NEWSLETTER 30/11 – 11/12/2009

TABLE OF CONTENTS

EU / FINANCIAL SERVICES ..................................................................................... 2

Agreement in principle on new EU financial supervision rules........................................ 2
MEPs want tighter financial supervision than sugested by Commission......................... 2
Bavaria freezes contribution to public pension fund ....................................................... 3
Sweden’s AP funds should be merged - report .............................................................. 4
EU / HEALTH ............................................................................................................. 4
Member states still unable to agree on cross-border care.............................................. 4
Françoise Grossetête regrets failure of Council talks on crossborder care..................... 6
EU / SOCIAL .............................................................................................................. 7
Council seeks to enhance dignity in elderly care............................................................ 7
Political agreement in Council on revised directive on parental leave ............................ 7
ECONOMY ................................................................................................................. 8
Europe GDP growth picks up in third quarter of 2009 .................................................... 8
Harmonise EU labour laws, say citizens ........................................................................ 8
OTHER NEWS AND EVENTS ................................................................................. 10
The Lisbon Treaty has entered into force..................................................................... 10
Crisis may boost 'Social Europe', not treaty ................................................................. 11
Lisbon Treaty turns Committee of the Regions into subsidiarity watchdog ................... 12
CEIOPS’ NEWS ....................................................................................................... 13
CEIOPS NEWS ALERT – 30.11.2009 ......................................................................... 13
EU / COURT OF JUSTICE....................................................................................... 14
Calendar of the Court of Justice................................................................................... 14
THE ANALYSIS IN DEPTH...................................................................................... 15
Political agreement in Council on revised directive on parental leave .......................... 15
Agreement in principle on new EU financial supervision rules...................................... 17

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 NEWSLETTER 30/11 – 11/12/2009

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EU / FINANCIAL SERVICES
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Agreement in principle on new EU financial supervision rules

One of the big achievements of the Swedish Presidency of the Council of the EU in the second half of 2009 is
the fact that they were able to get EU finance ministers to reach agreement in principle on Wednesday 2
December 2009 on the macroprudential aspects of the new package of legislation changing the way EU
financial supervision operates.
(Ed Agence Europe, 03/12/2009)

IN DEPTH ANALYSIS BELOW (page 17)

MEPs want tighter financial supervision than sugested by Commission

On Monday 7 December, several MEPs from the European Parliament's economic and monetary affairs
committee suggested that the ECOFIN Council's compromise package on the new legislation reforming the
financial supervision system in Europe should have given more teeth to the three new EU financial
surveillance authorities (ESAs).

Werner Langen (EPP-ED, Germany) the power to apply penalties. Giving a

commented that the ECOFIN Council's nuanced view, British Conservative MEP
conclusions document should have gone Vicky Ford said it was only to be expected
further and ensured that ESA decisions were that taxpayers would call their supervisors to
more binding on the member states. His account because massive amounts of
Austrian counterpart, Othmar Karas, said the taxpayers' money had been injected into
Council's suggested legislation was a step failing banks, but the appointment of the ESA
backwards from the version unveiled by the chairs by the European Commission did not
European Commission. The compromise make it possible to call them to account.
developed by the member states does not go Attending the meeting to brief the MEPs on
far enough, as far as the European Parliament the Swedish Presidency's achievements in the
is concerned, which wants ESAs to be given second half of this year, Sweden's Finance

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Minister Anders Borg said the EU's finance harder line, but they had already achieved
ministers had decided to instruct the three positive outcomes, namely that
Presidency to open negotiations with the EP, structures would operate on macroeconomic
which is co-legislator on financial supervision and microeconomic supervisory levels;
issues. He explained that the starting point, deciding on a highly ambitious timetable; and
the de Larosière Report, had not been the ensuring a united Europe on this issue. Being
perfect solution. Rather it was one possible formed from a range of different countries and
way of boosting the EU financial supervision political parties, he said the EP should be able
system. He commented that the MEPs might to reach its own compromise position.
say that the ministers should have taken a (Ed Agence Europe, 08/12/2009)

Bavaria freezes contribution to public pension fund

The Bavarian regional government is freezing the contributions to its public fund for civil servants instead of
paying a promised €35m lift next year, on the back of the financial crisis.

The civil servants pension fund, which started
collecting money in 2008, had been promised
minimum contributions from the
government of €35m for the first year, €70m
for the second and €105m for the third,
increasing by €35m every year after that until
2016 when contributions of €500 for every
new civil servant will be paid per month.
However, the financial crisis has led to a
change in the budget plans and contributions
for 2010 will be frozen to €70m, the Bavarian
regional finance ministry told IPE. “This is
because of a disturbance in the economic
equilibrium, which shows in – among other
local things – drastically reduced tax income,” a
spokesman said. “In order to achieve a
balanced budget for 2010, some
consolidations are necessary, which include
the part-suspension of contributions.” Bavaria
is one of several German provinces to have
created a retirement fund for its civil servants.
Lower Saxony’s plans to create a similar fund
were halted this year in the wake of the crisis.
(IPE.com, 08/12/2009)

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Sweden’s AP funds should be merged - report

A report has been published by an independent think-tank from within the Swedish Ministry of Finance
suggesting the country’s four pension buffer funds should be merged into one, to achieve scale advantages
and potentially boost assets by SEK1bn (€958m) annually.

The think-tank report, written by Malin particular, Björkmo said she would like to see
Björkmo, now head of the Insurance and the limit on private equity investments
Investment Fund department of the Swedish removed along with the prohibition on
regulator Finansinspektionen, argued the commodities investing - something which
Swedish state pensions system could save many of the funds have been lobbying for for
some SEK300m in reduced costs as well as some time. That said, any removal of the limit
increase returns by SEK700m annually if it on private equity would also render AP6
were to merge AP-Fonden 1-4 and scrap its redundant. So the report’s author suggested
quantitative investment restrictions in favour these assets be incorporated into the bigger
of the prudent person rule. Björkmo claimed pool rather than keeping what Björkmo
quantitative investment restrictions had the described as a “somewhat odd” separate
potential to prevent cost-efficient management asset pool which made governance more
of the buffer fund, as she argued: “Qualitative- difficult and which may account for its poor
oriented regulation would create better results.
conditions for more efficient fund (IPE.com, 07/12/2009)
management than the existing rules.” In

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EU / HEALTH
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Member states still unable to agree on cross-border care

Neither the efforts of the Swedish Presidency, not the conciliatory attitude of member states prepared to
approve the compromise text put forward by the Presidency were enough on Tuesday 1 December for
political agreement to be reached on the draft directive on patients' rights in cross-border healthcare.

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Discussion will, then, have to continue, as a
considerable number of member states wanted.
The debate concentrated to a large extent on
the difficulties experienced by a group of
member states with regard to the inclusion of
unapproved care providers. To resolve this
problem, the Presidency proposed in vain to
include in a preamble, then in the body of the
text, the possibility for member states not to
reimburse care delivered, in the member state,
by non-contractual providers or, indeed not to
reimburse such care delivered in another
member state. 16 member states wanted
political agreement on the basis
Presidency proposal. Thus the United Kingdom
representative backed the text, pointing out the
considerable progress made since the first
Council discussion. Germany backed
compromise, which it saw as balanced. While
regretting that the compromise
contained areas of legal uncertainty for patients
and a margin for interpretation by European
courts, the Czech Republic representative
acknowledged that it was the best outcome that
could be achieved at this stage and he hoped
that negotiation with the Parliament would iron
out some points. It was, the
representative said, “a difficult
everyone”, and he felt that the Presidency's text
was generally satisfactory, even though his
country wanted medical supplies excluded.
Satisfied with the guarantee brought by the
“basic principle of prior authorisation”, France
could accept the text proposed
Presidency for unapproved providers, although
30/11 – 11/12/2009
it was happy with non-discriminatory inclusion.
“Political agreement has to be reached today to
best defend the interests of the Council in
negotiations with the Parliament,” its
representative said. The Dutch representative
said that the system put in place in the
Netherlands in 2006 to take account of Court
rulings, had proved its effectiveness without
distorting the health system. Latvia, Italy
(despite considerable reservations), Austria,
Bulgaria, Finland, Luxembourg, Belgium, Malta,
Estonia and Sweden also backed approval of a
political agreement. 11 member states said they
of the had problems. For Spain, which experienced
huge difficulties with the text, the compromises
proposed on the definition of the state of
affiliation and unauthorised providers were still
the unsatisfactory. Slovakia insisted on the
exclusion of unapproved providers. This
text still viewpoint was shared by Hungary, which called
for the draft preamble to be at least amended
into a draft directive. The representative from
Portugal stated that the inclusion of unapproved
providers was not acceptable and “infringes
national competence”. She refused to accept
that, health be managed through the internal
Danish market and the patients be treated as no more
issue for than consumers. “We cannot agree to our
health system being driven by the market,” she
added, before calling for discussion to continue
to find real consensus within the Council.
Romania also called for the exclusion of
unauthorised providers to be stipulated in the
by the body of the directive. Slovenia said it shared
Hungry and Portugal's stances on the “negative
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implications of the market”. Greece wanted
more discussion on unauthorised providers and
on recognition of prescriptions. While
expressing her reservations on providers and
the state of affiliation, the Irish representative
said she could subscribe to the compromise if
the provision on unauthorised providers was
included in an Article. Lithuania, Poland and
Cyprus wanted further discussion to improve the
text. “We need an agreement today ..; otherwise
we will have to explain why not to European
citizens,” said Health Commissioner Androulla
Vassiliou. She said the Commission was
prepared to agree to the preamble on
unauthorised providers being made into an
Article in the directive. She hoped that that
might bring political agreement. However, after
a pause, the Swedish Presidency had to accept
at the start of the afternoon that there was still
no qualified majority on this text.
(Ed Agence Europe, 02/12/2009)

