LegalizeCommission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (Codified version) (Text with EEA relevance)
Article 1
The Member States shall ensure that financial relations between public authorities and public undertakings are transparent as provided in this Directive, so that the following emerge clearly:
- (a) public funds made available directly by public authorities to the public undertakings concerned;
- (b) public funds made available by public authorities through the intermediary of public undertakings or financial institutions;
- (c) the use to which these public funds are actually put.
Without prejudice to specific provisions laid down by the Community the Member States shall ensure that the financial and organisational structure of any undertaking required to maintain separate accounts is correctly reflected in the separate accounts, so that the following emerge clearly:
- (a) the costs and revenues associated with different activities;
- (b) full details of the methods by which costs and revenues are assigned or allocated to different activities.
Article 2
For the purpose of this Directive:
- (a) ‘public authorities’ means all public authorities, including the State and regional, local and all other territorial authorities;
- (b) ‘public undertakings’ means any undertaking over which the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it. A dominant influence on the part of the public authorities shall be presumed when these authorities, directly or indirectly in relation to an undertaking:
- (i) hold the major part of the undertaking’s subscribed capital; or
- (ii) control the majority of the votes attaching to shares issued by the undertakings; or
- (iii) can appoint more than half of the members of the undertaking's administrative, managerial or supervisory body;
- (d) ‘undertaking required to maintain separate accounts’ means any undertaking that enjoys a special or exclusive right granted by a Member State pursuant to Article 86(1) of the Treaty or is entrusted with the operation of a service of general economic interest pursuant to Article 86(2) of the Treaty, that receives public service compensation in any form whatsoever in relation to such service and that carries on other activities;
- (e) ‘different activities’ means, on the one hand, all products or services in respect of which a special or exclusive right is granted to an undertaking or all services of general economic interest with which an undertaking is entrusted and, on the other hand, each other separate product or service in respect of which the undertaking is active;
- (f) ‘exclusive rights’ means rights that are granted by a Member State to one undertaking through any legislative, regulatory or administrative instrument, reserving it the right to provide a service or undertake an activity within a given geographical area;
- (g) ‘special rights’ means rights that are granted by a Member State to a limited number of undertakings, through any legislative, regulatory or administrative instrument, which, within a given geographical area:
- (i) limits to two or more the number of such undertakings, authorised to provide a service or undertake an activity, otherwise than according to objective, proportional and non-discriminatory criteria; or
- (ii) designates, otherwise than according to such criteria, several competing undertakings, as being authorised to provide a service or undertake an activity; or
- (iii) confers on any undertaking or undertakings, otherwise than according to such criteria, any legal or regulatory advantages which substantially affect the ability of any other undertaking to provide the same service or to operate the same activity in the same geographical area under substantially equivalent conditions.
Article 3
The transparency referred to in Article 1(1) shall apply in particular to the following aspects of financial relations between public authorities and public undertakings:
- (a) the setting-off of operating losses;
- (b) the provision of capital;
- (c) non-refundable grants, or loans on privileged terms;
- (d) the granting of financial advantages by forgoing profits or the recovery of sums due;
- (e) the forgoing of a normal return on public funds used;
- (f) compensation for financial burdens imposed by the public authorities.
Article 4
To ensure the transparency referred to in Article 1(2), the Member States shall take the measures necessary to ensure that for any undertaking required to maintain separate accounts:
- (a) the internal accounts corresponding to different activities are separate;
- (b) all costs and revenues are correctly assigned or allocated on the basis of consistently applied and objectively justifiable cost accounting principles;
- (c) the cost accounting principles according to which separate accounts are maintained are clearly established.
Paragraph 1 shall only apply to activities which are not covered by specific provisions laid down by the Community and shall not affect any obligations of Member States or undertakings arising from the Treaty or from such specific provisions.
Article 5
As far as the transparency referred to in Article 1(1) is concerned, this Directive shall not apply to financial relations between the public authorities and:
- (a) public undertakings, as regards services the supply of which is not liable to affect trade between Member States to an appreciable extent;
- (b) central banks;
- (c) public credit institutions, as regards deposits of public funds placed with them by public authorities on normal commercial terms;
- (d) public undertakings whose total annual net turnover over the period of the two financial years preceding that in which the funds referred to in Article 1(1) are made available or used has been less than EUR 40 million. However, for public credit institutions the corresponding threshold shall be a balance sheet total of EUR 800 million.
As far as the transparency referred to in Article 1(2) is concerned, this Directive shall not apply:
- (a) to undertakings, as regards services the supply of which is not liable to affect trade between Member States to an appreciable extent;
- (b) to undertakings whose total annual net turnover over the period of the two financial years preceding any given year in which it enjoys a special or exclusive right granted by a Member State pursuant to Article 86(1) of the Treaty, or in which it is entrusted with the operation of a service of general economic interest pursuant to Article 86(2) of the Treaty is less than EUR 40 million; however, for public credit institutions the corresponding threshold shall be a balance sheet total of EUR 800 million;
- (c) to undertakings which have been entrusted with the operation of services of general economic interest pursuant to Article 86(2) of the Treaty if the compensation they receive, in any form whatsoever, was fixed for an appropriate period following an open, transparent and non-discriminating procedure.
Article 6
Member States shall ensure that information concerning the financial relations referred to in Article 1(1) be kept at the disposal of the Commission for five years from the end of the financial year in which the public funds were made available to the public undertakings concerned. However, where the same funds are used during a later financial year, the five-year time limit shall run from the end of that financial year.
Member States shall ensure that information concerning the financial and organisational structure of undertakings referred to in Article 1(2) be kept at the disposal of the Commission for five years from the end of the financial year to which the information refers.
Member States shall, where the Commission considers it necessary so to request, supply to it the information referred to in paragraphs 1 and 2, together with any necessary background information, notably the objectives pursued.
Article 7
The Commission shall not disclose such information supplied to it pursuant to Article 6(3) as is of a kind covered by the obligation of professional secrecy.
The first paragraph shall not prevent publication of general information or surveys which do not contain information relating to particular public undertakings to which this Directive applies.
Article 10
Directive 80/723/EEC, as amended by the Directives listed in Annex I, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 11
This Directive shall enter into force on 20 December 2006.
Article 12
This Directive is addressed to the Member States.
ANNEX I
PART A
REPEALED DIRECTIVE WITH ITS SUCCESSIVE AMENDMENTS
(referred to in Article 10)
| Commission Directive 80/723/EEC | (OJ L 195, 29.7.1980, p. 35) |
| Commission Directive 85/413/EEC | (OJ L 229, 28.8.1985, p. 20) |
| Commission Directive 93/84/EEC | (OJ L 254, 12.10.1993, p. 16) |
| Commission Directive 2000/52/EC | (OJ L 193, 29.7.2000, p. 75) |
| Commission Directive 2005/81/EC | (OJ L 312, 29.11.2005, p. 47) |
PART B
LIST OF TIME LIMITS FOR TRANSPOSITION INTO NATIONAL LAW
(referred to in Article 10)
| Directive | Time limit for transposition |
|---|---|
| 80/723/EEC | 31 December 1981 |
| 85/413/EEC | 1 January 1986 |
| 93/84/EEC | 1 November 1993 |
| 2000/52/EC | 31 July 2001 |
| 2005/81/EC | 19 December 2006 |
ANNEX II
CORRELATION TABLE
| Directive 80/723/EEC | This Directive |
|---|---|
| Article 1 | Article 1 |
| Article 2(1), introductory sentence | Article 2, introductory sentence |
| Article 2(1), point (a) | Article 2, point (a) |
| Article 2(1), point (b) | Article 2, point (b), first subparagraph |
| Article 2(1), points (c) to (f) | Article 2, points (c) to (f) |
| Article 2(1), point (g), introductory words | Article 2, point (g), introductory words |
| Article 2(1), point (g), first indent | Article 2, point (g)(i) |
| Article 2(1), point (g), second indent | Article 2, point (g)(ii) |
| Article 2(1), point (g), third indent | Article 2, point (g)(iii) |
| Article 2(2), introductory sentence | Article 2, point (b), second subparagraph, introductory sentence |
| Article 2(2), point (a) | Article 2, point (b), second subparagraph, point (i) |
| Article 2(2), point (b) | Article 2, point (b), second subparagraph, point (ii) |
| Article 2(2), point (c) | Article 2, point (b), second subparagraph, point (iii) |
| Article 3 | Article 3 |
| Article 3a | Article 4 |
| Article 4 | Article 5 |
| Article 5 | Article 6 |
| Article 5a(1) | Article 8(1) |
| Article 5a(2), first subparagraph, introductory sentence | Article 8(2), first subparagraph |
| Article 5a(2), first subparagraph, point (i) | Article 8(2), first subparagraph |
| Article 5a(2), second subparagraph, introductory sentence | Article 8(3), first subparagraph, introductory sentence |
| Article 5a(2), second subparagraph, point (ii) | Article 8(3), first subparagraph, point (a) |
| Article 5a(2), second subparagraph, point (iii) | Article 8(3), first subparagraph, point (b) |
| Article 5a(2), second subparagraph, point (iv) | Article 8(3), first subparagraph, point (c) |
| Article 5a(2), second subparagraph, point (v) | Article 8(3), first subparagraph, point (d) |
| Article 5a(2), second subparagraph, point (vi) | Article 8(3), first subparagraph, point (e) |
| Article 5a(2), second subparagraph, point (vii) | Article 8(3), first subparagraph, point (f) |
| Article 5a(3), first subparagraph | Article 8(4), first subparagraph |
| Article 5a(3), second subparagraph, first sentence | Article 8(4), second subparagraph |
| Article 5a(3), second subparagraph, second sentence | Article 8(3), second subparagraph, first sentence |
| Article 5a(3), second subparagraph, third sentence | Article 8(3), second subparagraph, second sentence |
| Article 5a(3), second subparagraph, last sentence | Article 8(2), second subparagraph |
| Article 5a(3), third subparagraph | Article 8(4), third subparagraph |
| Article 5a(4), first subparagraph | Article 8(5), first subparagraph |
| Article 5a(4), second subparagraph | Article 8(5), second subparagraph |
| Article 5a(4), third subparagraph | Article 8(6) |
| Article 5a(5) | — |
| Article 5a(6) | Article 8(7) |
| Article 6(1) | Article 7, first paragraph |
| Article 6(2) | Article 7, second paragraph |
| Article 7 | Article 9 |
| Article 8 | — |
| — | Article 10 |
| — | Article 11 |
| Article 9 | Article 12 |
| — | Annex I |
| — | Annex II |
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