms concerning the accession of Cyprus to the Union with regard to the Turkish Cypriot Community. The Council shall act unanimously. Article 72 This Title shall apply in the light of the declaration on Cyprus which incorporates, without altering its legal effect, the wording of the preamble to Protocol 10 to the Act of Accession of 16 April 2003. 16.12.2004 Official Journal of the European Union C 310/335 EN PART THREE PROVISIONS ON THE ANNEXES TO THE ACT OF ACCESSION OF 16 APRIL 2003 Article 73 Annex I and Annexes III to XVII to the Act of Accession of 16 April 2003, their appendices, and the Annexes to Protocols 2, 3 and 8 to the Act of Accession of 16 April 2003 (1) form an integral par t of this Protocol. Article 74 1. The references made to the `Treaty of Accession' in the Annexes referred to in Ar ticle 73 of this Protocol shall be construed as being made to the Treaty referred to in Ar ticle IV437(2)(e) of the Constitution, those made to the date or time of signing of that Treaty shall be construed as being made to 16 April 2003 and those made to the date of accession shall be construed as being made to 1 May 2004. 2. Without prejudice to the second subparagraph, the references made to `this Act' in the Annexes referred to in Ar ticle 73 of this Protocol shall be construed as being made to the Act of Accession of 16 April 2003. The references made to the provisions of the Act of Accession of 16 April 2003 in the Annexes referred to in Ar ticle 73 of this Protocol shall be construed as being made to this Protocol, in accordance with the following table of equivalence. Act of Accession of 16 April 2003 Protocol Ar ticle 21 Ar ticle 12 Ar ticle 22 Ar ticle 13 Ar ticle 24 Ar ticle 15 Ar ticle 32 Ar ticle 21 Ar ticle 37 Ar ticle 26 Ar ticle 52 Ar ticle 32 3. The expressions, which appear in the Annexes referred to in Ar ticle 73, shall be construed as having the meaning assigned to them in the following table of equivalence, unless they refer exclusively to legal situations preceding the entry into force of the Treaty establishing a Constitution for Europe. (1) OJ L 236, 23.9.2003, p. 33. C 310/336 Official Journal of the European Union 16.12.2004 EN Expressions used in the Annexes Meaning Treaty establishing the European Community Constitution Treaty on European Union Constitution Treaties on which the European Union is founded Constitution (European) Community Union Enlarged Community Union Community Union EU Union Enlarged Union or enlarged EU Union By way of derogation from the first subparagraph, the meaning of the expression `Community' where it is used to qualify the terms `preference' and `fisheries' shall remain unchanged. 4. The references made to par ts or to provisions of the Treaty establishing the European Community in the Annexes referred to in Ar ticle 73 of this Protocol shall be construed as being made to par ts or to provisions of the Constitution, in accordance with the following table of equivalence. EC Treaty Constitution Part Three, Title I Part III, Title III, Chapter I, Section 3 Part Three, Title I, Chapter 1 Part III, Title III, Chapter I, Section 3 Subsection 1 Part Three, Title II Part III, Title III, Chapter III, Section 4 Part Three, Title III Part III, Title III, Chapter I, Sections 2 and 4 Part Three, Title VI, Chapter 1 Part III, Title III, Chapter I, Section 5 Ar ticle III155 Ar ticle 31 Ar ticle III133 Ar ticle 39 Ar ticle III144 Ar ticle 49 Ar ticle III158 Ar ticle 58 Ar ticle III167 Ar ticle 87 Ar ticle III168 Ar ticle 88 Ar ticle III360 Ar ticle 226 Annex I Annex I 5. Where the Annexes referred to in Ar ticle 73 of this Protocol provide that the Council or the Commission shall adopt legal acts, those acts shall take the form of European regulations or decisions. 16.12.2004 Official Journal of the European Union C 310/337 EN 10. PROTOCOL ON THE EXCESSIVE DEFICIT PROCEDURE THE HIGH CONTRACTING PARTIES, DESIRING to lay down the details of the excessive deficit procedure referred to in Ar ticle III­184 of the Constitution, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 The reference values referred to in Ar ticle III-184(2) of the Constitution are: (a) 3 % for the ratio of the planned or actual government deficit to gross domestic product at market prices; (b) 60 % for the ratio of government debt to gross domestic product at market prices. Article 2 For the purposes of Ar ticle III-184 of the Constitution and of this Protocol: (a) `government' means general government, that is central government, regional or local government and social security funds, to the exclusion of commercial operations, as defined in the European System of Integrated Economic Accounts; (b) `deficit' means net borrowing as defined in the European System of Integrated Economic Accounts; (c) `investment' means gross fixed capital formation as defined in the European System of Integrated Economic Accounts; (d) `debt' means total gross debt at nominal value outstanding at the end of the year and consolidated between and within the sectors of general government as defined in point (a). C 310/338 Official Journal of the European Union 16.12.2004 EN Article 3 In order to ensure the effectiveness of the excessive deficit procedure, the governments of the Member States shall be responsible under this procedure for the deficits of general government as defined in Ar ticle 2(a). The Member States shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area deriving from the Constitution. The Member States shall repor t their planned and actual deficits and the levels of their debt promptly and regularly to the Commission. Article 4 The statistical data to be used for the application of this Protocol shall be provided by the Commission. 16.12.2004 Official Journal of the European Union C 310/339 EN 11. PROTOCOL ON THE CONVERGENCE CRITERIA THE HIGH CONTRACTING PARTIES, DESIRING to lay down the details of the convergence criteria which shall guide the Union in taking decisions referred to in Ar ticle III-198 of the Constitution to end the derogations of those Member States with a derogation, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 The criterion on price stability referred to in Ar ticle III-198(1)(a) of the Constitution shall mean that the Member State concerned has a price performance that is sustainable and an average rate of inf lation, obser ved over a period of one year before the examination, that does not exceed by more than 1,5 percentage points that of, at most, the three best performing Member States in terms of price stability. Inf lation shall be measured by means of the consumer price index on a comparable basis, taking into account differences in national definitions. Article 2 The criterion on the government budgetary position referred to in Ar ticle III-198(1)(b) of the Constitution shall mean that at the time of the examination the Member State concerned is not the subject of a European decision of the Council under Ar ticle III-184(6) of the Constitution that an excessive deficit exists. Article 3 The criterion on par ticipation in the exchange-rate mechanism of the European Monetary System referred to in Ar ticle III-198(1)(c) of the Constitution shall mean that the Member State concerned has respected the normal f luctuation margins provided for by the exchange-rate mechanism of the European Monetary System without severe tensions for at least the last two years before the examination. In par ticular, the Member State shall not have devalued its currency's bilateral central rate against the euro on its own initiative for the same period. Article 4 The criterion on the convergence of interest rates referred to in Ar ticle III-198(1)(d) of the Constitution shall mean that, obser ved over a period of one year before the examination, the Member State concerned has had an average nominal long-term interest rate that does not exceed by more than 2 percentage points that of, at most, the three best performing Member States in terms of price stability. Interest rates shall be measured on the basis of long-term government bonds or comparable securities, taking into account differences in national definitions. C 310/340 Official Journal of the European Union 16.12.2004 EN Article 5 The statistical data to be used for the application of this Protocol shall be provided by the Commission. Article 6 The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the European Central Bank, and the Economic and Financial Committee referred to in Ar ticle III-192 of the Constitution, adopt appropriate provisions to lay down the details of the convergence criteria referred to in Ar ticle III-198 of the Constitution, which shall then replace this Protocol. 16.12.2004 Official Journal of the European Union C 310/341 EN 12. PROTOCOL ON THE EURO GROUP THE HIGH CONTRACTING PARTIES, DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop evercloser coordination of economic policies within the euro area, CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union, HAVE AGREED upon the following provisions, which are annexed to the Treaty establishing a Constitution for Europe: Article 1 The Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take par t in the meetings. The European Central Bank shall be invited to take par t in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission. Article 2 The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States. C 310/342 Official Journal of the European Union 16.12.2004 EN 13. PROTOCOL ON CERTAIN PROVISIONS RELATING TO THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AS REGARDS ECONOMIC AND MONETARY UNION THE HIGH CONTRACTING PARTIES, RECOGNISING that the United Kingdom shall not be obliged or committed to adopt the euro without a separate decision to do so by its government and Parliament; GIVEN that on 16 October 1996 and 30 October 1997 the United Kingdom government notified the Council of its intention not to par ticipate in the third stage of economic and monetary union, under the terms of paragraph 1 of the Protocol on cer tain provisions relating to the United Kingdom of Great Britain and Nor thern Ireland, annexed to the Treaty establishing the European Community; NOTING the practice of the government of the United Kingdom to fund its borrowing requirement by the sale of debt to the private sector, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 Unless the United Kingdom notifies the Council that it intends to adopt the euro, it shall be under no obligation to do so. Article 2 In view of the notice given to the Council by the United Kingdom government on 16 October 1996 and 30 October 1997, Ar ticles 3 to 8 and 10 shall apply to the United Kingdom. Article 3 The United Kingdom shall retain its powers in the field of monetary policy according to national law. Article 4 Ar ticles I30(2), with the exception of the first and last sentences thereof, I30(5), III177, second paragraph, III184(1), (9) and (10), III185(1) to (5), III186, III188, III189, III190, III191, III196, III198(3), III326 and III382 of the Constitution shall not apply to the United Kingdom. The same applies to Ar ticle III179(2) of the Constitution as regards the adoption of the par ts of the broad economic policy guidelines which concern the euro area generally. 16.12.2004 Official Journal of the European Union C 310/343 EN In the provisions referred to in the first paragraph, references to the Union or the Member States shall not include the United Kingdom and references to national central banks shall not include the Bank of England. Article 5 The United Kingdom shall endeavour to avoid an excessive government deficit. Ar ticles III192(4) and III200 of the Constitution shall apply to the United Kingdom as if it had a derogation. Ar ticles III201 and III202 of the Constitution shall continue to apply to the United Kingdom. Article 6 The voting rights of the United Kingdom shall be suspended for the adoption by the Council of the measures referred to in the Ar ticles listed in Ar ticle 4 and in the instances referred to in the first subparagraph of Ar ticle III197(4) of the Constitution. For this purpose the second and third subparagraphs of Ar ticle III197(4) of the Constitution shall apply. The United Kingdom shall also have no right to par ticipate in the appointment of the President, the VicePresident and the other members of the Executive Board of the European Central Bank under the second, third and four th subparagraphs of Ar ticle III382(2) of the Constitution. Article 7 Ar ticles 3, 4, 6, 7, 9(2), 10(1), (2) and (3), 11(2), 12(1), 14, 16, 18, 19, 20, 22, 23, 26, 27, 30, 31, 32, 33, 34 and 50 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank (the `Statute') shall not apply to the United Kingdom. In those Ar ticles, references to the Union or the Member States shall not include the United Kingdom and references to national central banks or shareholders shall not include the Bank of England. References in Ar ticles 10(3) and 30(2) of the Statute to `subscribed capital of the European Central Bank' shall not include capital subscribed by the Bank of England. Article 8 Ar ticle III199 of the Constitution and Ar ticles 43 to 47 of the Statute shall have effect, whether or not there is any Member State with a derogation, subject to the following amendments: (a) References in Ar ticle 43 of the Statute to the tasks of the European Central Bank and the European Monetary Institute shall include those tasks that still need to be performed after the introduction of the euro owing to the decision of the United Kingdom not to adopt the euro. (b) In addition to the tasks referred to in Ar ticle 46 of the Statute, the European Central Bank shall also give advice in relation to and contribute to the preparation of any European regulation or C 310/344 Official Journal of the European Union 16.12.2004 EN any European decision of the Council with regard to the United Kingdom taken in accordance with Ar ticle 9(a) and (c) of this Protocol. (c) The Bank of England shall pay up its subscription to the capital of the European Central Bank as a contribution to its operational costs on the same basis as national central banks of Member States with a derogation. Article 9 The United Kingdom may notify the Council at any time of its intention to adopt the euro. In that event: (a) The United Kingdom shall have the right to adopt the euro provided only that it satisfies the necessary conditions. The Council, acting at the request of the United Kingdom and under the conditions and in accordance with the procedure laid down in Ar ticle III198(1) and (2) of the Constitution, shall decide whether it fulfils the necessary conditions. (b) The Bank of England shall pay up its subscribed capital, transfer to the European Central Bank foreign reser ve assets and contribute to its reser ves on the same basis as the national central bank of a Member State whose derogation has been abrogated. (c) The Council, acting under the conditions and in accordance with the procedure laid down in Ar ticle III198(3) of the Constitution, shall take all other necessary decisions to enable the United Kingdom to adopt the euro. If the United Kingdom adopts the euro pursuant to the provisions of this Ar ticle, Ar ticles 3 to 8 shall cease to have effect. Article 10 Notwithstanding Ar ticle III181 of the Constitution and Ar ticle 21(1) of the Statute, the Government of the United Kingdom may maintain its `ways and means' facility with the Bank of England if and so long as the United Kingdom does not adopt the euro. 16.12.2004 Official Journal of the European Union C 310/345 EN 14. PROTOCOL ON CERTAIN PROVISIONS RELATING TO DENMARK AS REGARDS ECONOMIC AND MONETARY UNION THE HIGH CONTRACTING PARTIES, TAKING INTO ACCOUNT that the Danish Constitution contains provisions which may imply a referendum in Denmark prior to Denmark renouncing its exemption; GIVEN THAT, on 3 November 1993, the Danish Government notified the Council of its intention not to par ticipate in the third stage of economic and monetary union, under the terms of paragraph 1 of the Protocol on certain provisions relating to Denmark, annexed to the Treaty establishing the European Community, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 In view of the notice given to the Council by the Danish Government on 3 November 1993, Denmark shall have an exemption. The effect of the exemption shall be that all provisions of the Constitution and the Statute of the European System of Central Banks and the European Central Bank referring to a derogation shall be applicable to Denmark. Article 2 As for the abrogation of the exemption, the procedure referred to in Ar ticle III-198 of the Constitution shall only be initiated at the request of Denmark. Article 3 In the event of abrogation of the exemption status, the provisions of this Protocol shall cease to apply. C 310/346 Official Journal of the European Union 16.12.2004 EN 15. PROTOCOL ON CERTAIN TASKS OF THE NATIONAL BANK OF DENMARK THE HIGH CONTRACTING PARTIES, DESIRING to settle cer tain par ticular problems relating to Denmark; HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article Ar ticle 14 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank shall not affect the right of the National Bank of Denmark to carry out its existing tasks concerning those par ts of Denmark which are not par t of the Union. 16.12.2004 Official Journal of the European Union C 310/347 EN 16. PROTOCOL ON THE PACIFIC FINANCIAL COMMUNIT Y FRANC SYSTEM THE HIGH CONTRACTING PARTIES, DESIRING to take into account a par ticular point relating to France, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article France may keep the privilege of monetary emission in New Caledonia, French Polynesia and Wallis and Futuna under the terms established by its national laws and shall be solely entitled to determine the parity of the Pacific Financial Community franc. C 310/348 Official Journal of the European Union 16.12.2004 EN 17. PROTOCOL ON THE SCHENGEN ACQUIS INTEGRATED INTO THE FRAMEWORK OF THE EUROPEAN UNION THE HIGH CONTRACTING PARTIES, RECALLING that the provisions of the Schengen acquis consisting of the Agreements on the gradual abolition of checks at common borders, signed by some Member States of the European Union in Schengen on 14 June 1985 and on 19 June 1990, as well as related agreements and rules adopted on the basis of these agreements, have been integrated into the framework of the European Union by a Protocol annexed to the Treaty on European Union and to the Treaty establishing the European Community; DESIRING to preser ve the Schengen acquis, as developed since the entry into force of the abovementioned Protocol, within the framework of the Constitution, and to develop this acquis in order to contribute towards achieving the objective of offering citizens of the Union an area of freedom, security and justice without internal borders; TAKING INTO ACCOUNT the special position of Denmark; TAKING INTO ACCOUNT the fact that Ireland and the United Kingdom of Great Britain and Nor thern Ireland do not par ticipate in all the provisions of the Schengen acquis; provision should, however, be made to allow those Member States to accept other provisions of this acquis in full or in part; RECOGNISING that, as a consequence, it is necessary to make use of the provisions of the Constitution concerning closer cooperation between some Member States; TAKING INTO ACCOUNT the need to maintain a special relationship with the Republic of Iceland and the Kingdom of Nor way, both States being bound by the provisions of the Nordic passpor t union, together with the Nordic States which are members of the European Union; HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe, Article 1 The Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden shall be authorised to implement closer cooperation among themselves in areas covered by provisions defined by the Council which constitute the Schengen acquis. This cooperation shall be conducted within the institutional and legal framework of the Union and with respect for the relevant provisions of the Constitution. 16.12.2004 Official Journal of the European Union C 310/349 EN Article 2 The Schengen acquis shall apply to the Member States referred to in Ar ticle 1, without prejudice to Ar ticle 3 of the Protocol on the Treaty and the Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. The Council will substitute itself for the Executive Committee established by the Schengen agreements. Article 3 The par ticipation of Denmark in the adoption of measures constituting a development of the Schengen acquis, as well as the implementation of these measures and their application to Denmark, shall be governed by the relevant provisions of the Protocol on the position of Denmark. Article 4 Ireland and the United Kingdom of Great Britain and Nor thern Ireland, may at any time request to take par t in some or all of the provisions of the Schengen acquis. The Council shall adopt a European decision on this request. It shall act by a unanimous decision of the members referred to in Ar ticle 1 and of the member representing the government of the Member State concerned. Article 5 Proposals and initiatives to build upon the Schengen acquis shall be subject to the relevant provisions of the Constitution. In this context, where either Ireland or the United Kingdom or both have not notified the President of the Council in writing within a reasonable period that they wish to take par t, the authorisation referred to in Ar ticle III419(1) of the Constitution shall be deemed to have been granted to the Member States referred to in Ar ticle 1 and to Ireland or the United Kingdom where either of them wishes to take par t in the areas of cooperation in question. Article 6 The Republic of Iceland and the Kingdom of Nor way shall be associated with the implementation of the Schengen acquis and its fur ther development. Appropriate procedures shall be agreed to that effect in an Agreement to be concluded with those States by the Council, acting by the unanimity of its members mentioned in Ar ticle 1. That Agreement shall include provisions on the contribution of Iceland and Nor way to any financial consequences resulting from the implementation of this Protocol. A separate Agreement shall be concluded by the Council, acting unanimously, with Iceland and Nor way for the establishment of rights and obligations between Ireland and the United Kingdom of Great Britain and Nor thern Ireland on the one hand, and Iceland and Nor way on the other, in domains of the Schengen acquis which apply to these States. C 310/350 Official Journal of the European Union 16.12.2004 EN Article 7 For the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures adopted by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all States candidates for admission. 16.12.2004 Official Journal of the European Union C 310/351 EN 18. PROTOCOL ON THE APPLICATION OF CERTAIN ASPECTS OF ARTICLE III-130 OF THE CONSTITUTION TO THE UNITED KINGDOM AND TO IRELAND THE HIGH CONTRACTING PARTIES, DESIRING to settle cer tain questions relating to the United Kingdom and Ireland; HAVING REGARD to the existence for many years of special travel arrangements between the United Kingdom and Ireland, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 The United Kingdom shall be entitled, notwithstanding Ar ticles III-130 and III-265 of the Constitution, any other provision of the Constitution, any measure adopted under the Constitution, or any international agreement concluded by the Union or by the Union and its Member States with one or more third States, to exercise at its frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary for the purpose: (a) of verifying the right to enter the United Kingdom of citizens of Member States and of their dependants exercising rights conferred by Union law, as well as citizens of other States on whom such rights have been conferred by an agreement by which the United Kingdom is bound; and (b) of determining whether or not to grant other persons permission to enter the United Kingdom. Nothing in Ar ticles III-130 and III-265 of the Constitution or in any other provision of the Constitution or in any measure adopted under it shall prejudice the right of the United Kingdom to adopt or exercise any such controls. References to the United Kingdom in this Ar ticle shall include territories for whose external relations the United Kingdom is responsible. Article 2 The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Ťthe Common Travel Areať), while fully respecting the rights of persons referred to in Ar ticle 1, first paragraph, point (a), of this Protocol. Accordingly, as long as they maintain such arrangements, the provisions of Ar ticle 1 of this Protocol shall apply to Ireland under the same terms and conditions as for the United Kingdom. Nothing in Ar ticles III-130 and III-265 of the Constitution, in any other provision of the Constitution or in any measure adopted under it shall affect any such arrangements. C 310/352 Official Journal of the European Union 16.12.2004 EN Article 3 The other Member States shall be entitled to exercise at their frontiers or at any point of entry into their territory such controls on persons seeking to enter their territory from the United Kingdom or any territories whose external relations are under its responsibility for the same purposes stated in Ar ticle 1 of this Protocol, or from Ireland as long as the provisions of Ar ticle 1 of this Protocol apply to Ireland. Nothing in Ar ticles III-130 and III-265 of the Constitution or in any other provision of the Constitution or in any measure adopted under it shall prejudice the right of the other Member States to adopt or exercise any such controls. Article 4 This Protocol shall also apply to acts which remain in force by vir tue of Ar ticle IV-438 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/353 EN 19. PROTOCOL ON THE POSITION OF THE UNITED KINGDOM AND IRELAND ON POLICIES IN RESPECT OF BORDER CONTROLS, ASYLUM AND IMMIGRATION, JUDICIAL COOPERATION IN CIVIL MATTERS AND ON POLICE COOPERATION THE HIGH CONTRACTING PARTIES, DESIRING to settle cer tain questions relating to the United Kingdom and Ireland; HAVING REGARD to the Protocol on the application of cer tain aspects of Ar ticle III-130 of the Constitution to the United Kingdom and Ireland, HAVE AGREED UPON the following provisions which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 Subject to Ar ticle 3, the United Kingdom and Ireland shall not take par t in the adoption by the Council of proposed measures pursuant to Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution or to Ar ticle III-260 thereof, insofar as that Ar ticle relates to the areas covered by those Sections, to Ar ticle III-263 or to Ar ticle III-275(2)(a) of the Constitution. The unanimity of the members of the Council, with the exception of the representatives of the governments of the United Kingdom and Ireland, shall be necessary for acts of the Council which must be adopted unanimously. For the purposes of this Ar ticle, a qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. By way of derogation from the second and third paragraphs, where the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the required qualified majority shall be defined as at least 72 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. Article 2 In consequence of Ar ticle 1 and subject to Ar ticles 3, 4 and 6, none of the provisions of Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution or of Ar ticle III-260 of the Constitution, insofar as that Ar ticle relates to the areas covered by those Sections, or of Ar ticle III-263 or Ar ticle III-275(2)(a) of the Constitution, no measure adopted pursuant to those Sections or Ar ticles, no provision of any international agreement concluded by the Union pursuant to those C 310/354 Official Journal of the European Union 16.12.2004 EN Sections or Ar ticles, and no decision of the Cour t of Justice of the European Union interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form par t of Union law as they apply to the United Kingdom or Ireland. Article 3 1. The United Kingdom or Ireland may notify the Council in writing, within three months after a proposal has been presented to the Council pursuant to Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution or after a proposal or initiative has been presented to the Council pursuant to Ar ticle III-263 or to Ar ticle III-275(2)(a) of the Constitution, that it wishes to take par t in the adoption and application of any such proposed measure, whereupon that State shall be entitled to do so. The unanimity of the members of the Council, with the exception of a member which has not made such a notification, shall be necessary for acts of the Council which must be adopted unanimously. A measure adopted under this paragraph shall be binding upon all Member States which took par t in its adoption. The European regulations or decisions adopted pursuant to Ar ticle III-260 of the Constitution shall lay down the conditions for the par ticipation of the United Kingdom and Ireland in the evaluations concerning the areas covered by Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution. For the purposes of this Ar ticle, a qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. By way of derogation from the second and third subparagraphs, where the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the required qualified majority shall be defined as at least 72 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. 2. If after a reasonable period of time a measure referred to in paragraph 1 cannot be adopted with the United Kingdom or Ireland taking par t, the Council may adopt such measure in accordance with Ar ticle 1 without the par ticipation of the United Kingdom or Ireland. In that case Ar ticle 2 applies. Article 4 The United Kingdom or Ireland may, at any time after the adoption of a measure pursuant to Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution or to Ar ticle III-263 or to Ar ticle III-275(2)(a) of the Constitution, notify its intention to the Council and to the Commission that it wishes to accept that measure. In that case, the procedure provided for in Ar ticle III-420(1) of the Constitution shall apply mutatis mutandis. 16.12.2004 Official Journal of the European Union C 310/355 EN Article 5 A Member State which is not bound by a measure adopted pursuant to Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution, to Ar ticle III-263 or to Ar ticle III-275(2)(a) of the Constitution, shall bear no financial consequences of that measure other than administrative costs entailed for the institutions, unless all members of the Council, acting unanimously after consulting the European Parliament, decide other wise. Article 6 Where, in cases referred to in this Protocol, the United Kingdom or Ireland is bound by a measure adopted pursuant to Section 2 or Section 3 of Chapter IV of Title III of Par t III of the Constitution, to Ar ticle III-260 of the Constitution, insofar as that Ar ticle relates to the areas covered by those Sections, to Ar ticle III-263 or to Ar ticle III-275(2)(a) of the Constitution, the relevant provisions of the Constitution shall apply to that State in relation to that measure. Article 7 Ar ticles 3 and 4 shall be without prejudice to the Protocol on the Schengen acquis integrated into the framework of the European Union. Article 8 Ireland may notify the Council in writing that it no longer wishes to be covered by the terms of this Protocol. In that case, this Protocol shall no longer apply to Ireland. C 310/356 Official Journal of the European Union 16.12.2004 EN 20. PROTOCOL ON THE POSITION OF DENMARK THE HIGH CONTRACTING PARTIES, RECALLING the decision of the Heads of State or Government, meeting within the European Council at Edinburgh on 12 December 1992, concerning cer tain problems raised by Denmark on the Treaty on European Union; HAVING NOTED the position of Denmark with regard to citizenship, economic and monetary union, defence policy, and justice and home affairs as laid down in the Edinburgh decision; CONSCIOUS of the fact that a continuation under the Constitution of the legal regime originating in the Edinburgh decision will significantly limit Denmark's par ticipation in impor tant areas of cooperation of the Union, and that it would be in the best interest of the Union to ensure the integrity of the acquis in the area of freedom, security and justice; WISHING therefore to establish a legal framework that will provide an option for Denmark to par ticipate in the adoption of measures proposed on the basis of Chapter IV of Title III of Part III of the Constitution and welcoming the intention of Denmark to avail itself of this option when possible in accordance with its constitutional requirements; NOTING that Denmark will not prevent the other Member States from fur ther developing their cooperation with respect to measures not binding on Denmark; BEARING IN MIND the Protocol on the Schengen acquis integrated into the framework of the European Union, HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution: PART I Article 1 Denmark shall not take par t in the adoption by the Council of proposed measures pursuant to Chapter IV of Title III of Par t III of the Constitution. The unanimity of the members of the Council, with the exception of the representative of the government of Denmark, shall be necessary for the acts of the Council which must be adopted unanimously. For the purposes of this Ar ticle, a qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. 16.12.2004 Official Journal of the European Union C 310/357 EN By way of derogation from the second and third paragraphs, where the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the required qualified majority shall be defined as at least 72 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. Article 2 None of the provisions of Chapter IV of Title III of Par t III of the Constitution, no measure adopted pursuant to that Chapter, no provision of any international agreement concluded by the Union pursuant to that Chapter, and no decision of the Cour t of Justice of the European Union interpreting any such provision or measure shall be binding upon or applicable in Denmark; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of Denmark; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form par t of Union law as they apply to Denmark. Article 3 Denmark shall bear no financial consequences of measures referred to in Ar ticle 1, other than administrative costs entailed for the institutions. Article 4 1. Denmark shall decide within a period of six months after the adoption of a measure to build upon the Schengen acquis covered by Par t I whether it will implement this measure in its national law. If it decides to do so, this measure will create an obligation under international law between Denmark and the other Member States bound by the measure. If Denmark decides not to implement such a measure, the Member States bound by that measure and Denmark will consider appropriate measures to be taken. 2. Denmark shall maintain the rights and obligations existing before the entry into force of the Treaty establishing a Constitution for Europe with regard to the Schengen acquis. PART II Article 5 With regard to measures adopted by the Council pursuant to Ar ticle I-41, Ar ticle III-295(1) and Ar ticles III-309 to III-313 of the Constitution, Denmark does not par ticipate in the elaboration and the implementation of decisions and actions of the Union which have defence implications. Therefore Denmark shall not par ticipate in their adoption. Denmark will not prevent the other Member States from fur ther developing their cooperation in this area. Denmark shall not be obliged to contribute to the financing of operational expenditure arising from such measures, nor to make military capabilities available to the Union. C 310/358 Official Journal of the European Union 16.12.2004 EN The unanimity of the members of the Council, with the exception of the representative of the government of Denmark, shall be necessary for the acts of the Council which must be adopted unanimously. For the purposes of this Ar ticle, a qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. By way of derogation from the third and four th paragraphs, where the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the required qualified majority shall be defined as at least 72 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. PART III Article 6 This Protocol shall also apply to measures remaining in force by vir tue of Ar ticle IV-438 of the Constitution, which were covered, prior to the entry into force of the Treaty establishing a Constitution for Europe, by the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community. Article 7 Ar ticles 1, 2 and 3 shall not apply to measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas. PART IV Article 8 At any time Denmark may, in accordance with its constitutional requirements, inform the other Member States that it no longer wishes to avail itself of all or par t of this Protocol. In that event, Denmark will apply in full all relevant measures then in force taken within the framework of the Union. Article 9 1. At any time and without prejudice to Ar ticle 8, Denmark may, in accordance with its constitutional requirements, notify the other Member States that, with effect from the first day of the month following the notification, Par t I shall consist of the provisions in the Annex. In that case Ar ticles 5 to 9 shall be renumbered in consequence. 16.12.2004 Official Journal of the European Union C 310/359 EN 2. Six months after the date on which the notification referred to in paragraph 1 takes effect all Schengen acquis and measures adopted to build upon this acquis, which until then have been binding on Denmark as obligations under international law, shall be binding upon Denmark as Union law. Annex Article 1 Subject to Ar ticle 3, Denmark shall not take par t in the adoption by the Council of measures proposed pursuant to Chapter IV of Title III of Par t III of the Constitution. The unanimity of the members of the Council, with the exception of the representative of the government of Denmark, shall be necessary for the acts of the Council which must be adopted unanimously. For the purposes of this Ar ticle, a qualified majority shall be defined as at least 55 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the par ticipating Member States, plus one member, failing which the qualified majority shall be deemed attained. By way of derogation from the second and third paragraphs, where the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the required qualified majority shall be defined as at least 72 % of the members of the Council representing the par ticipating Member States, comprising at least 65 % of the population of these States. Article 2 Pursuant to Ar ticle 1 and subject to Ar ticles 3, 4 and 6, none of the provisions in Chapter IV of Title III of Par t III of the Constitution, no measure adopted pursuant to that Chapter, no provision of any international agreements concluded by the Union pursuant to that Chapter, no decision of the Cour t of Justice of the European Union interpreting any such provision or measure shall be binding upon or applicable in Denmark; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of Denmark; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form par t of Union law as they apply to Denmark. Article 3 1. Denmark may notify the President of the Council in writing, within three months after a proposal or initiative has been presented to the Council pursuant to Chapter IV of Title III of Par t III of the Constitution, that it wishes to take par t in the adoption and application of any such proposed measure, whereupon Denmark shall be entitled to do so. 2. If after a reasonable period of time a measure referred to in paragraph 1 cannot be adopted with Denmark taking par t, the Council may adopt that measure referred to in paragraph 1 in accordance with Ar ticle 1 without the par ticipation of Denmark. In that case Ar ticle 2 applies. C 310/360 Official Journal of the European Union 16.12.2004 EN Article 4 Denmark may at any time after the adoption of a measure pursuant to Chapter IV of Title III of Par t III of the Constitution notify its intention to the Council and the Commission that it wishes to accept that measure. In that case, the procedure provided for in Ar ticle III-420(1) of the Constitution shall apply mutatis mutandis. Article 5 1. Notification pursuant to Ar ticle 4 shall be submitted no later than six months after the final adoption of a measure if this measure builds upon the Schengen acquis. If Denmark does not submit a notification in accordance with Ar ticles 3 or 4 regarding a measure building upon the Schengen acquis, the Member States bound by that measure and Denmark will consider appropriate measures to be taken. 2. A notification pursuant to Ar ticle 3 with respect to a measure building upon the Schengen acquis shall be deemed irrevocably to be a notification pursuant to Ar ticle 3 with respect to any fur ther proposal or initiative aiming to build upon that measure to the extent that such proposal or initiative builds upon the Schengen acquis. Article 6 Where, in cases referred to in this Par t, Denmark is bound by a measure adopted by the Council pursuant to Chapter IV of Title III of Par t III of the Constitution, the relevant provisions of the Constitution shall apply to Denmark in relation to that measure. Article 7 Where Denmark is not bound by a measure adopted pursuant to Chapter IV of Title III of Par t III of the Constitution, it shall bear no financial consequences of that measure other than administrative costs entailed for the institutions unless the Council, acting unanimously after consulting the European Parliament, decides other wise. 16.12.2004 Official Journal of the European Union C 310/361 EN 21. PROTOCOL ON EXTERNAL RELATIONS OF THE MEMBER STATES WITH REGARD TO THE CROSSING OF EXTERNAL BORDERS THE HIGH CONTRACTING PARTIES, TAKING INTO ACCOUNT the need of the Member States to ensure effective controls at their external borders, in cooperation with third countries where appropriate, HAVE AGREED UPON the following provision, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article The provisions on the measures on the crossing of external borders included in Ar ticle III265(2)(b) of the Constitution shall be without prejudice to the competence of Member States to negotiate or conclude agreements with third countries as long as they respect Union law and other relevant international agreements. C 310/362 Official Journal of the European Union 16.12.2004 EN 22. PROTOCOL ON ASYLUM FOR NATIONALS OF MEMBER STATES THE HIGH CONTRACTING PARTIES, WHEREAS, in accordance with Ar ticle I-9(1) of the Constitution, the Union recognises the rights, freedoms and principles set out in the Char ter of Fundamental Rights; WHEREAS pursuant to Ar ticle I9(3) of the Constitution, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute part of the Union's law as general principles; WHEREAS the Cour t of Justice of the European Union has jurisdiction to ensure that in the interpretation and application of Ar ticle I9(1) and (3) of the Constitution the law is obser ved by the Union; WHEREAS pursuant to Ar ticle I58 of the Constitution, any European State, when applying to become a member of the Union, must respect the values set out in Ar ticle I2 of the Constitution; BEARING IN MIND that Ar ticle I59 of the Constitution establishes a mechanism for the suspension of certain rights in the event of a serious and persistent breach by a Member State of those values; RECALLING that each national of a Member State, as a citizen of the Union, enjoys a special status and protection which shall be guaranteed by the Member States in accordance with the provisions of Title II of Part I and Title II of Part III of the Constitution; BEARING IN MIND that the Constitution establishes an area without internal frontiers and grants every citizen of the Union the right to move and reside freely within the territory of the Member States; WISHING to prevent the institution of asylum being resor ted to for purposes alien to those for which it is intended; WHEREAS this Protocol respects the finality and the objectives of the Geneva Convention of 28 July 1951 relating to the status of refugees, HAVE AGREED UPON the following provisions which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases: (a) if the Member State of which the applicant is a national proceeds, availing itself of the provisions of Ar ticle 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention; 16.12.2004 Official Journal of the European Union C 310/363 EN (b) if the procedure referred to in Ar ticle I59(1) or (2) of the Constitution has been initiated and until the Council, or, where appropriate, the European Council, adopts a European decision in respect thereof with regard to the Member State of which the applicant is a national; (c) if the Council has adopted a European decision in accordance with Ar ticle I59(1) of the Constitution in respect of the Member State of which the applicant is a national or if the European Council has adopted a European decision in accordance with Ar ticle I59(2) of the Constitution in respect of the Member State of which the applicant is a national; (d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the case may be, the decisionmaking power of the Member State. C 310/364 Official Journal of the European Union 16.12.2004 EN 23. PROTOCOL ON PERMANENT STRUCTURED COOPERATION ESTABLISHED BY ARTICLE I-41(6) AND ARTICLE III-312 OF THE CONSTITUTION THE HIGH CONTRACTING PARTIES, HAVING REGARD TO Ar ticle I41(6) and Ar ticle III312 of the Constitution, RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States; RECALLING that the common security and defence policy is an integral par t of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Ar ticle III309 of the Constitution outside the Union for peacekeeping, conf lict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces; RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of cer tain Member States; RECALLING that the common security and defence policy of the Union respects the obligations under the Nor th Atlantic Treaty of those Member States, which see their common defence realised in the Nor th Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework; CONVINCED that a more asser tive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements; DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community; RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Char ter; RECOGNISING that the strengthening of the security and defence policy will require effor ts by Member States in the area of capabilities; CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effor t by the Member States concerned; RECALLING the importance of the Minister for Foreign Affairs being fully involved in proceedings relating to permanent structured cooperation, HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution: 16.12.2004 Official Journal of the European Union C 310/365 EN Article 1 The permanent structured cooperation referred to in Ar ticle I41(6) of the Constitution shall be open to any Member State which under takes, from the date of entry into force of the Treaty establishing a Constitution for Europe, to: (a) proceed more intensively to develop its defence capacities through the development of its national contributions and par ticipation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and (b) have the capacity to supply by 2007 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with suppor t elements including transpor t and logistics, capable of carrying out the tasks referred to in Ar ticle III309, within a period of 5 to 30 days, in par ticular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days. Article 2 To achieve the objectives laid down in Ar ticle 1, Member States par ticipating in permanent structured cooperation shall under take to: (a) cooperate, as from the entry into force of the Treaty establishing a Constitution for Europe, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities; (b) bring their defence apparatus into line with each other as far as possible, par ticularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics; (c) take concrete measures to enhance the availability, interoperability, f lexibility and deployability of their forces, in par ticular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decisionmaking procedures; (d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to under takings in this regard within the Nor th Atlantic Treaty Organisation, the shor tfalls perceived in the framework of the `Capability Development Mechanism'; (e) take par t, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency. C 310/366 Official Journal of the European Union 16.12.2004 EN Article 3 The European Defence Agency shall contribute to the regular assessment of par ticipating Member States' contributions with regard to capabilities, in par ticular contributions made in accordance with the criteria to be established, inter alia, on the basis of Ar ticle 2, and shall repor t thereon at least once a year. The assessment may ser ve as a basis for Council recommendations and European decisions adopted in accordance with Ar ticle III312 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/367 EN 24. PROTOCOL ON ARTICLE I-41(2) OF THE CONSTITUTION THE HIGH CONTRACTING PARTIES, BEARING IN MIND the need to implement fully the provisions of Ar ticle I-41(2) of the Constitution; BEARING IN MIND that the policy of the Union in accordance with Ar ticle I-41(2) of the Constitution shall not prejudice the specific character of the security and defence policy of cer tain Member States and shall respect the obligations of cer tain Member States, which see their common defence realised in the Nor th Atlantic Treaty Organisation, under the Nor th Atlantic Treaty and be compatible with the common security and defence policy established within that framework, HAVE AGREED UPON the following provision, which is annexed to the Treaty establishing a Constitution for Europe: Sole article The Union shall draw up, together with the Western European Union, arrangements for enhanced cooperation between them. C 310/368 Official Journal of the European Union 16.12.2004 EN 25. PROTOCOL CONCERNING IMPORTS INTO THE EUROPEAN UNION OF PETROLEUM PRODUCTS REFINED IN THE NETHERLANDS ANTILLES THE HIGH CONTRACTING PARTIES, BEING DESIROUS of giving fuller details about the system of trade applicable to impor ts into the Union of petroleum products refined in the Netherlands Antilles, HAVE AGREED on the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 This Protocol is applicable to petroleum products coming under the Combined Nomenclature headings 2710, 2711, 2712 (paraffin wax and petroleum wax), ex 2713 (paraffin residues) and 2714 (shale wax), impor ted for use in the Member States. Article 2 Member States shall under take to grant to petroleum products refined in the Netherlands Antilles the tariff preferences resulting from the Association of the latter with the Union, under the conditions provided for by this Protocol. These provisions shall hold good whatever may be the rules of origin applied by the Member States. Article 3 1. When the Commission, at the request of a Member State or on its own initiative, establishes that impor ts into the Union of petroleum products refined in the Netherlands Antilles under the system provided for in Ar ticle 2 are giving rise to real difficulties on the market of one or more Member States, it shall adopt a European decision establishing that customs duties on the said impor ts shall be introduced, increased or reintroduced by the Member States in question, to such an extent and for such a period as may be necessary to meet that situation. The rates of the customs duties thus introduced, increased or reintroduced may not exceed the customs duties applicable to third countries for these same products. 2. The provisions of paragraph 1 can in any case be applied when impor ts into the Union of petroleum products refined in the Netherlands Antilles reach two million tonnes a year. 3. The Council shall be informed of European decisions adopted by the Commission in pursuance of paragraphs 1 and 2, including those directed at rejecting the request of a Member State. The Council shall, at the request of any Member State, assume responsibility for the matter and may at any time adopt a European decision to amend or revoke such decisions. 16.12.2004 Official Journal of the European Union C 310/369 EN Article 4 1. I f a M e m b e r St ate c o n si d e rs th a t impor ts of petroleum products ref ined in the Netherlands Antilles, made either directly or through another Member State under the system provided for in Ar ticle 2, are giving rise to real difficulties on its market and that immediate action is necessary to meet them, it may on its own initiative decide to apply customs duties to such imports, the rate of which may not exceed those of the customs duties applicable to third countries in respect of the same products. It shall notify its decision to the Commission, which shall within one month adopt a European decision establishing whether the measures taken by the State should be maintained or must be amended or cancelled. Ar ticle 3(3) shall be applicable to such decision of the Commission. 2. When the quantities of petroleum products refined in the Netherlands Antilles impor ted either directly or through another Member State, under the system provided for in Ar ticle 2, into a Member State or States exceed during a calendar year the tonnage shown in the Annex to this Protocol, the measures taken in pursuance of paragraph 1 by that or those Member States for the current year shall be considered to be justified. The Commission shall, after assuring itself that the tonnage fixed has been reached, formally record the measures taken. In such a case the other Member States shall abstain from formally placing the matter before the Council. Article 5 If the Union decides to apply quantitative restrictions to petroleum products, no matter whence they are imported, these restrictions may also be applied to impor ts of such products from the Netherlands Antilles. In this case preferential treatment shall be granted to the Netherlands Antilles as compared with third countries. Article 6 1. Ar ticles 2 to 5 may be reviewed by the Council, by unanimous decision, after consulting the E u r o p e a n P a r l i a m e n t a n d t h e C o m m i s s i o n , w h e n a c o m m o n d e f i n i t i o n o f o r i g i n fo r petroleum products from third countries and associated countries is adopted, or when decisions are taken within the framework of a common commercial policy for the products in question or when a common energy policy is established. 2. When such revision is made, however, equivalent preferences shall in any case be maintained in favour of the Netherlands Antilles in a suitable form and for a minimum quantity of 2 1/2 million tonnes of petroleum products. 3. The Union's commitments in regard to equivalent preferences as referred to in paragraph 2 may, if necessary, be broken down State by State taking into account the tonnage indicated in the Annex to this Protocol. Article 7 For the implementation of this Protocol, the Commission is responsible for following the pattern of impor ts into the Member States of petroleum products refined in the Netherlands Antilles. Member States shall communicate to the Commission, which shall see that it is circulated, all useful information to that end in accordance with the administrative conditions recommended by it. C 310/370 Official Journal of the European Union 16.12.2004 EN ANNEX For the implementation of Ar ticle 4(2), the High Contracting Par ties have decided that the quantity of 2 million tonnes of petroleum products from the Antilles shall be allocated among the following Member States as follows: Germany 625 000 tonnes Belgo/Luxembourg Economic Union 200 000 tonnes France 75 000 tonnes Italy 100 000 tonnes Netherlands 1 000 000 tonnes 16.12.2004 Official Journal of the European Union C 310/371 EN 26. PROTOCOL ON THE ACQUISITION OF PROPERTY IN DENMARK THE HIGH CONTRACTING PARTIES, DESIRING to settle cer tain par ticular problems relating to Denmark, HAVE AGREED upon the following provision, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article Notwithstanding the provisions of the Constitution, Denmark may maintain the existing legislation on the acquisition of second homes. C 310/372 Official Journal of the European Union 16.12.2004 EN 27. PROTOCOL ON THE SYSTEM OF PUBLIC BROADCASTING IN THE MEMBER STATES THE HIGH CONTRACTING PARTIES, CONSIDERING that the system of public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preser ve media pluralism, HAVE AGREED UPON the following interpretative provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article The provisions of the Constitution shall be without prejudice to the competence of Member States to provide for the funding of public ser vice broadcasting insofar as such funding is granted to broadcasting organisations for the fulfilment of the public ser vice remit as conferred, defined and organised by each Member State, and insofar as such funding does not affect trading conditions and competition in the Union to an extent which would be contrary to the common interest, while the realisation of the remit of that public ser vice shall be taken into account. 16.12.2004 Official Journal of the European Union C 310/373 EN 28. PROTOCOL CONCERNING ARTICLE III-214 OF THE CONSTITUTION THE HIGH CONTRACTING PARTIES, HAVE AGREED upon the following provision, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article For the purposes of Ar ticle III214 of the Constitution, benefits under occupational social security schemes shall not be considered as remuneration if and insofar as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law. C 310/374 Official Journal of the European Union 16.12.2004 EN 29. PROTOCOL ON ECONOMIC, SOCIAL AND TERRITORIAL COHESION THE HIGH CONTRACTING PARTIES, RECALLING that Ar ticle I3 of the Constitution includes the objective of promoting economic, social and territorial cohesion and solidarity between Member States and that the said cohesion figures among the areas of shared competence of the Union listed in Ar ticle I14(2)(c) of the Constitution; RECALLING that the provisions of Section 3 of Chapter III of Title III of Part III of the Constitution, on economic, social and territorial cohesion as a whole provide the legal basis for consolidating and fur ther developing the Union's action in this field, including the creation of a fund; RECALLING that Ar ticle III223 of the Constitution envisages setting up a Cohesion Fund; NOTING that the European Investment Bank is lending large and increasing amounts for the benefit of the poorer regions; NOTING the desire for greater f lexibility in the arrangements for allocations from the Structural Funds; NOTING the desire for modulation of the levels of Union participation in programmes and projects in certain Member States; NOTING the proposal to take greater account of the relative prosperity of Member States in the system of own resources, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article 1. The Member States reaffirm that the promotion of economic, social and territorial cohesion is vital to the full development and enduring success of the Union. 2. The Member States reaffirm their conviction that the Structural Funds should continue to play a considerable par t in the achievement of Union objectives in the field of cohesion. 3. The Member States reaffirm their conviction that the European Investment Bank should continue to devote the majority of its resources to the promotion of economic, social and territorial cohesion, and declare their willingness to review the capital needs of the European Investment Bank as soon as this is necessary for that purpose. 4. The Member States agree that the Cohesion Fund shall provide Union financial contributions to projects in the fields of environment and transEuropean networks in Member States with a per capita GNP of less than 90 % of the Union average which have a programme leading to the fulfilment of the conditions of economic convergence as set out in Ar ticle III184 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/375 EN 5. The Member States declare their intention of allowing a greater margin of f lexibility in allocating financing from the Structural Funds to specific needs not covered under the present Structural Funds regulations. 6. The Member States declare their willingness to modulate the levels of Union par ticipation in the context of programmes and projects of the Structural Funds, with a view to avoiding excessive increases in budgetary expenditure in the less prosperous Member States. 7. The Member States recognise the need to monitor regularly the progress made towards achieving economic, social and territorial cohesion, and state their willingness to study all necessary measures in this respect. 8. The Member States declare their intention of taking greater account of the contributive capacity of individual Member States in the system of own resources, and of examining means of correcting, for the less prosperous Member States, regressive elements existing in the present own resources system. C 310/376 Official Journal of the European Union 16.12.2004 EN 30. PROTOCOL ON SPECIAL ARRANGEMENTS FOR GREENLAND THE HIGH CONTRACTING PARTIES, HAVE AGREED upon the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Sole article 1. The treatment on impor t into the Union of products subject to the common organisation of the market in fishery products and originating in Greenland shall, while complying with the mechanisms of the common market organisation, involve exemption from customs duties and charges having equivalent effect and the absence of quantitative restrictions or measures having equivalent effect if the possibilities for access to Greenland fishing zones granted to the Union pursuant to an agreement between the Union and the authority responsible for Greenland are satisfactory to the Union. 2. The measures relating to the import arrangements for the products referred to in paragraph 1 shall be adopted in accordance with the procedures laid down in Ar ticle III231 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/377 EN 31. PROTOCOL ON ARTICLE 40.3.3 OF THE CONSTITUTION OF IRELAND THE HIGH CONTRACTING PARTIES HAVE AGREED upon the following provision, which shall be annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: Sole article Nothing in the Treaty establishing a Constitution for Europe or in the Treaties or Acts modifying or supplementing it shall affect the application in Ireland of Ar ticle 40.3.3 of the Constitution of Ireland. C 310/378 Official Journal of the European Union 16.12.2004 EN PROTOCOL RELATING TO ARTICLE I­9(2) OF THE CONSTITUTION ON THE ACCESSION 32. OF THE UNION TO THE EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS THE HIGH CONTRACTING PARTIES HAVE AGREED on the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the `European Convention') provided for in Ar ticle I-9(2) of the Constitution shall make provision for preser ving the specific characteristics of the Union and Union law, in par ticular with regard to: (a) the specific arrangements for the Union's possible par ticipation in the control bodies of the European Convention; (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate. Article 2 The agreement referred to in Ar ticle 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in par ticular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Ar ticle 15 thereof and reser vations to the European Convention made by Member States in accordance with Ar ticle 57 thereof. Article 3 Nothing in the agreement referred to in Ar ticle 1 shall affect Ar ticle III-375(2) of the Constitution. 16.12.2004 Official Journal of the European Union C 310/379 EN 33. PROTOCOL ON THE ACTS AND TREATIES WHICH HAVE SUPPLEMENTED OR AMENDED THE TREAT Y ESTABLISHING THE EUROPEAN COMMUNIT Y AND THE TREAT Y ON EUROPEAN UNION THE HIGH CONTRACTING PARTIES, WHEREAS Ar ticle IV-437(1) of the Constitution repeals the Treaty establishing the European Community and the Treaty on European Union and the Acts and Treaties which have supplemented or amended them; WHEREAS a list should be drawn up of the acts and treaties referred to in Ar ticle IV-437(1); WHEREAS the substance of Ar ticle 9(7) of the Treaty of Amsterdam should be incorporated; RECALLING that the Act of 20 September 1976 concerning the election of representatives of the European Parliament by direct universal suffrage is to remain in force, HAVE AGREED upon the following provisions, which are annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: Article 1 1. The following Acts and Treaties which have supplemented or amended the Treaty establishing the European Community are hereby repealed: (a) the Protocol of 8 April 1965 on the privileges and immunities of the European Communities annexed to the Treaty establishing a single Council and a single Commission (OJ 152, 13.7.1967, p. 13); (b) the Treaty of 22 April 1970 amending cer tain budgetary provisions of the Treaties establishing the European Communities and of the Treaty establishing a single Council and a single Commission of the European Communities (OJ L 2, 2.1.1971, p. 1); (c) the Treaty of 22 July 1975 amending cer tain financial provisions of the Treaties establishing the European Communities and of the Treaty establishing a single Council and a single Commission of the European Communities (OJ L 359, 31.12.1977, p. 4); (d) the Treaty of 10 July 1975 amending cer tain provisions of the Protocol on the Statute of the European Investment Bank (OJ L 91, 6.4.1978, p. 1); (e) the Treaty of 13 March 1984 amending, with regard to Greenland, the Treaties establishing the European Communities (OJ L 29, 1.2.1985, p. 1); (f) the Single European Act of 17 February 1986 and 28 February 1986 (OJ L 169, 29.6.1987, p. 1); C 310/380 Official Journal of the European Union 16.12.2004 EN (g) the Act of 25 March 1993 amending the Protocol on the Statute of the European Investment Bank, empowering the Board of Governors to establish a European Investment Fund (OJ L 173, 7.7.1994, p. 14); (h) Decision 2003/223/EC of the Council, meeting in the composition of the Heads of State or Government, of 21 March 2003 on an amendment to Ar ticle 10.2 of the Statute of the European System of Central Banks and of the European Central Bank (OJ L 83, 1.4.2003, p. 66). 2. The Treaty of Amsterdam of 2 October 1997 amending the Treaty on European Union, the Treaties establishing the European Communities and cer tain related acts is hereby repealed (OJ C 340, 10.11.1997, p. 1). 3. The Treaty of Nice of 26 February 2001 amending the Treaty on European Union, the Treaties establishing the European Communities and cer tain related acts is hereby repealed (OJ C 80, 10.3.2001, p. 1). Article 2 1. Without prejudice to the application of Ar ticle III432 of the Constitution and Ar ticle 189 of the Treaty establishing the European Atomic Energy Community, the representatives of the Governments of the Member States shall adopt by common accord the necessary provisions for the purpose of dealing with cer tain problems par ticular to the Grand Duchy of Luxembourg which arise from the creation of a Single Council and a Single Commission of the European Communities. 2. The Act concerning the election of representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom (OJ L 278, 8.10.1976, p. 1), as it stands at the time of entry into force of the Treaty establishing a Constitution for Europe remains in force. In order to bring it into line with the Constitution, this Act is hereby amended as follows: (a) Ar ticle 1(3) shall be deleted. (b) This amendment does not concern the English text. (c) In Ar ticle 6(2), the words `of 8 April 1965' shall be deleted; and the term `European Communities' shall be replaced by `European Union'. (d) In the second indent of Ar ticle 7(1), the term `Commission of the European Communities' shall be replaced by `European Commission'. (e) In the third indent of Ar ticle 7(1), the phrase `Cour t of Justice of the European Communities or of the Cour t of First Instance' shall be replaced by `Cour t of Justice of the European Union'. (f) In the fifth indent of Ar ticle 7(1), the term `Cour t of Auditors of the European Communities' shall be replaced by `Cour t of Auditors'. (g) In the sixth indent of Ar ticle 7(1), the term `Ombudsman of the European Communities' shall be replaced by `European Ombudsman'. 16.12.2004 Official Journal of the European Union C 310/381 EN (h) In the seventh indent of Ar ticle 7(1), the phrase `of the European Economic Community and of the European Atomic Energy Community' shall be replaced by `of the European Union'. (i) In the ninth indent of Ar ticle 7(1), the phrase `pursuant to the Treaties establishing the European Economic Community and the European Atomic Energy Community' shall be replaced by `pursuant to the Treaty establishing a Constitution for Europe and the Treaty establishing the European Atomic Energy Community'; and the term `Communities'' shall be replaced by `Union's'. (j) In the eleventh indent of Ar ticle 7(1), the phrase `institutions of the European Communities or of the specialised bodies attached to them or of the European Central Bank' shall be replaced by `institutions, bodies, offices or agencies of the European Union'. (k) The indents of Ar ticle 7(1) shall become points (a) to (k) respectively. (l) The indents of the second subparagraph of Ar ticle 7(2) shall become points (a) and (b) respectively. (m) In the second subparagraph of Ar ticle 11(2), the term `Community' shall be replaced by `Union'; the word `determine' shall be replaced by `adopt a European decision which shall determine'; and the words `preceding subparagraph' shall be replaced by `first subparagraph'. (n) In Ar ticle 11(3), the phrase `without prejudice to Ar ticle 139 of the Treaty establishing the European Community' shall be replaced by `without prejudice to Ar ticle III336 of the Constitution'. (o) In Ar ticle 14, the term `a proposal' shall be replaced by `an initiative'; and the phrase `adopt such measures' shall be replaced by `adopt the necessary European regulations or decisions'. C 310/382 Official Journal of the European Union 16.12.2004 EN 34. PROTOCOL ON THE TRANSITIONAL PROVISIONS RELATING TO THE INSTITUTIONS AND BODIES OF THE UNION THE HIGH CONTRACTING PARTIES, WHEREAS, in order to organise the transition from the European Union established by the Treaty on European Union and the European Community to the European Union established by the Treaty establishing a Constitution for Europe which is their successor, it is necessary to lay down transitional provisions which will apply before all the provisions of the Constitution and the instruments necessary for their implementation take full effect, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and to the Treaty establishing the European Atomic Energy Community: TITLE I PROVISIONS CONCERNING THE EUROPEAN PARLIAMENT Article 1 1. In accordance with the second subparagraph of Ar ticle I20(2) of the Constitution, the European Council shall adopt a European decision determining the composition of the European Parliament sufficiently in advance of the 2009 European Parliament elections. 2. During the 20042009 parliamentary term, the composition and the number of representatives elected to the European Parliament in each Member State shall remain the same as on the date of the entry into force of the Treaty establishing a Constitution for Europe, the number of representatives being as follows: Belgium 24 Czech Republic 24 Denmark 14 Germany 99 Estonia 6 Greece 24 Spain 54 France 78 Ireland 13 Italy 78 Cyprus 6 Latvia 9 Lithuania 13 16.12.2004 Official Journal of the European Union C 310/383 EN Luxembourg 6 Hungary 24 Malta 5 Netherlands 27 Austria 18 Poland 54 Por tugal 24 Slovenia 7 Slovakia 14 Finland 14 Sweden 19 United Kingdom 78 TITLE II PROVISIONS CONCERNING THE EUROPEAN COUNCIL AND THE COUNCIL Article 2 1. The provisions of Ar ticle I25(1), (2) and (3) of the Constitution on the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2009, after the 2009 European Parliament elections have taken place in accordance with Ar ticle I20(2) of the Constitution. 2. The following provisions shall remain in force until 31 October 2009, without prejudice to Ar ticle I25(4) of the Constitution. For acts of the European Council and of the Council requiring a qualified majority, members' votes shall be weighted as follows: Belgium 12 Czech Republic 12 Denmark 7 Germany 29 Estonia 4 Greece 12 Spain 27 France 29 Ireland 7 C 310/384 Official Journal of the European Union 16.12.2004 EN Italy 29 Cyprus 4 Latvia 4 Lithuania 7 Luxembourg 4 Hungary 12 Malta 3 Netherlands 13 Austria 10 Poland 27 Por tugal 12 Slovenia 4 Slovakia 7 Finland 7 Sweden 10 United Kingdom 29 Acts shall be adopted if there are at least 232 votes in favour representing a majority of the members where, under the Constitution, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 232 votes in favour representing at least two thirds of the members. A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62 % of the total population of the Union. If that proves not to be the case, the act shall not be adopted. 3. For subsequent accessions, the threshold referred to in paragraph 2 shall be calculated to ensure that the qualified majority threshold expressed in votes does not exceed that resulting from the table in the Declaration on the enlargement of the European Union in the Final Act of the Conference which adopted the Treaty of Nice. 4. The provisions of the following Ar ticles shall take effect on 1 November 2009: -- Ar ticle I44(3), third, four th and fifth subparagraphs, of the Constitution, -- Ar ticle I59(5), second and third subparagraphs, of the Constitution, -- Ar ticle I60(4), second subparagraph, of the Constitution, -- Ar ticle III179(4), third and four th subparagraphs, of the Constitution, 16.12.2004 Official Journal of the European Union C 310/385 EN -- Ar ticle III184(6), third and four th subparagraphs, of the Constitution, -- Ar ticle III184(7), third and four th subparagraphs, of the Constitution, -- Ar ticle III194(2), second and third subparagraphs, of the Constitution, -- Ar ticle III196(3), second and third subparagraphs, of the Constitution, -- Ar ticle III197(4), second and third subparagraphs, of the Constitution, -- Ar ticle III198(2), third subparagraph, of the Constitution, -- Ar ticle III312(3), third and four th subparagraphs, of the Constitution, -- Ar ticle III312(4), third and four th subparagraphs, of the Constitution, -- Ar ticle 1, second, third and four th paragraphs, and Ar ticle 3(1), second, third and four th subparagraphs, of the Protocol on the position of the United Kingdom and Ireland on policies in respect of border controls, asylum and immigration, judicial cooperation in civil matters and on police cooperation, -- Ar ticle 1, second, third and four th paragraphs and Ar ticle 5, third, four th and fifth paragraphs, of the Protocol on the position of Denmark. Until 31 October 2009, the qualified majority shall, in cases where not all the members of the Council par ticipate in voting, namely in the cases referred to in the ar ticles mentioned in the first subparagraph, be defined as the same propor tion of the weighted votes and the same propor tion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 2. Article 3 Until the entry into force of the European decision referred to in Ar ticle I24(4) of the Constitution, the Council may meet in the configurations laid down in Ar ticle I24(2) and (3) and in the other configurations on the list established by a European decision of the General Affairs Council, acting by a simple majority. TITLE III PROVISIONS CONCERNING THE COMMISSION, INCLUDING THE UNION MINISTER FOR FOREIGN AFFAIRS Article 4 The members of the Commission in office on the date of entry into force of the Treaty establishing a Constitution for Europe shall remain in office until the end of their term of office. However, on the day of the appointment of the Union Minister for Foreign Affairs, the term of office of the member having the same nationality as the Union Minister for Foreign Affairs shall end. C 310/386 Official Journal of the European Union 16.12.2004 EN TITLE IV PROVISIONS CONCERNING THE SECRETARY-GENERAL OF THE COUNCIL, HIGH REPRESENTATIVE FOR THE COMMON FOREIGN AND SECURIT Y POLICY, AND THE DEPUT Y SECRETARY-GENERAL OF THE COUNCIL Article 5 The terms of office of the SecretaryGeneral of the Council, High Representative for the common foreign and security policy, and the Deputy SecretaryGeneral of the Council shall end on the date of entry into force of the Treaty establishing a Constitution for Europe. The Council shall appoint a SecretaryGeneral in conformity with Ar ticle III344(2) of the Constitution. TITLE V PROVISIONS CONCERNING ADVISORY BODIES Article 6 Until entry into force of the European decision referred to in Ar ticle III386 of the Constitution, the allocation of members of the Committee of the Regions shall be as follows: Belgium 12 Czech Republic 12 Denmark 9 Germany 24 Estonia 7 Greece 12 Spain 21 France 24 Ireland 9 Italy 24 Cyprus 6 Latvia 7 Lithuania 9 Luxembourg 6 Hungary 12 Malta 5 16.12.2004 Official Journal of the European Union C 310/387 EN Netherlands 12 Austria 12 Poland 21 Por tugal 12 Slovenia 7 Slovakia 9 Finland 9 Sweden 12 United Kingdom 24 Article 7 Until entry into force of the European decision referred to in Ar ticle III389 of the Constitution, the allocation of members of the Economic and Social Committee shall be as follows: Belgium 12 Czech Republic 12 Denmark 9 Germany 24 Estonia 7 Greece 12 Spain 21 France 24 Ireland 9 Italy 24 Cyprus 6 Latvia 7 Lithuania 9 Luxembourg 6 Hungary 12 Malta 5 Netherlands 12 Austria 12 Poland 21 C 310/388 Official Journal of the European Union 16.12.2004 EN Portugal 12 Slovenia 7 Slovakia 9 Finland 9 Sweden 12 United Kingdom 24 16.12.2004 Official Journal of the European Union C 310/389 EN 35. PROTOCOL ON THE FINANCIAL CONSEQUENCES OF THE EXPIRY OF THE TREAT Y ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNIT Y AND ON THE RESEARCH FUND FOR COAL AND STEEL THE HIGH CONTRACTING PARTIES, RECALLING that all assets and liabilities of the European Coal and Steel Community, as they existed on 23 July 2002, were transferred to the European Community on 24 July 2002; TAKING ACCOUNT of the desire to use these funds for research in sectors related to the coal and steel industry and therefore the necessity to provide for cer tain special rules in this regard, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe: Article 1 1. The net worth of the assets and liabilities of the European Coal and Steel Community, as they appear in the balance sheet of the European Coal and Steel Community of 23 July 2002, subject to any increase or decrease which may occur as a result of the liquidation operations, shall be considered as Union assets intended for research in sectors related to the coal and steel industry, referred to as the `European Coal and Steel Community in liquidation'. On completion of the liquidation they shall be referred to as the `Assets of the Research Fund for Coal and Steel'. 2. The revenue from these assets, referred to as the `Research Fund for Coal and Steel', shall be used exclusively for research, outside the research framework programme, in sectors related to the coal and steel industry in accordance with this Protocol and with acts adopted under it. Article 2 1. A European law of the Council shall lay down all the necessary provisions for the implementation of this Protocol, including essential principles. The Council shall act after obtaining the consent of the European Parliament. C 310/390 Official Journal of the European Union 16.12.2004 EN 2. The Council shall adopt, on a proposal from the Commission, the European regulations or decisions establishing multiannual financial guidelines for managing the assets of the Research Fund for Coal and Steel and technical guidelines for the research programme of the Research Fund for Coal and Steel. It shall act after consulting the European Parliament. Article 3 Except as other wise provided in this Protocol and in the acts adopted under it, the provisions of the Constitution shall apply. 16.12.2004 Official Journal of the European Union C 310/391 EN 36. PROTOCOL AMENDING THE TREAT Y ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNIT Y THE HIGH CONTRACTING PARTIES, RECALLING the necessity that the provisions of the Treaty establishing the European Atomic Energy Community should continue to have full legal effect; DESIRING to adapt that Treaty to the new rules laid down by the Treaty establishing a Constitution for Europe, in par ticular in the institutional and financial fields, HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty establishing a Constitution for Europe and which amend the Treaty establishing the European Atomic Energy Community as follows: Article 1 This Protocol shall amend the Treaty establishing the European Atomic Energy Community (hereinafter referred to as the `EAEC Treaty') in its version in force at the time of entry into force of the Treaty establishing a Constitution for Europe. Notwithstanding the provisions of Ar ticle IV-437 of the Treaty establishing a Constitution for Europe and without prejudice to the other provisions of this Protocol, the legal effects of the amendments made to the EAEC Treaty by the Treaties and Acts repealed pursuant to Ar ticle IV437 of the Treaty establishing a Constitution for Europe and the legal effects of the acts in force adopted on the basis of the EAEC Treaty shall not be affected. Article 2 The heading of Title III of the EAEC Treaty `Institutional provisions' shall be replaced by the heading: `Institutional and financial provisions'. Article 3 The following chapter shall be inser ted at the beginning of Title III of the EAEC Treaty: `CHAPTER I APPLICATION OF CERTAIN PROVISIONS OF THE TREAT Y ESTABLISHING A CONSTITUTION FOR EUROPE Article 106a 1. Ar ticles I-19 to I-29, Ar ticles I-31 to I-39, Ar ticles I-49 and I-50, Ar ticles I-53 to I-56, Ar ticles I- 58 to I-60, Ar ticles III-330 to III-372, Ar ticles III-374 and III-375, Ar ticles III-378 to III-381, Ar ticles III-384 and III-385, Ar ticles III-389 to III-392, Ar ticles III-395 to III-410, C 310/392 Official Journal of the European Union 16.12.2004 EN Articles III-412 to III-415 and Ar ticles III-427, III-433, IV-439 and IV-443 of the Treaty establishing a Constitution for Europe shall apply to this Treaty. 2. Within the framework of this Treaty, the references to the Union and to the Constitution in the provisions referred to in paragraph 1 and those in the protocols annexed both to the Treaty establishing a Constitution for Europe and to this Treaty shall be taken, respectively, as references to the European Atomic Energy Community and to this Treaty. 3. The provisions of the Treaty establishing a Constitution for Europe shall not derogate from the provisions of this Treaty.' Article 4 Chapters I, II and III of Title III of the EAEC Treaty shall be renumbered II, III and IV. Article 5 1. Ar ticle 3, Ar ticles 107 to 132, Ar ticles 136 to 143, Ar ticles 146 to 156, Ar ticles 158 to 163, Ar ticles 165 to 170, Ar ticles 173 and 173A, Ar ticle 175, Ar ticles 177 to 179a, and Ar ticles 180b, 181, 183, 183A, 190 and 204 of the EAEC Treaty shall be repealed. 2. The Protocols previously annexed to the EAEC Treaty shall be repealed. Article 6 The heading of Title IV of the EAEC Treaty `Financial provisions' shall be replaced by the heading: `Specific financial provisions'. Article 7 1. In the third paragraph of Ar ticle 38 and the third paragraph of Ar ticle 82 of the EAEC Treaty the references to Ar ticles 141 and 142 shall be replaced by references to Ar ticles III-360 and III-361 respectively of the Constitution. 2. In Ar ticle 171(2) and Ar ticle 176(3) of the EAEC Treaty the references to Ar ticle 183 shall be replaced by references to Ar ticle III-412 of the Constitution. 3. In Ar ticle 172(4) of the EAEC Treaty the reference to Ar ticle 177(5) shall be replaced by a reference to Ar ticle III-404 of the Constitution. 4. In Ar ticles 38, 82, 96 and 98 of the EAEC Treaty the term `directive' shall be replaced by the term `European regulation'. 5. In the EAEC Treaty the term `decision' shall be replaced by `European decision' save in Ar ticles 18, 20 and 23 and the first paragraph of Ar ticle 53 and in cases where a decision is taken by the Cour t of Justice of the European Union. 16.12.2004 Official Journal of the European Union C 310/393 EN 6. In the EAEC Treaty the term `Cour t of Justice' shall be replaced by `Cour t of Justice of the European Union'. Article 8 Ar ticle 191 of the EAEC Treaty shall be replaced by the following: `Article 191 The Community shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Union.' Article 9 Ar ticle 198 of the EAEC Treaty shall be replaced by the following: `Article 198 Save as other wise provided, the provisions of this Treaty shall apply to the European territories of the Member States and to the nonEuropean territories under their jurisdiction. They shall also apply to the European territories for whose external relations a Member State is responsible. The provisions of this Treaty shall apply to the Ĺland Islands with the derogations which were originally set out in the Treaty referred to in Ar ticle IV-437(2)(d) of the Treaty establishing a Constitution for Europe and which have been incorporated in the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. Notwithstanding the first, second and third paragraphs: (a) this Treaty shall not apply to the Faroe Islands or to Greenland; (b) this Treaty shall not apply to the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus; (c) this Treaty shall not apply to the overseas countries and territories having special relations with the United Kingdom of Great Britain and Nor thern Ireland which are not mentioned in the list in Annex II to the Treaty establishing a Constitution for Europe; (d) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands originally set out in the Treaty referred to in Ar ticle IV-437(2)(a) of the Treaty establishing a Constitution for Europe and which have been incorporated in the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic C 310/394 Official Journal of the European Union 16.12.2004 EN Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.' Article 10 Ar ticle 206 of the EAEC Treaty shall be replaced by the following: `Article 206 The Community may conclude with one or more States or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedures. These agreements shall be concluded by the Council, acting unanimously after consulting the European Parliament. Where such agreements call for amendments to this Treaty, these amendments shall first be adopted in accordance with the procedure laid down in Ar ticle IV443 of the Treaty establishing a Constitution for Europe.' Article 11 In Ar ticle 225 of the EAEC Treaty, the second paragraph shall be replaced by the following: `The Czech, Danish, English, Estonian, Finnish, Greek, Hungarian, Irish, Latvian, Lithuanian, Maltese, Polish, Por tuguese, Slovak, Slovenian, Spanish and Swedish versions of the Treaty shall also be authentic.' Article 12 The revenue and expenditure of the European Atomic Energy Community, except for those of the Supply Agency and Joint Under takings, shall be shown in the budget of the Union. 16.12.2004 Official Journal of the European Union C 310/395 EN ANNEXES B. TO THE TREAT Y ESTABLISHING A CONSTITUTION FOR EUROPE C 310/396 Official Journal of the European Union 16.12.2004 EN ANNEX I LIST REFERRED TO IN ARTICLE III226 OF THE CONSTITUTION 1 -- Number in the Combined Nomenclature 2 -- Description of products CHAPTER 1 Live animals CHAPTER 2 Meat and edible meat offal CHAPTER 3 Fish, crustaceans and molluscs CHAPTER 4 Dairy produce; birds' eggs; natural honey CHAPTER 5 0504 Guts, bladders and stomachs of animals (other than fish), whole and pieces thereof 0515 Animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption CHAPTER 6 Live trees and other plants; bulbs, roots and the like; cut f lowers and ornamental foliage CHAPTER 7 Edible vegetables and cer tain roots and tubers CHAPTER 8 Edible fruit and nuts; peel of melons or citrus fruit CHAPTER 9 C of fe e , te a a n d s p i c e s , e xc l ud i ng m a té (heading 0903) CHAPTER 10 Cereals CHAPTER 11 Products of the milling industry; malt and starches; gluten; inulin CHAPTER 12 Oil seeds and oleaginous fruit; miscellaneous grains, seeds and fruit; industrial and medical plants; straw and fodder CHAPTER 13 ex 1303 Pectin 16.12.2004 Official Journal of the European Union C 310/397 EN 1 -- Number in the Combined Nomenclature 2 -- Description of products CHAPTER 15 1501 Lard and other rendered pig fat; rendered poultry fat 1502 Unrendered fats of bovine cattle, sheep or goats; tallow (including `premier jus') produced from those fats 1503 Lard stearin, oleostearin and tallow stearin; lard oil, oleo-oil and tallow oil, not emulsified or mixed or prepared in any way 1504 Fats and oil, of fish and marine mammals, whether or not refined 1507 Fixed vegetable oils, f luid or solid, crude, refined or purified 1512 Animal or vegetable fats and oils, hydroge- nated, whether or not refined, but not fur ther prepared 1513 Margarine, imitation lard and other prepared edible fats 1517 Residues resulting from the treatment of fatty substances or animal or vegetable waxes CHAPTER 16 Preparations of meat, of fish, of crustaceans or molluscs CHAPTER 17 1701 Beet sugar and cane sugar, solid 1702 Other sugars; sugar syrups; ar tificial honey (whether or not mixed with natural honey); caramel 1703 Molasses, whether or not decolorised 1705 (*) Flavoured or coloured sugars, syrups and molasses, but not including fruit juices con- taining added sugar in any propor tion C 310/398 Official Journal of the European Union 16.12.2004 EN 1 -- Number in the Combined Nomenclature 2 -- Description of products CHAPTER 18 1801 Cocoa beans, whole or broken, raw or roasted 1802 Cocoa shells, husks, skins and waste CHAPTER 20 Preparations of vegetables, fruit or other par ts of plants CHAPTER 22 2204 Grape must, in fermentation or with fermen- tation arrested other wise than by the addition of alcohol 2205 Wine of fresh grapes; gra pe must with fer mentation ar rested by the addition of alcohol 2207 Other fermented beverages (for example, cider, perry and mead) ex 2208 (*) Ethyl alcohol or neutral spirits, whether or not ex 2209 (*) denatured, of any strength, obtained from agricultural products listed in this Annex, excluding liqueurs and other spirituous bev- erages and compound alcoholic preparations (known as `concentrated extracts') for the manufacture of beverages ex 2210 (*) Vinegar and substitutes for vinegar CHAPTER 23 Residues and waste from the food industries; prepared animal fodder CHAPTER 24 2401 Unmanufactured tobacco, tobacco refuse CHAPTER 45 4501 Natural cork, unworked, crushed, granulated or ground; waste cork 16.12.2004 Official Journal of the European Union C 310/399 EN 1 -- Number in the Combined Nomenclature 2 -- Description of products CHAPTER 54 5401 Flax, raw or processed but not spun; f lax tow and waste (including pulled or garnetted rags) CHAPTER 57 5701 True hemp (Cannabis sativa), raw or processed but not spun; tow and waste of true hemp (including pulled or garnetted rags or ropes) (*) Heading added by Ar ticle 1 of Regulation No 7a of the Council of the European Economic Community of 18 December 1959 (OJ 7, 30.1.1961, p. 71. Special edition (English edition) 1959-- 1962, p. 68). C 310/400 Official Journal of the European Union 16.12.2004 EN ANNEX II OVERSEAS COUNTRIES AND TERRITORIES TO WHICH TITLE IV OF PART III OF THE CONSTITUTION APPLIES -- Greenland -- New Caledonia and Dependencies -- French Polynesia -- French Southern and Antarctic Territories -- Wallis and Futuna Islands -- Mayotte -- Saint Pierre and Miquelon -- Aruba -- Netherlands Antilles: -- Bonaire -- Curaçao -- Saba -- Sint Eustatius -- Sint Maar ten -- Anguilla -- Cayman Islands -- Falkland Islands -- South Georgia and the South Sandwich Islands -- Montserrat -- Pitcairn -- Saint Helena and Dependencies -- British Antarctic Territory -- British Indian Ocean Territory -- Turks and Caicos Islands -- British Virgin Islands -- Bermuda 16.12.2004 Official Journal of the European Union C 310/401 EN FINAL ACT 16.12.2004 Official Journal of the European Union C 310/403 EN THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES, convened in Brussels on 30 September 2003 to adopt by common accord the Treaty establishing a Constitution for Europe, has adopted the following texts: I. Treaty establishing a Constitution for Europe II. Protocols annexed to the Treaty establishing a Constitution for Europe 1. Protocol on the role of national Parliaments in the European Union 2. Protocol on the application of the principles of subsidiarity and propor tionality 3. Protocol on the Statute of the Cour t of Justice of the European Union 4. Protocol on the Statute of the European System of Central Banks and of the European Central Bank 5. Protocol on the Statute of the European Investment Bank 6. Protocol on the location of the seats of the institutions and of cer tain bodies, offices, agencies and depar tments of the European Union 7. Protocol on the privileges and immunities of the European Union 8. Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden 9. Protocol on the Treaty and the Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic 10. Protocol on the excessive deficit procedure 11. Protocol on the convergence criteria 12. Protocol on the Euro Group 13. Protocol on cer tain provisions relating to the United Kingdom of Great Britain and Nor thern Ireland as regards economic and monetary union C 310/404 Official Journal of the European Union 16.12.2004 EN 14. Protocol on cer tain provisions relating to Denmark as regards economic and monetary union 15. Protocol on cer tain tasks of the National Bank of Denmark 16. Protocol on the Pacific Financial Community franc system 17. Protocol on the Schengen acquis integrated into the framework of the European Union 18. Protocol on the application of cer tain aspects of Ar ticle III-130 of the Constitution to the United Kingdom and to Ireland 19. Protocol on the position of the United Kingdom and Ireland on policies in respect of border controls, asylum and immigration, judicial cooperation in civil matters and on police cooperation 20. Protocol on the position of Denmark 21. Protocol on external relations of the Member States with regard to the crossing of external borders 22. Protocol on asylum for nationals of Member States 23. Protocol on permanent structured cooperation established by Ar ticle I-41(6) and Ar ticle III-312 of the Constitution 24. Protocol on Ar ticle I-41(2) of the Constitution 25. Protocol concerning impor ts into the European Union of petroleum products refined in the Netherlands Antilles 26. Protocol on the acquisition of proper ty in Denmark 27. Protocol on the system of public broadcasting in the Member States 28. Protocol concerning Ar ticle III-214 of the Constitution 29. Protocol on economic, social and territorial cohesion 30. Protocol on special arrangements for Greenland 31. Protocol on Ar ticle 40.3.3 of the Constitution of Ireland 32. Protocol relating to Ar ticle I-9(2) of the Constitution on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms 16.12.2004 Official Journal of the European Union C 310/405 EN 33. Protocol on the Acts and Treaties which have supplemented or amended the Treaty establishing the European Community and the Treaty on European Union 34. Protocol on the transitional provisions relating to the institutions and bodies of the Union 35. Protocol on the financial consequences of the expiry of the Treaty establishing the European Coal and Steel Community and on the Research Fund for Coal and Steel 36. Protocol amending the Treaty establishing the European Atomic Energy Community III. Annexes to the Treaty establishing a Constitution for Europe: 1. Annex I -- List referred to in Ar ticle III-226 of the Constitution 2. Annex II -- Overseas countries and territories to which Title IV of Par t III of the Constitution applies The Conference has adopted the following declarations annexed to this Final Act. A. Declarations concerning provisions of the Constitution 1. Declaration on Ar ticle I-6 2. Declaration on Ar ticle I-9(2) 3. Declaration on Ar ticles I-22, 1-27 and 1-28 4. Declaration on Ar ticle I-24(7) concerning the European Council decision on the exercise of the Presidency of the Council 5. Declaration on Ar ticle I-25 6. Declaration on Ar ticle I-26 7. Declaration on Ar ticle I-27 8. Declaration on Ar ticle I-36 9. Declaration on Ar ticles I-43 and III-329 10. Declaration on Ar ticle I-51 11. Declaration on Ar ticle I-57 12. Declaration concerning the explanations relating to the Char ter of Fundamental Rights C 310/406 Official Journal of the European Union 16.12.2004 EN 13. Declaration on Ar ticle III-116 14. Declaration on Ar ticles III-136 and III-267 15. Declaration on Ar ticles III-160 and III-322 16. Declaration on Ar ticle III-167(2)(c) 17. Declaration on Ar ticle III-184 18. Declaration on Ar ticle III-213 19. Declaration on Ar ticle III-220 20. Declaration on Ar ticle III-243 21. Declaration on Ar ticle III-248 22. Declaration on Ar ticle III-256 23. Declaration on Ar ticle III-273(1), second subparagraph 24. Declaration on Ar ticle III-296 25. Declaration on Ar ticle III-325 concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice 26. Declaration on Ar ticle III-402(4) 27. Declaration on Ar ticle III-419 28. Declaration on Ar ticle IV-440(7) 29. Declaration on Ar ticle IV-448(2) 30. Declaration on the ratification of the Treaty establishing a Constitution for Europe B. Declarations concerning Protocols annexed to the Constitution Declarations concerning the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden 31. Declaration on the Ĺland islands 32. Declaration on the Sami people 16.12.2004 Official Journal of the European Union C 310/407 EN Declarations concerning the Protocol on the Treaty and the Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic 33. Declaration on the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus 34. Declaration by the Commission on the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus 35. Declaration on the Ignalina Nuclear Power Plant in Lithuania 36. Declaration on the transit of persons by land between the region of Kaliningrad and other par ts of the Russian Federation 37. Declaration on Unit 1 and Unit 2 of the Bohunice V1 nuclear power plant in Slovakia 38. Declaration on Cyprus 39. Declaration concerning the Protocol on the position of Denmark 40. Declaration concerning the Protocol on the transitional provisions relating to the institutions and bodies of the Union 41. Declaration concerning Italy Fur thermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act: 42. Declaration by the Kingdom of the Netherlands on Ar ticle I-55 43. Declaration by the Kingdom of the Netherlands on Ar ticle IV-440 44. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden 45. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Nor thern Ireland 46. Declaration by the United Kingdom of Great Britain and Nor thern Ireland on the definition of the term `nationals' 47. Declaration by the Kingdom of Spain on the definition of the term `nationals' C 310/408 Official Journal of the European Union 16.12.2004 EN 48. Declaration by the United Kingdom of Great Britain and Nor thern Ireland on the franchise for elections to the European Parliament 49. Declaration by the Kingdom of Belgium on national parliaments 50. Declaration by the Republic of Latvia and the Republic of Hungary on the spelling of the name of the single currency in the Treaty establishing a Constitution for Europe. 16.12.2004 Official Journal of the European Union C 310/409 EN Hecho en Roma, el veintinueve de octubre del dos mil cuatro. V ím dne dvacátého devátého íjna dva tisíce ctyi Udfćrdiget i Rom den niogtyvende oktober to tusind og fire. Geschehen zu Rom am neunundzwanzigsten Oktober zweitausendundvier. Kahe tuhande neljanda aasta oktoobrikuu kahekümne üheksandal päeval Roomas , . Done at Rome on the twentyninth day of October in the year two thousand and four. Fait ŕ Rome, le vingtneuf octobre deux mille quatre. Arna dhéanamh sa Róimh, an naoú lá fichead de Dheireadh Fómhair sa bhliain dhá mhíle is a ceathair Fatto a Roma, addi' ventinove ottobre duemilaquattro. Rom, divi tkstosi cetur t gada divdesmit devtaj oktobr Priimta du tkstanciai ketvir t met spalio dvidesimt devint dien Romoje Kelt Rómában, a kétezer-negyedik év október havának huszonkilencedik napján Magmul f'Ruma fid-disa' u goxrin jum ta' Ottubru tas-sena elfejn u erbga Gedaan te Roma, de negenentwintigste oktober tweeduizendvier. Sporzdzono w Rzymie dnia dwudziestego dziewitego padziernika roku dwutysicznego czwar tego Feito em Roma, em vinte e nove de Outubro de dois mil e quatro V Ríme dvadsiatehodeviateho októbra dvetisícstyri V Rimu, devetindvajsetega oktobra leta dva tisoc stiri Te h t y R o o m a s s a k a h d e n t e n a k y m m e n e n t e n ä y h d e k s ä n t e n ä p ä i v ä n ä l o k a k u u t a v u o n n a kaksituhattaneljä. Som skedde i Rom den tjugonionde oktober tjugohundrafyra. C 310/410 Official Journal of the European Union 16.12.2004 EN Pour Sa Majesté le Roi des Belges Voor Zijne Majesteit de Koning der Belgen Für Seine Majestät den König der Belgier Cette signature engage également la Communauté française, la Communauté f lamande, la Communauté germanophone, la Région wallonne, la Région f lamande et la Région de Bruxelles-Capitale. Deze handtekening verbindt eveneens de Vlaamse Gemeenschap, de Franse Gemeenschap, de Duitstalige Gemeenschap, het Vlaamse Gewest, het Waalse Gewest en het Brussels Hoofdstedelijk Gewest. Diese Unterschrift bindet zugleich die Deutschsprachige Gemeinschaft, die Flämische Gemeinschaft, die Französische Gemeinschaft, die Wallonische Region, die Flämische Region und die Region Brüssel-Hauptstadt. Za prezidenta Ceské republiky For Hendes Majestćt Danmarks Dronning 16.12.2004 Official Journal of the European Union C 310/411 EN Für den Präsidenten der Bundesrepublik Deutschland Eesti Vabariigi Presidendi nimel Por Su Majestad el Rey de Espańa C 310/412 Official Journal of the European Union 16.12.2004 EN Pour le Président de la République française Thar ceann Uachtarán na hÉireann For the President of Ireland Per il Presidente della Repubblica italiana 16.12.2004 Official Journal of the European Union C 310/413 EN Latvas Republikas Valsts prezidentes vrd Lietuvos Respublikos Prezidento vardu C 310/414 Official Journal of the European Union 16.12.2004 EN Pour Son Altesse Royale le Grand-Duc de Luxembourg A Magyar Köztársaság Elnöke részérl Gall-President ta' Malta 16.12.2004 Official Journal of the European Union C 310/415 EN Voor Hare Majesteit de Koningin der Nederlanden Für den Bundespräsidenten der Republik Österreich Za Prezydenta Rzeczypospolitej Polskiej C 310/416 Official Journal of the European Union 16.12.2004 EN Pelo Presidente da República Por tuguesa Za predsednika Republike Slovene Za prezidenta Slovenskej republiky 16.12.2004 Official Journal of the European Union C 310/417 EN Suomen Tasavallan Presidentin puolesta För Republiken Finlands President För Konungariket Sveriges regering For Her Majesty the Queen of the United Kingdom of Great Britain and Nor thern Ireland C 310/418 Official Journal of the European Union 16.12.2004 EN Han firmado asimismo la presente Acta final, en su condición de Estados candidatos a la adhesión a la Unión Europea, obser vadores ante la Conferencia: Tento závrecný akt rovnz podepsali pozorovatelé pi Konferenci, jakozto státy kandidující na pistoupení k Evropské unii: Fřlgende obser vatřrer ved konferencen har ligeledes under tegnet denne slutakt i deres egenskab af kandidatstater til Den Europćiske Union: Als Beobachter bei der Konferenz haben in ihrer Eigenschaft als Kandidaten für den Beitritt zur Europäischen Union ferner diese Schlussakte unterzeichnet: Käesoleva lőppakti on allkirjastanud Euroopa Liidu kandidaatriikide esindajatena ka konverentsi vaatlejad: , , : The following have also signed this Final Act, in their capacity as candidate States for accession to the European Union, having been obser vers to the Conference: Ont également signé le présent acte final, en leur qualité d'États candidats ŕ l'adhésion de l'Union européenne, obser vateurs auprčs de la Conférence: Shínigh na breathnóirí seo a leanas ag an gComhdháil an Ionstraim Chríochnaítheach seo freisin ina gcáil mar Stáit iarrthacha don Aontas Eorpach: Hanno altresě firmato il presente atto finale, in qualitŕ di Stati candidati all'Unione europea, osser vatori nella Conferenza So Nobeiguma aktu k Eiropas Savienbas pievienosans kandidtvalstu vadtji ir parakstjusi ar sdi Konferences novrotji: Baigiamj akt taip pat pasiraso Europos Sjung stojancios valstybs kandidats, Konferencijos stebtojos: Ezt az záróokmányt a Európai Unió tagjelölt államaiként, amelyek a Konferencián megfigyelként vettek részt, a következk is aláír ták: Iffirmaw ukoll dan l-Att Finali, fil-kapaitŕ taghom ta' Stati kandidati ta' l-Unjoni Ewropea, bala osser vaturi gall-Konferenza: Deze Slotakte is tevens onder tekend door de volgende kandidaat-lidstaten van de Europese Unie, waarnemers bij de Conferentie: Niniejszy Akt Kocowy zostal równie podpisany przez Pastwa kandydujce do przystpienia do Unii Europejskiej, bdce obser watorami przy Konferencji: Assinaram igualmente a presente Acta Final, na qualidade de Estados candidatos ŕ adesăo ŕ Uniăo Europeia, obser vadores na Conferęncia: V postavení státov uchádzajúcich sa o pristúpenie k Európskej únii a v postavení pozorovateov na konferencii podpísali tento záverecný akt: To sklepno listino so kot drzave kandidatke za pristop k Evropski uniji in kot opazovalke Konference, podpisali tudi Tämän päätösasiakirjan ovat Euroopan unionin jäsenehdokasvaltioina allekirjoittaneet myös konferenssiin tarkkailijoina osallistuneet: Nedanstĺende obser vatörer vid konferensen har, i sin egenskap av kandidatstater inför anslutning till Europeiska unionen, likaledes under tecknat denna slutakt: 16.12.2004 Official Journal of the European Union C 310/419 EN a Pe Pentru România Türkiye Cumhuriyeti Adina C 310/420 Official Journal of the European Union 16.12.2004 EN A. DECL ARATIONS CONCERNING PROVISIONS OF THE CONSTITUTION Declaration on Article I-6 1. The Conference notes that Ar ticle I-6 ref lects existing case-law of the Cour t of Justice of the European Communities and of the Cour t of First Instance. Declaration on Ar ticle I-9(2) 2. The Conference agrees that the Union's accession to the European Convention on the Protection of Human Rights and Fundamental Freedoms should be arranged in such a way as to preser ve the specific features of Union law. In this connection, the Conference notes the existence of a regular dialogue between the Cour t of Justice of the European Union and the European Cour t of Human Rights; such dialogue could be reinforced when the Union accedes to that Convention. Declaration on Ar ticles I-22, I-27 and I-28 3. In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and Union Minister for Foreign Affairs, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States. Declaration on Ar ticle I-24(7) concerning the European Council decision on the 4. exercise of the Presidency of the Council The Conference declares that the Council should begin preparing the European decision establishing the measures for applying the European decision of the European Council on the exercise of the Presidency of the Council as soon as the Treaty establishing a Constitution for Europe is signed and should give its political approval within six months. A draft European decision of the European Council, which will be adopted on the date of entry into force of the said Treaty, is set out below: DRAFT EUROPEAN DECISION OF THE EUROPEAN COUNCIL ON THE EXERCISE OF THE PRESIDENCY OF THE COUNCIL Article 1 1. The Presidency of the Council, with the exception of the Foreign Affairs configuration, shall be held by pre-established groups of three Member States for a period of 18 months. The groups shall be made up on a basis of equal rotation among the Member States, taking into account their diversity and geographical balance within the Union. 2. Each member of the group shall in turn chair for a six-month period all configurations of the Council, with the exception of the Foreign Affairs configuration. The other members of the group shall assist the Chair in all its responsibilities on the basis of a common programme. Members of the team may decide alternative arrangements among themselves. 16.12.2004 Official Journal of the European Union C 310/421 EN Article 2 The Committee of Permanent Representatives of the Governments of the Member States shall be chaired by a representative of the Member State chairing the General Affairs Council. The Chair of the Political and Security Committee shall be held by a representative of the Union Minister for Foreign Affairs. The chair of the preparatory bodies of the various Council configurations, with the exception of the Foreign Affairs configuration, shall fall to the member of the group chairing the relevant configuration, unless decided other wise in accordance with Ar ticle 4. Article 3 The General Affairs Council shall ensure consistency and continuity in the work of the different Council configurations in the framework of multiannual programmes in cooperation with the Commission. The Member States holding the Presidency shall take all necessary measures for the organisation and smooth operation of the Council's work, with the assistance of the General Secretariat of the Council. Article 4 The Council shall adopt a European decision establishing the measures for the implementation of this decision. Declaration on Ar ticle I-25 5. The Conference declares that the European decision relating to the implementation of Ar ticle I-25 will be adopted by the Council on the day the Treaty establishing a Constitution for Europe enters into force. The draft decision is set out below: DRAFT EUROPEAN DECISION OF THE COUNCIL REL ATING TO THE IMPLEMENTATION OF ARTICLE I-25 THE COUNCIL OF THE EUROPEAN UNION, Whereas: (1) Provisions should be adopted allowing for a smooth transition from the system for decision- making in the Council by a qualified majority as defined in the Treaty of Nice and set out in Ar ticle 2(2) of the Protocol on the transitional provisions relating to the institutions and bodies of the Union annexed to the Constitution, which will continue to apply until 31 October 2009, to the voting system provided for in Ar ticle I-25 of the Constitution, which will apply with effect from 1 November 2009. (2) It is recalled that it is the practice of the Council to devote every effor t to strengthening the democratic legitimacy of decisions taken by a qualified majority. C 310/422 Official Journal of the European Union 16.12.2004 EN (3) It is judged appropriate to maintain this decision as long as is necessary to ensure smooth transition to the new voting system provided for in the Constitution, HAS DECIDED AS FOLLOWS: Article 1 If members of the Council, representing: (a) at least three quar ters of the population; or (b) at least three quar ters of the number of Member States. necessary to constitute a blocking minority resulting from the application of Ar ticle I-25(1), first subparagraph, or Ar ticle I-25(2), indicate their opposition to the Council adopting an act by a qualified majority, the Council shall discuss the issue. Article 2 The Council shall, in the course of these discussions, do all in its power to reach, within a reasonable time and without prejudicing obligatory time limits laid down by Union law, a satisfactory solution to address concerns raised by the members of the Council referred to in Ar ticle 1. Article 3 To this end, the President of the Council, with the assistance of the Commission and in compliance with the Rules of Procedure of the Council, shall under take any initiative necessary to facilitate a wider basis of agreement in the Council. The members of the Council shall lend him or her their assistance. Article 4 This decision shall take effect on 1 November 2009. It shall remain in force at least until 2014. Thereafter the Council may adopt a European decision repealing it. Declaration on Ar ticle I-26 6. The Conference considers that when the Commission no longer includes nationals of all Member States, the Commission should pay par ticular attention to the need to ensure full transparency in relations with all Member States. Accordingly, the Commission should liaise closely with all Member States, whether or not they have a national ser ving as member of the Commission, and in this context pay special attention to the need to share information and consult with all Member States. The Conference also considers that the Commission should take all the necessary measures to ensure that political, social and economic realities in all Member States, including those which have no 16.12.2004 Official Journal of the European Union C 310/423 EN national ser ving as member of the Commission, are fully taken into account. These measures should include ensuring that the position of those Member States is addressed by appropriate organisational arrangements. Declaration on Ar ticle I-27 7. The Conference considers that, in accordance with the provisions of the Constitution, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with Ar ticle I-27(1). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council. Declaration on Ar ticle I-36 8. The Conference takes note of the Commission's intention to continue to consult exper ts appointed by the Member States in the preparation of draft delegated European regulations in the financial ser vices area, in accordance with its established practice. Declaration on Ar ticles I-43 and III-329 9. Without prejudice to the measures adopted by the Union to comply with its solidarity obligation towards a Member State which is the object of a terrorist attack or the victim of natural or man-made disaster, none of the provisions of Ar ticles I-43 and III-329 of the Constitution is intended to affect the right of another Member State to choose the most appropriate means to comply with its own solidarity obligation towards that Member State. Declaration on Ar ticle I-51 10. The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Ar ticle I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in par ticular Directive 95/46/EC) includes specific derogations in this regard. Declaration on Ar ticle I-57 11. The Union will take into account the par ticular situation of small-sized countries which maintain specific relations of proximity with it. C 310/424 Official Journal of the European Union 16.12.2004 EN Declaration concerning the explanations relating to the Char ter of Fundamental Rights 12. The Conference takes note of the explanations relating to the Char ter of Fundamental Rights prepared under the authority of the Praesidium of the Convention which drafted the Char ter and updated under the responsibility of the Praesidium of the European Convention, as set out below. EXPL ANATIONS REL ATING TO THE CHARTER OF FUNDAMENTAL RIGHTS These explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Char ter of Fundamental Rights of the European Union. They have been updated under the responsibility of the Praesidium of the European Convention, in the light of the drafting adjustments made to the text of the Char ter by that Convention (notably to Ar ticles 51 and 52 (1)) and of further developments of Union law. Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Char ter. PREAMBLE The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the hear t of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preser vation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, ser vices, goods and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Char ter. This Char ter reaffirms, with due regard for the powers and tasks of the Union and the principle of subsidiarity, the rights as they result, in par ticular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Char ters adopted by the Union and by the Council of Europe and the case-law of the Cour t of Justice of the European Union and of the European Cour t of Human Rights. In this context the Char ter will be interpreted by the cour ts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Char ter and updated under the responsibility of (1) Ar ticles II-111 and II-112 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/425 EN the Praesidium of the European Convention. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter. TITLE I DIGNIT Y Article 1 (1) Human dignity Human dignity is inviolable. It must be respected and protected. Explanation The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined human dignity in its preamble: `Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.' In its judgment of 9 October 2001 in case C-377/98 Netherlands v European Parliament and Council [2001] ECR 7079, at grounds 70 to 77, the Cour t of Justice confirmed that a fundamental right to human dignity is part of Union law. It results that none of the rights laid down in this Char ter may be used to harm the dignity of another person, and that the dignity of the human person is par t of the substance of the rights laid down in this Char ter. It must therefore be respected, even where a right is restricted. Article 2 (2) Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. Explanation 1. Paragraph 1 of this Ar ticle is based on the first sentence of Ar ticle 2(1) of the ECHR, which reads as follows: `1. Everyone's right to life shall be protected by law...' (1) Ar ticle II-61 of the Constitution. (2) Ar ticle II-62 of the Constitution. C 310/426 Official Journal of the European Union 16.12.2004 EN 2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Ar ticle 1 of Protocol No 6 to the ECHR, which reads as follows: `The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.' Ar ticle 2(2) of the Char ter (1) is based on that provision. The provisions of Ar ticle 2 of the Charter (2) correspond to those of the above Ar ticles of the ECHR and its 3. Protocol. They have the same meaning and the same scope, in accordance with Ar ticle 52(3) of the Char ter (3). Therefore, the `negative' definitions appearing in the ECHR must be regarded as also forming par t of the Char ter: (a) Ar ticle 2(2) of the ECHR: `Deprivation of life shall not be regarded as inf licted in contravention of this ar ticle when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.' (b) Ar ticle 2 of Protocol 6 to the ECHR: `A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions...' Article 3 (4) Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in par ticular: (a) the free and informed consent of the person concerned, according to the procedures laid down by law; (b) the prohibition of eugenic practices, in par ticular those aiming at the selection of persons; (1) Ar ticle II-62(2) of the Constitution. 2 () Ar ticle II-62 of the Constitution. (3) Ar ticle II-112(3) of the Constitution. (4) Ar ticle II-63 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/427 EN (c) the prohibition on making the human body and its par ts as such a source of financial gain; (d) the prohibition of the reproductive cloning of human beings. Explanation 1. In its judgment of 9 October 2001 in case C-377/98 Netherlands v European Parliament and Council [2001] ECR 7079, at grounds 70, 78 to 80, the Cour t of Justice confirmed that a fundamental right to human integrity is part of Union law and encompasses, in the context of medicine and biology, the free and informed consent of the donor and recipient. The principles of Ar ticle 3 of the Char ter (1) are already included in the Convention on Human Rights and 2. Biomedicine, adopted by the Council of Europe (ETS 164 and additional protocol ETS 168). The Char ter does not set out to depar t from those principles, and therefore prohibits only reproductive cloning. It neither authorises nor prohibits other forms of cloning. Thus it does not in any way prevent the legislature from prohibiting other forms of cloning. 3. The reference to eugenic practices, in par ticular those aiming at the selection of persons, relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others, all acts deemed to be international crimes in the Statute of the International Criminal Cour t adopted in Rome on 17 July 1998 (see its Ar ticle 7(1)(g)). Article 4 (2) Prohibition of tor ture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Explanation The right in Ar ticle 4 (2) is the right guaranteed by Ar ticle 3 of the ECHR, which has the same wording: `No one shall be subjected to tor ture or to inhuman or degrading treatment or punishment'. By vir tue of Ar ticle 52(3) of the Char ter (3), it therefore has the same meaning and the same scope as the ECHR Ar ticle. Article 5 (4) Prohibition of slavery and forced labour 1. No one shall be held in slavery or ser vitude. (1) Ar ticle II-63 of the Constitution. 2 () Ar ticle II-64 of the Constitution. (3) Ar ticle II-112(3) of the Constitution. (4) Ar ticle II-65 of the Constitution. C 310/428 Official Journal of the European Union 16.12.2004 EN 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited. Explanation The right in Ar ticle 5(1) and (2) (1) corresponds to Ar ticle 4(1) and (2) of the ECHR, which has the same wording. It 1. therefore has the same meaning and scope as the ECHR Ar ticle, by vir tue of Ar ticle 52(3) of the Char ter (2). Consequently: -- no limitation may legitimately affect the right provided for in paragraph 1; -- in paragraph 2, `forced or compulsory labour ' must be understood in the light of the `negative' definitions contained in Ar ticle 4(3) of the ECHR: `For the purpose of this article the term "forced or compulsory labour" shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Ar ticle 5 of this Convention or during conditional release from such detention; (b) any ser vice of a military character or, in case of conscientious objectors in countries where they are recognised, ser vice exacted instead of compulsory military ser vice; (c) any ser vice exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or ser vice which forms par t of normal civic obligations.' 2. Paragraph 3 stems directly from human dignity and takes account of recent developments in organised crime, such as the organisation of lucrative illegal immigration or sexual exploitation networks. The Annex to the Europol Convention contains the following definition which refers to trafficking for the purpose of sexual exploitation: `traffic in human beings: means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue with a view to the exploitation of prostitution, forms of sexual exploitation and assault of minors or trade in abandoned children'. Chapter VI of the Convention implementing the Schengen Agreement, which has been integrated into the Union's acquis, in which the United Kingdom and Ireland participate, contains the following wording in Ar ticle 27(1) which refers to illegal immigration networks: `The Contracting Parties undertake to impose appropriate penalties on any person who, for financial gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contracting Parties in breach of that Contracting Party's laws on the entry and residence of aliens.' On 19 July 2002, the Council adopted a framework decision on combating trafficking in human beings (OJ L 203/1) whose Ar ticle 1 defines in detail the offences concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation, which the Member States must make punishable by vir tue of that framework decision. (1) Ar ticle II-65 of the Constitution. (2) Ar ticle II-112(3) of the Constitution. 16.12.2004 Official Journal of the European Union C 310/429 EN TITLE II FREEDOMS Article 6 (1) Right to liber ty and security Everyone has the right to liber ty and security of person. Explanation The rights in Ar ticle 6 (1) are the rights guaranteed by Ar ticle 5 of the ECHR, and in accordance with Ar ticle 52(3) of the Char ter (2), they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR, in the wording of Ar ticle 5: `1. Everyone has the right to liber ty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or f leeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational super vision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to depor tation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Ar ticle shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (1) Ar ticle II-66 of the Constitution. (2) Ar ticle II-112(3) of the Constitution. C 310/430 Official Journal of the European Union 16.12.2004 EN 4. Everyone who is deprived of his liber ty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Ar ticle shall have an enforceable right to compensation.' The rights enshrined in Ar ticle 6 (1) must be respected par ticularly when the European Parliament and the Council adopt laws and framework laws in the area of judicial cooperation in criminal matters, on the basis of Ar ticles III-270, III-271 and III-273 of the Constitution, notably to define common minimum provisions as regards the categorisation of offences and punishments and cer tain aspects of procedural law. Article 7 (2) Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Explanation The rights guaranteed in Ar ticle 7 (2) correspond to those guaranteed by Ar ticle 8 of the ECHR. To take account of developments in technology the word `correspondence' has been replaced by `communications'. In accordance with Ar ticle 52(3) (3), the meaning and scope of this right are the same as those of the corresponding ar ticle of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Ar ticle 8 of the ECHR: `1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.' (1) Ar ticle II-66 of the Constitution. 2 () Ar ticle II-67 of the Constitution. (3) Ar ticle II-112(3) of the Constitution. 16.12.2004 Official Journal of the European Union C 310/431 EN Article 8 (1) Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. Explanation This Ar ticle has been based on Ar ticle 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council 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) as well as on Ar ticle 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Ar ticle 286 of the EC Treaty is now replaced by Ar ticle I-51 of the Constitution. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council 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). The abovementioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data. Article 9 (2) Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Explanation This Ar ticle is based on Ar ticle 12 of the ECHR, which reads as follows: `Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercising of this right.' The wording of the Ar ticle has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Ar ticle neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides. (1) Ar ticle II-68 of the Constitution. (2) Ar ticle II-69 of the Constitution. C 310/432 Official Journal of the European Union 16.12.2004 EN Article 10 (1) Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right. Explanation The right guaranteed in paragraph 1 corresponds to the right guaranteed in Ar ticle 9 of the ECHR and, in accordance with Ar ticle 52(3) of the Char ter (2), has the same meaning and scope. Limitations must therefore respect Ar ticle 9(2) of the Convention, which reads as follows: `Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.' The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue. Article 11 (3) Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impar t information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. Explanation 1. Ar ticle 11 (3) corresponds to Ar ticle 10 of the European Convention on Human Rights, which reads as follows: `1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impar t information and ideas without interference by public authority and regardless of frontiers. This Ar ticle shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (1) Ar ticle II-70 of the Constitution. (2) Ar ticle II-112(3) of the Constitution. (3) Ar ticle II-71 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/433 EN 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impar tiality of the judiciary.' Pursuant to Ar ticle 52(3) of the Charter (1), the meaning and scope of this right are the same as those guaranteed by the ECHR. The limitations which may be imposed on it may therefore not exceed those provided for in Ar ticle 10(2) of the Convention, without prejudice to any restrictions which competition law of the Union may impose on Member States' right to introduce the licensing arrangements referred to in the third sentence of Ar ticle 10(1) of the ECHR. 2. Paragraph 2 of this Ar ticle spells out the consequences of paragraph 1 regarding freedom of the media. It is based in par ticular on Cour t of Justice case-law regarding television, par ticularly in case C-288/89 (judgment of 25 July 1991, Stichting Collectieve Antennevoorziening Gouda and others [1991] ECR I-4007), and on the Protocol on the system of public broadcasting in the Member States annexed to the EC Treaty and now to the Constitution, and on Council Directive 89/552/EC (par ticularly its seventeenth recital). Article 12 (2) Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in par ticular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political par ties at Union level contribute to expressing the political will of the citizens of the Union. Explanation 1. Paragraph 1 of this Ar ticle corresponds to Ar ticle 11 of the ECHR, which reads as follows: `1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This ar ticle shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.' (1) Ar ticle II-112(3) of the Constitution. (2) Ar ticle II-72 of the Constitution. C 310/434 Official Journal of the European Union 16.12.2004 EN The meaning of the provisions of paragraph 1 is the same as that of the ECHR, but their scope is wider since they apply at all levels including European level. In accordance with Ar ticle 52(3) of the Char ter (1), limitations on that right may not exceed those considered legitimate by vir tue of Ar ticle 11(2) of the ECHR. 2. This right is also based on Ar ticle 11 of the Community Char ter of the Fundamental Social Rights of Workers. 3. Paragraph 2 of this Ar ticle corresponds to Ar ticle I-46(4) of the Constitution. Article 13 (2) Freedom of the ar ts and sciences The ar ts and scientific research shall be free of constraint. Academic freedom shall be respected. Explanation This right is deduced primarily from the right to freedom of thought and expression. It is to be exercised having regard to Ar ticle 1 (3) and may be subject to the limitations authorised by Ar ticle 10 of the ECHR. Article 14 (4) Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. Explanation 1. This Ar ticle is based on the common constitutional traditions of Member States and on Ar ticle 2 of the Protocol to the ECHR, which reads as follows: `No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.' (1) Ar ticle II-112(3) of the Constitution. 2 () Ar ticle II-73 of the Constitution. (3) Ar ticle II-61 of the Constitution. (4) Ar ticle II-74 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/435 EN It was considered useful to extend this article to access to vocational and continuing training (see point 15 of the Community Charter of the Fundamental Social Rights of Workers and Ar ticle 10 of the Social Char ter) and to add the principle of free compulsory education. As it is worded, the latter principle merely implies that as regards compulsory education, each child has the possibility of attending an establishment which offers free education. It does not require all establishments which provide education or vocational and continuing training, in par ticular private ones, to be free of charge. Nor does it exclude certain specific forms of education having to be paid for, if the State takes measures to grant financial compensation. Insofar as the Char ter applies to the Union, this means that in its training policies the Union must respect free compulsory education, but this does not, of course, create new powers. Regarding the right of parents, it must be interpreted in conjunction with the provisions of Ar ticle 24 (1). 2. Freedom to found public or private educational establishments is guaranteed as one of the aspects of freedom to conduct a business but it is limited by respect for democratic principles and is exercised in accordance with the arrangements defined by national legislation. Article 15 (2) Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide ser vices in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union. Explanation Freedom to choose an occupation, as enshrined in Ar ticle 15(1) (2), is recognised in Cour t of Justice case-law (see inter alia judgment of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraphs 12 to 14 of the grounds; judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, paragraph 8 of the grounds). This paragraph also draws upon Ar ticle 1(2) of the European Social Char ter, which was signed on 18 October 1961 and has been ratified by all the Member States, and on point 4 of the Community Char ter of the Fundamental Social Rights of Workers of 9 December 1989. The expression `working conditions' is to be understood in the sense of Ar ticle III-213 of the Constitution. Paragraph 2 deals with the three freedoms guaranteed by Ar ticles I-4 and III-133, III-137 and III-144 of the Constitution, namely freedom of movement for workers, freedom of establishment and freedom to provide ser vices. Paragraph 3 has been based on TEC Ar ticle 137(3), four th indent, now replaced by Ar ticle III-210(1)(g) of the Constitution, and on Ar ticle 19(4) of the European Social Char ter signed on 18 October 1961 and ratified by all the (1) Ar ticle II-84 of the Constitution. (2) Ar ticle II-75 of the Constitution. C 310/436 Official Journal of the European Union 16.12.2004 EN Member States. Ar ticle 52(2) of the Charter (1) is therefore applicable. The question of recruitment of seamen having the nationality of third States for the crews of vessels f lying the f lag of a Member State of the Union is governed by Union law and national legislation and practice. Article 16 (2) Freedom to conduct a business The freedom to conduct a business in accordance with Union law and national laws and practices is recognised. Explanation This Ar ticle is based on Court of Justice case-law which has recognised freedom to exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraph 14 of the grounds, and of 27 September 1979, Case 230-78 SPA Eridiana and others [1979] ECR 2749, paragraphs 20 and 31 of the grounds) and freedom of contract (see inter alia Sukkerfabriken Nykřbing judgment, Case 151/78 [1979] ECR 1, paragraph 19 of the grounds, and judgment of 5 October 1999, C-240/97 Spain v Commission, [1999] ECR I-6571, paragraph 99 of the grounds) and Ar ticle I-3(2) of the Constitution, which recognises free competition. Of course, this right is to be exercised with respect for Union law and national legislation. It may be subject to the limitations provided for in Ar ticle 52(1) of the Char ter (3). Article 17 (4) Right to proper ty 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of proper ty may be regulated by law insofar as is necessary for the general interest. 2. Intellectual proper ty shall be protected. Explanation This Ar ticle is based on Ar ticle 1 of the Protocol to the ECHR: `Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of proper ty in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.' (1) Ar ticle II-112(2) of the Constitution. 2 () Ar ticle II-76 of the Constitution. (3) Ar ticle II-112(1) of the Constitution. (4) Ar ticle II-77 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/437 EN This is a fundamental right common to all national constitutions. It has been recognised on numerous occasions by the case-law of the Cour t of Justice, initially in the Hauer judgment (13 December 1979, ECR [1979] 3727). The wording has been updated but, in accordance with Ar ticle 52(3) (1), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there. Protection of intellectual proper ty, one aspect of the right of proper ty, is explicitly mentioned in paragraph 2 because of its growing impor tance and Community secondary legislation. Intellectual proper ty covers not only literary and artistic proper ty but also inter alia patent and trademark rights and associated rights. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual proper ty. Article 18 (2) Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Constitution. Explanation The text of the Ar ticle has been based on TEC Ar ticle 63, now replaced by Ar ticle III-266 of the Constitution, which requires the Union to respect the Geneva Convention on refugees. Reference should be made to the Protocols relating to the United Kingdom and Ireland annexed to the [Treaty of Amsterdam] Constitution and to Denmark to determine the extent to which those Member States implement Union law in this area and the extent to which this Ar ticle is applicable to them. This Ar ticle is in line with the Protocol on Asylum annexed to the Constitution. Article 19 (3) Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Explanation Paragraph 1 of this Ar ticle has the same meaning and scope as Ar ticle 4 of Protocol 4 to the ECHR concerning collective expulsion. Its purpose is to guarantee that every decision is based on a specific examination and that no single measure can be taken to expel all persons having the nationality of a par ticular State (see also Ar ticle 13 of the Covenant on Civil and Political Rights). Paragraph 2 incorporates the relevant case-law from the European Court of Human Rights regarding Ar ticle 3 of the ECHR (see Ahmed v Austria, judgment of 17 December 1996, [1996] ECR VI-2206 and Soering, judgment of 7 July 1989). (1) Ar ticle II-112(3) of the Constitution. (2) Ar ticle II-78 of the Constitution. (3) Ar ticle II-79 of the Constitution. C 310/438 Official Journal of the European Union 16.12.2004 EN TITLE III EQUALIT Y Article 20 (1) Equality before the law Everyone is equal before the law. Explanation This Ar ticle corresponds to a general principle of law which is included in all European constitutions and has also been recognised by the Cour t of Justice as a basic principle of Community law (judgment of 13 November 1984, Case 283/ 83 Racke [1984] ECR 3791, judgment of 17 April 1997, Case 15/95 EARL [1997] ECR I-1961, and judgment of 13 April 2000, Case 292/97 Karlsson [2000] ECR 2737). Article 21 (2) Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, proper ty, bir th, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Constitution and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited. Explanation Paragraph 1 draws on Ar ticle 13 of the EC Treaty, now replaced by Ar ticle III-124 of the Constitution, Ar ticle 14 of the ECHR and Ar ticle 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. Insofar as this corresponds to Ar ticle 14 of the ECHR, it applies in compliance with it. There is no contradiction or incompatibility between paragraph 1 and Ar ticle III-124 of the Constitution which has a different scope and purpose: Ar ticle III-124 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat cer tain forms of discrimination, listed exhaustively in that Ar ticle. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in paragraph 1 does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under other articles of Par ts I and III (1) Ar ticle II-80 of the Constitution. (2) Ar ticle II-81 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/439 EN of the Constitution, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Ar ticle III-124 nor the interpretation given to that Ar ticle. Paragraph 2 corresponds to Ar ticle I-4(2) of the Constitution and must be applied in compliance with that Ar ticle. Article 22 (1) Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Explanation This Ar ticle has been based on Ar ticle 6 of the Treaty on European Union and on Ar ticle 151(1) and (4) of the EC Treaty, now replaced by Ar ticle III-280(1) and (4) of the Constitution, concerning culture. Respect for cultural and linguistic diversity is now also laid down in Ar ticle I-3(3) of the Constitution. The Ar ticle is also inspired by Declaration No 11 to the Final Act of the Amsterdam Treaty on the status of churches and non-confessional organisations, now taken over in Ar ticle I-52 of the Constitution. Article 23 (2) Equality between women and men Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Explanation The first paragraph has been based on Ar ticles 2 and 3(2) of the EC Treaty, now replaced by Ar ticles I-3 and III-116 of the Constitution which impose the objective of promoting equality between men and women on the Union, and on Ar ticle 141(1) of the EC Treaty, now replaced by Ar ticle III-214(1) of the Constitution. It draws on Ar ticle 20 of the revised European Social Char ter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers. It is also based on Ar ticle 141(3) of the EC Treaty, now replaced by Ar ticle III-214(3) of the Constitution, and Ar ticle 2 (4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. The second paragraph takes over in shorter form Ar ticle III-214(4) of the Constitution which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for (1) Ar ticle II-82 of the Constitution. (2) Ar ticle II-83 of the Constitution. C 310/440 Official Journal of the European Union 16.12.2004 EN disadvantages in professional careers. In accordance with Ar ticle 52(2) (1), the present paragraph does not amend Ar ticle III-214(4). Article 24 (2) The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Explanation This Ar ticle is based on the New York Convention on the Rights of the Child signed on 20 November 1989 and ratified by all the Member States, par ticularly Ar ticles 3, 9, 12 and 13 thereof. Paragraph 3 takes account of the fact that, as part of the establishment of an area of freedom, security and justice, Union legislation on civil matters having cross-border implications, for which Ar ticle III-269 of the Constitution confers power, may include notably visiting rights ensuring that children can maintain on a regular basis a personal and direct contact with both his or her parents. Article 25 (3) The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to par ticipate in social and cultural life. Explanation This Ar ticle draws on Ar ticle 23 of the revised European Social Char ter and Ar ticles 24 and 25 of the Community Char ter of the Fundamental Social Rights of Workers. Of course, par ticipation in social and cultural life also covers par ticipation in political life. (1) Ar ticle II-112(2) of the Constitution. (2) Ar ticle II-84 of the Constitution. (3) Ar ticle II-85 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/441 EN Article 26 (1) Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and par ticipation in the life of the community. Explanation The principle set out in this Ar ticle is based on Ar ticle 15 of the European Social Char ter and also draws on point 26 of the Community Char ter of the Fundamental Social Rights of Workers. TITLE IV SOLIDARIT Y Article 27 (2) Workers' right to information and consultation within the under taking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices. Explanation This Ar ticle appears in the revised European Social Char ter (Ar ticle 21) and in the Community Char ter on the rights of workers (points 17 and 18). It applies under the conditions laid down by Union law and by national laws. The reference to appropriate levels refers to the levels laid down by Union law or by national laws and practices, which might include the European level when Union legislation so provides. There is a considerable Union acquis in this field: Ar ticles III-211 and III-212 of the Constitution, and Directives 2002/14/EC (general framework for informing and consulting employees in the European Community), 98/59/EC (collective redundancies), 2001/23/EC (transfers of under takings) and 94/45/EC (European works councils). Article 28 (3) Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conf licts of interest, to take collective action to defend their interests, including strike action. (1) Ar ticle II-86 of the Constitution. (2) Ar ticle II-87 of the Constitution. (3) Ar ticle II-88 of the Constitution. C 310/442 Official Journal of the European Union 16.12.2004 EN Explanation This Ar ticle is based on Ar ticle 6 of the European Social Char ter and on the Community Char ter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Cour t of Human Rights as one of the elements of trade union rights laid down by Ar ticle 11 of the ECHR. As regards the appropriate levels at which collective negotiation might take place, see the explanation given for the above Ar ticle. The modalities and limits for the exercise of collective action, including strike action, come under national laws and practices, including the question of whether it may be carried out in parallel in several Member States. Article 29 (1) Right of access to placement services Everyone has the right of access to a free placement ser vice. Explanation This Ar ticle is based on Ar ticle 1(3) of the European Social Char ter and point 13 of the Community Char ter of the Fundamental Social Rights of Workers. Article 30 (2) Protection in the event of unjustif ied dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices. Explanation This Ar ticle draws on Ar ticle 24 of the revised Social Char ter. See also Directive 2001/23/EC on the safeguarding of employees' rights in the event of transfers of under takings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC. Article 31 (3) Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. (1) Ar ticle II-89 of the Constitution. (2) Ar ticle II-90 of the Constitution. (3) Ar ticle II-91 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/443 EN Explanation 1. Paragraph 1 of this Ar ticle is based on Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Ar ticle 3 of the Social Char ter and point 19 of the Community Charter on the rights of workers, and, as regards dignity at work, on Ar ticle 26 of the revised Social Char ter. The expression `working conditions' must be understood in the sense of Ar ticle III-213 of the Constitution. 2. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Ar ticle 2 of the European Social Charter and point 8 of the Community Char ter on the rights of workers. Article 32 (1) Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education. Explanation This Ar ticle is based on Directive 94/33/EC on the protection of young people at work, Ar ticle 7 of the European Social Char ter and points 20 to 23 of the Community Char ter of the Fundamental Social Rights of Workers. Article 33 (2) Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the bir th or adoption of a child. Explanation Ar ticle 33(1) (2) is based on Ar ticle 16 of the European Social Char ter. (1) Ar ticle II-92 of the Constitution. (2) Ar ticle II-93 of the Constitution. C 310/444 Official Journal of the European Union 16.12.2004 EN The second paragraph draws on Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given bir th or are breastfeeding and Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. It is also based on Ar ticle 8 (protection of maternity) of the European Social Char ter and draws on Ar ticle 27 (right of workers with family responsibilities to equal oppor tunities and equal treatment) of the revised Social Char ter. `Maternity' covers the period from conception to weaning. Article 34 (1) Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social ser vices providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices. 3. In order to combat social exclusion and pover ty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices. Explanation The principle set out in Ar ticle 34(1) (1) is based on Ar ticles 137 and 140 of the EC Treaty, now replaced by Ar ticles III- 210 and III-213 and on Ar ticle 12 of the European Social Char ter and point 10 of the Community Char ter on the rights of workers. The Union must respect it when exercising the powers conferred on it by Ar ticles III-210 and III-213 of the Constitution. The reference to social ser vices relates to cases in which such ser vices have been introduced to provide cer tain advantages but does not imply that such ser vices must be created where they do not exist. `Maternity' must be understood in the same sense as in the preceding Ar ticle. Paragraph 2 is based on Ar ticles 12(4) and 13(4) of the European Social Char ter and point 2 of the Community Char ter of the Fundamental Social Rights of Workers and ref lects the rules arising from Regulation No 1408/71 and Regulation No 1612/68. Paragraph 3 draws on Ar ticle 13 of the European Social Charter and Ar ticles 30 and 31 of the revised Social Char ter and point 10 of the Community Char ter. The Union must respect it in the context of policies based on Ar ticle III-210 of the Constitution. (1) Ar ticle II-94 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/445 EN Article 35 (1) Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Explanation The principles set out in this Ar ticle are based on Ar ticle 152 of the EC Treaty, now replaced by Ar ticle III-278 of the Constitution, and on Ar ticles 11 and 13 of the European Social Charter. The second sentence of the Ar ticle takes over Ar ticle III-278(1). Article 36 (2) Access to ser vices of general economic interest The Union recognises and respects access to ser vices of general economic interest as provided for in national laws and practices, in accordance with the Constitution, in order to promote the social and territorial cohesion of the Union. Explanation This Ar ticle is fully in line with Ar ticle III-122 of the Constitution and does not create any new right. It merely sets out the principle of respect by the Union for the access to ser vices of general economic interest as provided for by national provisions, when those provisions are compatible with Union law. Article 37 (3) Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Explanation The principles set out in this Ar ticle have been based on Ar ticles 2, 6 and 174 of the EC Treaty, which have now been replaced by Ar ticles I-3(3), III-119 and III-233 of the Constitution. It also draws on the provisions of some national constitutions. (1) Ar ticle II-95 of the Constitution. (2) Ar ticle II-96 of the Constitution. (3) Ar ticle II-97 of the Constitution. C 310/446 Official Journal of the European Union 16.12.2004 EN Article 38 (1) Consumer protection Union policies shall ensure a high level of consumer protection. Explanation The principles set out in this Ar ticle have been based on Ar ticle 153 of the EC Treaty, now replaced by Ar ticle III-235 of the Constitution. TITLE V CITIZENS' RIGHTS Article 39 (2) Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Explanation Ar ticle 39 (2) applies under the conditions laid down in Parts I and III of the Constitution, in accordance with Ar ticle 52 (2) of the Charter (3). Ar ticle 39(1) (2) corresponds to the right guaranteed in Ar ticle I-10(2) of the Constitution (see also the legal base in Ar ticle III-126 for the adoption of detailed arrangements for the exercise of that right) and Ar ticle 39 (2) (2) corresponds to Ar ticle I-20(2) of the Constitution. Ar ticle 39(2) (2) takes over the basic principles of the electoral system in a democratic State. Article 40 (4) Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. (1) Ar ticle II-98 of the Constitution. (2) Ar ticle II-99 of the Constitution. (3) Ar ticle II-112(2) of the Constitution. (4) Ar ticle II-100 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/447 EN Explanation This Ar ticle corresponds to the right guaranteed by Ar ticle I-10(2) of the Constitution (see also the legal base in Ar ticle III-126 for the adoption of detailed arrangements for the exercise of that right). In accordance with Ar ticle 52(2) of the Char ter (1), it applies under the conditions set out in these Ar ticles of Parts I and III of the Constitution. Article 41 (2) Right to good administration 1. Every person has the right to have his or her affairs handled impar tially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its ser vants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Constitution and must have an answer in the same language. Explanation Ar ticle 41 (2) is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined, inter alia, good administration as a general principle of law (see, inter alia, Cour t of Justice judgment of 31 March 1992 in Case C-255/90 P, Burban [1992] ECR I-2253, and Cour t of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case- law (Cour t of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Cour t of First Instance judgments of 6 December 1994 in Case T- 450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-258) and the wording regarding the obligation to give reasons comes from Ar ticle 253 of the EC Treaty, now replaced by Ar ticle I-38(2) of the Constitution (see also the legal base in Ar ticle III-398 of the Constitution for the adoption of legislation in the interest of an open, efficient and independent European administration). (1) Ar ticle II-112(2) of the Constitution. (2) Ar ticle II-101 of the Constitution. C 310/448 Official Journal of the European Union 16.12.2004 EN Paragraph 3 reproduces the right now guaranteed by Ar ticle III-431 of the Constitution. Paragraph 4 reproduces the right now guaranteed by Ar ticles I-10(2)(d) and III-129 of the Constitution. In accordance with Ar ticle 52(2) of the Char ter (1), those rights are to be applied under the conditions and within the limits defined by Part III of the Constitution. The right to an effective remedy, which is an impor tant aspect of this question, is guaranteed in Ar ticle 47 of this Char ter (2). Article 42 (3) Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium. Explanation The right guaranteed in this Ar ticle has been taken over from Ar ticle 255 of the EC Treaty, on the basis of which Regulation 1049/2001 has subsequently been adopted. The European Convention has extended this right to documents of institutions, bodies and agencies generally, regardless of their form, see Ar ticle I-50(3) of the Constitution. In accordance with Ar ticle 52(2) of the Char ter (1), the right of access to documents is exercised under the conditions and within the limits for which provision is made in Ar ticles I-50(3) and III-399. Article 43 (4) European Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Cour t of Justice of the European Union acting in its judicial role. Explanation The right guaranteed in this Ar ticle is the right guaranteed by Ar ticles I-10 and III-335 of the Constitution. In accordance with Ar ticle 52(2) of the Char ter (1), it applies under the conditions defined in these two Ar ticles. (1) Ar ticle II-112(2) of the Constitution. (2) Ar ticle II-107 of the Constitution. (3) Ar ticle II-102 of the Constitution. (4) Ar ticle II-103 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/449 EN Article 44 (1) Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament. Explanation The right guaranteed in this Ar ticle is the right guaranteed by Ar ticles I-10 and III-334 of the Constitution. In accordance with Ar ticle 52(2) of the Char ter (2), it applies under the conditions defined in these two Ar ticles. Article 45 (3) Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Constitution, to nationals of third countries legally resident in the territory of a Member State. Explanation The right guaranteed by paragraph 1 is the right guaranteed by Ar ticle I-10(2)(a) of the Constitution (cf. also the legal base in Ar ticle III-125; and the judgement of the Cour t of Justice of 17 September 2002, C-413/99 Baumbast, [2002] ECR 709). In accordance with Ar ticle 52(2) of the Char ter (2), it applies under the conditions and within the limits defined for which provision is made in Part III of the Constitution. Paragraph 2 refers to the power granted to the Union by Ar ticles III-265 to III-267 of the Constitution. Consequently, the granting of this right depends on the institutions exercising that power. Article 46 (4) Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State. (1) Ar ticle II-104 of the Constitution. (2) Ar ticle II-112(2) of the Constitution. (3) Ar ticle II-105 of the Constitution. (4) Ar ticle II-106 of the Constitution. C 310/450 Official Journal of the European Union 16.12.2004 EN Explanation The right guaranteed by this Ar ticle is the right guaranteed by Ar ticle I-10 of the Constitution; cf. also the legal base in Ar ticle III-127. In accordance with Ar ticle 52(2) of the Char ter (1), it applies under the conditions defined in these Ar ticles. TITLE VI JUSTICE Article 47 (2) Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Ar ticle. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impar tial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice. Explanation The first paragraph is based on Ar ticle 13 of the ECHR: `Everyone whose rights and freedoms as set for th in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.' However, in Union law the protection is more extensive since it guarantees the right to an effective remedy before a cour t. The Cour t of Justice enshrined that right in its judgment of 15 May 1986 as a general principle of Union law (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313). According to the Cour t, that general principle of Union law also applies to the Member States when they are implementing Union law. The inclusion of this precedent in the Char ter has not been intended to change the system of judicial review laid down by the Treaties, and par ticularly the rules relating to admissibility for direct actions before the Cour t of Justice of the European Union. The European Convention has considered the Union's system of judicial review including the rules on admissibility, and confirmed them while amending them as to certain aspects, as ref lected in Ar ticles III-353 to III-381 of the Constitution, and in par ticular in Ar ticle III-365(4). Ar ticle 47 (2) applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law. (1) Ar ticle II-112(2) of the Constitution. (2) Ar ticle II-107 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/451 EN The second paragraph corresponds to Ar ticle 6(1) of the ECHR which reads as follows: `In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impar tial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or par t of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the par ties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.' In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Cour t in Case 294/83, `Les Verts' v European Parliament (judgment of 23 April 1986, [1988] ECR 1339). Never theless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union. With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Cour t of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR Judgment of 9 October 1979, Airey, Series A, Volume 32, 11). There is also a system of legal assistance for cases before the Cour t of Justice of the European Union. Article 48 (1) Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. Explanation Ar ticle 48 (1) is the same as Ar ticle 6(2) and (3) of the ECHR, which reads as follows: `2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (1) Ar ticle II-108 of the Constitution. C 310/452 Official Journal of the European Union 16.12.2004 EN (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in cour t.' In accordance with Ar ticle 52(3) (1), this right has the same meaning and scope as the right guaranteed by the ECHR. Article 49 (2) Principles of legality and propor tionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Ar ticle shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be dispropor tionate to the criminal offence. Explanation This Ar ticle follows the traditional rule of the non-retroactivity of laws and criminal sanctions. There has been added the rule of the retroactivity of a more lenient penal law, which exists in a number of Member States and which features in Ar ticle 15 of the Covenant on Civil and Political Rights. Ar ticle 7 of the ECHR is worded as follows: `1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Ar ticle shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.' (1) Ar ticle II-112(3) of the Constitution. (2) Ar ticle II-109 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/453 EN In paragraph 2, the reference to `civilised' nations has been deleted; this does not change the meaning of this paragraph, which refers to crimes against humanity in particular. In accordance with Ar ticle 52(3) (1), the right guaranteed here therefore has the same meaning and scope as the right guaranteed by the ECHR. Paragraph 3 states the general principle of propor tionality between penalties and criminal offences which is enshrined in the common constitutional traditions of the Member States and in the case-law of the Cour t of Justice of the Communities. Article 50 (2) Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. Explanation Ar ticle 4 of Protocol No 7 to the ECHR reads as follows: `1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and the penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. No derogation from this Ar ticle shall be made under Ar ticle 15 of the Convention.' 3. The `non bis in idem' rule applies in Union law (see, among the many precedents, the judgment of 5 May 1966, Cases 18/65 and 35/65, Gutmann v Commission [1966] ECR 103 and a recent case, the decision of the Cour t of First Instance of 20 April 1999, Joined Cases T-305/94 and others, Limburgse Vinyl Maatschappij NV v. Commission [1999] ECR II-931). The rule prohibiting cumulation refers to cumulation of two penalties of the same kind, that is to say criminal law penalties. In accordance with Ar ticle 50 (2), the `non bis in idem' rule applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. That corresponds to the acquis in Union law; see Ar ticles 54 to 58 of the Schengen Convention and the judgment of the Court of Justice of 11 February 2003, C-187/01 Gözütok (not yet published), Ar ticle 7 of the Convention on the Protection of the European Communities' Financial Interests and Ar ticle 10 of the Convention on the fight against corruption. The very limited exceptions in those Conventions permitting the Member States to derogate from the `non bis in idem' rule are covered by the horizontal clause in Ar ticle 52(1) of the Char ter (3) concerning limitations. As regards the situations referred to by Ar ticle 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR. (1) Ar ticle II-112(3) of the Constitution. 2 () Ar ticle II-110 of the Constitution. (3) Ar ticle II-112(1) of the Constitution. C 310/454 Official Journal of the European Union 16.12.2004 EN TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER Article 51 (1) Field of application 1. The provisions of this Char ter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, obser ve the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the other Par ts of the Constitution. 2. This Char ter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Par ts of the Constitution. Explanation The aim of Ar ticle 51 (1) is to determine the scope of the Char ter. It seeks to establish clearly that the Char ter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. This provision was drafted in keeping with Ar ticle 6(2) of the Treaty on European Union, which required the Union to respect fundamental rights, and with the mandate issued by Cologne European Council. The term `institutions' is enshrined in Part I of the Constitution. The expression `bodies, offices and agencies' is commonly used in the Constitution to refer to all the authorities set up by the Constitution or by secondary legislation (see, e.g., Ar ticles I-50 or I-51 of the Constitution). As regards the Member States, it follows unambiguously from the case-law of the Cour t of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, ERT [1991] ECR I-2925); judgment of 18 December 1997 (C-309/96 Annibaldi [1997] ECR I-7493). The Cour t of Justice confirmed this case-law in the following terms: `In addition, it should be remembered that the requirements f lowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules ...' (judgment of 13 April 2000, Case C-292/97, [2000] ECR 2737, paragraph 37 of the grounds). Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law. Paragraph 2, together with the second sentence of paragraph 1, confirms that the Char ter may not have the effect of extending the competences and tasks which the other Parts of the Constitution confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by Parts I and III of the Constitution. Consequently, an obligation, pursuant to the second sentence of paragraph 1, for the Union's institutions to promote principles laid down in the Char ter, may arise only within the limits of these same powers. (1) Ar ticle II-111 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/455 EN Paragraph 2 also confirms that the Char ter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the other Par ts of the Constitution. The Cour t of Justice has already established this rule with respect to the fundamental rights recognised as part of Union law (judgment of 17 February 1998, C-249/96 Grant, 1998 ECR I-621, paragraph 45 of the grounds). In accordance with this rule, it goes without saying that the incorporation of the Char ter into the Constitution cannot be understood as extending by itself the range of Member State action considered to be `implementation of Union law' (within the meaning of paragraph 1 and the above-mentioned case-law). Article 52 (1) Scope and interpretation of rights and principles 1. Any limitation on the exercise of the rights and freedoms recognised by this Char ter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of propor tionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Char ter for which provision is made in other Par ts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Par ts. 3. Insofar as this Char ter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. Insofar as this Char ter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6. Full account shall be taken of national laws and practices as specified in this Char ter. 7. The explanations drawn up as a way of providing guidance in the interpretation of the Char ter of Fundamental Rights shall be given due regard by the cour ts of the Union and of the Member States. (1) Ar ticle II-112 of the Constitution. C 310/456 Official Journal of the European Union 16.12.2004 EN Explanation The purpose of Ar ticle 52 (1) is to set the scope of the rights and principles of the Char ter, and to lay down rules for their interpretation. Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case-law of the Cour t of Justice: `... it is well established in the case-law of the Cour t that restrictions may be imposed on the exercise of fundamental rights, in par ticular in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, dispropor tionate and unreasonable interference undermining the very substance of those rights' (judgment of 13 April 2000, Case C-292/97, paragraph 45 of the grounds). The reference to general interests recognised by the Union covers both the objectives mentioned in Ar ticle I-2 of the Constitution and other interests protected by specific provisions of the Constitution such as Ar ticles I-5(1), III-133(3), III-154 and III-436. Paragraph 2 refers to rights which were already expressly guaranteed in the Treaty establishing the European Community and have been recognised in the Char ter, and which are now found in other Parts of the Constitution (notably the rights derived from Union citizenship). It clarifies that such rights remain subject to the conditions and limits applicable to the Union law on which they are based, and for which provision is now made in Parts I and III of the Constitution. The Char ter does not alter the system of rights conferred by the EC Treaty and now taken over by Parts I and III of the Constitution. Paragraph 3 is intended to ensure the necessary consistency between the Char ter and the ECHR by establishing the rule that, insofar as the rights in the present Char ter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorised limitations, are the same as those laid down by the ECHR. This means in par ticular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Cour t of Justice of the European Union. The reference to the ECHR covers both the Convention and the Protocols to it. The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the European Cour t of Human Rights and by the Cour t of Justice of the European Union. The last sentence of the paragraph is designed to allow the Union to guarantee more extensive protection. In any event, the level of protection afforded by the Char ter may never be lower than that guaranteed by the ECHR. The Char ter does not affect the possibilities of Member States to avail themselves of Ar ticle 15 ECHR, allowing derogations from ECHR rights in the event of war or of other public dangers threatening the life of the nation, when they take action in the areas of national defence in the event of war and of the maintenance of law and order, in accordance with their responsibilities recognised in Ar ticles I-5 (1), III-131, III-262 of the Constitution. The list of rights which may at the present stage, without precluding developments in the law, legislation and the Treaties, be regarded as corresponding to rights in the ECHR within the meaning of the present paragraph is given hereafter. It does not include rights additional to those in the ECHR. 1. Ar ticles of the Char ter where both the meaning and the scope are the same as the corresponding Ar ticles of the ECHR: -- Ar ticle 2 (2) corresponds to Ar ticle 2 of the ECHR (1) Ar ticle II-112 of the Constitution. (2) Ar ticle II-62 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/457 EN -- Ar ticle 4 (1) corresponds to Ar ticle 3 of the ECHR -- Ar ticle 5(1) and (2) (2) correspond to Ar ticle 4 of the ECHR -- Ar ticle 6 (3) corresponds to Ar ticle 5 of the ECHR -- Ar ticle 7 (4) corresponds to Ar ticle 8 of the ECHR -- Ar ticle 10(1) (5) corresponds to Ar ticle 9 of the ECHR -- Ar ticle 11 (6) corresponds to Ar ticle 10 of the ECHR without prejudice to any restrictions which Union law may impose on Member States' right to introduce the licensing arrangements referred to in the third sentence of Ar ticle 10(1) of the ECHR -- Ar ticle 17 (7) corresponds to Ar ticle 1 of the Protocol to the ECHR -- Ar ticle 19(1) (8) corresponds to Ar ticle 4 of Protocol No 4 -- Ar ticle 19(2) (8) corresponds to Ar ticle 3 of the ECHR as interpreted by the European Cour t of Human Rights -- Ar ticle 48 (9) corresponds to Ar ticle 6(2) and(3) of the ECHR -- Ar ticle 49(1) (with the exception of the last sentence) and (2) (10) correspond to Ar ticle 7 of the ECHR 2. Ar ticles where the meaning is the same as the corresponding Ar ticles of the ECHR, but where the scope is wider: -- Ar ticle 9 (11) covers the same field as Ar ticle 12 of the ECHR, but its scope may be extended to other forms of marriage if these are established by national legislation (1) Ar ticle II-64 of the Constitution. 2 () Ar ticle II-65 of the Constitution. (3) Ar ticle II-66 of the Constitution. (4) Ar ticle II-67 of the Constitution. (5) Ar ticle II-70 of the Constitution. (6) Ar ticle II-71 of the Constitution. 7 () Ar ticle II-77 of the Constitution. (8) Ar ticle II-79 of the Constitution. 9 () Ar ticle II-108 of the Constitution. (10) Ar ticle II-109 of the Constitution. (11) Ar ticle II-69 of the Constitution. C 310/458 Official Journal of the European Union 16.12.2004 EN -- Ar ticle 12(1) (1) corresponds to Ar ticle 11 of the ECHR, but its scope is extended to European Union level -- Ar ticle 14(1) (2) corresponds to Ar ticle 2 of the Protocol to the ECHR, but its scope is extended to cover access to vocational and continuing training -- Ar ticle 14(3) (2) corresponds to Ar ticle 2 of the Protocol to the ECHR as regards the rights of parents -- Ar ticle 47(2) and (3) (3) correspond to Ar ticle 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation -- Ar ticle 50 (4) corresponds to Ar ticle 4 of Protocol No 7 to the ECHR, but its scope is extended to European Union level between the Cour ts of the Member States. -- Finally, citizens of the European Union may not be considered as aliens in the scope of the application of Union law, because of the prohibition of any discrimination on grounds of nationality. The limitations provided for by Ar ticle 16 of the ECHR as regards the rights of aliens therefore do not apply to them in this context. The rule of interpretation contained in paragraph 4 has been based on the wording of Ar ticle 6(2) of the Treaty on European Union (cf. now the wording of Ar ticle I-9(3) of the Constitution) and takes due account of the approach to common constitutional traditions followed by the Cour t of Justice (e.g., judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 18 May 1982, Case 155/79, AM&S, [1982] ECR 1575). Under that rule, rather than following a rigid approach of `a lowest common denominator ', the Char ter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions. Paragraph 5 clarifies the distinction between `rights' and `principles' set out in the Char ter. According to that distinction, subjective rights shall be respected, whereas principles shall be obser ved (Ar ticle 51 (1)) (5). Principles may be implemented through legislative or executive acts (adopted by the Union in accordance with its powers, and by the Member States only when they implement Union law); accordingly, they become significant for the Cour ts only when such acts are interpreted or reviewed. They do not however give rise to direct claims for positive action by the Union's institutions or Member States authorities. This is consistent both with case-law of the Cour t of Justice (Cf. notably case-law on the `precautionary principle' in Ar ticle 174 (2) TEC (replaced by Ar ticle III-233 of the Constitution): judgment of the CFI of 11 September 2002, T-13/99, Pfizer vs. Council, with numerous references to earlier case-law; and a series of judgments on Ar ticle 33 (ex 39) on the principles of agricultural law, e.g. judgment of the Cour t of Justice C-265/85, Van den Berg, 1987 ECR 1155: scrutiny of the principle of market stabilisation and of reasonable expectations) and with the approach of the Member States' constitutional systems to (1) Ar ticle II-72 of the Constitution. (2) Ar ticle II-74 of the Constitution. 3 () Ar ticle II-107 of the Constitution. (4) Ar ticle II-110 of the Constitution. (5) Ar ticle II-111 of the Constitution. 16.12.2004 Official Journal of the European Union C 310/459 EN `principles' particularly in the field of social law. For illustration, examples for principles recognised in the Char ter include e.g. Ar ticles 25, 26 and 37 (1). In some cases, an Ar ticle of the Char ter may contain both elements of a right and of a principle, e.g. Ar ticles 23, 33 and 34 (2). Paragraph 6 refers to the various Ar ticles in the Char ter which, in the spirit of subsidiarity, make reference to national laws and practices. Article 53 (3) Level of protection Nothing in this Char ter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are par ty, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. Explanation This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law. Owing to its impor tance, mention is made of the ECHR. Article 54 (4) Prohibition of abuse of rights Nothing in this Char ter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Char ter or at their limitation to a greater extent than is provided for herein. Explanation This Ar ticle corresponds to Ar ticle 17 of the ECHR: `Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set for th herein or at their limitation to a greater extent than is provided for in the Convention.' (1) Ar ticles II-85, II-86 and II-97 of the Constitution. (2) Ar ticles II-83, II-93 and II-94 of the Constitution. (3) Ar ticle II-113 of the Constitution. (4) Ar ticle II-114 of the Constitution. C 310/460 Official Journal of the European Union 16.12.2004 EN Declaration on Ar ticle III-116 13. The Conference agrees that, in its general effor ts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to suppor t and protect the victims. Declaration on Ar ticles III-136 and III-267 14. The Conference considers that in the event that a draft European law or framework law based on Ar ticle III-267(2) would affect fundamental aspects of the social security system of a Member State, including its scope, cost or financial structure, or would affect the financial balance of that system as set out in Ar ticle III-136(2), the interests of that Member State will be duly taken into account. Declaration on Ar ticles III-160 and III-322 15. The Conference recalls that the respect for fundamental rights and freedoms implies, in par ticular, that proper attention is given to the protection and obser vance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of European decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure. Declaration on Ar ticle III-167(2)(c) 16. The Conference notes that Ar ticle III-167(2)(c) shall be interpreted in accordance with the existing case-law of the Cour t of Justice of the European Communities and of the Cour t of First Instance regarding the applicability of the provisions to aid granted to cer tain areas of the Federal Republic of Germany affected by the former division of Germany. Declaration on Ar ticle III-18 4 17. With regard to Ar ticle III-184, the Conference confirms that raising growth potential and securing sound budgetary positions are the two pillars of the economic and fiscal policy of the Union and the Member States. The Stability and Growth Pact is an impor tant tool to achieve these goals. The Conference reaffirms its commitment to the provisions concerning the Stability and Growth Pact as the framework for the coordination of budgetary policies in the Member States. The Conference confirms that a rule-based system is the best guarantee for commitments to be enforced and for all Member States to be treated equally. 16.12.2004 Official Journal of the European Union C 310/461 EN Within this framework, the Conference also reaffirms its commitment to the goals of the Lisbon Strategy: job creation, structural reforms, and social cohesion. The Union aims at achieving balanced economic growth and price stability. Economic and budgetary policies thus need to set the right priorities towards economic reforms, innovation, competitiveness and strengthening of private investment and consumption in phases of weak economic growth. This should be ref lected in the orientations of budgetary decisions at the national and Union level in par ticular through restructuring of public revenue and expenditure while respecting budgetary discipline in accordance with the Constitution and the Stability and Growth Pact. Budgetary and economic challenges facing the Member States underline the importance of sound budgetary policy throughout the economic cycle. The Conference agrees that Member States should use periods of economic recovery actively to consolidate public finances and improve their budgetary positions. The objective is to gradually achieve a budgetary surplus in good times which creates the necessary room to accommodate economic downturns and thus contribute to the long-term sustainability of public finances. The Member States look for ward to possible proposals of the Commission as well as further contributions of Member States with regard to strengthening and clarifying the implementation of the Stability and Growth Pact. The Member States will take all necessary measures to raise the growth potential of their economies. Improved economic policy coordination could suppor t this objective. This Declaration does not prejudge the future debate on the Stability and Growth Pact. Declaration on Ar ticle III-213 18. The Conference confirms that the policies described in Ar ticle III-213 fall essentially within the competence of the Member States. Measures to provide encouragement and promote coordination to be taken at Union level in accordance with this Ar ticle shall be of a complementary nature. They shall ser ve to strengthen cooperation between Member States and not to harmonise national systems. The guarantees and practices existing in each Member State as regards the responsibility of the social par tners will not be affected. This Declaration is without prejudice to the provisions of the Constitution conferring competence on the Union, including in social matters. Declaration on Ar ticle III-220 19. The Conference considers that the reference in Ar ticle III-220 to island regions can include island States in their entirety, subject to the necessary criteria being met. C 310/462 Official Journal of the European Union 16.12.2004 EN Declaration on Ar ticle III-243 20. The Conference notes that the provisions of Ar ticle III-243 shall be applied in accordance with the current practice. The terms `such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of cer tain areas of the Federal Republic affected by that division' shall be interpreted in accordance with the existing case- law of the Cour t of Justice of the European Communities and of the Cour t of First Instance. Declaration on Ar ticle III-248 21. The Conference agrees that the Union's action in the area of research and technological development will pay due respect to the fundamental orientations and choices of the research policies of the Member States. Declaration on Ar ticle III-256 22. The Conference believes that Ar ticle III-256 does not affect the right of the Member States to take the necessary measures to ensure their energy supply under the conditions provided for in Ar ticle III-131. Declaration on Ar ticle III-273(1), second subparagraph 23. The Conference considers that the European laws referred to in the second subparagraph of Ar ticle III-273(1) should take into account national rules and practices relating to the initiation of criminal investigations. Declaration on Ar ticle III-296 24. The Conference declares that, as soon as the Treaty establishing a Constitution for Europe is signed, the Secretary-General of the Council, High Representative for the common foreign and security policy, the Commission and the Member States should begin preparatory work on the European External Action Ser vice. Declaration on Ar ticle III-325 concerning the negotiation and conclusion of 25. international agreements by Member States relating to the area of freedom, security and justice The Conference confirms that Member States may negotiate and conclude agreements with third countries or international organisations in the areas covered by Sections 3, 4 and 5 of Chapter IV of Title III of Par t III of the Treaty establishing a Constitution for Europe insofar as such agreements comply with Union law. 16.12.2004 Official Journal of the European Union C 310/463 EN Declaration on Ar ticle III-402(4) 26. Ar ticle III-402(4) of the Constitution provides that where no European law of the Council establishing a new financial framework has been adopted by the end of the previous financial framework, the ceilings and other provisions corresponding to the last year of that framework shall be extended until such time as that law is adopted. The Conference states that if no European law of the Council establishing a new financial framework has been adopted by the end of 2006 and where the Treaty of Accession of 16 April 2003 provides for a phasing-in period for the allocation of appropriations to the new Member States ending in 2006, the allocation of funds as from 2007 will be established on the basis of the same criteria being applied for all Member States. Declaration on Ar ticle III-419 27. The Conference declares that Member States may indicate, when they make a request to establish enhanced cooperation, if they intend already at that stage to make use of Ar ticle III-422 providing for the extension of qualified majority voting or to have recourse to the ordinary legislative procedure. Declaration on Article IV-4 40(7) 28. The High Contracting Par ties agree that the European Council, pursuant to Ar ticle IV-440(7), will take a European decision leading to the modification of the status of Mayotte with regard to the Union in order to make this territory an outermost region within the meaning of Ar ticle IV-440(2) and Ar ticle III-424, when the French authorities notify the European Council and the Commission that the evolution currently under way in the internal status of the island so allows. Declaration on Article IV-4 48(2) 29. The Conference considers that the possibility of producing translations of the Treaty establishing a Constitution for Europe in the languages mentioned in Ar ticle IV-448(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set for th in the four th subparagraph of Ar ticle I-3(3) of that Treaty. In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages. The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Ar ticle IV-448(2) communicate to the Council, within six months from the date of the signature of that Treaty, the language or languages into which translations of that Treaty will be made. C 310/464 Official Journal of the European Union 16.12.2004 EN Declaration on the ratif ication of the Treaty 30. establishing a Constitution for Europe The Conference notes that if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council. 16.12.2004 Official Journal of the European Union C 310/465 EN B. DECL ARATIONS CONCERNING PROTOCOLS ANNEXED TO THE CONSTITUTION DECLARATIONS CONCERNING THE PROTOCOL ON THE TREATIES AND ACTS OF ACCESSION OF THE KINGDOM OF DENMARK, IRELAND AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, OF THE HELLENIC REPUBLIC, OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC, AND OF THE REPUBLIC OF AUSTRIA, THE REPUBLIC OF FINLAND AND THE KINGDOM OF SWEDEN Declaration on the Ĺland islands 31. The Conference acknowledges that the regime applicable to the Ĺland islands, referred to in Ar ticle IV-440(5), is established taking into account the special status that these islands enjoy under international law. To that end, the Conference stresses that specific provisions have been included in Section 5 of Title V of the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. Declaration on the Sami people 32. Having regard to Ar ticles 60 and 61 of the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, the Conference recognises the obligations and commitments of Sweden and Finland with regard to the Sami people under national and international law. The Conference notes that Sweden and Finland are committed to preser ving and developing the means of livelihood, language, culture and way of life of the Sami people and considers that traditional Sami culture and livelihood depend on pr imar y economic activities, such as reindeer husbandry in the traditional areas of Sami settlement. To that end, the Conference stresses that specific provisions have been included in Section 6 of Title V of the Protocol on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Nor thern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Por tuguese Republic, and of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden. C 310/466 Official Journal of the European Union 16.12.2004 EN DECLARATIONS CONCERNING THE PROTOCOL ON THE TREAT Y AND THE ACT OF ACCESSION OF THE CZECH REPUBLIC, THE REPUBLIC OF ESTONIA, THE REPUBLIC OF CYPRUS, THE REPUBLIC OF LAT VIA, THE REPUBLIC OF LITHUANIA, THE REPUBLIC OF HUNGARY, THE REPUBLIC OF MALTA, THE REPUBLIC OF POLAND, THE REPUBLIC OF SLOVENIA AND THE SLOVAK REPUBLIC Declaration on the Sovereign Base Areas of the United Kingdom of Great Britain and 33. Nor thern Ireland in Cypr us THE CONFERENCE, Recalling that the Joint Declaration on the Sovereign Base Areas of the United Kingdom of Great Britain and Nor thern Ireland in Cyprus annexed to the Final Act of the Treaty concerning the Accession of the United Kingdom to the European Communities provided that the arrangements applicable to relations between the European Economic Community and the Sovereign Base Areas will be defined within the context of any agreement between the Community and the Republic of Cyprus, Taking account of the provisions concerning the Sovereign Base Areas set out in the Treaty concerning the Establishment of the Republic of Cyprus (hereinafter referred to as the `Treaty of Establishment') and the associated Exchanges of Notes dated 16 August 1960, Noting the Exchange of Notes between the Government of the United Kingdom and the Government of the Republic of Cyprus concerning the administration of the Sovereign Base Areas, dated 16 August 1960, and the attached Declaration by the United Kingdom Government that one of the main objects to be achieved is the protection of the interests of those resident or working in the Sovereign Base Areas, and considering in this context that the said persons should have, to the extent possible, the same treatment as those resident or working in the Republic of Cyprus; Noting fur ther the provisions of the Treaty of Establishment regarding customs arrangements between the Sovereign Base Areas and the Republic of Cyprus and in par ticular those of Annex F to the said Treaty; Noting also the commitment of the United Kingdom not to create customs posts or other frontier barriers between the Sovereign Base Areas and the Republic of Cyprus and the arrangements made pursuant to the Treaty of Establishment whereby the authorities of the Republic of Cyprus administer a wide range of public services in the Sovereign Base Areas, including in the fields of agriculture, customs and taxation; Confirming that the accession of the Republic of Cyprus to the Union should not affect the rights and obligations of the par ties to the Treaty of Establishment ; Recognising therefore the need to apply cer tain provisions of the Constitution and acts of the Union to the Sovereign Base Areas and to make special arrangements regarding the implementation of these provisions in the Sovereign Base Areas; 16.12.2004 Official Journal of the European Union C 310/467 EN Points out that specific provisions to that end have been included in Title III of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. Declaration by the Commission on the Sovereign Base Areas 34. of the United Kingdom of Great Britain and Nor thern Ireland in Cypr us The Commission confirms its understanding that the provisions of Union law applicable to the Sovereign Base Areas pursuant to Title III of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic include: (a) Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to cer tain goods resulting from the processing of agricultural products; (b) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds, to the extent required by Council Regulation (EC) No 1257/1999 of 17 May 1999 on suppor t for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) for the purpose of financing rural development measures in the Sovereign Base Areas under the EAGGF Guarantee Section. Declaration on the Ignalina nuclear power plant in Lithuania 35. THE CONFERENCE, Declaring the Union's willingness to continue to provide adequate additional assistance to Lithuania's decommissioning effor t also after Lithuania's accession to the Union for the period until 2006 and beyond and noting that Lithuania, bearing in mind this expression of Union solidarity, has committed to close Unit 1 of the Ignalina nuclear power plant before 2005 and Unit 2 by 2009; Recognising that the decommissioning of the Ignalina nuclear power plant with two 1500 MW RBMK-type reactor units inherited from the former Soviet Union is of an unprecedented nature and represents for Lithuania an exceptional financial burden not commensurate with the size and economic strength of the country and that this decommissioning will continue beyond the current Financial Perspective as defined by the Interinstitutional Agreement of 6 May 1999; Noting the need to adopt implementing provisions for the additional Union assistance to address the consequences of the closure and the decommissioning of the Ignalina nuclear power plant; Noting that Lithuania will pay due attention to the needs of the regions most affected by the closure of the Ignalina nuclear power plant in its use of Union assistance; C 310/468 Official Journal of the European Union 16.12.2004 EN Declaring that cer tain measures that will be suppor ted through public aid shall be considered as compatible with the internal market, such as the decommissioning of the Ignalina nuclear power plant, and the environmental upgrading in line with the acquis and modernisation of conventional electricity production capacity needed to replace the two Ignalina nuclear power plant reactors after their closure, Points out that specific provisions to that end have been included in Title IV of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. Declaration on the transit of persons by land between 36. the region of Kaliningrad and other par ts of the Russian Federation THE CONFERENCE, Considering the par ticular situation of the Kaliningrad region of the Russian Federation in the context of the Union's enlargement; Recognising the obligations and commitments of Lithuania with regard to the acquis establishing an area of freedom, security and justice; Noting, in par ticular, that Lithuania shall fully apply and implement the Union acquis regarding the list of countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement as well the Union acquis regarding the uniform format for a visa as from accession at the latest; Recognising that the transit of persons by land between the region of Kaliningrad and other par ts of the Russian Federation through Union territory is a matter concerning the Union as a whole and should be treated as such and must not entail any unfavourable consequence for Lithuania; Considering the decision to be taken by the Council to remove controls at internal borders after it has verified that the necessary conditions to that effect have been met; Determined to assist Lithuania in fulfilling the conditions for full par ticipation in the Schengen area without internal frontiers as soon as possible, Points out that specific provisions to that end have been included in Title V of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. 16.12.2004 Official Journal of the European Union C 310/469 EN Declaration on Unit 1 and Unit 2 37. of the Bohunice V1 nuclear power plant in Slovakia THE CONFERENCE, Noting Slovakia's commitment to close Unit 1 and Unit 2 of the Bohunice V1 nuclear power plant at the end of 2006 and 2008 respectively and declaring the Union's willingness to continue to provide financial aid until 2006 in continuation of the pre-accession aid planned under the Phare programme in suppor t of Slovakia's decommissioning effort; Noting the need to adopt implementing provisions regarding continued Union assistance; Points out that specific provisions to that end have been included in Title IX of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. Declaration on Cypr us 38. THE CONFERENCE, Reaffirming its commitment to a comprehensive settlement of the Cyprus problem, consistent with relevant United Nations Security Council Resolutions, and its strong suppor t for the efforts of the United Nations Secretary General to that end; Considering that such a comprehensive settlement to the Cyprus problem has not yet been reached; Considering that it is, therefore, necessary to provide for the suspension of the application of the acquis in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control; Considering that, in the event of a solution to the Cyprus problem, this suspension will be lifted; Considering that the Union is ready to accommodate the terms of such a settlement in line with the principles on which the Union is founded; Considering that it is necessary to provide for the terms under which the relevant provisions of Union law will apply to the line between the abovementioned areas and both those areas in which the Government of the Republic of Cyprus exercises effective control and the Eastern Sovereign Base Area of the United Kingdom of Great Britain and Nor thern Ireland; Desiring that the accession of Cyprus to the Union shall benefit all Cypriot citizens and promote civil peace and reconciliation; Considering, therefore, that nothing in Title X of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of C 310/470 Official Journal of the European Union 16.12.2004 EN Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic shall preclude measures with this end in view; Considering that such measures shall not affect the application of the acquis under the conditions set out in the that Protocol in any other par t of the Republic of Cyprus; Points out that specific provisions to that end have been included in Title X of Par t Two of the Protocol on the Treaty and Act of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic. Declaration concerning the Protocol on the position of Denmark 39. The Conference notes that with respect to legal acts to be adopted by the Council acting alone or jointly with the European Parliament and containing provisions applicable to Denmark as well as provisions not applicable to Denmark because they have a legal basis to which Par t I of the Protocol on the position of Denmark applies, Denmark declares that it will not use its voting right to prevent the adoption of the provisions which are not applicable to Denmark. Fur thermore, the Conference notes that on the basis of the Declaration by the Conference on Ar ticles I-43 and III-329 of the Constitution, Denmark declares that Danish par ticipation in actions or legal acts pursuant to Ar ticles I-43 and III-329 will take place in accordance with Par t I and Par t II of the Protocol on the position of Denmark. Declaration concerning the Protocol on the transitional provisions 40. relating to the institutions and bodies of the Union The common position which will be taken by the Member States at the conferences on the accession to the Union of Romania and/or Bulgaria regarding the allocation of seats in the European Parliament and the weighting of votes in the European Council and the Council will be as follows. 1. If the accession to the Union of Romania and/or Bulgaria takes place before the entry into force of the European Council Decision referred to in Ar ticle I-20(2), the allocation of seats in the European Parliament throughout the 2004-2009 parliamentary term will be in accordance with the following table for a Union of 27 Member States. MEMBER STATES SEATS IN THE EP Germany 99 United Kingdom 78 France 78 Italy 78 Spain 54 16.12.2004 Official Journal of the European Union C 310/471 EN MEMBER STATES SEATS IN THE EP Poland 54 Romania 35 Netherlands 27 Greece 24 Czech Republic 24 Belgium 24 Hungary 24 Por tugal 24 Sweden 19 Bulgaria 18 Austria 18 Slovakia 14 Denmark 14 Finland 14 Ireland 13 Lithuania 13 Latvia 9 Slovenia 7 Estonia 6 Cyprus 6 Luxembourg 6 Malta 5 TOTAL 785 The Treaty of Accession to the Union will therefore, by way of derogation from Ar ticle I-20(2) of the Constitution, stipulate that the number of members of the European Parliament may temporarily exceed 750 for the remainder of the 2004 to 2009 Parliamentary term. 2. In Ar ticle 2(2) of the Protocol on the transitional provisions relating to the institutions and bodies of the Union, the weighting of the votes of Romania and Bulgaria in the European Council and the Council will be set at 14 and 10 respectively. 3. At the time of each accession, the threshold referred to in the Protocol on the transitional provisions relating to the institutions and bodies of the Union will be calculated according to Ar ticle 2(3) of that Protocol. C 310/472 Official Journal of the European Union 16.12.2004 EN Declaration concerning Italy 41. The Conference notes that the Protocol on Italy annexed in 1957 to the Treaty establishing the European Economic Community, as amended upon adoption of the Treaty on European Union, stated that: `THE HIGH CONTRACTING PARTIES, DESIRING to settle cer tain par ticular problems relating to Italy, HAVE AGREED upon the following provisions, which shall be annexed to this Treaty: THE MEMBER STATES OF THE COMMUNIT Y TAKE NOTE of the fact that the Italian Government is carrying out a ten-year programme of economic expansion designed to rectify the disequilibria in the structure of the Italian economy, in par ticular by providing an infrastructure for the less developed areas in Southern Italy and in the Italian islands and by creating new jobs in order to eliminate unemployment; RECALL that the principles and objectives of this programme of the Italian Government have been considered and approved by organisations for international cooperation of which the Member States are members; RECOGNISE that it is in their common interest that the objectives of the Italian programme should be attained; AGREE, in order to facilitate the accomplishment of this task by the Italian Government, to recommend to the institutions of the Community that they should employ all the methods and procedures provided in this Treaty and, in par ticular, make appropriate use of the resources of the European Investment Bank and the European Social Fund; ARE OF THE OPINION that the institutions of the Community should, in applying this Treaty, take account of the sustained effor t to be made by the Italian economy in the coming years and of the desirability of avoiding dangerous stresses in par ticular within the balance of payments or the level of employment, which might jeopardise the application of this Treaty in Italy; RECOGNISE that in the event of Ar ticles 109h and 109i being applied it will be necessary to take care that any measures required of the Italian Government do not prejudice the completion of its programme for economic expansion and for raising the standard of living of the population.' 16.12.2004 Official Journal of the European Union C 310/473 EN DECLARATIONS BY MEMBER STATES Declaration by the Kingdom of the Netherlands 42. on Ar ticle I-55 The Kingdom of the Netherlands will agree to a European decision as referred to in Ar ticle I-55(4) once a revision of the European law referred to in Ar ticle I-54(3) has provided the Netherlands with a satisfactory solution for its excessive negative net payment position vis-ŕ-vis the Union budget. Declaration by the Kingdom of the Netherlands on Ar ticle IV-4 40 43. The Kingdom of the Netherlands declares that an initiative for a European decision, as referred to in Ar ticle IV-440(7) aimed at amending the status of the Netherlands Antilles and/or Aruba with regard to the Union, will be submitted only on the basis of a decision taken in conformity with the Char ter for the Kingdom of the Netherlands. Declaration by the Federal Republic of Germany, Ireland, 44. the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden Germany, Ireland, Hungary, Austria and Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore suppor t the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible. Declaration by the Kingdom of Spain and 45. the United Kingdom of Great Britain and Nor thern Ireland The Treaty establishing the Constitution applies to Gibraltar as a European territory for whose external relations a Member State is responsible. This shall not imply changes in the respective positions of the Member States concerned. Declaration by the United Kingdom of Great Britain 46. and Nor thern Ireland on the def inition of the term `nationals' In respect of the Treaty establishing a Constitution for Europe and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term `nationals' with the exception that the reference to `British Dependent Territories Citizens' shall be read as meaning `British overseas territories citizens'. C 310/474 Official Journal of the European Union 16.12.2004 EN Declaration by the Kingdom of Spain on the def inition of the term `nationals' 47. Spain notes that, under Ar ticle I-10 of the Constitution, every national of a Member State shall be a citizen of the Union. Spain also notes that, under the current state of European integration ref lected in the Constitution, only nationals of Member States are entitled to the specific rights of European citizenship unless Union law expressly provides other wise. In that respect, Spain notes, finally, that under Ar ticles I-20 and I-46 of the Treaty, the European Parliament currently represents the citizens of the Union. Declaration by the United Kingdom of Great Britain and Nor thern Ireland 48. on the franchise for elections to the European Parliament The United Kingdom notes that Ar ticle I-20 and other provisions of the Treaty establishing a Constitution for Europe are not intended to change the basis for the franchise for elections to the European Parliament. Declaration by the Kingdom of Belgium on national parliaments 49. Belgium wishes to make clear that, in accordance with its constitutional law, not only the Chamber of Representatives and Senate of the Federal Parliament but also the parliamentary assemblies of the Communities and the Regions act, in terms of the competences exercised by the Union, as components of the national parliamentar y system or chambers of the national Parliament. Declaration by the Republic of Latvia and the Republic of Hungary 50. on the spelling of the name of the single currency in the Treaty establishing a Constitution for Europe Without prejudice to the unified spelling of the name of the single currency of the European Union referred to in the Treaty establishing a Constitution for Europe as displayed on the banknotes and on the coins, Latvia and Hungary declare that the spelling of the name of the single currency, including its derivatives as applied throughout the Latvian and Hungarian text of the Treaty establishing a Constitution for Europe, has no effect on the existing rules of the Latvian and the Hungarian languages.