27.3.1996 EN Official Journal of the European Communities L 77/20 DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 March 1996 on the legal protection of databases THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 57 (2), 66 and 100a thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the Economic and Social Committee (2), Acting in accordance with the procedure laid down in Article 189b of the Treaty (3), (1) Whereas databases are at present not sufficiently protected in all Member States by existing legislation; whereas such protection, where it exists, has different attributes; (2) Whereas such differences in the legal protection of databases offered by the legislation of the Member States have direct negative effects on the functioning of the internal market as regards databases and in particular on the freedom of natural and legal persons to provide on-line database goods and services on the basis of harmonized legal arrangements throughout the Community; whereas such differences could well become more pronounced as Member States introduce new legislation in this field, which is now taking on an increasingly international dimension; (3) Whereas existing differences distorting the functioning of the internal market need to be removed and new ones prevented from arising, while differences not adversely affecting the functioning of the internal market or the development of an information market within the Community need not be removed or prevented from arising; (4) Whereas copyright protection for databases exists in varying forms in the Member States according to legislation or case-law, and whereas, if differences in legislation in the scope and conditions of protection remain between the Member States, such unharmonized intellectual property rights can have the effect of preventing the free movement of goods or services within the Community; (5) Whereas copyright remains an appropriate form of exclusive right for authors who have created databases; (6) Whereas, nevertheless, in the absence of a harmonized system of unfair-competition legislation or of case-law, other measures are required in addition to prevent the unauthorized extraction and/or re-utilization of the contents of a database; (7) Whereas the making of databases requires the investment of considerable human, technical and financial resources while such databases can be copied or accessed at a fraction of the cost needed to design them independently; (8) Whereas the unauthorized extraction and/or re-utilization of the contents of a database constitute acts which can have serious economic and technical consequences; (9) Whereas databases are a vital tool in the development of an information market within the Community; whereas this tool will also be of use in many other fields; (10) Whereas the exponential growth, in the Community and worldwide, in the amount of information generated and processed annually in all sectors of commerce and industry calls for investment in all the Member States in advanced information processing systems; (11) Whereas there is at present a very great imbalance in the level of investment in the database sector both as between the Member States and between the Community and the world's largest database-producing third countries; (12) Whereas such an investment in modern information storage and processing systems will not take place within the Community unless a stable and uniform legal protection regime is introduced for the protection of the rights of makers of databases; (13) Whereas this Directive protects collections, sometimes called ‘compilations’, of works, data or other materials which are arranged, stored and accessed by means which include electronic, electromagnetic or electro-optical processes or analogous processes; (14) Whereas protection under this Directive should be extended to cover non-electronic databases; (15) Whereas the criteria used to determine whether a database should be protected by copyright should be defined to the fact that the selection or the arrangement of the contents of the database is the author's own intellectual creation; whereas such protection should cover the structure of the database; (16) Whereas no criterion other than originality in the sense of the author's intellectual creation should be applied to determine the eligibility of the database for copyright protection, and in particular no aesthetic or qualitative criteria should be applied; (17) Whereas the term ‘database’ should be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data; whereas it should cover collections of independent works, data or other materials which are systematically or methodically arranged and can be individually accessed; whereas this means that a recording or an audiovisual, cinematographic, literary or musical work as such does not fall within the scope of this Directive; (18) Whereas this Directive is without prejudice to the freedom of authors to decide whether, or in what manner, they will allow their works to be included in a database, in particular whether or not the authorization given is exclusive; whereas the protection of databases by the sui generis right is without prejudice to existing rights over their contents, and whereas in particular where an author or the holder of a related right permits some of his works or subject matter to be included in a database pursuant to a non-exclusive agreement, a third party may make use of those works or subject matter subject to the required consent of the author or of the holder of the related right without the sui generis right of the maker of the database being invoked to prevent him doing so, on condition that those works or subject matter are neither extracted from the database nor re-utilized on the basis thereof; (19) Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right; (20) Whereas protection under this Directive may also apply to the materials necessary for the operation or consultation of certain databases such as thesaurus and indexation systems; (21) Whereas the protection provided for in this Directive relates to databases in which works, data or other materials have been arranged systematically or methodically; whereas it is not necessary for those materials to have been physically stored in an organized manner, (22) Whereas electronic databases within the meaning of this Directive may also include devices such as CD-ROM and CD-i; (23) Whereas the term ‘database’ should not be taken to extend to computer programs used in the making or operation of a database, which are protected by Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (4); (24) Whereas the rental and lending of databases in the field of copyright and related rights are governed exclusively by Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (5); (25) Whereas the term of copyright is already governed by Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (6); (26) Whereas works protected by copyright and subject matter protected by related rights, which are incorporated into a database, remain nevertheless protected by the respective exclusive rights and may not be incorporated into, or extracted from, the database without the permission of the right-holder or his successors in title; (27) Whereas copyright in such works and related rights in subject matter thus incorporated into a database are in no way affected by the existence of a separate right in the selection or arrangement of these works and subject matter in a database; (28) Whereas the moral rights of the natural person who created the database belong to the author and should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works; whereas such moral rights remain outside the scope of this Directive; (29) Whereas the arrangements applicable to databases created by employees are left to the discretion of the Member States; whereas, therefore nothing in this Directive prevents Member States from stipulating in their legislation that where a database is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the database so created, unless otherwise provided by contract; (30) Whereas the author's exclusive rights should include the right to determine the way in which his work is exploited and by whom, and in particular to control the distribution of his work to unauthorized persons; (31) Whereas the copyright protection of databases includes making databases available by means other than the distribution of copies; (32) Whereas Member States are required to ensure that their national provisions are at least materially equivalent in the case of such acts subject to restrictions as are provided for by this Directive; (33) Whereas the question of exhaustion of the right of distribution does not arise in the case of on-line databases, which come within the field of provision of services; whereas this also applies with regard to a material copy of such a database made by the user of such a service with the consent of the right-holder, whereas, unlike CD-ROM or CD-i, where the intellectual property is incorporated in a material medium, namely an item of goods, every on-line service is in fact an act which will have to be subject to authorization where the copyright so provides; (34) Whereas, nevertheless, once the rightholder has chosen to make available a copy of the database to a user, whether by an on-line service or by other means of distribution, that lawful user must be able to access and use the database for the purposes and in the way set out in the agreement with the right-holder, even if such access and use necessitate performance of otherwise restricted acts; (35) Whereas a list should be drawn up of exceptions to restricted acts, taking into account the fact that copyright as covered by this Directive applies only to the selection or arrangements of the contents of a database; whereas Member States should be given the option of providing for such exceptions in certain cases; whereas, however, this option should be exercised in accordance with the Berne Convention and to the extent that the exceptions relate to the structure of the database; whereas a distinction should be drawn between exceptions for private use and exceptions for reproduction for private purposes, which concerns provisions under national legislation of some Member States on levies on blank media or recording equipment; (36) Whereas the term ‘scientific research’ within the meaning of this Directive covers both the natural sciences and the human sciences; (37) Whereas Article 10 (1) of the Berne Convention is not affected by this Directive; (38) Whereas the increasing use of digital recording technology exposes the database maker to the risk that the contents of his database may be copied and rearranged electronically, without his authorization, to produce a database of identical content which, however, does not infringe any copyright in the arrangement of his database; (39) Whereas, in addition to aiming to protect the copyright in the original selection or arrangement of the contents of a database, this Directive seeks to safeguard the position of makers of databases against misappropriation of the results of the financial and professional investment made in obtaining and collection the contents by protecting the whole or substantial parts of a database against certain acts by a user or competitor; (40) Whereas the object of this sui generis right is to ensure protection of any investment in obtaining, verifying or presenting the contents of a database for the limited duration of the right; whereas such investment may consist in the deployment of financial resources and/or the expending of time, effort and energy; (41) Whereas the objective of the sui generis right is to give the maker of a database the option of preventing the unauthorized extraction and/or re-utilization of all or a substantial part of the contents of that database; whereas the maker of a database is the person who takes the initiative and the risk of investing; whereas this excludes subcontractors in particular from the definition of maker; (42) Whereas the special right to prevent unauthorized extraction and/or re-utilization relates to acts by the user which go beyond his legitimate rights and thereby harm the investment; whereas the right to prohibit extraction and/or re-utilization of all or a substantial part of the contents relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant detriment, evaluated qualitatively or quantitatively, to the investment; (43) Whereas, in the case of on-line transmission, the right to prohibit re-utilization is not exhausted either as regards the database or as regards a material copy of the database or of part thereof made by the addressee of the transmission with the consent of the rightholder; (44) Whereas, when on-screen display of the contents of a database necessitates the permanent or temporary transfer of all or a substantial part of such contents to another medium, that act should be subject to authorization by the rightholder; (45) Whereas the right to prevent unauthorized extraction and/or re-utilization does not in any way constitute an extension of copyright protection to mere facts or data; (46) Whereas the existence of a right to prevent the unauthorized extraction and/or re-utilization of the whole or a substantial part of works, data or materials from a database should not give rise to the creation of a new right in the works, data or materials themselves; (47) Whereas, in the interests of competition between suppliers of information products and services, protection by the sui generis right must not be afforded in such a way as to facilitate abuses of a dominant position, in particular as regards the creation and ditribution of new products and services which have an intellectual, documentary, technical, economic or commercial added value; whereas, therefore, the provisions of this Directive are without prejudice to the application of Community or national competition rules; (48) Whereas the objective of this Directive, which is to afford an appropriate and uniform level of protection of databases as a means to secure the remuneration of the maker of the database, is different from the aim of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (7), which is to guarantee free circulation of personal data on the basis of harmonized rules designed to protect fundamental rights, notably the right to privacy which is recognized in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas the provisions of this Directive are without prejudice to data protection legislation; (49) Whereas, notwithstanding the right to prevent extraction and/or re-utilization of all or a substantial part of a database, it should be laid down that the maker of a database or rightholder may not prevent a lawful user of the database from extracting and re-utilizing insubstantial parts; whereas, however, that user may not unreasonably prejudice either the legitimate interests of the holder of the sui generis right or the holder of copyright or a related right in respect of the works or subject matter contained in the database; (50) Whereas the Member States should be given the option of providing for exceptions to the right to prevent the unauthorized extraction and/or re-utilization of a substantial part of the contents of a database in the case of extraction for private purposes, for the purposes of illustration for teaching or scientific research, or where extraction and/or re-utilization are/is carried out in the interests of public security or for the purposes of an administrative or judicial procedure; whereas such operations must not prejudice the exclusive rights of the maker to exploit the database and their purpose must not be commercial; (51) Whereas the Member States, where they avail themselves of the option to permit a lawful user of a database to extract a substantial part of the contents for the purposes of illustration for teaching or scientific research, may limit that permission to certain categories of teaching or scientific research institution; (52) Whereas those Member States which have specific rules providing for a right comparable to the sui generis right provided for in this Directive should be permitted to retain, as far as the new right is concerned, the exceptions traditionally specified by such rules; (53) Whereas the burden of proof regarding the date of completion of the making of a database lies with the maker of the database; (54) Whereas the burden of proof that the criteria exist for concluding that a substantial modification of the contents of a database is to be regarded as a substantial new investment lies with the maker of the database resulting from such investment; (55) Whereas a substantial new investment involving a new term of protection may include a substantial verification of the contents of the database; (56) Whereas the right to prevent unauthorized extraction and/or re-utilization in respect of a database should apply to databases whose makers are nationals or habitual residents of third countries or to those produced by legal persons not established in a Member State, within the meaning of the Treaty, only if such third countries offer comparable protection to databases produced by nationals of a Member State or persons who have their habitual residence in the territory of the Community; (57) Whereas, in addition to remedies provided under the legislation of the Member States for infringements of copyright or other rights, Member States should provide for appropriate remedies against unauthorized extraction and/or re-utilization of the contents of a database; (58) Whereas, in addition to the protection given under this Directive to the structure of the database by copyright, and to its contents against unauthorized extraction and/or re-utilization under the sui generis right, other legal provisions in the Member States relevant to the supply of database goods and services continue to apply; (59) Whereas this Directive is without prejudice to the application to databases composed of audiovisual works of any rules recognized by a Member State's legislation concerning the broadcasting of audiovisual programmes; (60) Whereas some Member States currently protect under copyright arrangements databases which do not meet the criteria for eligibility for copyright protection laid down in this Directive; whereas, even if the databases concerned are eligible for protection under the right laid down in this Directive to prevent unauthorized extraction and/or re-utilization of their contents, the term of protection under that right is considerably shorter than that which they enjoy under the national arrangements currently in force; whereas harmonization of the criteria for determining whether a database is to be protected by copyright may not have the effect of reducing the term of protection currently enjoyed by the rightholders concerned; whereas a derogation should be laid down to that effect; whereas the effects of such derogation must be confined to the territories of the Member States concerned, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I SCOPE Article 1 Scope 1. This Directive concerns the legal protection of databases in any form. 2. For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. 3. Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means. Article 2 Limitations on the scope This Directive shall apply without prejudice to Community provisions relating to: (a) the legal protection of computer programs; (b) rental right, lending right and certain rights related to copyright in the field of intellectual property, (c) the term of protection of copyright and certain related rights. CHAPTER II COPYRIGHT Article 3 Object of protection 1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection. 2. The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves. Article 4 Database authorship 1. The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Member States so permits, the legal person designated as the rightholder by that legislation. 2. Where collective works are recognized by the legislation of a Member State, the economic rights shall be owned by the person holding the copyright. 3. In respect of a database created by a group of natural persons jointly, the exclusive rights shall be owned jointly. Article 5 Restricted acts In respect of the expression of the database which is protectable by copyright, the author of a database shall have the exclusive right to carry out or to authorize: (a) temporary or permanent reproduction by any means and in any form, in whole or in part; (b) translation, adaptation, arrangement and any other alteration; (c) any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; (d) any communication, display or performance to the public; (e) any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in (b). Article 6 Exceptions to restricted acts 1. The performance by the lawful user of a database or of a copy thereof of any of the acts listed in Article 5 which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user shall not require the authorization of the author of the database. Where the lawful user is authorized to use only part of the database, this provision shall apply only to that part. 2. Member States shall have the option of providing for limitations on the rights set out in Article 5 in the following cases: (a) in the case of reproduction for private purposes of a non-electronic database; (b) where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; (c) where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure; (d) where other exceptions to copyright which are traditionally authorized under national law are involved, without prejudice to points (a), (b) and (c). 3. In accordance with the Berne Convention for the protection of Literary and Artistic Works, this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with normal exploitation of the database. CHAPTER III SUI GENERIS RIGHT Article 7 Object of protection 1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database. 2. For the purposes of this Chapter: (a) ‘extraction’ shall mean the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form; (b) ‘re-utilization’ shall mean any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; Public lending is not an act of extraction or re-utilization. 3. The right referred to in paragraph 1 may be transferred, assigned or granted under contractual licence. 4. The right provided for in paragraph 1 shall apply irrespective of the eligibility of that database for protection by copyright or by other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights. Protection of databases under the right provided for in paragraph 1 shall be without prejudice to rights existing in respect of their contents. 5. The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted. Article 8 Rights and obligations of lawful users 1. The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Where the lawful user is authorized to extract and/or re-utilize only part of the database, this paragraph shall apply only to that part. 2. A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database. 3. A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database. Article 9 Exceptions to the sui generis right Member States may stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents: (a) in the case of extraction for private purposes of the contents of a non-electronic database; (b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; (c) in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure. Article 10 Term of protection 1. The right provided for in Article 7 shall run from the date of completion of the making of the database. It shall expire fifteen years from the first of January of the year following the date of completion. 2. In the case of a database which is made available to the public in whatever manner before expiry of the period provided for in paragraph 1, the term of protection by that right shall expire fifteen years from the first of January of the year following the date when the database was first made available to the public. 3. Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection. Article 11 Beneficiaries of protection under the sui generis right 1. The right provided for in Article 7 shall apply to database whose makers or rightholders are nationals of a Member State or who have their habitual residence in the territory of the Community. 2. Paragraph 1 shall also apply to companies and 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 Community; however, where such a company or firm has only its registered office in the territory of the Community, its operations must be genuinely linked on an ongoing basis with the economy of a Member State. 3. Agreements extending the right provided for in Article 7 to databases made in third countries and falling outside the provisions of paragraphs 1 and 2 shall be concluded by the Council acting on a proposal from the Commission. The term of any protection extended to databases by virtue of that procedure shall not exceed that available pursuant to Article 10. CHAPTER IV COMMON PROVISIONS Article 12 Remedies Member States shall provide appropriate remedies in respect of infringements of the rights provided for in this Directive. Article 13 Continued application of other legal provisions This Directive shall be without prejudice to provisions concerning in particular copyright, rights related to copyright or any other rights or obligations subsisting in the data, works or other materials incorporated into a database, patent rights, trade marks, design rights, the protection of national treasures, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, and the law of contract. Article 14 Application over time 1. Protection pursuant to this Directive as regards copyright shall also be available in respect of databases created prior to the date referred to Article 16 (1) which on that date fulfil the requirements laid down in this Directive as regards copyright protection of databases. 2. Notwithstanding paragraph 1, where a database protected under copyright arrangements in a Member State on the date of publication of this Directive does not fulfil the eligibility criteria for copyright protection laid down in Article 3 (1), this Directive shall not result in any curtailing in that Member State of the remaining term of protection afforded under those arrangements. 3. Protection pursuant to the provisions of this Directive as regards the right provided for in Article 7 shall also be available in respect of databases the making of which was completed not more than fifteen years prior to the date referred to in Article 16 (1) and which on that date fulfil the requirements laid down in Article 7. 4. The protection provided for in paragraphs 1 and 3 shall be without prejudice to any acts concluded and rights acquired before the date referred to in those paragraphs. 5. In the case of a database the making of which was completed not more than fifteen years prior to the date referred to in Article 16 (1), the term of protection by the right provided for in Article 7 shall expire fifteen years from the first of January following that date. Article 15 Binding nature of certain provisions Any contractual provision contrary to Articles 6 (1) and 8 shall be null and void. Article 16 Final provisions 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1998. When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the provisions of domestic law which they adopt in the field governed by this Directive. 3. Not later than at the end of the third year after the date refered to in paragraph 1, and every three years thereafter, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, in which, inter alia, on the basis of specific information supplied by the Member States, it shall examine in particular the application of the sui generis right, including Articles 8 and 9, and shall verify especially whether the application of this right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken, including the establishment of non-voluntary licensing arrangements. Where necessary, it shall submit proposals for adjustment of this Directive in line with developments in the area of databases. Article 17 This Directive is addressed to the Member States. Done at Strasbourg, 11 March 1996. For the European Parliament The President K. HÄNSCH For the Council The President L. DINI (1) OJ No C 156, 23. 6. 1992, p. 4 and OJ No C 308, 15. 11. 1993, p. 1. (2) OJ No C 19, 25. 1. 1993, p. 3. (3) Opinion of the European Parliament of 23 June 1993 (OJ No C 194, 19. 7. 1993, p. 144), Common Position of the Council of 10 July 1995 (OJ No C 288, 30. 10. 1995, p. 14), Decision of the European Parliament of 14 December 1995 (OJ No C 17, 22 1. 1996) and Council Decision of 26 February 1996. (4) OJ No L 122, 17. 5. 1991, p. 42. Directive as last amended by Directive 93/98/EEC (OJ No L 290, 24. 11. 1993, p. 9.) (5) OJ No L 346, 27. 11. 1992, p. 61. (6) OJ No L 290, 24. 11. 1993, p. 9. (7) OJ No L 281, 23. 11. 1995, p. 31.

Summary: Legal protection: databases Legal protection: databases SUMMARY OF: Directive 96/9/EC on the legal protection of databases WHAT IS THE AIM OF THE DIRECTIVE? It seeks to provide legal protection for databases* which has two aspects: copyright protection for the intellectual creation involved in the selection and arrangement of materials; sui generis* protection for a substantial investment (financial and in terms of human resources, effort and energy) in obtaining, verifying or presenting the contents of a database. KEY POINTS ScopeThe directive: applies to databases, irrespective of their form (e.g. electronic (online) or non-electronic (offline)); does not apply to the software used in the making or operation of the database or to the works and materials it contains. It does not affect the legal rules covering notably patents, trade marks, designs and models or unfair competition. Copyright A database will be protected by copyright if the selection or arrangement of its contents constitute the creator's own intellectual creation. The creator of a database enjoys a group of exclusive rights (restricted acts), e.g. reproduction, alteration, distribution, etc. The legitimate user of a database may carry out the restricted acts that are necessary for using the database, subject to certain restrictions. Other exceptions are also envisaged (e.g. illustration for teaching or scientific research). Sui generis rights In addition to the copyright arrangements, the directive lays down a set of sui generis arrangements so that the creator of a database can prohibit the unauthorised extraction and/or reuse of its contents. Sui generis rights are economic rights and as such can be transferred, assigned or granted under contractual licence. Lawful users may extract and reuse, without authorisation, non-substantial parts of the contents of a database. However, they may not carry out acts that unreasonably harm the legitimate interests of the creator of the database or of a person providing the works or services it contains. Other exceptions are also foreseen (e.g. illustration for teaching or scientific research). The right to prevent the unauthorised extraction and/or reuse of the contents of a database extends for a period of 15 years with effect from the date on which the creation of the database was completed. Protection against unauthorised extraction or reuse is granted to databases whose creator is an EU national, a company or a business resident in or having its registered office, central administration or principal place of business in the EU. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 16 April 1996 and it had to become law in the EU countries by 31 December 1997. BACKGROUND There have been two evaluations of the directive, one in 2005 and one in 2018. For more information, see: Protection of databases (European Commission). KEY TERMS Database: a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. Sui generis right: a property right, similar to but distinct from copyright. It exists to recognise the substantial investment that is made in obtaining, verification or presentation of the contents of a database, even when this does not involve the creative aspect that is reflected by copyright. MAIN DOCUMENT Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, pp. 20-28) last update 11.01.2019


6.12.1995 EN Official Journal of the European Communities L 291/46 COUNCIL DIRECTIVE 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 99 thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the European Parliament (2), Having regard to the opinion of the Economic and Social Committee (3), Whereas the Community measures envisaged by this Directive are not only necessary but also indispensable for the attainment of the objectives of the internal market; whereas these objectives cannot be achieved by Member States individually; whereas furthermore their attainment at Community level is already provided for in Directive 92/81/EEC (4), and in particular Article 9 thereof; whereas this Directive conforms with the principle of subsidiarity; Whereas Directive 92/82/EEC (5) lays down provisions in respect of the minimum rates of excise duty applicable to certain mineral oils and in particular to the different categories of gas oil and kerosene; Whereas the proper functioning of the internal market now requires that common rules be established for fiscal marking of gas oil and kerosene which have not borne duty at the full rate applicable to such mineral oils used as propellant; Whereas certain Member States should be allowed to derogate from the measures laid down in this Directive because of special national circumstances; Whereas Directive 92/12/EEC (6) lays down provisions on the general arrangements for products subject to excise duty and in particular Article 24 thereof provides for the establishment of an Excise Committee which may examine matters concerning the application of Community provisions on excise duties; Whereas it is appropriate that certain technical matters relating to the specification of products to be used for fiscal marking of gas oil and kerosene be dealt with under the provisions of the said Article, HAS ADOPTED THIS DIRECTIVE: Article 1 1. Without prejudice to national provisions on fiscal marking, Member States shall apply a fiscal marker in accordance with the provisions of this Directive to: — all gas oil falling within CN code 2710 00 69 which has been released for consumption within the meaning of Article 6 of Directive 92/12/EEC and has been exempt from, or subject to, excise duty at a rate other than that laid down in Article 5 (1) of Directive 92/82/EEC; — kerosene falling within CN code 2710 00 55 which has been released for consumption within the meaning of Article 6 of Directive 92/12/EEC and has been exempt from, or subject to, excise duty at a rate other than that laid down in Article 8 (1) of Directive 92/82/EEC. 2. Member States may allow exceptions to the application of the fiscal marker provided for in paragraph 1 on grounds of public health or safety or for other technical reasons, provided they take appropriate fiscal supervision measures. Moreover, Ireland may decide not to use or allow use of this marker in accordance with Article 21 (4) of Directive 92/12/EEC. In such a situation Ireland shall inform the Commission, which shall inform the other Member States. Article 2 1. The marker shall consist of a well-defined combination of chemical additives to be added under fiscal supervision before the mineral oils concerned are released for consumption. However, — in the case of direct deliveries from another Member State under a tax suspension arrangements outside a tax warehouse, Member States may require the marker to be added before the product leaves the tax warehouse of despatch; — Member States which adopted this measure before 1 January 1996 may, in certain exceptional cases or situations, allow markers to be added after the mineral oils in question are released for consumption under fiscal supervision. Any Member State which applies such a measure shall so inform the Commission. The Commission shall inform the other Member States of the measure. In the latter case, Member States may reimburse the excise duty paid when the product was released for consumption; — Denmark may, provided that the goods remain subject to fiscal control, delay the addition of the marker until the moment of final retail sale, at the latest. 2. The marker to be used shall be established in accordance with the procedure laid down in Article 24 of Directive 92/12/EEC. Article 3 Member States shall take the necessary steps to ensure that improper use of the marked products is avoided and, in particular, that the mineral oils in question cannot be used for combustion in the engine of a road-going motor vehicle or kept in its fuel tank unless such use is permitted in specific cases determined by the competent authorities of the Member States. Member States shall provide that the use of the mineral oils in question in the cases mentioned in the first sub-paragraph is to be considered as an offence under the national law of the Member State concerned. Each Member State shall take the measures required to give full effect to all the provisions of this Directive and shall, in particular, determine the penalties to be imposed in the event of failure to comply with the said measures; such penalties shall be commensurate with their purpose and shall have adequate deterrent effect. Article 4 Member States may add a national marker or colour in addition to the marker provided for in Article 1 (1). No person shall add to the mineral oils concerned any marker or colour other than those provided for in Community law or in the national law of the Member State concerned. Article 5 1. Member States shall bring into force the provisions necessary to comply with this Directive on the entry into force of the provisions adopted in accordance with the procedure provided for in Article 2. They shall forthwith inform the Commission thereof. When Member States adopt these provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member State. 2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive. Article 6 This Directive is addressed to the Member States. Done at Brussels, 27 November 1995. For the Council The President P. SOLBES MIRA (1) OJ No C 15, 18. 1. 1994, p. 18. (2) OJ No C 128, 9. 5. 1995, p. 178. (3) OJ No C 133, 16. 5. 1994, p. 35. (4) OJ No L 316, 31. 10. 1992, p. 2. Directive as last amended by Directive 94/74/EC (OJ No L 365, 31. 12. 1994, p. 46). (5) OJ No L 316, 31. 10. 1992, p. 19. Directive as amended by Directive 94/74/EC (OJ No L 365, 31. 12. 1994, p. 46). (6) OJ No L 76, 23. 3. 1992, p. 1. Directive as last amended by Directive 94/74/EC (OJ No L 365, 31. 12. 1994, p. 46).

Summary: Fiscal marking of gas oils and kerosene Fiscal marking of gas oils and kerosene SUMMARY OF: Directive 95/60/EC – fiscal marking of gas oils and kerosene WHAT IS THE AIM OF THE DIRECTIVE? It aims to ensure the proper functioning of the internal market and to prevent the improper use of certain petroleum products which are subject to variable excise duties. KEY POINTS EU countries have to apply a fiscal marker to gas oils and kerosene (other than jet fuel) which are exempt from excise duty or are subject to excise duty at a rate other than the standard rate applicable to mineral oils used as motor fuel. Fiscal marking consists of adding a specific chemical substance to the abovementioned products. The marker is to be added under fiscal supervision before the products are released for consumption, save in exceptional cases. EU countries may add a national marker or colour in addition to the marker provided for by the Directive. Exceptions There are exceptions, in certain circumstances, from the application of the fiscal marker on grounds of public health or safety or for technical reasons. Ireland may decide not to use or allow use of this marker. If so, it must inform the Commission, which must then inform the other EU countries. Denmark may, provided that the goods remain subject to fiscal control, delay the addition of the marker until the moment of final retail sale. Penalties To ensure that improper use of the marked products is avoided and, in particular, that the mineral oils in question cannot be used for combustion in the engine of a road-going motor vehicle, EU countries must determine the penalties to be imposed in the event of failure to comply with the directive. Common marker Commission Implementing Decision 2011/544/EC established Solvent Yellow 124 as the common fiscal marker. It was prolonged three times. The latest Implementing Decision (EU) 2017/74, which is currently in force, fixed the marking level of at least 6 mg and not more than 9 mg of marker per litre of mineral oil. This decision is to be reviewed by 31 December 2021 at the latest, in the light of technical developments in the field of marking systems (and taking into account the need to counteract the fraudulent use of mineral oils exempted from excise duty, or subject to a reduced excise duty rate). In the meantime, the European Commission has launched a study to identify alternative products suitable for use as a fiscal marker in gas oils and kerosene. The Joint Research Centre of the Commission produced a report containing its findings on some of the available fiscal markers based on applications made by companies from the chemical industry following a call for expression of interest, issued by the Commission services. Work on the assessment of the candidate fiscal markers is ongoing. If the Commission, after consulting the EU countries, decides that a better performing substance than Solvent Yellow 124 is available, Decision (EU) 2017/74 may be repealed prior to 2021. FROM WHEN DOES THE DIRECTIVE APPLY? The directive has applied since 26 December 1995. BACKGROUND For more information, see: Excise Duties: Other Energy Tax Legislation (European Commission). MAIN DOCUMENT Council Directive 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene (OJ L 291, 6.12.1995, pp. 46–47) RELATED DOCUMENTS Commission Implementing Decision (EU) 2017/74 of 25 November 2016 establishing a common fiscal marker for gas oils and kerosene (OJ L 10, 14.1.2017, pp. 7–9) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ L 9, 14.1.2009, pp. 12–30) Successive amendments to Directive 2008/118/EC have been incorporated into the basic text. This consolidated version is of documentary value only. Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ L 283, 31.10.2003, pp. 51–70). Two amendments to Directive 2003/96/EC have been incorporated into the basic text. See consolidated version last update 07.11.2017


21.4.1993 EN Official Journal of the European Communities L 95/29 COUNCIL DIRECTIVE 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 A thereof, Having regard to the proposal from the Commission (1), In cooperation with the European Parliament (2), Having regard to the opinion of the Economic and Social Committee (3), Whereas it is necessary to adopt measures with the aim of progressively establishing the internal market before 31 December 1992; whereas the internal market comprises an area without internal frontiers in which goods, persons, services and capital move freely; Whereas the laws of Member States relating to the terms of contract between the seller of goods or supplier of services, on the one hand, and the consumer of them, on the other hand, show many disparities, with the result that the national markets for the sale of goods and services to consumers differ from each other and that distortions of competition may arise amongst the sellers and suppliers, notably when they sell and supply in other Member States; Whereas, in particular, the laws of Member States relating to unfair terms in consumer contracts show marked divergences; Whereas it is the responsibility of the Member States to ensure that contracts concluded with consumers do not contain unfair terms; Whereas, generally speaking, consumers do not know the rules of law which, in Member States other than their own, govern contracts for the sale of goods or services; whereas this lack of awareness may deter them from direct transactions for the purchase of goods or services in another Member State; Whereas, in order to facilitate the establishment of the internal market and to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own, it is essential to remove unfair terms from those contracts; Whereas sellers of goods and suppliers of services will thereby be helped in their task of selling goods and supplying services, both at home and throughout the internal market; whereas competition will thus be stimulated, so contributing to increased choice for Community citizens as consumers; Whereas the two Community programmes for a consumer protection and information policy (4) underlined the importance of safeguarding consumers in the matter of unfair terms of contract; whereas this protection ought to be provided by laws and regulations which are either harmonized at Community level or adopted directly at that level; Whereas in accordance with the principle laid down under the heading ‘Protection of the economic interests of the consumers’, as stated in those programmes: ‘acquirers of goods and services should be protected against the abuse of power by the seller or supplier, in particular against one-sided standard contracts and the unfair exclusion of essential rights in contracts’; Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; whereas those rules should apply to all contracts concluded between sellers or suppliers and consumers; whereas as a result inter alia contracts relating to employment, contracts relating to succession rights, contracts relating to rights under family law and contracts relating to the incorporation and organization of companies or partnership agreements must be excluded from this Directive; Whereas the consumer must receive equal protection under contracts concluded by word of mouth and written contracts regardless, in the latter case, of whether the terms of the contract are contained in one or more documents; Whereas, however, as they now stand, national laws allow only partial harmonization to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive; Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording ‘mandatory statutory or regulatory provisions’ in Article 1 (2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established; Whereas Member States must however ensure that unfair terms are not included, particularly because this Directive also applies to trades, business or professions of a public nature; Whereas it is necessary to fix in a general way the criteria for assessing the unfair character of contract terms; Whereas the assessment, according to the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved; whereas this constitutes the requirement of good faith; whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account; Whereas, for the purposes of this Directive, the annexed list of terms can be of indicative value only and, because of the cause of the minimal character of the Directive, the scope of these terms may be the subject of amplification or more restrictive editing by the Member States in their national laws; Whereas the nature of goods or services should have an influence on assessing the unfairness of contractual terms; Whereas, for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject matter of the contract nor the quality/price ratio of the goods or services supplied; whereas the main subject matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; whereas it follows, inter alia, that in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer's liability shall not be subject to such assessment since these restrictions are taken into account in calculating the premium paid by the consumer; Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail; Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions; Whereas there is a risk that, in certain cases, the consumer may be deprived of protection under this Directive by designating the law of a non-Member country as the law applicable to the contract; whereas provisions should therefore be included in this Directive designed to avert this risk; Whereas persons or organizations, if regarded under the law of a Member State as having a legitimate interest in the matter, must have facilities for initiating proceedings concerning terms of contract drawn up for general use in contracts concluded with consumers, and in particular unfair terms, either before a court or before an administrative authority competent to decide upon complaints or to initiate appropriate legal proceedings; whereas this possibility does not, however, entail prior verification of the general conditions obtaining in individual economic sectors; Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts, HAS ADOPTED THIS DIRECTIVE: Article 1 1. The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer. 2. The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive. Article 2 For the purposes of this Directive: (a) ‘unfair terms’ means the contractual terms defined in Article 3; (b) ‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession; (c) ‘seller or supplier’ means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned. Article 3 1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. 2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him. 3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair. Article 4 1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. 2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language. Article 5 In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. This rule on interpretation shall not apply in the context of the procedures laid down in Article 7 (2). Article 6 1. Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms. 2. Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States. Article 7 1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. 2. The means referred to in paragraph 1 shall include provisions whereby persons or organizations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms. 3. With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms. Article 8 Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer. Article 9 The Commission shall present a report to the European Parliament and to the Council concerning the application of this Directive five years at the latest after the date in Article 10 (1). Article 10 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1994. They shall forthwith inform the Commission thereof. These provisions shall be applicable to all contracts concluded after 31 December 1994. 2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States. 3. Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission. Article 11 This Directive is addressed to the Member States. Done at Luxembourg, 5 April 1993. For the Council The President N. HELVEG PETERSEN (1) OJ No C 73, 24. 3. 1992, p. 7. (2) OJ No C 326, 16. 12. 1991, p. 108 and OJ No C 21, 25. 1. 1993. (3) OJ No C 159, 17. 6. 1991, p. 34. (4) OJ No C 92, 25. 4. 1975, p. 1 and OJ No C 133, 3. 6. 1981, p. 1. ANNEX TERMS REFERRED TO IN ARTICLE 3 (3) 1. Terms which have the object or effect of: (a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier; (b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him; (c) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone; (d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract; (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation; (f) authorizing the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract; (g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; (h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early; (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; (j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; (k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided; (l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; (m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract; (n) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality; (o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his; (p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement; (q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract. 2. Scope of subparagraphs (g), (j) and (1) (a) Subparagraph (g) is without hindrance to terms by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof immediately. (b) Subparagraph (j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately. Subparagraph (j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract. (c) Subparagraphs (g), (j) and (1) do not apply to: — transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control; — contracts for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency; (d) Subparagraph (1) is without hindrance to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

Summary: Protecting consumers from unfair terms in contracts Protecting consumers from unfair terms in contracts SUMMARY OF: Directive 93/13/EEC on unfair terms in consumer contracts Directive (EU) 2019/2161 amending Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU as regards the better enforcement and modernisation of EU consumer protection rules WHAT DOES THE DIRECTIVE DO? Directive 93/13/EEC protects consumers in the EU from unfair terms and conditions which might be included in a standard contract for goods and services they purchase. It introduces the notion of ‘good faith’ to avoid any significant imbalance in mutual rights and obligations. As part of the New Deal for Consumers, Directive 93/13/EEC has been amended by Directive (EU) 2019/2161, which aims to modernise EU consumer law and improve its enforcement. KEY POINTS Directive 93/13/EEC The goods and services involved, circumstances of the transaction and all the other terms and conditions have to be taken into account when assessing whether a clause in a contract is fair or not. The actual price paid for goods or services is not taken into account in this assessment, unless the term in question is not plain and intelligible. The directive contains a non-exhaustive and indicative list of unfair contract terms. These include requiring consumers to pay unreasonable compensation or holding them to terms they had no time to fully understand before signing the contract. The wording of all written contracts must be in plain, intelligible language. When there is doubt about the meaning of a term, it should be interpreted in a manner favourable to the consumer. Contract terms deemed unfair are not binding on consumers, but the rest of the contract remains valid where this is legally possible. EU countries must ensure that there are effective remedies to prevent unfair terms from continuing to be used in contracts. Organisations or individuals with a legitimate interest in protecting consumers’ rights may go to court to prevent that an unfair contract term continues to apply. In 2019, the European Commission issued a guidance notice on the interpretation and application of Directive 93/13/EEC. This serves to present the rich case law of the Court of Justice of the European Union on this directive in a structured manner to facilitate effective application of the directive in the EU and European Economic Area countries. Penalties Amending Directive (EU) 2019/2161 requires EU countries to introduce effective, proportionate and dissuasive penalties to punish traders who break the rules on unfair contract terms based on a set of parameters. These criteria include: the nature, gravity, scale and duration of the infringement;any action taken by the trader to mitigate or remedy the damage suffered by consumers;any previous infringements by the trader;penalties imposed on the trader for the same infringement in other EU countries in cross-border cases where information about these penalties is available through the mechanism set up by Regulation (EU) 2017/2394 (see summary). Under the new directive, EU countries must be able to impose effective, proportionate and dissuasive penalties where, in connection with coordinated actions under Regulation (EU) 2017/2394, they identify major cross-border infringements affecting consumers in several EU countries. Fines must be able to reach 4% of a trader’s turnover, or € 2 million where information about the trader’s turnover is unavailable. FROM WHEN DO THE DIRECTIVES APPLY? Directive 93/13/EEC has applied since 16 April 1993 and had to become law in the EU countries by 31 December 1994. Amending Directive (EU) 2019/2161 has to become law in the EU countries by 28 November 2021. The EU countries must apply the rules as of 28 May 2022. BACKGROUND For more information, see: Unfair contract terms directive (European Commission) Factsheet — New Deal: What benefits will I get as a consumer? (European Commission). MAIN DOCUMENTS Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, pp. 29-34) Successive amendments to Directive 93/13/EEC have been incorporated into the original text. This consolidated version is of documentary value only. Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules (OJ L 328, 18.12.2019, pp. 7-28) RELATED DOCUMENTS Commission notice — Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ C 323, 27.9.2019, pp. 4-92) Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee — A New Deal for Consumers (COM(2018) 183 final, 11.4.2018) Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, pp. 1-26) See consolidated version. last update 10.03.2020


EUR-Lex - 31993R0315 - EN Avis juridique important | 31993R0315 Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food Official Journal L 037 , 13/02/1993 P. 0001 - 0003 Finnish special edition: Chapter 15 Volume 12 P. 0078 Swedish special edition: Chapter 15 Volume 12 P. 0078 COUNCIL REGULATION (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in foodTHE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a thereof, Having regard to the proposal from the Commission (1), In cooperation with the European Parliament (2), Having regard to the opinion of the Economic and Social Committee (3), Whereas it is important to adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992; whereas the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured; Whereas the differences in rules adopted by the Member States may hinder the functioning of the common market and whereas it is necessary to lay down a procedure for the adoption of harmonized Community rules; Whereas contaminants may enter into food at any stage from production to consumption; Whereas it is essential, in the interest of public health protection, to keep these contaminants at levels which are toxicologically acceptable; Whereas further elimination must be carried out whenever it is achievable through good working practices; whereas compliance with such good practices can be efficiently monitored by public authorities, given the vocational traiing and experience of their agents; Whereas this Regulation must apply without prejudice to the provisions adopted in the context of more specific Community rules; Whereas it is appropriate in terms of health protection to encourage the search for a comprehensive approach to the question of contaminants in food; Whereas the Scientific Committee for Food set up by Decision 74/234/EEC (4) must be consulted on all questions which may have an effect on public health, HAS ADOPTED THIS REGULATION: Article 1 1. This Regulation concerns contaminants contained in food. 'Contaminant' means any substance not intentionally added to food which is present in such food as a result of the production (including operations carried out in crop husbandry, animal husbandry and veterinary medicine), manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food, or as a result of environmental contamination. Extraneous matter, such as, for example, insect fragments, animal hair, etc, is not covered by this definition. 2. This Regulation shall not apply to contaminants which are the subject of more specific Community rules. Upon the entry into force of this Regulation, the Commission shall publish in the C series of the Official Journal of the European Communities, for the purposes of information, a list of the rules referred to in the first subparagraph. That list shall be updated, as appropriate, by the Commission. 3. Provisions relating to contaminants shall be adopted in accordance with this Regulation, except those laid down by the rules referred to in paragraph 2. Article 2 1. Food containing a contaminant in an amount which is unacceptable from the public health viewpoint and in particular at a toxicological level shall not be placed on the market. 2. Furthermore, contaminant levels shall be kept as low as can reasonably be achieved by following good practices at all the stages referred to in Article 1. 3. In order to protect public health and pursuant to paragraph 1, where necessary, maximum tolerances for specific contaminants shall be established in accordance with the procedure laid down in Article 8. These tolerances shall be adopted in the form of a non-exhaustive Community list and may include: - limits for the same contaminant in different foods; - analytical detection limits; - a reference to the sampling and analysis methods to be used. Article 3 Provisions which may have an effect upon public health shall be adopted after consultation of the Scientific Committee for Food. Article 4 1. Where a Member State, as a result of new information or of a reassessment of existing information, has reason to suspect that a contaminant in food, although complying with this Regulation or specific Regulations adopted pursuant to this Regulation, constitutes a health risk, it may temporarily suspend or restrict application of the provisions in question in its territory. It shall immediately inform the other Member States and the Commission thereof and give reasons for its decision. 2. The Commission shall examine the reasons given by the Member State referred to in paragraph 1 as soon as possible in the Standing Committee for Foodstuffs, set up by Decision 69/314/EEC (5) and shall deliver its opinion immediately and take any necessary measures in accordance with the procedure laid down in Article 8. Article 5 1. Member States may not prohibit, restrict, or impede the placing on the market of foods which comply with this Regulation or specific provisions adopted pursuant to this Regulation for reasons relating to their contaminant levels. 2. Where Community provisions concerning the maximum tolerances referred to in Article 2 (3) have not been adopted, the relevant national provisions shall be applicable subject to compliance with the provisions of the Treaty. 3. (a) When a Member State maintains the provisions of its domestic laws, it shall inform the Commission and the other Member States thereof within a period of six months after the adoption of this Regulation. (b) Should a Member State deem it necessary to adopt new legislation, it shall communicate to the Commission and the other Member States the measures envisaged and give the reasons justifying them. The Commission shall consult the Member States within the Standing Committee on Foodstuffs if it considers such consultation to be useful or if a Member State so requests. Member States may take such envisaged measures only three months after such communication and provided that the Commission's opinion is not negative. In the latter event, before the expiry of the period referred to in the second paragraph, the Commission shall initiate the procedure provided for in Article 8 in order to determine whether the envisaged measures may be implemented subject, if necessary, to the appropriate amendments. Article 6 Each year the Commission shall submit to the Standing Committee on Foodstuffs a report on the overall development of Community legislation on contaminants. Article 7 Four years after this Regulation comes into force, the Commission shall forward to the Council a report on the experience gained accompanied, should the need arise, by any appropriate proposal. Article 8 The Commission shall be assisted by the Standing Committee for Foodstuffs, hereinafter referred to as 'the Committee'. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote. The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee. If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority. If, on the expiry of a period of three months from the date of referred to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission, save where the Council has decided against the said measures by a simple majority. Article 9 This Regulation shall enter into force on 1 March 1993. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 8 February 1993. For the Council The President J. TROEJBORG (1) OJ No C 57, 4. 3. 1992, p. 11. (2) OJ No C 129, 20. 5. 1991, p. 104 and Decision of 20 January 1993 (not yet published in the Official Journal). (3) OJ No C 223, 31. 8. 1992, p. 24. (4) OJ No L 136, 20. 5. 1974, p. 1. (5) OJ No L 291, 19. 11. 1969, p. 9.

Summary: Contaminants in food: minimising negative impacts Contaminants in food: minimising negative impacts SUMMARY OF: Regulation (EEC) No 315/93 — EU procedures for contaminants in food SUMMARY WHAT DOES THIS REGULATION DO? It seeks to protect public health by prohibiting the marketing of foods containing an unacceptable amount of residual substances known as ‘contaminants’. KEY POINTS Contaminants are present in food as a result of treatment after production or through environmental contamination. The EU regulates the toxicologically acceptable levels of contaminants and keeps them at the lowest possible levels. Contaminants which are the subject of more specific rules, or to extraneous matter, such as insect fragments, animal hair, etc. are not covered by this regulation. An EU country may take restrictive measures by reference to this regulation if it suspects that the presence of a contaminant poses a hazard to public health. If so, it must immediately inform the other EU countries and the European Commission and give reasons for its decision. The Commission must examine the reasons given by the EU country as soon as possible and take appropriate measures after having consulted the Standing Committee on the Food Chain and Animal Health (now the Standing Committee on Plants, Animals, Food and Feed). This Committee assists the Commission on all matters which concern contaminants, including the establishment of authorised maximum tolerances. The regulation requires maximum levels to be set for certain contaminants in order to protect public health. EU countries must not prohibit trade in foods that comply with this regulation. Commission Regulation (EC) No 1881/2006 sets maximum levels for certain contaminants in food including nitrate, lead, cadmium, mercury, arsenic, melamine, etc. FROM WHEN DOES THE REGULATION APPLY? It applies since 1 March 1993. BACKGROUND For more information, see also ‘Contaminants’ on the European Commission's website ACT Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food (OJ L 37, 13.2.1993, pp. 1-3) Successive amendments and corrections to Regulation (EEC) No 315/93 have been incorporated into the original text. This consolidated version is of documentary value only. RELATED ACTS Commission Regulation (EC) No 1881/2006 of 19 December 2006 setting maximum levels for certain contaminants in foodstuffs (OJ L 364, 20.12.2006, pp. 5-24). See consolidated version. last update 18.04.2016


EUR-Lex - 31993D0704 - EN Avis juridique important | 31993D0704 93/704/EC: Council Decision of 30 November 1993 on the creation of a Community database on road accidents Official Journal L 329 , 30/12/1993 P. 0063 - 0065 Finnish special edition: Chapter 7 Volume 5 P. 0069 Swedish special edition: Chapter 7 Volume 5 P. 0069 COUNCIL DECISION of 30 November 1993 on the creation of a Community database on road accidents (93/704/EC)THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 213 thereof, Having regard to the proposal from the Commission (1), Whereas the European Parliament has adopted a resolution on the adoption of common measures to reduce road accidents (2); Whereas the Council and the representatives of the Governments of the Member States meeting within the Council of 21 June 1991 adopted a resolution requesting the Commission to draw up and implement a Community programme of practical measures designed to put into effect new common initiatives and compare existing national experience in the areas of action and research relating to the campaign on road accidents and the consequences thereof for the victims (3); Whereas the creation of a Community database on road accidents is one of the priorities selected by the high-level group of representatives of the Governments of the Member States; Whereas, in its White Paper on the Future Development of the Common Transport Policy and its communication for an action programme on road safety, the Commission considers that, bearing in mind the significant differences in the levels of road safety in different Member States, a major priority in this area should be to promote the exchange of information and experience by the setting up of a Community database; Whereas the Member States gather statistics on road accidents that occur within their territories and centralize the data in computer files; whereas there is at present no common database allowing access to those individual files or use of the data therein; Whereas a database created and managed at Community level would make it possible to identify and quantify the problems, evaluate the efficiency of any measures taken and determine the relevance of any Community action; Whereas the Member States acting separately cannot create and manage a database of that type; whereas the Community therefore, in line with the principle of subsidiarity, will intervene only to ensure that the data contained in the Member States' statistical files are grouped together and to guarantee close coordination between the Member States with a view to the smooth operation of the Community database; Whereas it is advisable to decide on the practical aspects of transmitting statistical data stored in the Member States to the Commission, particularly the intervals, the deadlines and the medium to be used for such transmission; Whereas any analysis of road safety problems should concentrate foremost on accidents resulting in death or injury and should not include material damage, whereas, for the purpose of such an analysis, it is not necessary to identify the persons involved; Whereas the Commission should take steps to ensure that confidential statistics are protected, HAS ADOPTED THIS DECISION: Article 1 1. Member States shall establish statistics on road accidents resulting in death or injury that occur within their territories. 2. For the purposes of this Directive 'accident resulting in death or injury' shall mean any collison between road users involving at least one vehicle in motion on a public highway normally open to traffic and causing the death of and/or injury to one or more of the road users. Article 2 1. Member States shall communicate the data on accidents resulting in death or injury for a given year stored in the computer files at the highest existing degree of centralization to the Statistical Office of the European Communities (hereinafter referred to as the SOEC) in terms of statistical units. For the purposes of this Decision 'statistical unit' shall mean an accident resulting in death or injury. 2. The data referred to in paragraph 1 shall be communicated for the first time before 31 March 1994 for 1991 and 1992 and for subsequent years not more than nine months after the end of the reference year in question. 3. Any such data which are protected by national laws on the confidentiality of statistics shall also be transmitted to the SOEC, which shall treat them in accordance with Regulation (Euratom, EEC) No 1588/90 (1). 4. Acting in accordance with the procedure laid down in Article 5, the Commission shall determine what information should not be included in the files transmitted. Article 3 1. As far as possible data shall be transmitted on a readable medium the type and format of which shall be proposed by the Commission. 2. Should a Member State correct statistics after their transmission to the SOEC, it shall send to SOEC a complete copy of the updated file. 3. Should a Member State wish to change the form or content of its data files, it shall first inform the Commission. Where a Member State makes changes to files already transmitted to the SOEC, the amended versions of the files in question shall also be transmitted to the SOEC. 4. Each Member State shall be responsible for the quality of the statistics it provides. 5. The Commission shall be responsible for processing the data received. Article 4 1. The Commission shall be responsible for disseminating the data received. Acting in accordance with the procedure laid down in Article 5, it shall decide on the procedures for access to the statistics on accidents resulting in death or injury centralized by the Commission, on any publications, and on any other information conducive to the smooth operation of the Community database. 2. The Commission and the Member States shall examine any methodological or technical problems arising in connection with the establishment and transmission of the statistics or the way in which they are collected in order to find solutions which will gradually lead to the Member States' data being as consistent and comparable as possible. On the basis of this examination, the Commission shall submit to the Council, should the need arise, appropriate proposals. Article 5 1. Where any reference is made to the procedure laid down in this Article, the Commission shall be assisted by the statistical programme committee established under Decision 89/382/EEC, Euratom (2). 2. The Commission representative shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion of that draft within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote. The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to have its position recorded in the minutes. The Commission shall take the greatest possible account of the opinion delivered by the committee. It shall inform the committee of the manner in which the opinion has been taken into account. Article 6 Three years after the data of application of this Decision the Commission shall present to the Council: (a) an evaluation report on the results obtained in implementing the measures provided for in Articles 2, 3 and 4 including whether it is desirable to continue the measures; (b) the conclusions stemming from that report regarding the feasibility of continuing the project provided for by this Decision. Article 7 This Decision is addressed to the Member States. Done at Brussels, 30 November 1993. For the Council The President G. COËME (1) OJ No C 225, 20. 8. 1993, p. 6. (2) OJ No C 68, 24. 3. 1986, p. 35. (3) OJ No C 178, 9. 7. 1991, p. 1. (4) OJ No L 151, 15. 6. 1990, p. 1. (5) OJ No L 181, 28. 6. 1989, p. 47.

Summary: Road safety: EU database on road traffic accidents Road safety: EU database on road traffic accidents SUMMARY OF: Decision 93/704/EC on the creation of an EU database on road accidents WHAT IS THE AIM OF THE DECISION? It sets up CARE — the EU’s database on road accidents. KEY POINTS EU countries must: record statistics on road traffic accidents involving at least one vehicle and causing deaths or injuries taking place in their country; pass on those data each year to the European Commission (Eurostat). The European Commission must ensure that the data received are disseminated, that the database functions properly and decides on the conditions for access to statistics, and on any publications, in cooperation with the CARE Experts Working Group. The Commission, following 3 years of this decision’s implementation, had to prepare a report for the Council on the results obtained and on the resulting indicators for continuing the activities. The conclusions of the report were generally positive. Some improvements were suggested such as: harmonising the accident data; providing new information in order to round off the comparative international analyses; improving cooperation between EU countries, as this plays an essential part in data management and quality, and in the development of a policy on CARE user access and application. FROM WHEN DOES THE DECISION APPLY? It has applied since 22 December 1993. BACKGROUND For more information, see: Road safety (European Commission). MAIN DOCUMENT Council Decision 93/704/EC of 30 November 1993 on the creation of a Community database on road accidents (OJ L 329, 30.12.1993, pp. 63-65) Successive amendments to Decision 93/704/EC have been incorporated into the basic text. This consolidated version is of documentary value only. RELATED DOCUMENTS Report from the Commission on progress with the project and its future prospects — CARE: Community database on road traffic accidents — Council Decision of 30 November 1993 (93/704/EC) (COM(97) 238 final, 26.5.1997) last update 18.04.2018