Françoise Grossetête regrets failure of Council talks on crossborder care

It is to be regretted that member states have not managed to find an agreement on this text on patient
mobility in the European Union, Françoise Grossetête said after the stalled talks in Council on Tuesday.

The French UMP member, who is rapporteur on
crossborder care, points out that the European
Parliament was keen to “recognise the essential
rights of patients to better access to safe and
quality healthcare, while ensuring greater
equality between patients”. She went on to say:
“With the failure to conclude an agreement, the
states lack an opportunity to provide patients
with a clear response clarifying their rights when
they are not in their home state as, to date,
courts decided on a case by case basis and will
continue to do so if there is no directive. A
blocking minority has therefore allowed some
countries to hinder these talks using the pretext
of supposed risk of financial imbalance among
member state social security systems.
Nonetheless, conditions were almost met for an
agreement. One must therefore make an extra
effort to convince the last undecided members
in order to provide, in the patients' interest, a
legal framework for patient mobility which
ensures security and viability of healthcare. The
lack of insight of some must not hamper
Europe's move forward with regard to health”.
After this failure, Spain's Health Minister
Trinidad Jimenez undertook to review the
dossier and to seek a compromise during the
first half of 2010.
(Ed Agence Europe, 04/12/2009)

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 NEWSLETTER 30/11 – 11/12/2009

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EU / SOCIAL
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Council seeks to enhance dignity in elderly care

During its meeting in Brussels on 30 November, the Employment and Social Affairs Council adopted
conclusions on the theme “healthy and dignified ageing”. The Council thus underlines the importance of
heightened cooperation between member states in order to enhance dignity in elderly care in the EU.

With the adoption of these conclusions, the
Council urges: 1) member states to: - continue
to make the issue of healthy and dignified
ageing one of their priorities for coming years;
- adopt an approach centred on preventive
measures in order to reduce the burden of
chronic diseases, frailty and disability; - and 2)
the Commission to present an action plan for
further activities in 2011 to promote dignity,
health and quality of life for older persons.
The Council considers, moreover, that better
conditions relating to elderly care would also
make it possible to reduce the cost of care
and to partially offset the financial impact of
demography in the health and social sectors.
(Ed Agence Europe, 05/12/2009)

Political agreement in Council on revised directive on parental leave

On 30 November, EU employment and social affairs ministers reached political agreement on a draft directive
implementing the revised framework agreement on parental leave concluded by the European social
partners. This agreement sets out minimum requirements on parental leave designed to make it easier to
balance family and working lives and to promote gender equality on the labour market. The new directive will
be adopted officially in the coming months. Member states will then have two years to incorporate the new
rights into national law.
(Ed Agence Europe, 04/12/2009)

IN DEPTH ANALYSIS BELOW (page 15)

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ECONOMY
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Europe GDP growth picks up in third quarter of 2009

In the third quarter of the current year, eurozone GDP grew by 0.4% and that of the EU27 by 0.3% compared to
the previous quarter, during which the growth rates stood at -0.2% and -0.3% respectively. Compared to the
third quarter of 2008, GDP in the eurozone fell by 4.1% and that of the EU27 by 4.3%, after -4.8% and -5.0%
respectively in the previous quarter.

According to data published on and 2.4% (after levels of -2.9% in both

Thursday 2 December by Eurostat,
household final consumption
expenditure fell by 0.2% in both the euro
zone and in the EU27 (after 0.0% and -
0.1% respectively in the previous
quarter). Investments dropped by 0.4%
in the eurozone and by 0.5% in the
EU27 (after -1.7% and -2.5%). Exports
rose by 2.9% in the eurozone and by
2.4% in the EU27 (after -1.3% and -
1.4%), whereas imports grew by 2.6%
those). By way of comparison, the GDP
of the United States rose by 0.7% in the
third quarter of 2009, following -0.2% in
the second quarter, and that of Japan
was up by 1.2%, after 0.7% in the
previous quarter. In comparison to the
third quarter of 2008, the American GDP
fell by 2.5% (after -3.8% previous
quarter) and that of Japan by 4.4%
(after -7.1%).
(Ed Agence Europe, 04/12/2009)

Harmonise EU labour laws, say citizens

A citizens' forum in Berlin last week - the last of its kind to be held in 2009 - recommended that the European
Union harmonise labour laws for all its citizens.

The European Citizens' Consultations are a input into future European policymaking. The
forum for people across the EU to provide an aim is to develop more structured long-term

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involvement of citizens in the EU decision-
making process. The consultations involved
over 1,500 randomly selected European
citizens who took part in national debates in
the 27 member states. Of these, 150 citizens
were in May 2009 invited to Brussels to
finalise a set of fifteen recommendations
which were presented to EU leaders. The
conference in Berlin was the last of these so-
called 'regional conferences,' which brought
together experts, stakeholders,
representatives of the European institutions
and newly-elected MEPs with different social
and professional backgrounds to share their
ideas. The citizens' consultation was one of a
number of similar 'listening to citizens'
exercises that the European Commission has
financed as part of its 'Plan D' for
communication. A variety of topics were
raised, including how to reduce disparities in
working conditions throughout Europe, how to
realise gender equality (equal pay for equal
work) and whether the EU needs a common
and harmonised labour code. On the subject
of the gender pay gap, it was emphasised that
EU law should lead the way in removing the
remaining disparities. Delegates noted that
although equal pay is already enshrined in the
treaties, there are still significant gaps today,
and regional aspects play an important role in
preserving these inequalities. For example, in
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30/11 – 11/12/2009
Austria, Germany and the Czech Republic, the
pay gap is over 23%, while in Poland, due to
the structure of the labour and financial
markets in that country, the corresponding
figure is a mere 7%. Moreover, in Poland,
36% of all businesses are led by women,
particularly SMEs, which constitute over 60%
of Polish GDP. The debate occasionally
featured contrasting viewpoints. For example,
German Green MEP Elisabeth Schroedter
argued that high-level labour rights and a
"strong improvement of the EU labour code"
are needed at European level, but achieving
this goal is extremely difficult due to the veto
power of member states. By contrast, Vanda
Pecjak, vice-president of the Slovenian
Employers' Association, took the approach
that while a more "strong-handed" European
Commission would be important in ensuring
that all member states accept the need for
minimum standards, "concrete labour market
rules should remain the responsibility of each
EU member state". The recommendations
agreed on at the end of the conference
concluded that "the EU should create the
same working conditions and rules for all EU
citizens based on a harmonised Labour Code,
harmonising working conditions for employees
and obligations for employers".
(Euractiv.com, 07/12/2009)
 NEWSLETTER 30/11 – 11/12/2009

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OTHER NEWS AND EVENTS

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The Lisbon Treaty has entered into force

The new treaty is designed to adjust the functioning of a Union with 27 member states and the prospect of
further enlargements. It creates more efficient institutional structures and streamlines decision-making rules.
The aim is to meet future challenges and adapt the European Union to an increasingly globalised world.

Major changes are introduced. The European
Communities cease to exist, as the European
Union becomes a legal personality with
competence to represent the EU member states
in international organisations. Working methods
and decision procedures are simplified via the
extension of decisions taken by qualified
majority. The European Parliament will play a
greater role, as more policy areas will be treated
under the codecision procedure. The European
Council, which brings together the heads of
state or government to define the general
political direction of the Union, has become an
institution. Its first full-time President is Herman
Van Rompuy. The President's tasks include
chairing the European Council meetings, driving
forward its work and facilitating consensus. At
his level and in that capacity, he also ensures
the external representation of the Union on
issues concerning the common foreign and
security policy. The President's term of office is
two and a half years, renewable once. The
General Affairs and External Relations Council -
the periodic meetings of foreign ministers - has
been divided into two different configurations.
The Foreign Affairs Council is presided over by
the EU High Representative for Foreign Affairs
and Security Policy, Catherine Ashton. The
General Affairs Council, which prepares the
European Council meetings, continues to be
chaired by the six-month rotating Presidency.
The High Representative is also one of the
Vice-Presidents of the Commission. In her dual
role she will be assisted by a new European
external action service.
(Consilium.europa.eu, 02/12/2009)

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Crisis may boost 'Social Europe', not treaty

Amid growing unemployment and increasing inequality in Europe, the new social provisions in the Lisbon
Treaty will not immediately correct social imbalances, according to experts. But the crisis might trigger the
right kind of social innovation and reform the market economy, they say.

Benefiting from the Charter of Fundamental
Rights: The Lisbon Treaty does not give the
European Union any fundamentally new
competences in the social field, but it arguably
consolidates existing ones. Experts underline,
however, that even the Charter of
Fundamental Rights, which now has the same
legal status as the EU Treaties, will not
automatically boost social justice. "It will
depend very much on how the Court of
Justice will interpret the text," said Pochet.
"The fact that the treaty recognises the
Charter could make a big difference," echoed
Vladimir Špidla, the EU's commissioner for
employment, social affairs and equal
opportunities. "It could give social rights
greater importance in the case-law of the
European Court of Justice and in the activities
of the Union in general," he added. Yet,
despite the opportunity to develop 'Social
Europe' presented by the treaty, involving
political actors will be decisive, notes Pochet.
Citizens taking legal action to enforce their
rights will not be enough, he said. June's EU
elections increased the power of Europe's
centre-right political parties and that may
hamper the development of a genuine social
movement across Europe, the ETUI director
said. Social clause: Avoid window dressing: A
social clause in the Lisbon Treaty also
requires the Union, when it defines and
implements its policies, to take account of
employment, social protection and the fight
against social exclusion. The commitment of
policymakers will be key to applying this
clause, said the BEPA analyst. Since 1996,
the EU has actively worked to mainstream
gender equality, for example, but even though
the structure is there, policymakers have
failed to make it a priority, the expert added.
According to experts, too many inter-service
meetings in the European Commission are
attended by interns and the process does not
fully deliver on mainstreaming policies. The
highest levels of the Commission should
make sure that the system works better,
sources told EurActiv. Commissioner Špidla's
words could be emblematic of any future EU
vision. "The treaty," he said, "shows that the
Union is ready to transcend those
contradictions between 'social' and 'economic'
people criticise so often".
(Euractiv.com, 04/12/2009)

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Lisbon Treaty turns Committee of the Regions into subsidiarity watchdog

For the first time, Europe's elected regional and local representatives can challenge new EU laws they
consider to be in breach of the subsidiarity principle – the principle that decisions should be taken as closely
as possible to the citizens – at the European Court of Justice.

Having requested this right for fifteen years,
and finally having obtained it in the Lisbon
Treaty, the Committee of the Regions (CoR)
fleshed out its implementing provisions just
days after the entry into force of the new EU
Treaty. Meeting in plenary session from 3-4
December in Brussels, CoR members
decided that, in future, they can refer EU laws
which infringe the subsidiarity principle to the
Court of Justice by a simple majority. The
Lisbon Treaty improves the standing of
regions and cities in the European Union's
political system and boosts the institutional
role of their representative body in Brussels,
the Committee of the Regions, throughout the
legislative process. In addition to extended
consultation requirements during the adoption
of EU legislation, the CoR now also has the
right to bring legal actions before the
European Court of Justice in two instances:
To protect its own institutional prerogatives,
and to request the annulment of new EU
legislation that it considers being in breach of
the principle of subsidiarity, in the policy areas
where the EU Treaty requires that the CoR be
consulted. The new Lisbon Treaty provisions
made it necessary for the CoR to adapt its
internal rulebook and lay down the procedures
for putting these rights into practice. Based on
the preparatory work of a task force of CoR
members chaired by Karl-Heinz Lambertz
(BE/PES), First Minister of the German-
speaking Community in Belgium, CoR
members unanimously adopted a revised set
of internal rules. By doing so in the same
week as the Lisbon Treaty entered into force,
the Committee of the Regions demonstrated
its commitment to live up to its new
responsibility.
(Cor.europa.eu, 04/12/2009)

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CEIOPS’ NEWS
_______________________________________________________________________________________

CEIOPS NEWS ALERT – 30.11.2009

CEIOPS has released for public consultation its Draft Advice for Level 2 Implementing Measures on Solvency
II: Technical criteria for assessing 3rd country equivalence in relation to reinsurance (art. 172) and group
supervision (art. 227 and 260).

Until 05 February 2010, 12.00 CET, CEIOPS invites stakeholders to send comments on Consultation Paper
no. 78 via e-mail to secretariat@ceiops.eu, only in English and using the template and instructions provided by
CEIOPS.

Direct hyperlink to the CEIOPS Consultation papers webpage: http://www.ceiops.eu/content/view/14/18/

Direct hyperlink to Consultation Paper no. 78 - Draft Advice for Level 2 Implementing Measures on Solvency II:
Technical criteria for assessing 3rd country equivalence in relation to art. 172, 227 and 260:
https://www.ceiops.eu/media/files/consultations/consultationpapers/CP78/CEIOPS-CP-78-09-L2-Advice-
Equivalence-for-reinsurance-and-group-supervision.pdf

Direct hyperlink to the template for comments:

https://www.ceiops.eu/media/files/consultations/consultationpapers/CP78/CEIOPS_Template-for-Comments-
on-CP78.doc

(CEIOPS, 30/11/2009)

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EU / COURT OF JUSTICE
_______________________________________________________________________________________

Calendar of the Court of Justice

Thursday 03/12/2009 Judgment Taxation DE New Great

09:30 C-433/08 Yaesu Europe Courtroom
Court of
Justice -
Fourth
Chamber
Reference for a preliminary ruling – Bundesfinanzhof (Germany) – Interpretation of the specimen in Annex
A to the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization of the laws of the
Member States relating to turnover taxes - Arrangements for the refund of value added tax to taxable persons
not established in the territory of the country (OJ 1979 L 331, p. 11) – Concept of "signature" in the
application for a refund - National legislation requiring the signature of the applicant himself or his statutory
representative and excluding the signature of an agent
Advocate General : Bot
Thursday 03/12/2009 Hearing Taxation NL New Great
09:30 Joined cases C-538/08 X Holding Courtroom
C-33/09 Oracle Nederland
Court of Justice -
Third Chamber
Reference for a preliminary ruling - Hoge Raad der Nederlanden, Den Haag - Interpretation of Article 11(4)
of Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member
States concerning turnover taxes – Structure and procedures for application of the common system of value
added tax (OJ English special edition 1967, p. 16) and of Articles 6(2) and 17(2) and (6) of Sixth Council
Directive 77/388/EEC of 17 May1977 on the harmonisation of the legislation of the Member States
concerning turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L
145, p. 1) – Exclusion of the right of deduction – Power of the Member States to maintain exclusions
existing upon the entry into force of the Sixth Directive – Rules pre-dating the Sixth Directive providing for
the exclusion of the right of deduction for categories of goods and services provided for use in private
transport – Definition of those categories
Thursday 10/12/2009 Judgment Social policy ES Courtroom
09:30 C-323/08 Rodríguez I - Level 8
Mayor
and Others
Court of Justice -
Fourth Chamber
Reference for a preliminary ruling – Tribunal Superior de Justicia de Madrid – Interpretation of Articles 1, 2,
3, 4 and 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member
States relating to collective redundancies (OJ 1998 L 225, p. 16) – National legislation restricting the
concept of redundancy solely to dismissals made on economic, technical, organisational or production
grounds – Termination of contracts of employment by reason of the death, retirement or incapacity of the
employer – Different compensation in the two cases – Whether compatible with the Charter of fundamental
rights of the European Union and the Community Charter of the fundamental social rights of workers
Advocate General : Mengozzi
Thursday 10/12/2009 Hearing Taxation FR New Great

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09:30 C-88/09 Graphic Courtroom

Procédé
Court of
Justice - First
Chamber
Reference for a preliminary ruling – Conseil d’État – Interpretation of Articles 2(1), 5(1) and 6(1) of
Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ
1977 L 145, p. 1) – Reprographics – Criteria to take into account in order to distinguish a supply of
services from a provision of services for the purposes of the Sixth Directive

Thursday 10/12/2009 Judgment Social policy PT Courtroom

09:30 T-158/07 Cofac v V - Base
Commission of Tower
General A
Court - Fifth
Chamber
Annulment of Commission Decision D(2004) 24253 of 9 November 2004 reducing the amount of the
financial assistance granted to the applicant by the European Social Fund by Decision No C(87) 0860
of 30 April 1987 for training schemes (file No 880927 P1)
Thursday 10/12/2009 Judgment Social policy PT Courtroom
09:30 T-159/07 Cofac v V - Base
Commission of Tower
General A
Court - Fifth
Chamber
Annulment of Commission Decision D(2004) 24253 of 9 November 2004 reducing the amount of
assistance granted to the applicant by the European Social Fund by decision No C(87) 0860 of 30
April 1987 for training schemes (file No 870927 P1)

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THE ANALYSIS IN DEPTH

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Political agreement in Council on revised directive on parental leave

On 30 November, EU employment and social affairs ministers reached political agreement on a draft directive
implementing the revised framework agreement on parental leave concluded by the European social
partners. This agreement sets out minimum requirements on parental leave designed to make it easier to
balance family and working lives and to promote gender equality on the labour market. The new directive will
be adopted officially in the coming months. Member states will then have two years to incorporate the new
rights into national law.

