Brussels, 13th July 2004
The European Commission has decided to formally ask nine Member States, in a total of 15 infringement cases, to live up to the commitments they have made to implement correctly various Internal Market laws agreed by the European Parliament and the Council. Spain, France, Ireland, Italy, Luxembourg and Portugal have not fully implemented the 1992 Directive on the public lending right and on rental rights. The Commission has closed a separate copyright case against Luxembourg, which has now implemented the 2001 Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society. Greece has not written into national law the 2002 Directives on solvency margins for life assurance and insurance companies. Belgium, Greece, France, Italy, Luxembourg and Sweden have not implemented the 2002 Directive on collateral for financial transactions. The Commission’s requests take the form of reasoned opinions, the second stage of the infringement procedure under Article 226 of the EC Treaty. If no satisfactory response is received within two months, the Commission may decide to take the Member States concerned to the European Court of Justice.
Internal Market Commissioner Frits Bolkestein said: “There is no point in Member States agreeing laws at EU level if they then fail to put them into practice. It only takes one Member State to shilly-shally over getting agreed measures into national law. Citizens and businesses across Europe are then denied the full benefit of the new opportunities and the full potential for wealth creation that those measures aim to bring to the Internal Market. The Commission is there to help and regularly meets with all the Member States to clarify technical issues and make implementation as smooth as possible. But we will also continue to act decisively through infringement procedures where that is called for.”
Rental right, public lending right and certain rights related to copyright - Spain, France, Italy, Ireland, Luxembourg, Portugal
The Commission has decided to send reasoned opinions to Spain, France, Italy, Ireland, Luxembourg and Portugal regarding the implementation at national level of the public lending right – and, in the case of Portugal, regarding rental rights – as harmonised by Directive 92/100/EEC on rental rights, lending rights and on certain rights related to copyright.
Under the terms of Directive 92/100/EEC (Articles 1 and 5), authors and other rightholders have an exclusive lending right and the power to authorise or prohibit public lending of their works or other subject matter.
Member States may nonetheless derogate from these provisions and, instead of the exclusive lending right, establish a right to remuneration which must be paid at least to authors. They may also exempt certain categories of establishments from paying such remuneration.
Thus, as Commissioner Bolkestein emphasised when the Commission’s report on the application of the public lending right (IP/02/1303) was published, “the challenge is to respect cultural traditions and maintain good public access to cultural products while making sure that those who create them get equitable remuneration which allows them to keep on working and giving us pleasure”. To achieve this, the Directive gives the Member States considerable flexibility, enabling them on to strike a balance between their traditions regarding public lending and fair payment for creators.
Directive 92/100/EEC was to have been implemented as far back as 1994, but the Commission has found that Spain, Italy, Ireland and Portugal are incorrectly applying this text by exempting all lending institutions from the obligation to pay the rightholders. Luxembourg has still not transposed the lending right. Nor has France, despite having undertaken to do so by the end of 2003.
Moreover, Portugal includes producers of videos in the exhaustive list of rightholders referred to in the Directive in the field of rental rights, in other words, among those who have the right to authorise, against payment, or prohibit the marketing of a work. It is the Commission’s opinion that, by introducing a new rightholder, apart from the “producer of the first fixation” of a film (who holds the exclusive rights under the terms of Article 2 of the Directive), Portuguese law adds an element which could impair the functioning of the Internal Market insofar as it makes it more difficult, firstly, for economic operators interested in the work to know who to contact to obtain a licence to exploit it, and, secondly, for artists and performers to identify from whom they have the right to be paid for each copy of the work sold.
Copyright and related rights in the Information Society – closure of a case against Luxembourg
The European Commission has also decided to close infringement proceedings against Luxembourg for non-implementation in national law of the 2001 Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (see IP/01/528). Luxembourg implemented the Directive in April 2004, after receiving a reasoned opinion from the Commission in July 2003 (IP/03/1005) and after the Commission decided to refer it to the Court in December 2003. Referrals to the Court of Justice against eight “old” Member States (Belgium, Spain, France, the Netherlands, Portugal, Finland, Sweden and the UK, for the territory of Gibraltar) remain valid (IP/03/1752). Eight “new” Member States (i.e. all except Cyprus and Estonia) have notified to the Commission the national measures intended to implement the Directive. The Commission is currently considering all these measures. The Directive harmonises the main rights of authors and of certain other rightholders and provides for certain exceptions and limitations.
The Commission has decided to send two reasoned opinions to Greece for failing to transpose Directives 2002/12/EC and 2002/13/EC (see IP/01/216) on solvency margins for life assurance and non-life insurance undertakings respectively. These were to have been transposed by 20 September 2003 at the latest.
The Internal Market for insurance is based mainly on the equivalence of the financial supervision of insurance companies as practised in the various Member States, and mutual recognition of this equivalence by the Member States is the prerequisite for the “European passport”, which allows insurers to practise throughout the EU while remaining solely under the supervision of the authorities in the Member State where the headquarters are located. Financial supervision of insurance undertakings is justified by the need to protect policyholders and foster stability of the financial markets.
The solvency margin is one of the provisions intended to achieve this which have been harmonised by the Directives on insurance. It refers to the total capital, and similar items, which insurance companies must have available in order to be able to deal with contingencies, resulting primarily from claims, investments or the general management of the company. The solvency margin must not be lower than a minimum amount which is set for companies according to the amount of risk they cover, nor can it be below a minimum threshold.
Community provisions on the solvency margin date back to the 1970s. These two Directives comprise a series of measures (“Solvency I”) which considerably improve the existing arrangements and, together, significantly strengthen the protection that policyholders enjoy.
Financial collateral arrangements – Belgium, Greece, France, Italy, Luxembourg, and Sweden
The European Commission has sent reasoned opinions to six Member States - Belgium, Greece, France, Italy, Luxembourg, and Sweden - for non transposition, by December 2003, of Directive 2002/47/EC on financial collateral arrangements. This Directive creates a uniform EU legal framework to limit credit risk in financial transactions through the provision of securities and cash as collateral.
Collateral is the property (such as securities) provided by a borrower to a lender to minimise the risk of the lender’s financial losses in the event of the borrower failing to meet in full his/her financial obligations. The Directive, once properly implemented by all Member States, will contribute significantly to the greater integration and cost-efficiency of European financial markets by encouraging cross-border business and creating a more competitive European financial market. The Directive was a priority measure under the Financial Services Action Plan.
For the latest information on proceedings concerning all Member States, consult the following site: