European Council

1. The Council was informed by the Commission of latest developments in the 10th WTO Ministerial Conference. It shared the Commission's assessment of the overall package and welcomed the conclusion of the negotiations on the revised Information Technology Agreement.
2. In the absence of final texts, the Council agreed that the EU's position joining the consensus in the Ministerial meeting would be presented to the WTO and reflected in the written conclusions of the Conference, on the understanding that the EU will follow up the results of the Ministerial Meeting in accordance with its internal procedures and without prejudice to the division of competencies between the EU and its Member States.
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On 18 December 2015, under the Luxembourg Presidency and subject to the European Parliament and Council formal adoption, the Coreper (Permanent Representatives Committee) approved a final compromise on the draft "Animal Breeding Regulation".  

The European Parliament and the Council representatives identified the compromise package during a trilogue meeting held on 16 December.  

Animal breeding and trade

The Animal Breeding Regulation will apply to the breeding, the trade in and the entry into the EU of purebred breedingcows, pigs, sheep, goats and horses, hybrid breeding pigs and their germinal products.

The new regulation constitutes a more comprehensive single legal framework taking into account the “state-of-the-art” in animal breeding while preserving valuable animal genetic resources. Breed societies and breeding operations which will have to meet specific criteria to obtain recognition and approval of their breeding programmes by national authorities form the backbone of this regulation. 

The new legislation aims at improving the functioning of the internal market and trade with third countries. It contains specific rules for promoting endangered breeds and provisions taking into account the specificities of the horse breeding sector. 

As animal breeding is not intended to fall within the scope of the official controls proposal currently discussed between the Council and the European Parliament, the new regulation will include provisions on the performance of official controls which are tailor-made for the animal breeding sector. 

The next steps 

The Chairman of the Coreper will send a letter to the Chairman of the European Parliament's Committee on Agriculture and Rural Development. This letter will indicate that, if the Parliament adopts at its plenary session the compromise text as approved by the Coreper today, the Council will then adopt in first reading that text without amending it.

This should enable the entry into force of the new legislation by mid 2016 and its application 28 months after the entry into force.

On 18 December 2015, under the Luxembourg Presidency and subject to the European Parliament and Council formal vote, the Coreper (Permanent Representatives Committee) approved a final package on plant health. 

The Council and European Parliament representatives finalised the overall compromise during a trilogue meeting held on 16 December.

Tackling plant diseases 

The proposal on protective measures against pests of plants aims to address increased risks in that area, which stem from the emergence of new pests and diseases. It will also modernise instruments related to intra-EU trade or trade with third countries focusing on a risk-based approach. Better surveillance and early eradication of outbreaks of new pests are the tools which should be used to ensure plant health. 

Together with the regulation on animal health (which should be adopted soon) and the proposal on official controls (currently under examination in the Council), the draft regulation on plant health aims to strengthen the enforcement of health and safety standards for the whole agri-food chain.  

The next steps 

The European Parliament is expected to vote on the compromise text at a meeting of its Committee on Agriculture and Rural Development in late February. 

The Chairman of the European Parliament's Committee on Agriculture and Rural Development will send a letter to the Chairman of Coreper. The letter will indicate that if the Council adopts at first reading the compromise text as adopted by the European Parliament's Committee on Agriculture and Rural Development (after legal-linguistic revision), the Parliament plenary will adopt the same text at its second reading, without any amendment, and the legislative procedure will be concluded. 

This should enable the entry into force of the new plant health regulation by the end of 2016 and its application after a three-year period following the entry into force, during which the relevant pieces of secondary legislation will be adopted.

 

This morning, we had a serious political discussion about completing the Economic and Monetary Union. The European Central Bank President Mario Draghi also joined us and has stressed the need for progress. We have one clear message from our debate: there is no time for complacency in reforming the eurozone. We stand ready to take difficult decisions on banking union and economic governance in the coming year. Our ministers will work rapidly and report to us next June.

We congratulated President Hollande on the historic success of COP21 in Paris and assessed progress on building the Energy Union. We discussed the conditions that need to be met by major energy infrastructure projects. What we have agreed is that any new infrastructure should be fully in line with Energy Union objectives, such as reduction of energy dependency and diversification of suppliers, sources and routes. Not to mention the obvious obligation that all projects have to comply with all EU laws, including the third Energy Package. This is a clear condition for receiving support from the EU institutions or any Member State - be it political, legal or financial.

I cannot finish without a word of appreciation for Prime Minister Bettel and his team. Xavier, I think I can speak for all leaders when I say that the Luxembourg Presidency was outstanding with very hard work done on the migration crisis, Passanger Name Record and data protection. It was an extremely efficient presidency. Thank you, Xavier, and most sincere congratulations. 

On 18 December 2015, the Permanent Representatives Committee (Coreper) endorsed an informal deal struck with the European Parliament on the first rules to strengthen the security of network and information systems across the EU. 

The network and information security (NIS) directive will increase cooperation between member states and lay down security obligations for operators of essential services and digital service providers. Essential services operators are active in critical sectors such as energy, transport, health and finance. Digital services cover online marketplaces, search engines and cloud services. 

The requirements will be stronger for essential operators than for digital service providers. This reflects the degree of risk that any disruption to their services may pose to society and the economy. 

Each EU country will also be required to designate one or more national authorities and set out a strategy to deal with cyber threats. 

What next? 

Once the agreed text has undergone technical finalisation, it needs to be formally approved first by the Council and then by the Parliament. The procedure is expected to be concluded in spring 2016.  

After the directive has entered into force, member states will have 21 months to adopt the necessary national provisions. Following this period, they will have another 6 months to identify the essential services operators established in their territory which are to be covered by the directive.

On 18 December 2015, the Permanent Representatives Committee (Coreper) confirmed the compromise texts agreed with the European Parliament on data protection reform. The agreement was reached between the Council, Parliament and Commission on the 15 December. This agreement is in line with the request from the European Council for negotiations on data protection reform to be concluded by the end of 2015.

Félix BRAZ, Luxembourg Minister of Justice and President of the Council said: "It is a fundamental agreement with important consequences. This reform not only strengthens the rights of citizens, but also adapts the rules to the digital age for companies, whilst reducing the administrative burden. These are ambitious and forward-looking texts. We can have full confidence in the result."  

Data protection reform is a legislative package proposed by the Commission in 2012 to update and modernise the data protection rules.  It concerns two legislative instruments: the general data protection regulation (intended to replace directive 95/46/EC) and the data protection directive in the area of law enforcement (intended to replace the 2008 data protection framework decision). 

The protection of persons in relation to the processing of their personal data is a fundamental right laid down in the Charter of Fundamental Rights of the EU (Article 8) and in the Treaty on the Functioning of the European Union (Article 16).

General data protection regulation

The general data protection regulation aims at enhancing the level of data protection for individuals whose personal data is processed and increasing business opportunities in the digital single market including through reduced administrative burden. 

An enhanced level of data protection

The principles and rules on the processing of personal data of individuals must respect fundamental rights and freedoms, notably the right to protection of personal data. These strengthened data protection rights give data subjects (the individuals whose personal data is being processed) more control over their personal data: 

• more specific rules allowing data controllers (those responsible for the processing of data) to process personal data, including through the requirement for the consent of the individuals concerned.
• easier access to their personal data.
• better information about what happens to personal data once it is shared. This includes informing individuals about their privacy policy in clear and plain language, which can also be done via standardised icons.
• a right to erase personal data and "to be forgotten". This enables, for example, subjects to require the removal, without delay, of personal data collected or published on a social network when the individual was still a child.
• if a youngster of below 16 years wishes to use online services, the service provider has to try to verify that parental consent has been given. Member states may lower this age ceiling without going below 13 years.
• a right to portability, facilitating the transmission of personal data from one service provider, such as a social network, to another. This will not only increase data protection rights but also enhance competition among service providers.
• a right to object to the processing of personal data relating to the public interest or to legitimate interests of a controller. This right covers the use of personal date for the purposes of 'profiling'.
• common safeguards covering the processing of personal data for archiving purposes where that is in the public interest and for scientific and historical research or statistical purposes.

To ensure proximity of legal redress, data subjects have the right for a decision of their data protection authority to be reviewed by their national court, irrespective of the member state in which the data controller is established. 

Increased business opportunities in the digital single market

The regulation provides for a single set of rules, valid across the EU and applicable both to European and non European companies offering on-line services in the EU. This avoids a situation where conflicting national data protection rules might disrupt the cross-border exchange of data. It also provides for increased cooperation between member states to ensure coherent application of the data protection rules across the EU. This will create fair competition and will encourage companies, especially small and medium-sized enterprises, to get the most out of the digital single market. 

To reduce costs and provide legal certainty, in important cross-border cases where several national supervisory authorities are involved, a single supervisory decision is taken. This one-stop-shop mechanism allows a company which is active in several member states to deal only with the data protection authority in the member state of its main establishment. This mechanism also provides for a single decision applicable to the entire EU territory in case of disputes. 

With a view to reducing administrative costs, the regulation applies a risk-based approach: data controllers can implement measures according to the risk involved in the data processing operations they perform. Different businesses have different activities and the risks of such activities in terms of privacy can vary. The regulation  provides for no one-size-fits all solution: the stronger the risks of the activities for the personal data, the more stringent the obligations. 

More and better tools to enforce compliance with the data protection rules

The regulation provides a range of measures to increase the responsibility and accountability of data controllers in order to ensure full compliance with the new data protection rules. Data controllers must implement a number of security measures, including the requirement in certain cases to notify personal data breaches. To future-proof the regulation, the principles of data protection by design and by default are introduced. Public authorities and those companies that perform certain risky data processing must designate a data protection officer to ensure compliance with the rules. 

Data subjects, and in certain conditions, data protection organisations can lodge a complaint with a supervisory authority or seek judicial remedy in case the data protection rules are not complied with. Data controllers can face maximum fines of up to €20 million or 4% of their global annual turnover. 

Guarantees on the transfer of personal data outside the EU

The regulation lays down the rules for transferring personal data to third countries and international organisations. Transfers may take place provided that a number of conditions and safeguards are met, in particular where the Commission has decided that an adequate level of protection exists. New adequacy decisions will have to be reviewed at least every 4 years. Existing adequacy decisions and authorisations remain in force until amended, replaced or repealed.   

Data protection directive in the field of law enforcement

This directive is aimed at protecting personal data processed for prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. 

It is crucial to ensure a consistent and high level of protection of personal data of individuals while at the same time facilitating the exchange of personal data between law enforcement authorities in the different member states. 

Broader scope of application

In addition to covering activities aimed at preventing, investigating, detecting and prosecuting criminal offences the new directive has been extended to cover the safeguarding and prevention of threats to public security. 

The new directive would apply to both the cross-border processing of personal data as well as the processing of personal data by the police and judicial authorities at purely national level. The framework decision, which will be replaced, covered only cross-border exchange of data. 

Data subject's rights

The rules strike a balance between the right to privacy and the need for the police not to reveal that data is being processed at an early stage of an investigation. However, the text lists the information that the data subject is always entitled to receive in order to protect his or her right if they fear that an infringement of their data has taken place. 

The new rules will also cover the transfer of personal data to third countries and international organisations. 

Compliance

The new directive foresees that a data protection officer is appointed to help the competent authorities to ensure compliance with the data protection rules. 

Another tool to ensure compliance is impact assessment. Where a type of processing is likely to result in a high risk for the rights and freedoms of individuals the competent authorities must carry out an assessment of the potential impact of a certain processing, in particular when using new technology.   

Monitoring and compensation

The text of the directive is aligned with the text of the regulation in order to ensure that in broad terms the same general principles apply. In addition, the rules on the supervisory authority are to a large extent similar because the supervisory authority established in the general data protection regulation can also deal with matters falling under the directive. The new directive would also grant data subjects the right to receive compensation if they have suffered damage as a consequence of a processing that has not respected the rules.                        

NEXT STEPS

On 17 December, in an extra-ordinary meeting, the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) Committee endorsed the texts agreed in the trilogues. This support enabled Coreper today to confirm the final compromise texts on the regulation and the directive. After a legal-linguistic review of the texts, they will be submitted for adoption by the Council and, subsequently, by the Parliament. The regulation and the directive are likely to enter into force in spring 2018.

Good evening. Today, leaders discussed the handling of the migration crisis. All the elements of a strategy are there, but there is still a delivery deficit when it comes to hotspots, relocation, resettlement and returns. Above all, we are failing to protect our external borders. That is why leaders have decided to speed up on all these issues.

In my view, the most important discussion today was on the EU's external borders. Not only because I have been advocating external border control from the very beginning of this crisis, but also because without it we will fail as a political community. And by that I mean potentially more serious consequences than dismantling Schengen. Tonight, we can be a bit more optimistic, because all leaders have agreed to protect Schengen. In this context, we agreed to rapidly examine the European Commission's proposal of strengthening the EU's external borders, including the European Border Guard idea. Ministers should adopt their position by July, but the leaders' broad acceptance means that in the future Europe will not remain vulnerable because the Schengen border is insufficiently protected.

This evening I have also received good news from Frontex about an agreement with Greece on deploying a Rapid Border Intervention Team already in December. This is yet another indication that we have started to move in the right direction when it comes to the protection of the external border.

On the UK, we had a substantive and constructive discussion over dinner. I didn't want to sound too dramatic before the meeting but I do believe that tonight was a make-or-break moment. Prime Minister Cameron set out in detail his position, in particular regarding benefits and free movement. He explained his request for a model based on four years and reiterated the openness to alternative solutions only if they could achieve the same objective. Leaders voiced their concerns, but also demonstrated willingness to look for compromises. Building on this positive debate, we agreed to work together to find solutions in all four baskets raised by PM Cameron. Hard work on all baskets is still ahead of us. First, we will work closely with the UK and the Commission. And in the run-up to the February European Council, I will table a concrete text to all the leaders.

The European Council will reconvene tomorrow at 10 to discuss strengthening the Economic and Monetary Union and the Energy Union, as well as the fight against terrorism. Thank you

The European Union welcomes the signature of the Libya Political Agreement, and pledges support to the upcoming Government of National Accord. 

A historic step has been taken today towards restoring peace and stability for the Libyan people. The signature of the Libya Political Agreement by representatives of the members of the House of Representatives and General National Congress, Independents, Municipalities, political parties and civil society paves the way to a peaceful solution to a terrible crisis that has divided, impoverished, and inflicted so much suffering on the Libyan people, and which poses a growing threat not just to Libya itself but also its neighbours, including the EU. 

The EU pledges its support to the upcoming Government of National Accord, and will no longer have official contacts with individuals claiming to be part of institutions which are not validated by the Libya political agreement. 

The EU stands ready to offer immediate and substantial support in a number of different areas that will be prioritised together with the Libyan authorities: a 100 million euro aid package is already available including for the delivery of services the Libyan population urgently needs. 

The EU underlines the Libyan ownership of this process and the importance of continuing to keep it open and inclusive. The responsibility lies with the Libyans for the successful implementation of the agreement and the EU, and the international community stand ready to support them in this endeavour. The EU expresses its gratitude to UNSMIL and the UNSGSR Martin Kobler for the dedication and skill they have shown in bringing Libyan parties together for this important step.

As I have emphasized for many months, in fact from the very beginning of the migration crisis, there is no good alternative to border protection. And this is why I welcome with great satisfaction the European Commission's proposal of strengthening our external borders, because in fact border control is a conditio sine qua non of each and every migration policy. 

Border protection is and should be in the first place the domain of national states. This is why we have to analyse the most controversial idea of the European Border Guard entering the territory of sovereign states.

But Europe cannot remain vulnerable when Schengen states are not able to effectively protect their borders. If we reject the Commission's proposal, we will have to find another, but I'm afraid, an equally painful solution.

Also crucial is of course the UK issue. The consultations I have led with all Member States show good will of all the parties involved, but it doesn't change the fact that some parts of the British proposal seem unacceptable. However, if Prime Minister Cameron persuades leaders tonight that we can work together to find solutions regarding all four baskets, then we will have a real chance to strike a deal in February.

And finally, on EMU. Even if Europe is overwhelmed by the migration crisis today, we cannot afford to wait with the necessary reforms for better days. This summit should make clear whether Member States are ready to take difficult decisions on the Banking Union and economic governance.

In order to tackle the unprecedented flows of refugees in 2015, the EU has set out a comprehensive strategy and is fully engaged in solving the most pressing issues. On the basis of the strategic orientations set out by the European Council and by the Council, the Presidency has assigned itself four priorities:

(a)    Providing assistance to those in need: humanitarian situation, civil protection, etc.
(b)   Stemming the migration flows: cooperating with third countries, prevent/deter, actions against smugglers, targeted communication, etc.
(c)    Strengthening the capacity at entry: hotspots, entry points, registration, security, border cooperation, etc.
(d)   Managing the flows within internal borders: processing including screening, security checks, reception, asylum, relocation, return, etc.

The Presidency has held numerous meetings and consultations, conducted field visits and activated the Integrated Political Crisis Response (IPCR) for the first time ever (cf. annex). Member States, the Commission, the EEAS and relevant EU agencies have been fully mobilised to support the Council in taking decisions on actions to meet the needs of arriving refugees and migrants, including the 1.2 million asylum seekers that have arrived since January 2015 (+ 90% than in 2014) in the EU. Implementation has been advancing rapidly in some areas, but significant gaps still remain.

Dear President Poroshenko, Dear President Juncker. Dear Petro and Jean-Claude,

One year ago when I hosted my first European Council, EU leaders pledged to stay the course on Ukraine. And we have done so, working to help stabilise the situation and making sure that Ukraine's own efforts are transforming the country in a positive direction.

Our policy of non-recognition of the illegal annexation of Crimea and Sevastopol is in force. And our economic sanctions against Russia will remain linked to the complete fulfilment of the Minsk Agreements.

Beyond the crisis, the European Union has been supporting Ukraine in its ambitious, and absolutely crucial, agenda of political and economic reforms. Reforms have started to bring results, but still we continue to expect a lot from the Ukrainian authorities in the months to come.

We are lending economic and technical support and have engaged, through the efforts of Jean-Claude and the Commission, on securing Ukraine's energy supplies. We are making sure that the Deep and Comprehensive Free Trade Agreement will enter into force as smoothly as possible from the 1st of January next year. This will lead to the gradual economic integration of Ukraine in the EU internal market.

Finally, Ukraine has made good progress over past months with regard to visa liberalisation, which should allow us to advance towards a visa-free regime as soon as possible. I hope we can find an agreement on the outstanding issues this evening.

To sum up. Europe will stay the course. Ukraine must stay the course of reforms. And Russia must change its course.  

VI. United Kingdom

20. The European Council had a political exchange of views on the UK plans for an (in/out) referendum. Following today's substantive and constructive debate, the members of the European Council agreed to work closely together to find mutually satisfactory solutions in all the four areas at the European Council meeting on 18-19 February 2016.

Full text of the European Council conclusions available here:

 

I. Migration

1. Over the past months, the European Council has developed a strategy aimed at stemming the unprecedented migratory flows Europe is facing. However, implementation is insufficient and has to be speeded up. For the integrity of Schengen to be safeguarded it is indispensable to regain control over the external borders. Deficiencies, notably as regards hotspots, relocation and returns, must be rapidly addressed. The EU institutions and the Member States must urgently: 

a) address the shortcomings at the Schengen external borders, notably by ensuring systematic security checks with relevant databases, and prevent document fraud;

b) address deficiencies in the functioning of hotspots, including by establishing the necessary reception capacity to achieve their objectives; rapidly agree a precise calendar for further hotspots to become operational; ensure that Frontex and EASO have the necessary expertise and equipment; 

c) ensure systematic and complete identification, registration and fingerprinting, and take measures to tackle refusal of registration and stem irregular secondary flows;

d) implement relocation decisions as well as consider including among the beneficiaries of existing decisions other Member States under high pressure who have requested this;

e) take concrete measures to ensure the actual return and readmission of people not authorised to stay and provide support to Member States as regards return operations;

f) enhance measures for fighting smuggling and trafficking of human beings;

g) ensure implementation and operational follow up to:

• the High Level Conference on the Eastern Mediterranean - Western Balkans route; in this context, it is important to help non EU Member States along the Western Balkans route to accomplish registration according to EU standards; 
• the Valletta Summit, particularly as regards returns and readmission, and
• the EU-Turkey Statement of 29 November 2015 and the EU-Turkey Action Plan; in this context COREPER is asked to rapidly conclude its work on how to mobilise the 3 billion euro for the Turkey Refugee Facility;

h) continue implementing the agreed resettlement scheme;

i) continue to closely monitor flows along migration routes so as to be able to rapidly react to developments.

2. The Council should continue work on the crisis relocation mechanism taking into account experience gained, and rapidly decide on its position on the list of safe countries of origin. The Council is invited to rapidly examine the situation concerning Afghanistan. The Council should rapidly examine the Commission proposals of 15 December on a "European Border and Coast Guard", the Schengen Borders Code, "A voluntary humanitarian admission scheme", and travel documents for returns. The Council should adopt its position on the "European Border and Coast Guard" under the Netherlands Presidency. The Commission will rapidly present the review of the Dublin system; in the meantime, existing rules must be implemented. It will also soon present a revised proposal on Smart Borders.

3. The Presidency, the Commission and the High Representative will report back on progress before the February meeting of the European Council.

On 16 December 2015, under the Luxembourg Presidency and subject to the European Parliament and Council formal vote, the Special Committee on Agriculture (SCA) approved a final compromise on a proposal for regulation on school milk, fruit and vegetables scheme.

The Council and the European Parliament representatives identified the overall compromise during a trilogue meeting held on 10 December. On the same occasion the SCA approved a Council Regulation on the same subject, which completes the school scheme, notably as regards the fixing of the EU aid.

Promotion of certain foods for public health

School schemes were originally established in order to promote the consumption of fruit and vegetable and milk products, beneficial in the public health context and are suitable for the distribution to school children. In addition, those sectors are also important for the EU agriculture. Under these schemes EU aid is allocated to member states for the supply of those products in educational establishments. 

The school fruit and vegetables scheme and the school milk scheme are currently separate programmes. In January 2014, the Commission made a proposal merging the schemes and amending the new single Common Market Organisation (single CMO) regulation under the reformed Common Agricultural Policy (CAP) (5958/14) and the regulation fixing certain aids and refunds (6054/14). The new scheme will have an overall yearly budget of €250 millions (milk products: €100 millions; fruit and vegetables: €150 millions).

The next steps

The European Parliament is expected to vote the compromise text at a meeting of its Committee on Agriculture and Rural Development in late January.

The Chairman of the SCA, for the Presidency, will send a letter to the Chairman of the European Parliament's Committee on Agriculture and Rural Development. This letter indicates that if the Parliament votes at its plenary session the compromise texts as approved by the SCA, after legal-linguistic revision, the Council will be able to reach agreement with the European Parliament on school milk, fruit and vegetables schemes in first reading. This should enable the entry into force of the new scheme in Spring 2016 and its application from August 2017.

On 16 December 2015, the Permanent Representatives Committee (Coreper) approved a compromise text agreed with the European Parliament on a directive on procedural safeguards for children in criminal proceedings. 

The purpose of the directive is to provide procedural safeguards for children (meaning persons below 18) who are suspected or accused of having committed a criminal offence. The directive will provide additional safeguards to those that already apply to suspects and accused adults.

Félix Braz, Luxembourg Minister for Justice and President of the Council said: "The agreement reached with the European Parliament is an important step forward for the European judicial area. This is the first binding instrument in this area and is a real breakthrough, particularly as regards the assistance of children by a lawyer. The new directive will contribute to enhancing mutual trust between the judicial systems of the Union." 

A core provision of the directive relates to the assistance by a lawyer. Member states should make sure that the child is assisted by a lawyer, where necessary by providing legal aid.  Other important provisions of the directive concern the provision of information on rights, the right to have an individual assessment, the right to a medical examination, and the right to audio-visual recording of questioning. It also provides special safeguards for children during deprivation of liberty, in particular during detention.

Next steps

The text of the directive will now be revised by legal-linguists, and will subsequently be submitted to the plenary of the European Parliament and to the Council for adoption.

Background

Since 2009, the work in the European Union on strengthening procedural rights for suspects and accused persons in criminal proceedings has been carried out on the basis of the roadmap, which was adopted by the Council on 30 November 2009. The roadmap sets out a gradual approach towards establishing a full catalogue of procedural rights for suspects and accused persons in criminal proceedings. The European Council has made the roadmap part of the Stockholm programme, in which explicit reference was made to a measure on the presumption of innocence. 

Three directives have already been adopted on the basis of the roadmap: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.  Recently, another directive has been agreed, on the presumption of innocence.

Place:        Justus Lipsius building, Brussels
Chairs:      François Bausch, Luxembourg's Minister for Sustainable Development and Infrastructure
                   Xavier Bettel, Luxembourg's Prime Minister and Minister for Communications and the Media

All times are approximate and subject to change 

Thursday 10 December - Transport

 +/- 09.35
Doorstep by Minister Bausch

+/- 10.00
Beginning of Council meeting (Roundtable)
Adoption of the agenda
Adoption of legislative A items (public session)
Adoption of non-legislative legislative A items

Social aspects in road transport (poss. public session)

+/- 11.55
Any other business
a)     Presentation of the state of the Energy Union (poss. public session)
b)     An Aviation Strategy for Europe (poss. public session)
c)     Outcome of the investigation into the crash of flight MH17
d)     Election of the Council (2016-19) of the International Civil Aviation Organisation (ICAO)
e)     State of ratification of the Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Railway Rolling Stock (poss. public session)
f)      Transport security (poss. public session)
g)     Work programme of the incoming presidency (poss. public session)

+/- 14.30
Press conference (live streaming)

Friday 11 December - Telecommunications

 +/- 08.55
Doorstep by Prime Minister Bettel

+/- 10.00
Beginning of Council meeting (Roundtable)

Accessibility of public sector bodies' websites (public session)

Measures to ensure a high common level of network and information security across the Union (public session)

EU regulatory framework for electronic communications networks and services (poss. public session)

Any other business
a)     Internet governance
b)     Transatlantic Trade and Investment Partnership Agreement (TTIP):  negotiations on the information society and telecommunications component
c)     Work programme of the incoming presidency

+/- 13.00
Press conference (live streaming)

On 9 December 2015, the Permanent Representatives Committee approved, on behalf of the Council, a compromise agreed with the European Parliament on new rules aimed at ensuring greater accuracy and integrity of benchmarks in financial instruments.

"The adoption of this regulation will help restore trust in the integrity of benchmarks and enhance their robustness and reliability, thereby strengthening confidence in the financial markets and preventing new manipulation scandals," said Pierre Gramegna, minister for finance of Luxembourg and president of the Council.

The agreement with the Parliament was reached during a trilogue meeting in Strasbourg on 24 November 2014. Council and Parliament representatives have held seven trilogue meetings since agreeing their respective negotiating positions in February and May 2014.

Benchmark manipulation

Recent cases of manipulation of interest rate benchmarks such as Libor and Euribor have highlighted the importance of benchmarks and their vulnerabilities. The pricing of many financial instruments and financial contracts depends on the accuracy of benchmarks. Doubts about the integrity of indices used as benchmarks can undermine market confidence, cause losses to consumers and investors and distort the real economy. 

Objectives

Benchmarks are susceptible to manipulation where conflicts of interest and discretion exist and where these are not properly supervised. The regulation has the following objectives:

• Improving governance and controls over the benchmark process, in particular to ensure that administrators avoid conflicts of interest, or at least manage them adequately;
• Improving the quality of input data and methodologies used by benchmark administrators;
• Ensuring that contributors to benchmarks and the data they provide are subject to adequate controls, in particular to avoid conflicts of interest;
• Protecting consumers and investors through greater transparency and adequate rights of redress.

The regulation

The regulation will introduce a legally-binding code of conduct for contributors (of data) requiring the use of robust methodologies and sufficient and reliable data. In particular, it calls for the use of actual transaction input data where possible. But other data may be used if the transaction data is insufficient.

The scope of the regulation is broad, although benchmarks deemed to be critical will be subject to stricter rules, including the power for the relevant competent authority to mandate contributions of input data. The regulation will not apply to the provision of benchmarks by central banks, and, in certain circumstances, by central counterparties and public authorities. 

Administrators of benchmarks will have to apply for authorisation and will be subject to supervision by the competent authority of the country in which they are located.  If an administrator does not comply with the provisions of the regulation, the competent authority may withdraw or suspend its authorisation. Administrators will be required to have in place appropriate governance arrangements and controls to avoid conflicts of interest.

The European Securities and Markets Authority (ESMA) will coordinate the  supervision of benchmark administrators by national competent authorities. For critical benchmarks, a college of national supervisors including ESMA will be set up and take key decisions. 

Three categories of benchmarks

Benchmarks will be subject to requirements appropriate to their size and nature, while at the same time respecting a core set of minimum requirements in line with the internationally agreed principles of the International Organization of Securities Commissions (IOSCO).

Critical benchmarks: Those used as a reference for financial instruments or financial contracts or for the determination of the performance of investment funds having a total value of at least €500bn on the basis of all the range of maturities of the benchmark; or benchmarks based on submissions by contributors mainly located in one member state and recognized as being critical in that member state. Benchmarks of at least €400bn can also be considered critical if they have no or very few appropriate market-led substitutes, and  if their absence would have significant and adverse impacts on markets integrity, financial stability, consumers, the real economy, or the financing of households and corporations.

Significant benchmarks used as a reference for financial instruments or financial contracts or for the determination of the performance of investments funds having a total average value of at least €50bn on the basis of all the range of maturities or tenors of the benchmark over a period of six months. Benchmarks below this threshold can be upgraded if they have a significant impact on the markets, with no or few market-led substitutes.

Non-significant benchmarks are subject to a light regulatory regime based a comply-or-explain mechanism, i.e. general principles in line with the internationally agreed IOSCO principles.

Separate regimes

However, specific regimes will apply to commodity, interest rate and regulated data benchmarks:

• Commodity benchmarks of more than €100m are subject to the principles for oil price reporting agencies (PRA) issued by the IOSCO on 5 October 2012. These principles serve as a global standard for regulatory requirements for benchmarks. They were endorsed by the G20 in 2012 and cover governance structures, controls, integrity, and conflict management.
• Interest rate benchmarks, which are more prone to conflicts of interest and data manipulation, are subject to additional requirements relating to input data and contributors as these benchmarks.
• Regulated data benchmarks are exempt from some requirements as the nature of the data that is used in the determination of such benchmarks is less subject to manipulation and conflicts of interest.

Third country regime

Benchmarks provided by non-EU countries will be used by supervised entities in the EU through “recognition” or “endorsement” regimes, based on compliance with the IOSCO principles.

Moreover, a partial equivalence regime will facilitate equivalence with regard to third countries which do not intend in the foreseeable future to put in place a fully-fledged regime for all types of benchmarks, but which have put or may put in place specific rules for certain types of benchmarks or benchmark administrators, such as certain interest rate benchmarks.

Adopting the regulation

The regulation will now be submitted to the European Parliament for a vote at first reading, and to the Council for final adoption.

On 8 December 2015, the European Union and San Marino signed an agreement aimed at improving tax compliance by private savers. 

The agreement will contribute to efforts to clamp down on tax evasion, by requiring the EU member states and San Marino to exchange information automatically. 

This will allow their tax administrations improved cross-border access to information on the financial accounts of each other's residents. 

Upgrade

The agreement upgrades a 2004 agreement that ensured that San Marino applied measures equivalent to those in an EU directive on the taxation of savings income. The aim is to extend the automatic exchange of information on financial accounts in order to prevent taxpayers from hiding capital representing income or assets for which tax has not been paid.

"The sharing of information between national tax authorities remains one of the fundamental elements of an effective fight against tax fraud and tax evasion. The EU is undoubtedly a leader in this field."

Pierre Gramegna, Minister for Finance of Luxembourg

The text was signed in Brussels: 

• on behalf of the EU, by Pierre Gramegna, minister for finance of Luxembourg and president of the Council;
• on behalf of San Marino, by Antonella Benedettini, ambassador, head of mission.

The signature took place in the presence of Pierre Moscovici, commissioner for economic and financial affairs, taxation and customs, who also signed the document. 

Decision 

The Council adopted a decision on 8 December 2015 to authorise the signature on behalf of the EU.

"The sharing of information between national tax authorities remains one of the fundamental elements of an effective fight against tax fraud and tax evasion", Mr Gramegna said. "The EU is undoubtedly a leader in this field."

The EU and the OECD 

The agreement ensures that San Marino applies strengthened measures that are equivalent to measures in force in the EU. However, whereas the 2004 agreement was based on the EU's taxation savings directive, that directive has now been repealed. Directive 2003/48/EC was repealed on 10 November 2015 in order to eliminate an overlap with directive 2014/107/EU, which includes strengthened provisions to prevent tax evasion. 

The agreement also complies with the automatic exchange of financial account information promoted by a 2014 OECD global standard. 

The EU signed similar agreements with Switzerland, on 27 May 2015, and with Liechtenstein on 28 October 2015. It approved the conclusion of those agreements on 8 December 2015. 

Coverage 

It sets out to limit the opportunities for taxpayers to avoid being reported to the tax authorities by shifting assets. Information to be exchanged concerns not only income such as interest and dividends, but also account balances and proceeds from the sale of financial assets.

Tax administrations in the member states and in San Marino will be able to:

• identify correctly and unequivocally the taxpayers concerned;
• administer and enforce their tax laws in cross-border situations;
• assess the likelihood of tax evasion being perpetrated;
• avoid unnecessary further investigations.

The EU and San Marino must now ratify or approve the agreement in time to enable its entry into force. Provisional application is scheduled for 1 January 2016.

The Council:  

1. NOTES that effective corporate taxation can be undermined by base erosion and profit shifting;
2. STRESSES that unfair tax competition between Member States as well as between the latter and third countries could affect the functioning of the Single Market, whilst acknowledging the importance of taxation for competitiveness;
3. RECALLS and CONFIRMS the European Council conclusions of 18 December 2014 stating the urgent need to advance efforts in the fight against tax avoidance and aggressive tax planning, both at the global and EU levels;
4. RECALLS the European Council Conclusions of 13 and 14 March 2013 on the need for close cooperation with the OECD and the G20 to develop internationally agreed standards for the prevention of BEPS and in particular its call for the European Union to coordinate its positions;
5. HIGHLIGHTS the recent political agreement reached by the Council on automatic exchange of information of tax rulings and the pioneer role of the European Union in this field in fully implementing OECD BEPS conclusions on Action 5 (harmful tax practices);
6. WELCOMES the conclusions of the OECD Base Erosion and Profit Shifting (BEPS) Action Plan, as recently endorsed by G20 Finance Ministers in Lima, Peru, on 8 October 2015 and G20 Heads of State in Antalya, Turkey, on 15-16 November 2015;
   
   Implementation of OECD BEPS conclusions
   
   
7. NOTES that G20 Finance Ministers renewed on 8 October 2015 a commitment for swift, global and efficient implementation of BEPS conclusions and asked the OECD to prepare an inclusive monitoring framework by early-2016;
8. INDICATES that several legislative proposals linked to the BEPS agenda are currently under discussion in the Council, notably the proposal for a Common Consolidated Corporate Tax Base (CCCTB) and the recast of the Interest and Royalties Directive (IRD);
9. UNDERLINES furthermore that the Code of Conduct Group on business taxation established in 1998 continues to perform important non-legislative work in combating BEPS phenomena both inside the European Union and towards third countries;
10. STRESSES therefore the need to find common, yet flexible, solutions at the EU level consistent with OECD BEPS conclusions, paying specific attention to compliance with EU Treaty freedoms and competences and SUPPORTS an effective, swift and coordinated implementation by Member States of the anti-BEPS measures to be adopted at EU level;
11. OBSERVES that OECD BEPS conclusions often propose different options for implementing certain of its recommendations and that a common approach at EU level in favour of certain options would bring value with a view to ensure the proper functioning of the Single Market;
12. CONSIDERS that EU directives should be, where appropriate, the preferred vehicle for implementing OECD BEPS conclusions in the EU in order to ensure both legal certainty and proportionality in the level of harmonisation required by the Single Market;
13. AGREES in this respect that where the implementation of an OECD BEPS conclusion is foreseen through EU legislation this process is given priority over possible parallel soft-law discussions;
14. UNDERLINES at the same time the role that can be played by the Code of Conduct Group in providing guidance to Member States for implementing certain other OECD BEPS conclusions;
15. INVITES the Council's High Level Working Party on Tax Questions (HLWP) to closely monitor the implementation of the anti-BEPS actions at EU level and, more generally, to play a central role in overseeing work in this field, as it has done so far, including through 6-monthly Presidency BEPS roadmaps when presented;
    
    Implementation of BEPS conclusions through EU legislation
    
    
16. TAKES NOTE of the Commission's expert group final report on the taxation of the digital economy (May 2014) and of the subsequent OECD BEPS conclusions on Action 1, as well as of the Commission's intention to revise in 2016 value added tax (VAT) rules in the context of its 'Digital Agenda for Europe' initiative;
17. RECALLS that OECD BEPS conclusions on Actions 2 (hybrid mismatches), 3 (Controlled Foreign Company rules), 4 (interest limitation rules), 6 (general anti-abuse rule), 7 (permanent establishment status) and 13 (country by country reporting) might be implemented, following further technical analysis, through legislative proposals focusing on international anti-BEPS aspects, without precluding the application by Member States of domestic or agreement-based provisions aimed at preventing BEPS;
18. INVITES therefore the Commission to come forward with a proposal on these international aspects which takes fully into account the work done on these issues in the frame of the on-going legislative files, notably CCCTB;
19. NOTES that the insertion of a common anti-abuse clause is envisaged in the context of the recast of the Interest and Royalties Directive, following the insertion of a similar clause in the Parent-Subsidiary Directive, on the basis notably of OECD BEPS conclusions on Action 6;
20. ACKNOWLEDGES the need for further discussion on the concept of minimum effective taxation, in particular within the recast of the Interest and Royalties Directive;
21. INVITES the Commission to reflect on possibilities to improve the availability of corporate taxation data and statistics at the EU level on the basis of OECD BEPS conclusions on Action 11;
    
    A complementary 'soft law' approach
    
    
22. NOTES that OECD BEPS conclusions on OECD Action 2 (neutralising the effects of hybrid mismatch arrangements) are being taken into account for ongoing works of the subgroup on hybrid mismatches of the Code of Conduct Group and  INVITES the Code of Conduct Group and the Subgroup to discuss the forms of hybrid mismatches which are not addressed  through EU legislation;
23. RECALLS its previous endorsement of the modified nexus approach (doc. 16846/14) and INVITES the Code of Conduct Group to follow this approach, as outlined in OECD BEPS conclusions on Action 5 (harmful tax practices), for monitoring the legislative processes necessary for Member States to change their existing 'patent box' regimes;
24. INVITES the Code of Conduct Group to assess the opportunity, in the light of the fourth criterion, of developing EU guidance for implementing OECD BEPS conclusions on Actions 8-9-10 (aligning transfer pricing outcomes with value creation) and on Action 13 (Guidance on transfer pricing Documentation), with the support of the Commission and its advisory bodies, notably the EU Joint Transfer Pricing Forum;
25. INVITES equally the Code of Conduct Group to assess the opportunity of developing EU guidance for implementing OECD BEPS conclusions on Action 12 (disclosure of aggressive tax planning), notably with a view to facilitate exchange of such information between tax authorities;
    
    Other implementation issues
    
    
26. NOTES that certain OECD BEPS conclusions concern bilateral double taxation agreements entered into by Member States and CONSIDERS that some form of exchange of views through the HLWP would in this respect be useful;
27. STRESSES the need for a swift and efficient implementation of OECD BEPS conclusions also at global level and LOOKS FORWARD to the multilateral instrument to modify tax treaties envisaged under OECD BEPS conclusions on Action 15 expected by the end of 2016;
28. UNDERLINES the importance of involving a maximum number of countries, including developing countries, in order to ensure a level playing field in the area of BEPS. 

European Council meeting will take place on 17-18 December 2015 in Justus Lipsius building in Brussels. 

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