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The new directive, which will come into effect by
the start of 2012, will grant each working parent
the right to at least four months leave (instead of
the three months as things currently stand) after
the birth or adoption of a child. At least one
month of this leave must not be transferred from
one parent to the other. This is to encourage
fathers to take leave, since unused rights will be
lost. The directive will also provide better
protection from discrimination and ease return
to work. The arrangements put into effect an
agreement between European employers'
organisations and trade unions. A Commission
press release lists the main changes brought by
the new directive: (1) longer leave - each parent
will be able to take four months off per child
(previously three months). The extra month
cannot be transferred from one parent to the
other, thereby encouraging fathers to take their
leave. In the past many working fathers have
transferred their right to leave to the mother; (2)
no discrimination - an employee applying for or
taking parental leave will be protected from any
less favourable treatment for doing so; (3)
temporary changes to work schedules
employees returning from parental leave will
have the right to request changes to their
working hours for a limited period.
considering such requests, employers will be
obliged to balance the needs of the employee
as well as the company; (4) parents of adopted
children and children with a disability or long-
term illness - governments
employers/unions will be obliged to assess the
specific needs of such parents; (5) work
contracts - the new rights will apply to all
30/11 – 11/12/2009
workers, regardless of their type of contract (e.g.
fixed-term, part-time, agency workers); however
the possibility of a qualification period of
maximum one year is maintained. Maternity
leave should be extended from 14 to 20 weeks,
with workers paid their full salaries for the first
six first weeks of the leave period, and not less
than 85% for the rest. These were the proposals
made by Edite Estrela (S&D, Portugal) to the
women's rights and equal opportunities
committee in Brussels on 1 December, in her
second draft report which seeks to update the
EU maternity leave directive. She said she
would also like to bring in new provisions on
paid paternity leave. Estrela's first report on the
directive on the improvements in the safety and
health at work of pregnant workers was referred
back to the committee by the plenary on 6 May
2009. Anna Záborská (EPP, Slovakia) argued
that maternity leave, paternity leave and
parental leave should not be confused. The
maternity leave directive “is about mother's
health,” she said, noting that the social partners
agreed on parental leave in June 2009 and the
- Commission is currently drafting a directive. Siiri
Oviir (ALDE, Estonia) and Caroline Lucas
(Greens/EFA, UK), backed the idea of paid
In paternity leave as a means of protecting the
health of the mothers at a time when it is
important to protect the family. Tadeusz
Cymañski (ECR, Poland) said that “paternity
leave might cause a problem. This issue is also
and a question of money and employers and
member states will have to give their support”.
The Commission representative announced that
the EU Council of Employment/Social Affairs
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Ministers had, on 30 November, reached an
agreement, extending parental leave from three
to four months for each parent, one month of
which would be non-transferable (see above),
but noted that there was no proposal on
paternity leave currently in the pipeline. Estrela
said in conclusion, “I want to make it clear that I
am not talking about parental leave but about
maternity and paternity leave!”
(Ed Agence Europe, 04/12/2009)

Agreement in principle on new EU financial supervision rules

One of the big achievements of the Swedish Presidency of the Council of the EU in the second half of 2009 is
the fact that they were able to get EU finance ministers to reach agreement in principle on Wednesday 2
December 2009 on the macroprudential aspects of the new package of legislation changing the way EU
financial supervision operates.

The ministers also confirmed their October
2009 agreement on the macroeconomic
aspects of the financial supervision system
whereby a new European Crisis Management
Committee will be set up. The agreement on
the overall package comes less than three
months after the European Commission
unveiled its initial proposals, based on
recommendations by the Larosière Group. The
final sticking points were the safeguard clause
whereby decisions by an EU supervision
authority (ESA) cannot impinge on a Member
State's budget powers; and how ESAs will
reach decisions. It is hoped that the system will
be in place in the early months of 2011 but first
it will have to be endorsed by the European
Parliament, which is co-legislator here and has
decided to have its views heard. Sweden's
finance minister, Anders Borg, said that a way
had been found to deal with an settle conflicts
between national supervision authorities. He
said that the compromise was a major step
forward despite no compromise ever being
perfect. He said it was the willingness to
compromise among all Member States that
had made it possible to reach unanimous
agreement on the latest deal put forward by
the Swedish Presidency. Describing the task
achieved by the Presidency as 'Herculean,' the
EU Internal Market Commissioner, Charlie
McCreevy, said that the finance ministers had
sent a 'clear signal' that they wanted 'major
changes' in the EU financial supervision set-
up. He said that obviously he would have
preferred it if the ministers had not made any
changes to the initial proposals, but that never
happens. He said the important thing was that
the system being prepared made huge
progress on the current situation. Speaking
earlier in the day, French finance minister

