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12.6.

2003 EN Official Journal of the European Union C 137 E/43

In particular, as early as in 2000 the Commission had proposed a pension fund Directive including the
prudent person principle for asset allocation which is further clarified by some general quantitative rules,
such as an investment ceiling of no more than 5 % of the sponsoring undertaking’s portfolio as a whole.
The Ecofin Council has recently agreed politically on the main contours of this proposal in line with the
first reading in the Parliament.

One of the particular post-Enron policy actions was the adoption, on 16 May 2002 and following a
2-year-preparation, of a Commission Recommendation on auditor’s independence. In the light of Enron’s
collapse the draft version of the Recommendation was re-discussed at the Union’s Committee on Auditing
which includes representatives of all Member States regulators. A large majority of this Committee
expressed the view that a strict prohibition of the provision of any additional service to the audit client
would not be in line with the comprehensive and innovative approach chosen to regulate auditor’s
independence.

The basic principle outlined in the Recommendation is that the auditor cannot conduct an audit if he/she
has any relationship or provides any service to the audit client that would compromise his/her
independence. In particular, the auditor cannot provide any additional service that would include
participation in decision-making on behalf of the audit client. Furthermore, the Recommendation suggests
that whenever the auditor provides additional services to the audit client, horizontal safeguards must be
put in place. These include: a declaration in writing to the governance body of the audit client that none of
the provided services could compromise the auditor’s independence as well as a detailed public disclosure
of audit and non-audit fees.

The Recommendation contains descriptions of circumstances where ‘prohibition’ is the only adequate
safeguard. For example, the auditor should not provide valuation services involving a significant degree of
subjectivity where the amount at stake would have a material impact on the financial statements,
participate in the preparation of accounting records and financial statements for listed companies or
provide a short list of candidates for key financial and administrative posts in the case of public interest
entities.

Where Member States believe there is a need to go beyond the approach set out in the Recommendation,
both the nature of the instrument and the its minimum harmonisation requirements would allow this.

It is important to emphasise that current corporate governance systems in virtually all Member States allow
individual companies, their governance bodies or their shareholders to act in a manner that would
adequately address further possible concerns about auditor’s independence. For example, under several
national laws an individual company could decide to stop buying additional services from its auditors or to
(rotate them) subject them to a rotation system.

Finally, given recent circumstances, the Commission is following with interest the on-going debate on
these issues in the United States, including recently adopted legislation. In the light of the forthcoming
report of the Winter group on corporate governance issues (expected by October), the Commission will
consider whether any further measures are necessary at European level.

(1) http://www.europa.eu.int/comm/internal_market/fr/company/index.htm.

(2003/C 137 E/049) WRITTEN QUESTION E-2062/02


by Eluned Morgan (PSE) to the Commission

(11 July 2002)

Subject: State aid

Would the Commission consider state aid exemption for businesses which suffer hardships due to extreme
circumstances, for example the Foot and Mouth crisis in the UK?
C 137 E/44 Official Journal of the European Union EN 12.6.2003

Answer given by Mr Monti on behalf of the Commission

(5 August 2002)

Article 87(2)(b) of the EC Treaty provides that aid to make good the damage caused by natural disasters or
exceptional occurrences shall be compatible with the common market.

Normal entrepreneurial or insurable risks are generally not considered ‘natural disasters’ or ‘exceptional
occurrences’. In the past the Commission has accepted that floods, earthquakes and landslides, avalanches,
tornadoes, etc. could be considered natural disasters. Likewise war, internal disturbances or strikes, major
nuclear or industrial accidents and fires have been considered as ‘exceptional occurrences’.

As regards the foot and mouth crisis, it should be noted that the Community guidelines for State aid in the
agriculture sector explicitly state in point 11.2.1 ‘as a general rule, the Commission does not accept that
outbreaks of animal or plant diseases can be considered to constitute natural disasters or exceptional
occurrences.’ Hitherto, the only exception has been the bovine spongiform encephalopathy (BSE)-crisis
which was recognised as an exceptional occurrence, because of its widespread nature and its completely
new character.

Nevertheless, the Community guidelines for State aid in the agricultural sector allow for aid to be granted
to compensate for losses incurred as a result of the outbreak of animal or plant disease, including measures
to prevent the further spread of disease.

Compensatory aid to offset indirect losses incurred by economic operators outside of the agricultural
sector would not normally be permitted, because of the difficulties inherent in determining the causes of
any losses incurred and quantifying their amount. However, depending on the precise circumstances of
each case, a variety of aid instruments may be available, including aid for new investments to help
businesses to diversify, aid for consultancy advice and aid for rescue or restructuring. Moreover, it should
be recalled that under the so-called de minimis rule, aid of up to EUR 100 000 over any three year period
is not covered by the Community State aid rules.

(2003/C 137 E/050) WRITTEN QUESTION E-2076/02


by Geoffrey Van Orden (PPE-DE) to the Commission

(12 July 2002)

Subject: European border police force

The Presidency Conclusions from the Seville Summit make reference to a ‘European border police force’.

Is it intended that such a force would have its own organisation, structure and uniform, chain of command
and jurisdiction? To whom would it be responsible and what steps are now proposed, including timeframe,
in order to take this matter forward?

Is it foreseen that the force would only operate in Member States that are parties to the Schengen
arrangements? In particular, given that the United Kingdom is outside the Schengen arrangements, can the
Commission confirm that no elements of this force would be deployed on the territory of the United
Kingdom?

Answer given by Mr Vitorino on behalf of the Commission

(3 September 2002)

According to conclusion 31 of the Seville European Council (21/22 June 2002), it will be taken ‘account
of the intention expressed by the Commission to continue examining the advisability and feasibility of
such a [European border] police force’. This sentence refers to the developments that have been achieved
during the last months.