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Christine Lagarde said that the ministers had
agreed that the new EU supervision authorities
would have teeth rather than being watered
down. 'I strongly believe that the responsibility
for regulating institutions in our country lies
with our regulators, but there have been cases
in the past year, Iceland is an example, where
it would have been extremely useful to us to
have had cross-border agencies within
Europe,' commented the British Chancellor of
the Exchequer, Alistair Darling. In terms of
microeconomics, the European financial
supervision system will take the form of a
network comprising national supervisory
authorities with responsibility for monitoring
financial institutions on a daily basis; colleges
of national supervisors to facilitate supervision
of the fifty-odd financial institutions in the EU
active in more than one country; and the three
ESAs replacing the existing EU committees for
securities (CESR), banking (CEBS) and
insurance (CEIOPS), which will have the
power to issue binding decisions. Ever since
the unveiling of the Larosière Report, political
debate has focussed on the powers of the new
EU supervision agencies. Anxious to keep
control of the City of London, which accounts
for 40% of the EU's financial markets, the
United Kingdom has tried to water down the
ESAs' powers and has been partially
successful. The safeguard clause on national
sovereignty has been beefed up and the UK is
talking about a triple-padlock system for
countries to assert their powers. In addition,
the ESA decisions will now only apply directly
to financial institutions in terms of interpreting
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how they apply EU law and will no longer apply
to emergency situations or to disputes between
national authorities. For the time being, ratings
agencies are the only pan-Europe bodies that
the relevant ESA will supervise. Safeguard
clause. Negotiated by the UK at the June 2009
European Council, a safeguard clause ensures
that ESA decisions will not impinge on Member
States' powers over their own budget in the
event of crisis or disagreement among national
authorities. The most frequently quoted
example of how the safeguard clause would
work is a government deciding to bail out a
struggling financial institution. A) In the event
of disagreements among national
governments, the mechanism decided upon
stipulates that a Member State shall inform the
ECOFIN Council of the decision its ESA is
sticking to. The Council would have two
months to decide on a simple majority of votes
(in other words, abstentions would not count)
on whether the ESA decision shall stand. B) In
crisis situations, the Council will have a
fortnight to decide by a simple majority vote
among its members whether to revoke the
ESA's decision. This is the first 'padlock'
introduced under pressure from the British. In
the event of a crisis, when the ECOFIN Council
confirms an ESA's decision, if the Member
State that raised the issue still believes that the
decision impinges on its budgetary powers, it
can request that the Council re-examine the
decision. The ECOFIN Council would then
have four weeks (eight weeks in certain
circumstances) to reach a new decision. This
is the second British 'padlock'. Annexed to the
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legislation is a Council statement recognising
that any Member State feeling itself to be
adversely affected by an ESA decision taken in
a crisis situation and confirmed by the Council
will have the option of taking the issue to the
European Council (the third British 'padlock').
Decision-making: When ESAs take decisions,
the general rule is that they decide on a simple
majority vote. In the event of disagreements
between national supervisors, a balanced
panel of supervisors will prepare a decision.
The relevant ESA's management board would
then endorse the panel's suggested decision
by a simple majority vote with each Member
State having a single vote, unless there is a
veto in the form of a minority constituted by
weighted qualified majority voting (temporarily
applying the old weighting rules for votes on
the Council). This mechanism would only apply
in the event of disagreement arising over a
decision taken by the supervisor of the country
of origin ('consolidated supervisor' in the
jargon) of a cross-border financial institution. In
all other cases, simple majority voting will
apply. As far as some diplomats are
concerned, the ESA decision-making
arrangements cobbling together of the desire
expressed by France and Germany that it
should not be possible for the supervisor of a
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30/11 – 11/12/2009
bank or financial institutions' country of origin
to be outnumbered by the supervisors of the
countries where the same company's
subsidiaries are located, along with the fact
that Member States where subsidiaries of
cross-border financial institutions are based
want their own national supervisor to have the
power of scrutiny over the subsidiaries in their
country. EP: The ECOFIN Council's agreement
in principle gives the upcoming Spanish
Presidency of the Council of the EU a mandate
for exploratory talks with the European
Parliament, which is only now beginning to
examine the draft legislation. The European
Parliament will not agree to any watering down
of the new supervisory bodies, explained the
four main political parties' coordinators at the
EP: Jean-Paul Gauzès (EPP, France), Udo
Bullmann (S&D, Germany), Sylvie Goulard
(ALDE) and Sven Giegold (Greens/EFA) on
Wednesday in a joint statement. They argue
that the Single European Market requires EU
supervision and point out that the Larosière
Report was itself a compromise. The Report
foresees a connection being made between
the macroeconomic and microeconomic
financial supervision, and 'independent' ESAs
with 'binding and proportionate powers'.
(Ed Agence Europe, 03/12/2009)